TOPIC 10

LAW OF PROPERTY
Learning objectives

Upon completion of this topic, you will be able to:

1. Explain the classification of things.

2. Discuss the acquisition of real rights.
3. Explain delivery of property.

Introduction
Property law is the area of law that governs the various forms of ownership
in real property and personal property. Property refers to legally protected
claims to resources, such as land and personal property, including
intellectual property. Property law is best understood as the complex of jural
relationships between and between persons with respect to things. It is the
sum of rights and duties, privileges and no-rights, powers and liabilities,
disabilities and immunities that exist with respect to things.
Classification of things
 Before one can begin to understand the concepts of real rights,
personal rights and other rights associated with legal ownership and
possession, it is important that there be an appreciation of how things
are classified. These classifications come from ancient Roman law and
as such, the names given to things are in Latin.
 Things have traditionally been classified in two ways:
a. According to their nature
b. According to their relationship with mankind
According to their nature
1) Corporeal and incorporeal
2) Consumable and inconsumable
3) Movable and immovable
4) Fungible-being something (such as money or a commodity) of such a
nature that one part or quantity may be replaced by another equal part or
quantity in paying a debt or settling an account and non-fungible
5) Divisible and indivisible
According to their relationship with man
1) Res in commercio-things capable of being privately owned
2) Res extra commercium-things not capable of being privately owned
Real rights
 A real right establishes a direct link between a person and a thing. The
person consequently has the right to control the thing within the limits
of his rights. It effectively becomes enforceable not in consultation with
any other person, but is enforceable against the whole world at large.
Personal rights
 A person becomes bound to the holder of the right to render particular
performance itself being the object of the right. It never establishes a
direct legal connection between its holder and the things, if any, in
respect of which a performance has to be rendered.
Original methods of acquisition
 Under this topic, we are concerned with the ways in which a person
can become the owner of a thing originally. This means he becomes
the very first person to own it without a predecessor in title. He
assumes ownership unilaterally.
The methods for original acquisition are:
1) Occupation
2) Accession
3) Specification
4) Commixitio
5) Acquisitive prescription
Occupation
 This refers to the unilateral taking of possession by a person of a
corporeal thing which is res nullius (i.e. belonging to no one), with the
 intention of becoming owner thereof. The most common situations are
the acquisition of wild birds and animals, although this now is rather
difficult with wildlife and environmental conversation laws. There is
therefore the need that the acquisition be lawful hence in the case of
Dun v Bowyer, a person obtained a licence to shoot hippo. He however
asked his brother to shoot the hippo. When the matter went to court, it
was held that the licence was not transferrable hence the licensee
never acquired any ownership of the hippo.
 In the case of R v Mafohla 1958(2) A 373, the complainant had
wounded a Kudu. He chased it for some time but eventually lost track
of it. He resumed following the animal the following day. As he looked
for the Kudu, he found Mafohla and his friends already skinning the
animal. Mafohla and his friends were then charged with the theft of the
Kudu. The question was whether the Kudu in fact belonged to the
complainant for purposes of the offence of theft. The court held that
they were not guilty of theft because when they captured the animal, it
did not belong to the complainant since he had lost control of it. It was
therefore a “res nullius”.
Res derelicta
 Res derelicta refers to abandoned things. The person who seeks to
establish ownership of “res derelict” must prove the following: -
1) That the property was abandoned
2) That the previous owner had the intention to abandon the property.
In the case of S.M. Goldstone v Gerber 1979(4) SA 930
 A road roller was left by workers for several weeks exposed to the
elements. The owner failed to find it when he came looking for it, only
to find it at a scrap yard. The Defendant had taken it in order to cut it
up for scrap. The defendant alleged that the roller had been
abandoned. The court held that there was no evidence of intention to
abandon to hence the defendant was liable for the damages.
Accession
This refers to an increase or addition to a thing whereby two or more things
come together to form one entity e.g. fruits of trees and offspring of
domestic animals. Where two things are joined together the greater part
attracts the lesser hence the lesser loses its identity and the new thing
belongs to the owner of the greater part.
According to the principle of “Supercies solo cedit set quid est superficious”,
everything which is attached to an immovable, such as a piece of land, or
everything built on land is attached to the land.
There are many forms of accession such as;
1) Natural accession e.g. birth of young animals. Owner of mother is owner of
the offspring. A bona fide possessor is also entitled to ownership of the
offspring.
2)Avulsio-where a piece of land is torn off by flooding water and is washed
up against another’s land, the owner of the land to which the torn piece of
land is attached becomes the owner of everything. This only happens if
plants start to grow.
3) Commixitio-mingling of liquids etc so that they become inseparable.
4) Specification-creation of a new thing out of somebody else’s material
which can no longer be restored to its original form. It involves labour in
creating a new thing and good faith since it involves another’s property.

An employee cannot claim ownership of something he creates during the

course of his employment.
5) Acquisitive prescription- a person who is continuously in possession of
another’s property as if he was the owner for a period of thirty (30) years
acquires ownership. Bona fide or mala fides are irrelevant hence a squatter
can acquire ownership through prescription. This is because prescription
always operates against the will of the true owner and the possession is
always unlawful. The rationale for this is historical; to punish people who
through carelessness throw injuries on the state by creating uncertainty
about ownership of property. If prescription is interrupted, then it will either
be suspended or it will start afresh (i.e. de novo)
Derivative acquisition of real rights
The acquisition of ownership here is dependent on whether the property is
movable or immovable. For a person to transfer the real right of ownership to
another, he must be the owner of the property or a duly authorised agent. If
the property is transferred without the consent of the owner, then ownership
does not pass as the true owner always has the right to follow up his
property from whoever took it, including bona fide possessors or purchasers.
This real right to follow up the property is called the right of vindication or
the “rei vindication”
However, the owner may be prevented from exercising the right of
vindication if he led a person to act to his detriment through negligence.
This is the operation of estoppel. We can summarise the requirements for a
valid transfer of ownership as follows:-
1) Res in commercium-property must be capable of private ownership
2) capacity-transfer must be legally competent to transfer ownership
3) Transfer must be effected by the holder of the real right or a duly
authorised agent i.e. “nemo dat qui non habet”- you cannot transfer a right
which you do not hold.
4) Transferee must have capacity to acquire ownership
5) There must be intention to transfer and to accept transfer (the requisite
animus)
Delivery of immovable property
Since actual delivery is not possible, delivery is constituted when registration
of title is made at the Deeds Office.
Registration involves the recording of the existence and description of a
corporeal thing and hence effectively gives notice of the rights of ownership.
The register at the Deeds office is a public document and is open for
inspection by the public.
Delivery of movables (traditio)
In this case, use is made of either actual delivery or constructive/ fictious
delivery.
Transfer of ownership is subject to certain conditions:
1) Cash sales
2) Suppositions
In cash sale, ownership passes immediately upon delivery whereas in
suppositions the intention of the seller may be subject to certain conditions
such as suspensive conditions where notwithstanding delivery ownership
does not pass to the buyer.
Actual delivery (traditio)
This is physical delivery and the intention of the parties to determine the real
right which is being passed. This is delivery de manu in manum i.e. from one
hand to the other such as delivery of a ruler or a loaf of bread to another
person.
Constructive / fictitious delivery
No physical handing over of the property takes place but the transferee is
put in apposition to control the property in question.
The following are the various forms of fictious delivery known in our law of
property and sale:-
1) Delivery by the short hand (Traditio brevi manu)
Where the property is sold or donated to a transferee who already is in
possession of it, it shall not be necessary to physically deliver it.
2) Delivery by the long hand (Traditio longer manu)
This is suitable where the goods are bulky and difficult to move such as a
heap of coal, timber, stones etc. The property is thus placed at the disposal
of the acquirer so that he can deal with it in his own good time and at his
pleasure. The property is usually pointed out to the acquirer as happened in
Xapa v Ntsoko where cattle intended to be payment for lobola were
pointed to the father in law and the court said delivery longa manu had in
fact taken place.
The determining factor here is whether a purchaser or acquirer is placed in
control of the property hence in Botha v Mazeka 1981(3) SA 191, some
cattle were driven to a separate camp at the seller’s premises but since the
buyer was not in control of the cattle, delivery by the long hand had not
taken place at all.
Symbolic delivery (Traditio symbolica)
In this case, the transferor supplies the transferee with the means to deal
with the property, e.g. delivery of car keys or keys to a warehouse.
The transferee must acquire full control of the property. In C.I.F contracts,
delivery of the bill of lading constitutes symbolical delivery of the property.
Constitutum Possessorium
The transferor retains possession of the goods which he has agreed to
transfer. Here, it is the intention that matters-the mental attitude to transfer
ownership. The seller of goods may keep the goods on behalf of the buyer
e.g. as a lessee. This clearly is the reverse of tradition brevi manu (although
people tend to assume wrongly that the opposite is tradition longa manu)
Attornment
The property to be transferred is not at the time of delivery in possession of
either the transferor or the transferee but it is under the control of a third
party who is an agent of the transferor calling upon the third party to hold
the property hence for the transferee.
For a further discussion of this, see the Section on the Law of Sale

Possession
Possession is said to be the foundation of the law of property but it is not
easy to define. It is therefore a nebulous concept.
Generally, it involves physical control and the mental state to possess. This is
a question of fact since a person may possess something which he is not
“physically possessing” such as your radio which you left at home or your
money in your drawer. Here clearly possession is not synonymous with
having the property on your person.
Alternatively, if a person drops a twist of “mbanje” in your pocket without
your knowledge or consent, are you in possession of “mbanje?”

Possession is a real right “sui gereris”ie it is in a class of its own.

1) Possessor is protected from unlawful deprivation including against the
owner of the property. If a possessor loses property, the court can grant a
Spoliation Order which is a remedy used to summarily undo unlawful
disturbance of existing control by restoring the possession. The court
restores possession without looking into the merits of the parties’ rights to
possession, the rationale being that people should not take the law into their
own hands by depriving others of their property without a court order. People
should not resort to self-help. Theoretically, a thief can utilise it, even though
in practice the criminal law will step in.
The possessor is also entitled to fruits of the property during the period of
possession.
The true owner can, however, claim the property through the rei vindication
if the possessor cannot show the basis of returning such possession.
In Oglodinski v Oglodinski 1976 (4) SA 273, a spoliation order was held to
be available in the husband and wife situation as well. This is also similar to
the case of Maria v Murimbika 1976 (I)RLR 385 where the wife removed
furniture from the matrimonial home which she claimed belonged to her. The
court ordered restoration of the property.
Consider also these interesting cases:-
Council 1977 (3) SA 113- the council had unlawfully demolished the
applicant’s squatter house made of corrugated iron. The council was
supposed to have given the squatter notice as required by the law. The court
ordered the council to re-erect the dwelling!
Tshabalala v West Rand Admin Board 1980 (2) SA 520
After a dispute, the applicant’s dwelling ceiling was summarily removed and
his possessions were thrown out into the streets. The court ordered
restoration of the property.