Suksesvolle beroep op verjaring en tóg deliktuele-of verrykingsaanspreeklikheid?

The primary function of legal norms and the adherence to these is to enhance a peaceful and orderly community notwithstanding the potential conficting interests of the component subjects. Only if the necessary degree of certainty prevails that legal norms will be adhered to, can the primary goal of a peaceful and orderly community be attained. Legal certainty presupposes that in the application of legal norms objectivity will prevail and in application to a set of circumstances of legal norms that are per definition the extract of objective norms, the conduct of the subjects involved cannot simultaneously be classified as legitimate and illegitimate or lawful and unlawful. Simultaneously blowing hot and cold is at most the prerogative of the masters from the underworld, not of the benchers in the courts of law supposed to be held in high esteem for not nurturing ambivalent notions. The principles of prescription serve to enhance legal certainty - irrespective of whether they concern extinctive or acquisitive prescription. In the latter instance the party who successfully relied on acquisitive prescription is as from the moment that all the requirements for prescription had been met, the rightful holder of all the entitlements regarding the object of the acquisition, be it as owner or as holder of the right of servitude. It would not enhance legal certainty if, notwithstanding his status as new owner of the property and as such entitled to the rei vindicatio as classical remedy of an owner thanks to his compliance with all the requirements for this original mode of acquisition, he must still face the possibility of being the subject of a restitution order or held responsible for paying damages to the plaintiff as erstwhile owner who lost his right of ownership. If the defendant in the instigated delictual claim acquired it after openly possessing it for 30 years as if he were the owner (s 1 of Act 68 of 1969), this should be cadit quaestio. This consequences of the application of the prescription norms of objective law cannot be subject to some other vague and uncertain principles of reasonableness, equity or ubuntu. The same unease is experienced when disciples of the mentioned vague notions of equity submit that instead of instituting a delictual claim the cuckolded erstwhile owner should succeed if he founds his claim on unjustified enrichment. The "transfer" of the patrimonial asset from the estate of the erstwhile owner to that of the acquirer by this original mode of acquisition was not sine causa, but in reality the consequence of the well-founded legal norms known as prescription. The consequences of the application of norms of objective law cannot simultaneously be deemed sine causa. In this contribution this submission is underpinned with various examples from the case law of comparative legal systems. It is submitted that the owner of property in the unlawful possession of another has all the known remedies at his disposal to oust the illegal possessor as soon as the latter self-righteously possesses the property be that the rei vindicatio or the actio negatoria and to claim damages for any loss suffered by using any of the applicable remedies in his quiver provided that the relevant requirements are met. Although the rei vindicatio will be the first remedy of choice in most instances, nothing prevents the owner from claiming damages from the unlawful occupier in addition to his eviction. Because all the requirements for such a delictual remedy are usually met the moment the unlawful possessor acquires possession of the property of the owner, that is also the moment when the prescription clock for extinctive prescription regarding that claim would start to tick. Even when due to political opportunism eviction is not an immediate option for the owner, this temporary stalling of the eviction order does not include a moratorium on a delictual or an enrichment claim to recuperate either the full damage suffered or at least to condict via an appropriate enrichment claim the extant of the unjustified enrichment enjoyed by the squatter. These claims are, however, all founded on an existing personal right of the claimant (be it the delictual remedy or a claim for unjustified enrichment) and are as such governed by the legal norms of extinctive prescription as currently governed in chapter 3 of the Prescription Act 68 of 1969. According to the default position governed by section 11(d) of that act, a personal claim becomes extinct after three years. It is incomprehensible that the erstwhile owner who has lost his ownership due to the fact that the illegal possessor was in possession of his property for 30 years, can afterwards rely on a personal claim to try to recoup his loss. That personal claim would have been wiped out long ago by application of the norms of extinctive prescription and the resulting legal certainty should not once more be jeopardized by the uncertain outcome of a possible delictual or unjustified enrichment claim for an additional three years. The proverbial book should be closed and the new owner encouraged to invest in and develop his new acquisition without fear of further litigation regarding his status as new owner.