ABSTRACT
This paper evaluates the traditional justifications for acquisitive prescription in South African property law, particularly the doctrines of punishing negligent owners and promoting legal certainty. While prescription remains widely accepted in both common law and judicial reasoning, the foundations of these justifications have come under increasing scrutiny in light of evolving constitutional norms. The discussion draws on landmark cases and leading academic texts to assess whether these rationales remain coherent and relevant in a democratic society governed by the rule of law.
The first section critiques the punitive justification, noting its tension with the ownership right of ius abutendi and the reality of absentee landholding in modern South Africa. It further evaluates arguments suggesting that this rationale may no longer serve the public good. The second section analyses the legal certainty justification, finding it more robust, particularly in the context of South Africa’s negative deeds registration system. Ultimately, the paper suggests that while prescription may satisfy section 25(1) of the Constitution as a non-arbitrary deprivation, the focus should shift from moral blame to structural legal stability. The conclusion calls for a recalibrated understanding of acquisitive prescription that reflects both its historical roots and constitutional limitations.
Chaba, Oratilwe, Ownership Through Time: Evaluating The Justifications of Acquisitive Prescription (June 18, 2025).
Leave a Reply