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Property Law Notes - 2016

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INTRODUCTION

Property: in the broad sense: includes everything that forms part of

someone’s estate = includes immovable property, movable property etc

Property: in the narrow sense: amounts to a thing – law of things:

which is a branch of private law which consists of a number of legal
rules that determine the nature, content, establishment, protection,
transfer and termination of various real relationships between a legal
subject and a thing.

DEFINITIONS

Legal subject: any person (natural/juristic) capable of acting as a

subject in legal relationships and getting rights and duties.

Legal object: every object with which a legal subject has a legally
recognized relationship – anything with regard to which a person can
get and hold a right.

Property: is everything, which can form part of someone’s estate,

including corporeal and incorporeal rights.

Thing: is a corporeal object outside the human body and an

independent entity capable of being subjected to the legal control by a
legal subject for who it has use and value.

Right: is a legally recognized and valid claim by a subject to a certain

object.

Property right: is a legally recognized claim or interest in property

Remedy: is a legal procedure provided by a legal system to protect a

right against infringement or to control the effects of unlawful action.

REAL RELATIONSHIP
This is a legal relationship between a legal subject and a thing.
A legal subject can get rights from a real relationship only if it’s lawful
– if it complies with legal rules.
A legal subject won’t get any rights from unlawful relationships.

The most NB real relationships:

a) Ownership = lawful
b) Possession: physical control of a thing with the intention of an
owner = unlawful
c) Holdership: physical control of a thing with the intention to
derive a limited benefit = lawful and unlawful

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Real right: is a lawful relationship between a legal subject and a thing

which gives direct control over the thing to the legal subject, as well as
the relationship between the legal subject and other legal subjects
who must respect this relationship = its enforceable against the whole
world.

Entitlements: a legal subject who gets a real right from a real

relationship is usually entitled to:
a) Use
b) Control
c) Encumber (give others limited real rights)
d) Enjoy the fruits
e) Consume
f) Alienate
g) Vindicate

The function of the law of things

1) To harmonize various competing ownership rights – neighbor
law
2) To harmonize an owners right in regard to his thing, with the
rights of other limited real right holders to the same thing
3) It controls the acquisition and transfer of things and real rights

Sources of the law of things

a) The constitution
b) Statutory law
c) Case law
d) Common law
e) Indigenous customary law

THINGS AS LEGAL OBJECTS

Thing: is a legal object, which is an independent part of the corporeal

world, which is external to humans, subject to human control and
useful and valuable to humans.

Characteristics of a thing
a) Corporeal: perceivable to your senses – e.g. car, horse
b) External to humans: the human body cant be regarded as a
legal object
c) Independent: the thing can function as a legal object for the
purposes of the law of things, only if it has its own individual
existence and can be recognized as a distinct entity
d) Subject to human control: objects are significant for the law of
things only if they have the potential to be legally controlled by
humans

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e) Useful and valuable to humans: the thing must satisfy the

needs of a legal subject. It need not necessarily have economic
value but can also have sentimental value.

CLASSIFICATION OF THINGS
NEGOTIABLE AND NON-NEGOTIABLE THINGS
Negotiable things:
1) Res alicuius: things owned by a person or things in a insolvent
or deceased estate
2) Res nullis: things capable of being owned but which at a
particular stage aren’t owned by anyone
3) Res derelictae: things no longer in the physical control of the
owners and in respect of which the owner no longer has the
intention to be owner
4) Res deperditae: things lost and no longer in the physical
control of the owner but in respect of which the owner hasn’t
lost the intention to be owner.

Non-negotiable things
a) Natural resources falling outside legal commerce which
are available for all people (air): res communes ominium
b) Things owned by the state and used for the publics
benefit (sea): res publicae
c) Things that aren’t freely negotiable for another reason
(corpse): res extra commercium

SINGULAR AND COMPOSITE THINGS

Singular things: Composite things: are made up of different
exist independently components (house)
without being 1) Principle thing: is the thing which exists
composed of independently and which can be the
particular object of a real right (land)
components 2) Accessory thing: can have a separate
(brick/tennis ball) existence apart from the composite thing,
but which has been mixed with the
principle thing to such an extent that its
lost it independence (house built on the
land)
3) Auxiliary thing: exists separately and
independently of the principle thing, but
because of its economic value or use it
can no longer be an independent thing
(key)
4) Fruits: as long as the fruit is attached to
the principal thing, its accessory to the
principal thing – the owner of the principle
thing is also the owner of the fruits. (Rent)

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MOVABLE AND IMMOVABLE THINGS

Immovable’s: land and everything permanently attached to it

Movables: all things, which aren’t immovable’s

Differences between movables and immovables

1. Transfer of ownership of movables is effected by delivery, and of
immovables by registration
2. The right to alienate or encumber the estate of a minor -
Permission of the High Court is required for the alienation or
encumbrance of a minor's immovable assets worth more than
R100 000-00
3. In the execution and in insolvency, the debtor's movable assets
are sold before the immovables, to secure payment of the
judgment debt
4. In criminal law theft can be committed only in respect of
movables, while arson can only be committed in relation to
immovables.
5. Real security is effected by means of a pledge in the case of
movables and by means of a mortgage in the case of immovable
things.

FUNGIBLE AND NON-FUNGIBLE THINGS

Fungible things: belong to a certain class and can be replaced by

similar things – they don’t have individual characteristics which make
them irreplaceable = light bulb

Non-fungible things: have an individual characteristic or value that

makes them irreplaceable – original painting

CONSUMABLE AND NON-CONSUMABLE THINGS

Consumable things: are depleted in value or consumed by normal
use - wine

Non-consumable things: are maintained, even if normal wear and

tear occur through use – car

DIVISIBLE ANMD INDIVISIBLE THINGS

Divisible things: can be divided into smaller components, while
keeping its nature and function and without the value of it depleting –
piece of land

Indivisible thing: can’t be divided without changing the value, nature

or function of a thing – painting

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QUESTIONS ON DEFENITIONS:

DEFINE: PRINCIPLE THING (3)

Principal thing is a thing, which exists independently & as such, can

be the object of real rights.

NAME THE CHARACTERISTICS OF A THING (5)

1. Corporeal
2. External to humans
3. Independent
4. Subject to judicial control
5. Useful & valuable

DISTINGUISH BETWEEN: SINGULAR & COMPOSITE THING (2)

Singular things exist independently without their being composed of

particular components.

Composite things are compositions of different components or

independent things into a new unit.

DEFINE: LAW OF PROPERTY (5)

The law of property can be defined as that part of private law, which
relates to things. It incl. all the rules which relate to the relationships
which Legal Subject’s have in respect of things.

DISTINGUISH BETWEEN: A RIGHT & AN ENTITLEMENT (3)

A right is a legally recognized & valid claim by a subj. to a certain

object, e.g.: Real right, Ownership.

DEFINE: PROPERTY (2)

Property is everything that can form part of a person’s estate, incl.

corporeal things & incorporeal interests & rights.

DISTINGUISH BETWEEN: PRINCIPAL THINGS, ACCESSORY

THINGS & AUXILARY THINGS (6)

1. Principal thing: is a thing that can exist independently & can

be the object of real rights, e.g. land.
2. Accessory thing: can exist independently of the principal thing
but which has been merged or mixed with the principal thing to
such an extent that it has lost its independence, e.g. house.
3. Auxiliary thing: is a thing that can exist independently of a
principle thing, but because of its economic value, destination

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or use is no longer regarded as independent for the purposes of

property law, e.g. key.

NAME ENTITLEMENTS OF OWNERSHIP (5)

1. To control
2. To use
3. To encumber
4. To alienate
5. To vindicate

DEFINE: REMEDY (6)

A legal procedure provided by the legal system to protect a right

against infringement or to control the effects of an unlawful act or
situation.
A legal process with its own purpose, for which certain requirements
are set & which protects, maintains or restores a particular
relationship in a specific way.

BRIEFLY COMPARE: CONSUMABLE & NON-CONSUMABLE THINGS

(5)

Consumable things are depleted in value or consumed by normal use,

e.g. food.
Non-consumable things are essentially maintained even if normal
wear & tear occurs through use, e.g. car.

DISTINGUISH BETWEEN: PROPERTY & A THING (5)

Property:
Everything, which forms part of a person’s estate & serves as object of
the right that a person exercises in respect thereof being either
corporeal or incorporeal.

A Thing:
Is an independent part of the corporeal world, which is external to
humans & subj. to human control as well as useful & valuable to
humans.

DISTINGUISH BETWEEN: RES DERELICTAE & RES DEPERDITAE

(6)

Res Derelictae:
A thing that has been thrown away by its owner with the intention of
no longer being the owner.

Res Deperditae:

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A thing that has been lost but owner doesn’t lose his intention to keep
his ownership.

DEFINE: RES NULLIUS (2)

Its things that are capable of being owned, but belong to no one at a
particular stage, e.g.: wild animals.

THINGS CAN BE CLASSIFIED ACCORDING TO THEIR RELATION

TO HUMANS OR TO THEIR INHERENT CHARACTERISTICS &
QUALITIES. GIVE EXAMPLE OF EACH: (3)

1. RES PUBLICA : The Sea Shore

2. CONSUMABLE THING : Cigarettes
3. DIVISIBLE THING : Land

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CREDITORS RIGHTS V REAL RIGHTS

CREDITORS RIGHTS: REAL RIGHTS:

Right a person has to claim Right a person has over a thing
performance from a SPECIFIC and such right can be enforced
person: example: contract against the whole world: example:
ownership

2 THEORIES:
Classical theory: Personalist theory:
Look at what the right entails: Look at the ways the rights are to
Real right: right of a person in a be enforced:
thing Real rights: are absolute and can
Creditors right: right of a person be enforced against the whole
against another person world
Creditor’s rights: are relative and
can only be enforced against a
specific person only.

Personal and real rights

Object
The object of a real right is a corporeal thing whereas the object of a
personal right is performance.

Absoluteness
Real rights are absolute in principle: the holder of the right can
vindicate his/her thing (subject to certain exceptions) from whomever
is in control of the thing; while personal rights are relative in principle:
the holder can enforce his/her right only against the person who is
obliged to perform in terms of an obligation (contract or delict).

Preference
In the case of insolvency, a real right enjoys preference over other
rights. Moreover, the maxim, first in time is stronger in law (prior in
tempore) is applied in the case of two or more competing real rights.
Apart from a few exceptions, this principle does not apply to personal
rights.

Publicity
The establishment of real rights requires some form of publicity. The
reason for this lies in the nature of real rights. Since these rights have
to be respected by the world at large, it is imperative that there should
be some form of publicity informing outsiders of the existence,
transfer or extinction of the real right. The establishment of personal
rights does not require publicity.

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Real rights over immovable property MUST be registered in order

to enforce such rights over others

To see if a right amounts to a REAL right or a PERSONAL right

the courts created the Subtraction from dominium test:
Ex Parte Geldenhuis:
Facts: husband and wife left their land to their children in a will. The
land would go to them as co-owners when the eldest child reached
majority. The land would then be divided into portions by drawing
lots. The child who got the land with the house on had to pay the
others compensation.

2 conditions:
1. The time and manner of sub-division and usually co-owners are
free to decide when to sub-divide – if the obligation is on the
land = subtraction from dominium and it can be registered.
Therefore subsequent owners are also bound.
2. The child with the house has to compensate the others – if the
burden is on a specific person in his personal capacity =
creditors right and it can’t be registered – subsequent owners
wont be bound.

The 1st obligation diminishes a co-owners rights of sub-division and

was intended to do so = it therefore affects all subsequent owners and
is a burden on the land = REAL RIGHT AND MUST BE REGISTERED

The 2nd obligation places a burden on one child only – it was

intended to restore the balance – it’s a burden on a specific person in
his personal capacity and doesn’t subtract from ownership =
CREDITORS RIGHT AND THEREFORE CANT BE REGISTERED.
In this case the court decided to register them together for
convenience.

Cape Explosive Works v Denel:

In terms of the Deeds Registry Act all real rights in respect of
immovable property must be registered: in order to determine if a right
was a real right the court looked at:
1. The intention of the person who creates the right to bind all
successors in title and
2. The nature of the condition must be such that the registration
result in a subtraction of the owners dominium

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POSSIBLE QUESTIONS: REAL RIGHT’S & PERSONAL RIGHTS

DEFINITIONS:

Action in rem: (Real Action)

Focus directly on the thing concerned & could be instituted against
anyone who was in control of the thing.

Action in personam: (Personal Action)

Always directed against a particular person or persons, who were
bound to the claimant (in terms of an obligation) to perform.

Real rights:
As a (subjective) right which confers on the holder of the right a direct
claim to & over the thing which may be enforced against all 3rd
parties.

WHAT IS THE PURPOSE OF THE “SUBTRACTION FROM THE

DOMINIUM TEST” & IN WHICH DECISION WAS THIS TEST
FORMULATED? (2)

The test is used to distinguish between real rights & creditors rights.
Case Decision: Ex parte Geldenhuys.

HOW IS THE “SUBTRACTION FROM THE DOMINIUM TEST”

FORMULATED IN EX PARTE GELDENHUYS? (5)

One has to look not so much to the right, but to the correlative
obligation.
If that obligation is a burden upon the land, a subtraction from the
dominium,
The corresponding right is Real & registrable, If it is not such an
obligation, but merely an obligation binding on some person or other,
the corresponding right is a personal right, or right in personam,
and it cannot as a rule be registered.”

DISTINGUISH BETWEEN: THE OBJECT OF A REAL RIGHT & THE

OBJECT OF A PERSONAL RIGHT (CREDITORS RIGHT) (2)

The object of a Real right is a corporeal thing (leaving aside the

exception of a pledge of claims).

The object of a Personal right is performance (to give something, to do

something, or not to do something).

DISCUSS EX PARTE GELDENHUYS WITH SPECIAL REFERENCE

TO THE SUBTRACTION FROM THE DOMINIUM TEST (8)

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The courts have formulated a test to determine whether one is dealing

with a Real or Personal right in a particular set of facts. In Ex parte
Geldenhuys the court formulated the test as follows:

One has to look not so much to the right, but to the correlative
obligation.
If that obligation is a burden upon the land, a subtraction from the
dominium,
the corresponding right is Real & registrable;If it is not such an
obligation, but merely an obligation binding on some person or other,
the corresponding right is a personal right, or right in personam, and
it cannot as a rule be registered.”

Court came to the conclusion that the provisions that the farm must
be divided when S reaches age of majority & that the drawing of lots
will determine who gets which portion of the farm place a burden on
the land itself.

These provisions were regarded as conditions aimed at creating Real

rights & could therefore be registered. The provisions that the heir
who gets the portion with the house on it must pay an amount of
money to the other heir was regarded as creating a Personal right
since it was only an obligation on a specific person to pay a sum of
money & payment of a sum of money is, as a rule, not regarded as a
Real right.

v But both obligations were registered as a whole!

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OWNERSHIP

DEFINITION AND LIMITATIONS OF OWNERSHIP

DEFINITION IN COMMON LAW: ownership is the most complete real

right that a legal subject can have regarding a thing. It’s the real right
that gives the owner the most complete and absolute entitlements to a
thing. Ownership can however be limited by the rights of others and
the law

Ownership can be defined with reference to its inviolability, its

inherent nature and its entitlements.

1) Inviolability: someone can’t lose his ownership without his

consent – someone can’t pass a better title than he himself has.
Nemo plus iuris rule: no one can transfer more rights than he himself
has.

2) Inherent nature: in Gien v Gien: the court defined ownership with

reference to its inherent nature, as the most complete real right that
someone can have to a thing = a person can do with his property as
he pleases.
BUT: this freedom is restricted by law and the rights of others.

LIMITATIONS ON OWNERSHIP

Ownership can be limited in 2 ways: by the LAW or by Rights of

others

LAW: RIGHTS OF OTHERS:

- Statute - Limited real rights (pledge)
- Neighbor law - Personal rights (lease)

LIMITATIONS IMPOSED BY LAW:

STATUTE:
Limitations on movable things:
• Firearms – Arms and Ammunition Act
• Motor vehicles – National Road Traffic Act

Limitations on immovable things:

• Land – Expropriation Act

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NEIGHBOUR LAW:
The purpose of neighbor law:
- Harmonization of neighboring owner’s interests, by weighing their
rights and obligations in the exercise of their entitlements against
each other, to balance their conflicting interests.
- The landowner must exercise his entitlements in respect of the
land reasonably and the neighbor must tolerate this within
reasonable bounds.

Nuisance
The basis of neighbor law is that land must be used in such a way
that another person isn’t prejudiced.
If an owner in the exercise of his entitlements should inconvenience a
neighboring owner, by allowing a situation where the neighbor suffers
damage or is disturbed in the use and enjoyment of his property – he
acts unreasonably.

Nuisance in the narrow sense:

This consists of an infringement of a neighbors use and enjoyment of
his land = noises, gas, etc.
This infringement doesn’t necessarily result in damage, but rather a
personality infringement.
Remedy: interdict or compensation.

The test to determine if there has been an infringement is

reasonableness.
Factors the court takes into account when determining
reasonableness:
The court looks at:
1. Nuisance must be repetitive
2. Location – residential/industrial and the habits of the people
living there
3. Were the acts of the respondent reasonable and fair (Gien)
4. Did the respondent act in bad faith (Gien)
5. Was the respondents use of the property normal (Gien)
6. The normal person must regard it as a nuisance – mustn’t be
over sensitive
7. Unreasonableness must be regarded as such in the eyes of the
community

Gien v Gien: the respondent erected an apparatus, which made

explosive noises at regular intervals, to scare away baboons from his
vegetable garden.
The machine functioned day and night and could be heard on the
neighboring farm of the applicant – disturbing their sleep and making
their animals restless.
It was possible for the respondent to muffle the sound and turn it off
at night without impairing its efficiency, BUT the respondent said that

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he was acting on his own property, in the interests of protecting his

property, which couldn’t constitute a nuisance to the applicant.
The applicant approached the court for an interdict, stopping the
respondent from using the machine in such a way that it would cause
a nuisance.
Requirements for an interdict:
a) Applicant must prove a clear right
b) Respondent must intrude or threaten to intrude on that right
c) No other remedy must provide satisfactory protection.

Court said: that ownership is the most complete real right a person
can have to a thing, but ownership is restricted by the rights of
others.
Court looks at:
1) Were the acts of the respondent fair and reasonable
2) Did the respondent act in bad faith
3) Was the respondents use of the property normal
4) Were the respondent’s actions harmful to the applicant,
because he is an abnormally sensitive person?

The court balances the competing rights of the neighboring owners.

Nuisance in the wider sense

This consists in the infringement of a neighbor’s exercise of his
entitlements in general or action by the neighboring owner that
causes damage.
Remedy: interdict or claim for damages.

Malherbe v Ceres Municipality: leaves from oak trees next to the street
blocked the gutters of the appellants building and he alleged that the
roots had damaged the walls of the building.
His application for an interdict was denied, because the respondent
hadn’t acted unreasonably and because it was normal practice to
plant trees next to the street.

Regal v African Superslate:

Facts: the previous owner of the property left slate waste on his
property and some of it was washed on to the neighbor’s property.
The damage caused by the slate was minimal whereas the cost of
maintaining the slate waste was very high.
It would involve building a wall on the owner’s property.
The neighbor claimed an interdict restraining the owner from
continuing the nuisance.

Held: the order wasn’t granted – the criterion is reasonableness: the

new owner should only be liable to avert damage for future floods if
it’s reasonable for him to do so. Building the wall was unreasonable
especially as the neighbor suffered little damage.

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LATERAL AND SURFACT SUPPORT

Every owner of land is entitled to support from his neighbors land –
an owner can’t make excavations on his land, which results in his
neighbors land subsiding.
If this happens the owner who made the excavations is liable for the
damage caused to his neighbors land, even in the absence of fault.

ENCROACHMENTS
Buildings:
The owner of the land on which the encroachment has taken place
can use one of the following remedies:
1) Removal of the encroachment: he can demand that the
encroaching part be removed, but he can’t remove it himself.
2) The owner can claim ejectment from his land, against payment
of compensation for the enhancement of his property.
3) The owner can claim that the encroacher should take transfer of
the land and pay compensation.
Compensation is determined with reference to:
a) the cost of transfer
b) The value of the land
c) Compensation for involuntary deprivation of land.

Branches:
If trees are planted close to the boundary, that the branches encroach
on the neighbors land, the neighbor can require the owner of the trees
to remove the branches.
If the owner refuses the neighbor can go to court for an order
compelling the owner to do so or an order to remove the encroachment
himself.
Malherbe v Ceres Municipality

Roots:
If plants are planted on a neighbors land, these plants after taking
root will become the property of the owner through implantio and he
can remove them.
If the roots of trees encroach on the neighbors land, he can remove
the roots himself

Surface water:
every owner of land has to receive the natural flow of water from
adjoining land. The upper owner may not interfere with the natural
flow of water in a manner prejudicial to the lower owner.

Party walls and fences:

A party wall is a wall built on the boundary between 2 pieces of land
in such a way that it stands partly on the land of the one owner and
partly on the neighboring owners land.
It’s irrelevant who erected the wall.

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Each owner is the owner of that part of the wall, which is on his
property, with servitude of lateral support over the part of the wall on
the other side.

A party wall can’t be demolished without the consent of the other

owner, subject to the exception that a wooden fence may be
demolished and replaced by a brick wall.
Both owners are liable for the maintenance of the wall.

LIMITATIONS IMPOSED BY THE RIGHTS OF OTHER LEGAL

SUBJECTS

LIMITED REAL RIGHTS OF 3RD PARTIES IN THE PROPERTY:

An owner’s exercise of entitlements can be limited by the limited real
rights that other people have regarding the thing.
• It limits the owner’s ownership since it’s a real burden on the
thing.
• Its enforceable against the owner and subsequent owners
(successors in title)

CREDITORS RIGHTS OF 3RD PARTIES AGAINST THE OWNER

You can limit the exercise of any entitlement by the owner of a thing,
by means of a contract:
• This contractual limitation is only enforceable against the owner
in his personal capacity.
• It can’t be enforced against subsequent owners.

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POSSIBLE QUESTIONS:

STATE THE PURPOSE OF NEIGHBOUR LAW (2)

Neighbour law has its purpose to harmonize the rights & interests of
neighbours by balancing their respective rights & obligations.

DEFINE OWNERSHIP (5)

In GIEN v GIEN: ownership is the most complete real right, which a

person can have with regard to a thing. The point of departure is that
a person, as far as an immovable is concerned, can do with his
property as he wishes. This apparently unlimited freedom is only
partially true. The absolute entitlements of an owner exist within the
boundaries of the law. The restrictions can emerge from either
objective law or from restrictions placed on it by others.

THE LAW & RIGHTS OF OTHER PERSONS PLACE LIMITATIONS

ON OWNERSHIP. MENTION DIFFERENT CATEGORIES OF
LIMITATIONS IN EACH OF THESE GROUPS & GIVE EXAMPLES OF
EACH CATEGORY. (8)
Different categories of limitations on ownership under the ‘law’
are:
1. Statutory limitation: e.g. Expropriation Act
2. Neighbour law: e.g. Nuisance

Under the ‘rights of other persons’ there are 2 categories, namely:

1. Limited real rights of 3rd parties to the property (e.g. servitude)
&
2. Creditor’s rights of 3rd parties to the property (e.g. contract of
lease)

INDICATE THE DIFFERENCE BETWEEN OWNERSHIP & LIMITED

REAL RIGHTS WITH REFERENCE TO EXAMPLES (4)

The difference between ownership & limited real rights lies in fact that
ownership is a real right over one’s own property, whereas limited real
rights are real rights to another person’s property.
Ownership is the most comprehensive real right a person can have to
a thing, whereas limited real rights are limited in scope.
For e.g. in principle, owner of a piece of land can use it as he likes,
whereas the entitlements of a usufructuary (limited real right holder)
are clearly defined.

BRIEFLY DESCRIBE NUISANCE IN THE WIDER SENSE (5)

Nuisance in the wider sense:

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The infringement of the neighbour’s exercise of entitlement

(ownership) in general, or actions by the neighbouring owner or
occupier that cause damage. In such circumstances compensation
(damages) can be claimed or the infringement can be prohibited by
means of an interdict.

v Malherbe & Regal Cases.

JOHN AND FRED ARE SERIOUSLY AFFECTED BY THE BABOONS

THAT DESTROY THEIR MEALIES. JOHN INSTALLS AN
APPARATUS TO CHASE AWAY BABOONS ON THE BOUNDARY
WITH HIS NEIGHBOUR. APPARATUS MAKES LOUD NOISES AT
REGULAR INTERVALS DURING DAY & NIGHT. NEIGHBOUR
WRITES LETTER TO JOHN & FRED TO COMPLAINS ABOUT NOISE
DURING NIGHT, BUT JOHN IGNORES IT & REFUSES TO SPEAK
TO HIS NEIGHBOUR ON TELEPHONE. NEIGHBOUR APPROACHES
YOU FOR LEGAL ADVICE. ADVISE HIM FULLY WITH REFERENCE
TO AUTHORITY (10)

This facts fall under limitations imposed by law namely, Neighbour

law. Cause the neighbour complains about the noise it falls under the
category of Nuisance in the narrow sense, sins there’s no damage
caused to the neighbour.

Neighbour law deals with the limitations of the owner in exercising his
entitlements as owner, in the interests of neighbours. The neighbourly
relationship is judged by means of reasonableness. Therefore the
owner must exercise his entitlements as owner reasonably & the
neighbour must endure this reasonably.

Nuisance in the narrow sense occurs when the neighbour’s right of

personality or entitlement of use is infringed, by e.g., smell, etc. This
infringement doesn’t result in damage. The neighbour may use the
prohibitory interdict &/or compensation as a remedy.

In relevant case law Gien v Gien, the respondent’s actions were of

little economic consequences & his methods were to extreme. Thus,
the appellant (neighbour) was entitled to an interdict.

So the neighbour in this case may apply for an interdict stopping

John and Fred from making too much noise.

NAME 5 STATUTORY LIMITATIONS ON OWNERSHIP & GIVE

EXAMPLES OF EACH (5)

Limitation on the use of movable things:

1. Fire arms: Arms & Ammunition Act
2. Motor vehicles: National Road Traffic Act
3. Drugs: Drugs & Drugs Trafficking Act

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Limitations on the use of immovable things:

1. Land: Expropriation Act
Subdivision of Agricultural Land Act

BRIEFLY DISCUSS FOLLOWING QUOTATION FROM “GIEN v

GIEN”:
“OWNERSHIP IS THE MOST COMPLETE REAL RIGHT A PERSON
CAN HAVE WITH REGARD TO A THING” (8)

In the case Gien v Gien the court defined ownership with ref to its
inherent nature as the most complete real right, which a person can
have with regard to a thing. The point of departure is that a person, as
far as an immovable is concerned, can do with his property as he
wishes. This apparently freedom is restricted, however, by the law &
the rights of others. Consequently, no owner ever has the unlimited
right to exercise their entitlements in absolute freedom in their own
discretion.

Limitations on ownership under the law are:

1. Statutory Limitations, e.g. Expropriation Act for immovable
2. Neighbour law, e.g. Nuisance

Under the rights of other persons:

1. Limited real rights, e.g. Servitude
2. Creditor’s right, e.g. Contract

ANALYSE THE NATURE OF OWNERSHIP WITH REFERENCE TO 2

COURT CASES ON NEIGHBOUR LAW LIMITATIONS ON
OWNERSHIP (10)

Generally, the law expects a degree of tolerance between neighbours in

exercising their entitlements of ownership. Neighbour law is based on
reasonableness, although a landowner can do as he likes with his
property, he must exercise his rights with regard to his neighbours.

In relevant case law:

Gien v Gien falls within the narrow sense of nuisance. This is where
the neighbour's right of personality or entitlement of use is infringed
by for e.g., noise.
v Add Facts

In Malherbe v Ceres Municipality the case fall within broader sense

of nuisance. This nuisance results in damage of property, e.g. Blocked
gutters of a building due to leaves & acorns of a public tree.
v Add Facts

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DISTINGUISH BETWEEN NUISANCE IN THE NARROW SENSE &

NUISANCE IN THE BROAD SENSE (4)

Nuisance in the narrow sense: (Gien)

Occurs where a neighbour's right of personality or entitlement of use
is infringed by for e.g. Noise. This infringement doesn’t result in
damage, but rather in personality infringement.

Nuisance in the broader sense: (Malherbe & Regal)

Results in damage to property, for e.g. Leaves block gutters of a
building.

M APPROACHES THE COURT FOR AN INTERDICT ORDERING

THE RESPONDENT, CERES MUNICIPALITY, TO PREVENT
ACORNS & THE LEAVES OF OAK TREES GROWING ALONGSIDE
THE STREETS OF CERES FROM FALLING ONTO HIS PROPERTY.
M AVERS THAT THE OAK TREE CONSTITUTE A NUISANCE ON
HIS PROPERTY IN THAT THE FALLING OAK LEAVES HAVE
BLOCKED THE GUTTERS OF HIS BUILDING, THEREBY CAUSING
RAINWATER TO DAMAGE WALLS OF BUILDING. FULLY DISCUSS
WAYS IN WHICH COURT APPROACHED THIS PROBLEM IN
“MALHARBE V CERES MUNICIPALITY”. (9)

The legal question in casu was whether or not the falling leaves
growing along the street could constitute a nuisance.

Generally:
The law expects a degree of tolerance between neighbours in
exercising their ownership.

The planting of trees alongside the streets is considered compatible

with the normal use of streets. If their leaves are blown by wind onto
neighbouring premises, the owners of those properties must endure
them as a natural result of the normal use of the street.

The appellant can’t complain about falling leaves & acorns from
hanging branches to protrude on his property. If appellant wants to
prevent this, he must require the respondent to remove the branches.
If refused he can either remove them himself or compel the
respondent to remove them by means of an interdict.

The applicant wasn’t entitled to an interdict. The falling leaves didn’t

cause obvious damage to his building. The damage could have been
avoided by annually spending a small amount of money on cleaning
the gutters. It would be reasonable to exercise a degree of tolerance in
this regard.

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ORIGINAL ACQUISITION OF OWNERSHIP

Introduction
Original acquisition of ownership: isn’t dependent on the lawful
ownership of the predecessor – it takes place through a legal process.
There is no transfer of ownership.
If there is no previous owner, acquisition of ownership takes place
through appropriation of a thing that isn’t owned or has been
abandoned by its owner.

Derivative acquisition of ownership: occurs with the cooperation

with a predecessor in title. The rights, which the transferee gets, are
derived from the former owner = the predecessor in title should have
himself been the owner and entitled to transfer ownership (nemo plus
iuris rule). The right is transferred to the new owner with all the
advantages and disadvantages attached to the right.

ORIGINAL ACQUISITION OF OWNERSHIP INCLUDES:

a) appropriation
b) Accession
c) Manufacture
d) Mixing
e) Acquisition of fruits
f) Expropriation
g) Prescription
h) Treasure trove

APPROPRIATION
Appropriation: is where a legal subject takes physical control of a
thing that can be owned such as a res nullis, with the intention to
become owner:
• Unilateral exercising of control
• Over a corporeal thing that can be owned
• But which isn’t owned by anyone (res nullis or res derelictae)
• With the intention of becoming owner

Requirements:
a) Physical control: the acquirer must get physical control, with
the intention to become owner. The nature of the physical
control depends on the nature of the thing and the
circumstances of the case.
Control need not be lawful.
Reck v Mills:
Facts: there was a shipwreck and divers marked a condenser that
they wanted from the ship, with a rope and a buoy attached to it.
A 2nd set of divers can and took the condenser away.
The 1st set of divers took the matter to court.

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Issue: was whether the 1st set of divers had sufficient control to
constitute the 1st requirement of occupation.

Held: a rope with a buoy attached wasn’t a sufficient indication of

control over the condenser. An indication of control would be to
separate the condenser from the rest of the ship and then attach
the rope.

b) Intention to become owner (animus domini): the physical

control must be exercised with the intention to become owner –
Bell: held that ownership is acquired as soon as there is an
intention to become owner.
c) It must be control of a thing that’s capable of being owned
and doesn’t belong to anyone:
Res nullis: is a thing, which isn’t owned at a particular time but
is capable of being owned (wild animal). Ownership can be
acquired by appropriation
• The Game Theft Act: a person who owns a game farm for
commercial purposes owns the animals even if they
escape.
• Domesticated animals, which are wild by nature, remain
the property of their owner until they lose the intention of
returning to the owner.
• Where wild animals are wounded and actual physical
control isn’t taken, appropriation doesn’t take place. If
one person wounds an animal but another catches it =
the latter gets ownership (R v Mafohla)

Res derelictae: is a thing, which is physically thrown out by

the owner, and the owner has the intention of abandoning, a
person can acquire ownership by occupatio.

R v Mafohla.
S goes hunting, he mortally wounds a kudu, but the kudu manages to
escape in the bush.S gives up the search for the kudu when darkness
falls. On his way home from a party, Z, one of the farm labourers,
stumbles upon the wounded kudu. He fetches his friends and
they slaughter the animal and take the meat to their respective
homes. Z is accused of theft of the kudu. The state alleges that S was
the owner of the kudu and that Z stole the kudu. To succeed the state
will have to prove that S was the owner.

S could only have become the owner by means of appropriation.

Appropriation is an original method of acquisition of ownership. It can
be defined as the unilateral taking of physical control of a thing which
does not belong to anyone (res nullius), but which is within the
sphere of law (res in commercio) with the intention of becoming its
owner. Physical control is essential for the acquisition of ownership by
means of appropriation. Where wild animals are wounded, but actual

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physical control is not taken, appropriation does not take place.

Therefore, if one person wounds a wild animal but another person
catches it or discovers the carcass, the latter obtains ownership.

Q and R, who are S's grandparents, are lovers of game and they keep
two impalas, a few kudus and a giraffe in a camp of approximately
250 to 300 hectares in extent. The camp is enclosed by a fence 1.68 m
high. Q and R purchased the animals at an auction from a well-known
game farmer who marks all his animals with the initials JR. Late one
evening the game ranger leaves the gate open and the animals escape.
S and his friends go hunting on S's farm the following evening. They
shoot four of the kudus. S's grandparents, Q and R, are claiming the
value of the animals from S and his friends because they argue that
the game was their property.

S and his friends took physical control of the kudus. The kudus were
within the legal sphere and they (S and his friends) intended to
become owners of the kudus.
The question, however, is whether the four kudus were res nullius?
Res nullius are things that belong to no one. All creatures that are
wild by nature (animals, birds, fish and insects) either in their natural
state (before someone has taken control of them) or when they have
reverted to their former wild state (after having been tamed
(controlled) by a person) are regarded as res nullius. An exception
occurs in the case of wild animals, which have been tamed
(domesticated). In this set of facts, however, one must bear in mind
that the kudus belonged to Q and R, who acquired them by means of
a derivative form of acquisition of ownership, namely delivery. They
derive their ownership from their predecessor in title, the game
farmer, who sold and delivered them to Q and R at the auction. They
are identifiable and therefore they belong to Q and R, who can claim
them with the rei vindicatio if they still exist or else claim their value.

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ACCESSION
Accession: takes place when 2 corporeal things are combined by
either human activity or natural process, in such a way that one of
the things loses its physical or economic independence and becomes a
component of the other thing.
• The thing that remains independent = principle thing.
• The thing merged in such a way that it loses its independence =
accessory thing.
• The owner of the principle thing becomes the owner of the
accessory thing.

Passing of ownership through accession only takes place if:

a) The composite thing isn’t easily divisible
b) The principle and accessory thing can be distinguished
c) The accession doesn’t amount to the making of a new
thing (manufacture)

ACCESSION OF A MOVABLE TO AN IMMOVABLE

This normally takes place by human activity, where a movable
becomes permanently attached to an immovable. The owner of the
immovable (principle part) becomes the owner of the movable
(accessory part)

Planting and sowing:

Is an original method of getting ownership in terms of which growing
things accede to land and become the property of the owner of the
land – accession takes place as soon as the plant takes root.

Elements:

1. Growing things accede to land: this is a process where

growing movables attach to land.
2. They become the property of the landowner: if the plant is
removed it remains the property of the landowner, because it
gets its nourishment from his soil (Jerome). Plants on the
boundary between A and B are the property of the landowner in
whose soil most of the roots can be found.

Buildings:
This is an original method of getting ownership in terms of which a
movable thing (accessory thing) becomes attached to land (principle
thing) in such a way that it loses its independence and forms an entity
with the land = thereby becoming part of the landowners land.

MacDonald Ltd v Radin: laid down 3 criteria to determine whether a

movable thing has become attached to the land in such a way that it
becomes a permanent part of the land:

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a) The nature and purpose of the attached thing: does the

movable thing benefit the land (immovable)
b) The manner and degree of attachment: is it going to cause
damage to remove the attachment
c) Intention of the annexor (the person who put it there):
objectively, one must look at if the thing is attached in such a
way that it is going to cause damage to remove. Subjectively:
look at what the annexor intended (Theatre Investments)

a) The nature and purpose of the attached thing:

Standard Vacuum Refining co:
The nature of the thing must be such that it can be attached
permanently to the immovable. The purpose of the attached thing
must be to benefit the immovable indefinitely.

b) The manner and degree of attachment:

If the manner and degree of attachment is such that it would cause
damage to the land if the accessory thing were to be removed, then it
was intended to stay there permanently.
2 tests:
1) The way in which the thing may be detached: if the thing can be
removed without causing substantial damage to the attached
thing or the land = not part of the immovable (MacDonald Ltd v
Radin)
2) The state of the attached thing after attachment: if the attached
thing doesn’t exist independently and is incorporated into the
immovable, losing its own identity, the manner and degree of
attachment are sufficient.

c) The intention of the annexor:

In MacDonald Ltd: only look at the intention of the owner of the
movable.
In Standard Vacuum: look at the subjective and objective intention
of the annexor:
Subjective: what the annexor says his intention was
Objective: look at objective factors like the manner and degree of
attachment etc.

Cases:
MacDonald Ltd v Radin NO:
Facts: S leased a farm and decided to build a dairy and stables on the
farm, which belonged to X and Y.
S buys all the equipment to build the dairy from K, who reserved
ownership of the equipment until the full purchase price was paid.
A team working for K installed the dairy.
2 years after S started the dairy and before K had been paid in full, S
became insolvent. His trustee argues that all the structures and
equipment are movables and fall into the insolvent estate.

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X and Y claim that as co-owners of the land they become owners of

the structures by means of accession.

Standard Vacuum Refining Co of SA v Durban City Council:

Facts: the appellant owns and operates an oil refinery on land within
municipality territory of the respondent, who then took the value of
the oil tanks into consideration when assessing the value of the land.
Appellant objected to the valuation, arguing that the oil tanks weren’t
buildings and didn’t constitute immovable property.

Held: it was decided that the nature and physical features of the tanks
in question, the method of their construction and attachment and the
difficulties involved in removing them = all indicate an intention to
attach them to the land permanently.
The court accepted that the intention is the intention of the annexor
at the time of attachment.

On appeal the Supreme Court held that the tanks didn’t constitute
immovable property – there would be no damage to the land to remove
them.

Theatre Investments (Pty) Ltd and another v Butcher Brothers

Limited:
Facts: the appellant occupied and used land leased from the
respondent for 50 years, with a right of renewal.
In terms of the lease the lessee undertook to proceed with the erection
of a theatre on the land – it was built and fitted with seats, lighting,
carpets and an air-con.
The lease stated that on expiry of the lease the lessor would get
ownership of all buildings and improvements on the property without
being liable to the lessee for compensation.

On expiration of the lease the parties couldn’t reach an agreement of

the renewal of the lease and it was therefore terminated.
A dispute arose when the lessee claimed certain equipment = saying
that it remained a movable and he asserted his rights as owner to
remove them.

The respondent applied for an interdict, stopping the lessee from

removing the items and the interdict was granted.
The lessee appealed.

The court looks at the fact that the chairs were specifically designed to
use in the theatre and the difficulty of removing them.

Held: the court decided that the intention was to attach permanently
and they therefore became immovables = acceded to the land and the
lessee lost his rights.

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Konstanz Property (Pty) Ltd:

Facts: the appellant through his farm manager concluded a contract
with P (a close corporation) in terms of which P was to install an
irrigation system on the appellant’s farm.
P bought the components of the system from the respondent, a
wholesaler.
In terms of the purchase agreement, the respondent reserved
ownership of each item pending payment of the full purchase price,
P installed the system on the farm and was paid by the appellant, but
failed to pay the respondent.

The respondent got default judgment against P, in terms of which the

sheriff was ordered ion the event of non-payment to attach the
equipment.

The appellant applied for a declaratory order, to the effect that the
appellant was the owner of the items.
2 issues:
a) Whether the equipment had become part of the property
through attachment
b) Whether the respondent was prevented on the basis of estoppel,
from raising its reserved ownership against an innocent
purchaser of the property.

Held: the court a quo decided in favor of the respondent and ordered
the appellant to allow the respondent to remove the equipment.
The appellant appealed.

Remedies for the owner of a movable thing, who loses his ownership
because of accession to the landowner:
a) If its possible to detach the accessory thing, he can bring the rei
vindicatio
b) He can claim an enrichment action for compensation for loss of
his movable
c) A lessee, who has made improvements to leased property, is
entitled to remove the improvements before the lease expires, as
long as it doesn’t cause damage to the landlord’s property.

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ACCESSION OF MOVABLES TO MOVABLES

Definition: is the original method of getting ownership in terms of

which an accessory movable becomes attached to a principle movable
in such a way that a single entity is formed and the ownership of the
principle thing extends over the accessory thing, which has lost its
independence.

Elements:
a) The accessory movable combines with the principle movable:
Requirements:
1) Must be able to identify the accessory and principle part.
2) The combination must be difficult to separate
3) It mustn’t amount to the making of a new thing.

b) It must form a single entity – see Kahn v Minister of Law and

Order

MIXING AND FUSING

Mixing: original method of getting ownership in terms of which,
things belonging to different people are mixed together without the
consent of the owners and in such a way that they can’t be separated.
The mixture becomes the joint property of the former owners, in
proportion to the value of the thing.

Solids mixed = commixio

Liquids mixed = confusion
Elements:
a) Things are mixed together
b) Belonging to different owners
c) Without the consent of the owners

MANUFACTURE

It’s an original method of getting ownership in terms of which

ownership is acquired by the unauthorized production of a new thing,
using material belonging to another without their consent. = Wine
from grapes

Elements/requirements:
a) Unauthorized production: good faith = the manufacturer must
be under the impression that the material belonged to him.
b) New object: the product must be such that it can’t be changed
back to its original form.
c) Acquisition of ownership of a thing belonging to another:
where a manufacturer makes a new thing, the former owner
loses his ownership and the manufacturer becomes the owner of

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the new thing. BUT on the ground of unjustified enrichment, he

must compensate the owner of the material for its value.

Where the new thing can be reduced to the form of the material from
which it was made, the owner of the material is the owner of the new
thing.

ACQUISITION OF FRUITS
Before separation fruits are accessory to the principle thing. On
separation they become independent things, which can form the
object of ownership.

Elements:
a) Fruits:
Natural fruits: the natural product of the thing:
a) Hanging fruits (fructus pendens): fruit still attached to the
parent thing
b) Separated fruits (fructus seperati): have been separated
from the parent thing through natural process
c) Gathered fruits (fructus precpti): fruits, which have been
separated and gathered.
Civil fruits: rent, interest on capital, dividends on shares, etc
b) Separation: fruits aren’t independent before separation and the
owner of the fruit bearing thing is also the owner of the fruits –
once they have been separated they become independent.
Separation can be done by human intervention.
c) Acquisition of ownership: usually the owner of the fruit bearing
thing is also the owner of the fruits, except the following can get
ownership of the fruits once they have been gathered:
• Bona fide possessor
• Lessee
• Usufructry

PRESCRIPTION:
Def: original method of getting ownership in terms of which a person
who controls a thing openly, as if he were the owner for an
uninterrupted period of 30 years becomes its owner.

Interruption – the period of prescription, which has already run, is

terminated and the period must begin anew.
1. Natural interruption:
Lost possession of the thing.
BUT the running won’t be interrupted by involuntary loss of
possession if possession is regained:
a) Within 6 months by means of the spoliation remedy
b) Within 12 months if the thing is returned to him
c) If war time conditions interrupted his possession and
conditions improve
Prescription is interrupted and terminated when:

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a) Voluntary loss of control

b) If possessor waits too long to take legal steps
c) If an act of God prevents the possessor regaining possession
within 12 months

Suspension:
Is the temporary suspension of the period of prescription – the period
that has already run doesn’t lapse but is suspended and can
recommence later.

Prescription doesn’t run against people who can’t enforce their rights:
1. Minors
2. Insane
3. People absent from SA because of war, or those employed by the
state

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POSSIBLE QUESTIONS: ORIGINAL ACQUISITION OF OWNERSHIP

DEFINE ‘PLANTING & SOWING’ (2)

Planting & sowing is the process whereby growing things are attached
to the land in which they are planted & become the property of the
owner of the land. Everything that is planted or sown in the soil
becomes part of the land as soon as the plant takes root or the seed
germinate & obtains nourishment from the soil.

SAM BUILDS A HOUSE MADE OF CORRUGATED IRON FOR THE

HERDSMEN. HE BOLTS THE CORRUGATED IRON TO A CEMENT
FOUNDATION ON THE FARM OF HIS PARENTS. AFTER THE
TERM OF THE CONTRACT OF LEASES HAS EXPIRED S WANTS
TO REMOVE THE HOUSE. HIS PARENTS WARN HIM THAT HE
CAN’T DO THAT BECAUSE THIS WOULD AMOUNT TO THEFT. HIS
PARENTS ARGUE THAT THEY BECAME OWNERS OF THE
CORRUGATED IRON HOUSE BY ACCESSION. SAM REMOVES THE
HOUSE. CAN HIS PARENTS CLAIM THE RETURN OF THE
BUILDING MATERIAL? SUBSTANTIATE FULLY. (5)

Accession (Accessio):
An original method of acquiring ownership which takes place when an
accessory thing becomes merged with a principal thing, with the
result that the 2 things form 1 entity. The accessory thing loses its
independence & becomes part of the principal thing. The owner of the
principal thing is the owner of the composite thing.

In relevant case law, MacDonald v Rabin, the court determined 3

criteria’s which determine if a movable thing is attached to an
immovable thing in such a way that it becomes part of the immovable
thing, namely:
1. Nature & Purpose of the attached thing
2. Manner & Degree of attachment &
3. The Intention of the attacher.

Acc to all 3 criteria it’s clear that the house did not become part of the
land & therefore X & Y will not succeed in getting back the building
material from S.
v S = intention = temporary.

DISTINGUISH BETWEEN: ORIGINAL & DERIVATIVE ACQUISITION

OF OWNERSHIP (5)

Original Method of acquiring ownership:

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Are used where there is no co-operation from a predecessor in title in

other words where there is no transfer of ownership.

Derivative Method of acquiring ownership:

Occur with the co-operation of a predecessor in title. The right which
the transferee obtains is derived from the former owner. This implies
that the predecessor in title should himself have been the owner &
entitled to transfer ownership.

DEFINE: APPROPRIATION (5)

Appropriation (Occupatio):
The unilateral taking of physical control of a thing which doesn’t
belong to anyone, but which is within the sphere of law with the
intention of becoming its owner.

A WINDMILL STANDS ON FARM OF X & Y WHICH THEY NO

LONGER USE. S PURCHASES THE WINDMILL FROM THEM. HIS
FATHER TAKES HIM TO THE WINDMILL & SHOWS IT TO HIM.
HE SAYS “HERE IS THE WINDMILL. YOU MUST COME &
DISMANTEL IT & TAKE IT AWAY”. S UNDERTAKES TO DO SO AS
SOON AS POSSIBLE. S BECOMES INSOLVENT & THE CURATOR
OF THE INSOLVENT ESTATE CLAIMS THAT WINDMILL IS PART
OF INSOLVENT ESTATE. X & Y DENY THIS & ARGUE THAT THE
WINDMILL IS STILL PART OF THEIR LAND. WILL THEY BE
SUCCESSFUL WITH THEIR ARGUMENT? SUBSTANTIATE YOUR
ANSW FULLY (12)

Question deals with the acquisition of ownership. The form of transfer

of ownership that is relevant here is transfer with the long hand. This
form of delivery consists of pointing something out, which because of
its weight, size & nature can’t be delivered physically.

The requirements are:

1. That the intention must be clear
2. The thing must be pointed out by the transferor to the
transferee in the presence of the thing
3. The transferee must be in the position to exercise physical
control over the thing

In Eskom v Rollamantic it was held that through attachment the

towers became part of the land & that ownership could not have been
transferred.

In relevant case law, MacDonald v Rabin, the court determined 3

criteria’s which determine if a movable thing is attached to an
immovable thing in such a way that it becomes part of the immovable
thing, namely:
1. Nature & Purpose of the attached thing
2. Manner & Degree of attachment &

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3. The Intention of the attacher. (permanent Fixture)

Depending on the factual situation, X & Y could possibly have

succeeded.

DEFINE: ACCESSION (5)

An original method of acquiring ownership which takes place when an

accessory thing becomes merged with a principal thing, with the
result that the 2 things form 1 entity. The accessory thing loses its
independence & becomes part of the principal thing. The owner of the
principal thing is the owner of the composite thing.

DISTINGUISH BETWEEN: SUSPENSION & INTERRUPTION OF

PRESCRIPTION (4)

Interruption of prescription:
The period of prescription which has already run is terminated & the
period of prescription must start over.
Suspension of prescription:
Is the temporary suspension of a period of prescription? Period doesn’t
lapse & can recommence at a later stage. (3 years)

SUE DECIDES TO BUILD A DAIRY & STABLES ON WATERVAL. HE

BUYS ALL THE BUILDING MATERIAL & EQUIPMENT FROM THE
COOPERATIVE. THE COOPERATIVE RESERVES OWNERSHIP OF
THE MATERIAL & EQUIPMENT UNTIL LAST INSTALMENT HAS
BEEN PAID. S BUILDS THE DAIRY & THE STABLES WITH BRICK
& A CEMENT FLOOR. S INSTALLS ALL THE PIPES & TANKS FOR
THE MILK. 2 YRS AFTER HE HAS STARTED, BUT BEFORE THE
COOPERATIVE HAS BEEN FULLY PAID, S BECOMES INSOLVENT.
TRUSTEE OF HIS INSOLVENT ESTATE ARGUES THAT ALL THE
STRUCTURES & EQUIPMENT ARE MOVABLE ASSETS, WHICH
FORM PART OF S’s ESTATE. X & Y CLAIM THAT AS CO OWNERS
OF WATERVAL THEY BECAME OWNERS OF THE STRUCTURES &
ATTACHMENTS THROUGH ACCESSION. COOPERATIVE ALLEGES
THAT IT REMEAINED OWNER OF BUILDING MATERIALS &
EQUIPMENT. ADVICE:
(1)X & Y

In relevant case law, MacDonald v Rabin, the court determined 3

criteria’s, which determine if a movable thing is attached to an
immovable thing in such a way that it becomes part of the immovable
thing, namely:
1. Nature & Purpose of the attached thing
2. Manner & Degree of attachment &
3. The Intention of the attacher.

The intention factor was relevant in 3 more cases, namely

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1. Standard Vacuum,
2. Theater Investments &
3. Konstanz Properties.

Acc to all 3 criteria X & Y become the owners of the dairy, but has to
compensate the cooperative.

DEFINE: PRESCRIPTION (8)

Prescription: O M of A ownership in terms of which a person who

controls (possesses) a thing openly & as if he were the owner for an
uninterrupted period of 30 yrs, becomes the owner.

Interruption of prescription:
The period of prescription, which has already run, is terminated & the
period of prescription must start over.

Suspension of prescription:
Is the temporary suspension of a period of prescription. Period doesn’t
lapse & can recommence at a later stage.

DISTINGUISH BETWEEN: ACCESSION & MANUFACTURE (10)

Manufacture:
(specificatio – specification)
O M of A ownership in terms of which ownership is acquired by the
unauthorized production of a completely new thing, using a thing
belonging to another (make wine from grapes).

Accession (Accession):
An original method of acquiring ownership which takes place when an
accessory thing becomes merged with a principal thing, with the
result that the 2 things form 1 entity. The accessory thing loses its
independence & becomes part of the principal thing. The owner of the
principal thing is the owner of the composite thing.

Accession of immovable to immovable:

(1) Alluvio:
(Immovable 2 immovable)

The gradual & imperceptible addition of land to land through the

natural action of water where the natural boundary of the property is
a river or the sea.

(2) Avulsio:
(Immovable 2 immovable)

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An original method of acquiring ownership which takes place when

the extent of land is increased by the sudden addition of land which
has by violent natural causes been dislodged elsewhere.

Accession of movable to immovable:

(1) Sowing & Planting:
(Movable 2 immovable)
Original method of acquiring ownership in terms of which growing
things accede to land & become the property of the owner of the land.
Accession takes place as soon as plants take root in soil.

(2) Building:
(Movable 2 immovable)

O.M of Acquisition ownership in terms of which a movable thing

(accessory) becomes attached to land (principal) in such a manner
that it loses its independence & forms an entity with the land, thereby
becoming part of the landowner’s land.

Accession of movable to movable:

An O M of A ownership in terms of which an accessory thing (movable)
becomes attached to a principal thing (movable) in such a way that a
single entity is formed & the ownership of the principal thing extends
over the accessory thing which has lost its independence.

DEFINE: MANUFACTURE (SPECIFICATIO) (4)

Manufacture:
(specification – specification)
O M of A ownership in terms of which ownership is acquired by the
unauthorized production of a completely new thing, using a thing
belonging to another (make wine from grapes).

THE 3 CRITERIA APPLIED BY COURTS TO DETERMINE

WHETHER A MOVABLE THING IS ATTACHED TO AN IMMOVABLE
THING BY MEANS OF ACCESSION IN SUCH A FASHION THAT IT
BECOMES PART OF THE IMMOVABLE THING (3)

In relevant case law, MacDonald v Rabin, the court determined 3

criteria’s which determine if a movable thing is attached to an
immovable thing in such a way that it becomes part of the immovable
thing, namely:
1. Nature & Purpose of the attached thing
2. Manner & Degree of attachment &
3. The Intention of the attacher.

DEFINE: TREASURE TROVE (5)

Treasure Trove:

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O M of A ownership in terms of which hidden treasures, that is,

valuable movable corporeal things hidden for so long that it’s
impossible to determine ownership, is acquired either by the
landowner or by him & the accidental finder together. It takes place
upon the taking control of the finder.

SUSPENSION OF PRESCRIPTION TAKES PLACE IN FAVOUR OF A

NUMBER OF PERSONS WHOM THE LAW WANTS TO PROTECT BY
NOT ALLOWING PRESCRIPTION TO RUN AGAINST THEM. NAME
THESE CATEGORIES OF PERSONS. (5)

1. Minors
2. Mentally Ill person
3. Persons absent from country, because of war or who’s employed
by the state
4. Fideicommissaries

A CO, DURBAN OIL, OPERATED AN OIL REFINERY ON ITS LAND

SITUATED WITHIN MUNICIPAL AREA OF DURBAN CITY COUNCIL.
LATTER, WHEN ASSESSING COMPANIES LAND FOR RATING
PURPOSES, TOOK INTO ACCOUNT VALUE OF CERTAIN STEEL
TANKS WHICH WERE PART OF THE REFINERY. THESES TANKS
WERE USED FOR STORING UNFURNISHED & FURNISHED
PRODUCTS. THE VALUATORS REGARDED STEEL TANKS AS
BUILDINGS ON LAND & THEREFORE IMMOVABLE PROPERTY.
DURBAN OIL REJECTED THE VALUATION & ARGUED TANKS
WERE NOT BUILDINGS & THEREFORE NOT PART OF LAND.
THEY REGARDED TANKS AS MOVABLE PROPERTY. WILL
DURBAN OIL SUCCEED IN THEIR OBJECTION? CASE LAW. (10)

In relevant case law, Standard Vacuum, the same set of facts applies.
The Valuation Appeal Board decided that the tanks didn’t constitute
immovable property, but in a further appeal the provincial division of
the SCA overturned the finding & found that the tanks did constitute
immovable property.

In Standard Vacuum the 3 requirements that were decided in

MacDonald v Rabin was looked at, namely:
1. Nature & Purpose of the attached thing
2. Manner & Degree of attachment &
3. The Intention of the attacher.

In Standard Vacuum it was decided that with ref to the above

requirements that the intention was to attach the tanks permanently,
but the actual intention of the attacher was to attach them for an
indefinite period.

So Durban Oil won’t succeed in their objection to the valuation

because of the facts & decisions in Standard Vacuum.

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DERVIATIVE ACQUSITION OF OWNERSHIP

This occurs with the co-operation of a predecessor in title (previous
owner) – get the right from the previous owner = nemo plus iuris rule:
no one can transfer more rights than he himself has.
Rights are transferred to the new owner with the advantages and
disadvantages.

Definition: ownership is acquired from a predecessor in title by

means of delivery for movables and registration for immovables.

Requirements for the transfer of ownership:

1. The thing must be a res in commercio – must be negotiable and
capable of being owned.
2. The parties must be in a position to give and pass ownership –
contractual capacity
3. The transferor must be the owner/ someone authorized by the
owner – nemo plus iuris (ABSA Bank Ltd)
4. The parties must have the intention to pass and receive
ownership – mental and physical element
5. Must be a legal ground for the transfer = abstract and causal
systems:
Abstract system: Causal system:
The transfer of ownership is Makes the transfer of real rights
concerned with the intention of dependant on a valid underlying
the parties to transfer and contract (sale, donation) – this is
receive ownership – regardless of the reason (causa) and if it’s
whether its supported by a valid invalid for some reason no
agreement or not. transfer of ownership can take
NO CONSEQ if the agreement is place.
valid or invalid – all that is Ownership doesn’t pass without
required is the delivery of the a valid reason.
movable or the registration of The owner then keeps
the immovable and the intention ownership and can claim the
that ownership pass= reason thing with a real action (rei
(causa). vindicatio) from whoever has it.
If the agreement is defective for
some reason – the thing may be
claimed with a personal action
from the person to who it was
transferred and not from a 3rd
party (specific person)

Hudson: the abstract system was accepted for the delivery of

movables.
Trust Bank of SA v West Bank: confirmed this

Brits v Eaton: said the abstract system also applies to immovables

and this was confirmed in Kriel v Terblanche

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6. Cash and credit sales – usually ownership doesn’t pass until the
purchase price has been paid in full – unless something else is
agreed on
7. Method of transfer – Publicity requirement – must be fulfilled
because we are dealing with a real right which applies to
everyone. The transfer of ownership must tell others that there’s
been a change in ownership –
Movable = delivery
Immovables = registration.

Delivery:
Ownership is transferred by delivery – physical element (corpus) and
mental element (animus)

Physical element:
Actual delivery: gives the thing from his hand into the hands of the
transferee

Constructive delivery: there is no physical or actual handing over of

a thing = fictitious delivery
• Symbolic delivery: thing which can’t be handed over because of its
nature or size are handed over symbolically – symbol of transfer =
key to house
• Delivery with the long hand: the physical transfer of the thing isn’t
possible because of its weight/size – the thing is transferred by
pointing out to the transferee in the presence of the thing. The
transferee is placed in a position to enable him to exercise physical
control Eskom v Rollomatic Engineering

The transferee already has physical control:

Delivery with the short hand: there is no transfer of physical
control because the transferee is already in control of the thing
BUT not as owner – A rents a house from B then decides to buy it.
All that changes is the intention requirement.

Someone else exercises control on behalf of the transferee:

Constitutum possessoruim: the seller keeps control of the thing but
transfers ownership to the buyer – only the intention towards the
thing changes.
X buys a watch from the jeweler and leaves it there for cleaning.
Goldingers trustee v Whitelaw and son: person alleging transfer must
establish facts proving constitutm possessorium – facts must support
a legal relationship on the basis of which the seller continues to hold
the thing but no longer as owner.

Attornment: the seller, buyer and the 3rd party (who is in control of the
thing) agree that the 3rd party will control eh thing on behalf of the
buyer as owner.
2 requirements:

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1. 3 party agreement – all 3 parties must agree to the transfer of

ownership
2. Holder must exercise control at the moment of transfer.
See Caledon case NB!

Registration:
To transfer immovable property you need to register it with the Deeds
Registry.
Exceptions:
1. Marriage in community
2. State expropriates the property
3. Prescription

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POSSIBLE QUESTIONS: DERIVATIVE ACQUISITION OF

OWNERSHIP

DEFINE: CONSTITUTUM POSSESSORIUM (4)

CP indicates that ownership transferred to the receiver without the

thing actually being delivered to him. Only a change in attitude in
respect of the owner’s intention takes place. The thing remains in
physical control of the previous owner who exercises physical control
on behalf of someone else.
E.g.: X buys a ring, but leaves it with the jeweller to clean.

DISTINGUISH BETWEEN: CAUSAL & ABSTRACT SYSTEMS OF

TRANSFER OF OWNERSHIP (2)
In a causal system of transfer of ownership the validity of the transfer
is dependent on the validity of the underlying contract which imposes
the duty to transfer (the agreement creating obligations), while in the
abstract system of transfer ownership is transferred despite the
invalidity of the underlying contract, as long as the real agreement
(intention to transfer & receive ownership) is valid.

DEFINE: DELIVERY (5)

It’s the transfer of physical control of a movable to the transferee to

enable him to exercise control of the movable with the intention of an
owner.

Ownership of movable things is transferred by means of deliver.

Delivery consists of 2 elements: a physical & mental element.
Both elements must be present at the transfer.
Physical element can be fulfilled in different ways. (Actual delivery &
Constructive delivery).

A WINDMILL STANDS ON FARM OF WILLY WHICH THEY NO

LONGER USE. STEVEN PURCHASES THE WINDMILL FROM HIM.
HIS FATHER TAKES HIM TO THE WINDMILL & SHOWS IT TO
HIM. HE SAYS “HERE IS THE WINDMILL. YOU MUST COME &
DISMANTEL IT & TAKE IT AWAY”. S UNDERTAKES TO DO SO AS
SOON AS POSSIBLE. STEVEN BECOMES INSOLVENT & THE
CURATOR OF THE INSOLVENT ESTATE CLAIMS THAT WINDMILL
IS PART OF INSOLVENT ESTATE. WILLY DENIES THIS & ARGUE
THAT THE WINDMILL IS STILL PART OF HIS LAND. WILL HE BE
SUCCESSFUL WITH THEIR ARGUMENT? SUBSTANTIATE YOUR
ANSWER FULLY (12)

Question deals with the acquisition of ownership. The form of transfer

of ownership that is relevant here is transfer with the long hand. This

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form of delivery consists of pointing something out, which because of

its weight, size & nature can’t be delivered physically.

The requirements are:

1. That the intention must be clear
2. The thing must be pointed out by the transferor to the
transferee in the presence of the thing
3. The transferee must be in the position to exercise physical
control over the thing.

In Eskom v Rollamantic it was held that through attachment the

towers became part of the land & that ownership could not have been
transferred.

In relevant case law, MacDonald v Rabin, the court determined 3

criteria’s which determine if a movable thing is attached to an
immovable thing in such a way that it becomes part of the immovable
thing, namely:
1. Nature & Purpose of the attached thing
2. Manner & Degree of attachment &
3. The Intention of the attacher.

Depending on the factual situation, X & Y could possibly have

succeeded.

DEFINE: DELIVERY WITH THE LONG HAND (TRADITIO LONGA

MANU) (5)

A form of constructive delivery where a thing due to its nature, size &
weight or due to practical circumstances can’t be handed over
physically, but where it is pointed out to the transferee enabling him
to take physical control of the thing.

DEFINE: ATTORNMENT (5)

Attornment:
Is a D M of transferring ownership where the transferor, the transferee
& 3rd party (who is in control of the thing & will continue to control it),
agree that the 3rd party will control the thing on behalf of the
transferee as owner.

NAME: THE ELEMENTS OF DELIVERY (3)

Delivery consists of 2 elements: a physical element (corpus) & a

mental element (animus). Both elements must be present at the
transfer.
Physical element can be fulfilled in different ways.

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EXPLAIN DIFFERENCE BETWEEN DELIVERY WITH THE SHORT

HAND & CONSTITUTUM POSSESORIUM WITH REFERENCE TO
BOTH THE GENERAL PRINCIPLES PERTAINING TO DELIVERY &
EXAMPLES. (6)

Delivery with the short hand:

The transferee is already in physical control of the thing, but not as
owner.
E.g. A is renting a house, but now wants to buy it.

Constitutum Possessorium:
The transferor retains physical control over the thing in which they
have already agreed to transfer ownership to the transferee. It’s only
the intention towards the thing that undergoes a change.
E.g. A buys a watch from the jeweller & leaves it with him for cleaning.

BRIEFLY DISCUSS CONSTITUTUM POSSESSORIUM AS A METHOD

OF DELIVERY TO ESTABLISH A PLEDGE (5)

Constitutum Possessorium:
The transferor retains physical control over the thing in which they
have already agreed to transfer ownership to the transferee. It’s only
the intention towards the thing that undergoes a change.
CP doesn’t constitute delivery for purposes of creating a valid pledge.

E.g. A buys a watch from the jeweller & leaves it with him for cleaning.

XAVIER PURCHASES THEIR FARM IMPLEMENTS IN TERMS OF A

CREDIT AMOUNT FROM THE COOPERATIVE, KEVIN. KEVIN
RESERVES OWNERSHIP UNTIL XAVIER HAVE PAID FINAL
INSTALMENT. XAVIER PAY FAIRLY HIGH RATE OF INTERESTS
TO THE COOPERATIVE & QUINTIN, XAVIER’s FATHER IN LAW
UNDERTAKES TO PAY FULL AMOUNT TO COOPERATIVE.
XAVIER CAN THEN REPAY THE MONEY TO HIM IN
INSTALMENTS. COOPERATIVE TRANSFERS OWNERSHIP TO Q.

WHAT FORM OF TRANSFER OF OWNERSHIP APPLIES HERE? (1)

Derivative acquisition of ownership.

EXPLAIN THE OPERATION OF THIS FORM OF DELIVERY WITH

REFERENCE TO CASE LAW (9)

With reference to relevant case law, Vasco Dry Cleaner’s v Twycross,

the constructive delivery, constitutum possessorium was used. The
facts of Vasco are the same as the facts of the question.

Constitutum Possessorium:

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The transferor retains physical control over the thing in which they
have already agreed to transfer ownership to the transferee. It’s only
the intention towards the thing that undergoes a change.
E.g. A buys a watch from the jeweller & leaves it with him for cleaning.

Since this form of transfer of ownership depends entirely upon the

changed relationship between the parties, it’s obvious that there’s
ample opportunity for fraud. A debtor may mislead his creditors when
they wish to attach his goods by seemingly delivering these goods by
means of constitutum possessorium in order to render attachment
impossible.

NAME THE 3 DIFFERENT SITUATIONS THAT CAN BE

DISTINGUISHED UNDER CONSTRUCTIVE DELIVERY (TRADITIO
FICTA) (3)

1. Transferee is placed in position to exercise physical control

2. Transferee is already in physical control by virtue of some other
legal relationship
3. Someone else exercises physical control on behalf of transferee

X & Y DONATE PART OF THEIR FARM WHICH THEIR SON, S

LEASES FROM THEM TO S. THEY OBTAIN PERMISSION TO
SUBDIVIDE THE FARM & S ERECTS A FENCE ON THE NEW
BOUNDARY. HE FETCHES X & Y & TOGETHER THEY DRINK A
TOAST AT THE NEW GATE. X SAYS “SON I’M GLAD THAT THIS
PIECE OF LAND IS NOW YOUR PROPERTY!” DID S BECOME THE
NEW OWNER OF THE LAND? (3)

No S didn’t become owner of land, because lad must be registered in

his name, because this is one of the elements of derivative acquisition
of ownership & it shows to 3rd parties that there is a change in
ownership (publicity).

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AN OWNER HAS PHYSICAL CONTROL OF THE THING AND THE

MENTAL ELEMENT THAT HE EXERCISES SUCH CONTROL AS AN
OWNER
SOMEONE WHO HAS PHYSICAL CONTROL OF THE PROPERTY IS
NOT NECESSARILY THE OWNER OF SUCH PROPERTY AND
THEREFORE DO NOT HAVE A REAL RIGHT OVER SUCH
PROPERTY – SUCH PEOPLE ARE POSSESSORS OR HOLDERS –
ONE MUST THEN ESTABLISH IF THEIR POSSESSION IS LAWFUL,
AND IF THEY ARE ENTITLED TO EXERCISE LAWFUL REMEDIES

POSSESSION AND HOLDERSHIP

Rights in property and control of corporeal things:

Definition: Physical control of corporeal things is defined as actual,
physical holding or domination of corporeal things.

The distinction between ownership, possession and holdership is

based on the question of actual physical control and the absence or
presence of physical control is important in making these distinctions.

Control: what distinguishes ownership possession and holdership is

the intention with which the control is exercised in each case.

Definition: control of a corporeal thing consists of 2 things: a physical

and mental element.
The physical element is the way in which the thing is actually held
and the mental element is the mental attitude with which it is held.

Ius possessionis means the right of possession. Anyone who is in

possession has the right of possession, because the law recognises
this real relationship and attaches certain consequences to the factual
situation. Therefore, even the thief has the ius possessionis, while the
thing is in his/her possession. The right of possession (ius
possessionis) entails that the real relationship may not be disturbed
unlawfully.

Ius possidendi means the legally recognised right to possess. The

thief does not have the right to possess the stolen thing. A buyer of a
thing has a right to possess (ius possidendi) before delivery has taken
place and, once it has taken place, he/she has the right of possession
(ius possessionis). A holder, for example a lessee, also has the legally
recognised right to possess.

S v Brick. : S opens his mail and finds pornographic material in it. He

decides to take it to the police the next day on his way to work. In the
meantime he hides it high up in a cupboard in his bedroom so that
his wife and children will not see it. That night the police raid his
house and discover the pornographic material. S is charged with

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``possession'' of pornographic material in terms of the Indecent or

Obscene Photographic Matter Act 37 of 1967, which prohibits such
``possession''. S argues that he did not possess the material, since he
had no intention of keeping it for himself. Will the court accept this
argument?

In terms of the statute, the offence is committed by any person who

``has in his possession'' any indecent or obscene photographic matter.
Having regard to the obvious objective of the Act, the court held that
witting physical detention, custody or control of such matter is
penalised. Once it is shown that the holder was aware of the existence
of such photographic matter in his detention, custody or control, it is
not essential for a conviction under the Act that the State should
prove that the holder intended to exercise control over the
photographic matter in question for his own purpose or benefit.

The accused was found guilty, but the fact that he intended to turn
the material over to the police was regarded as a mitigating
circumstance entitling him to a lesser fine.
In this case ``possession'' merely means control for the purposes of
the Act.

PHYSICAL ELEMENT
the physical corporeal element of control refers to the actual holding
of the corporeal thing.
In accordance with the existing custom and practice the following
considerations have to be taken into account, when determining
whether the corporeal element of control is present or not in a specific
case:

a) The nature of the thing: the nature of a specific thing can

determine what type of control is required for that thing. Size is
an important factor in determining how a person can exercise
physical control over an object.
A person has actual physical control of the pen in his hand =
direct physical control.
Physical control in the broader sense – car locked up in the
owner’s garage – indirect physical control.

b) The nature and use of the thing: the purpose and use of a thing
must also be taken into account when determining the
requirements for controlling them – this is closely related to the
nature and size.
E.g. agricultural land – it’s impossible and unnecessary to
physically visit certain parts of a farm on a regular basis and
this doesn’t mean that the farmer doesn’t control the farm,
since the use and purpose of the property, being a farm, might
not require the farmer’s physical presence on certain areas of
the farm.

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c) Strict requirements for the acquisition of control: the

requirements for original acquisition of control are stricter than
for continuation of existing control – before a buyer can establish
physical control over a thing, he needs to get direct physical
control over it. He can then retain his control by means of indirect
control.

d) Control need not be exercised personally: control can be

acquired or exercised for or on behalf of the controller by an
agent – an employee can control an employer’s car on behalf of
the employer.

e) Control need not be continuous: once control is established it

may be interrupted, as long as it’s still possible to resume
control without help. Usually the rule is that an interruption
becomes a loss of control, as soon as anybody else establishes a
stronger form of control over the thing in question.

f) Control need not be comprehensive: principles regarding the

type and degree of control that is required for specific things,
develop from considerations regarding the nature, size and use
of the property – control need not be comprehensive = control of
the thing need not extend to every single part of the object.
Control over one part may be sufficient to qualify as control over
the whole.

g) The degree of control required for physical control is greater for

movable things than it is for immovable things.

Effective control:
1. The person who has physical control should be in a closer
and stronger physical relationship with the thing than
anyone else
2. The person in control should be in a position to resume
interrupted control without the help of anyone else.

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MENTAL ELEMENT

INTENTION TO BE OWNER: INTENTION TO DERIVE A

POSSESSION: LIMITED BENEFIT –
Possession is UNLAWFUL, but the HOLDERSHIP
person with physical control
could be bona fide or mala fide Lawful holders: is a person who
physically controls the thing with
Bona fide possessor: this is a the owner’s permission or on
person who is not recognized as another legal basis, in order to
the owner of the thing, because derive some limited benefit from
he doesn’t comply with the it. The holder does not regard
requirements for establishing himself as the owner, nor does he
ownership, but who has the pretend to be the owner. He
intention of the owner, on the exercises control while
incorrect presumption that he is recognizing and respecting the
in fact the owner. owner’s ownership.
Such person is unaware of the Examples: Tenant, Pledgee
fact that he does not meet the
requirements for ownership. Unlawful holders: is a person
Examples: who does not regard or conduct
A person who concludes a himself as the owner and who
contract of sale with the non- recognizes and respects the
owner and who uses the thing, owners ownership, but who
assuming that he has become its physically controls the thing for
owner the sake of the limited benefit he
derives from it, without the
Mala fide possessor: is a person owners permission or a legal
who is aware of the fact that he is ground for his control
not legally recognized as the 2 classes:
owner, since he does not conform
with the requirements of Bona fide unlawful holder: a
ownership, but he nevertheless person who physically controls
has the intention of an owner – the thing unlawfully, but he is
THIEF unaware of that fact, since he is
under the incorrect impression
that he has the necessary
permission or legal ground to
control it.

Mala fide unlawful holder: a

person who knows that he doesn’t
have the owners consent for
controlling the thing, but he
exercises physical control over it
fro the sake of the limited benefit
that he can derive from it – NOT
with the intention of an owner.

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POSSIBLE QUESTIONS: POSSESSION & HOLDERSHP

DEFINE: OWNER’S INTENTION IN POSSESSION (2)

An owner’s intention in possession is the mental element of

possession which means that the person controls the thing as if he
were the owner, although in reality this is not so.

DISTINGUISH BETWEEN: UNLAWFUL HOLDERS IN BAD FAITH &

UNLAWFUL POSSESSORS IN BAD FAITH (5)

Possession & holdership are both forms of control, which are not
ownership. The possessor doesn’t acknowledge the ownership of
someone else & exercises control as if he were the owner. The holder
acknowledges the ownership of someone else, but exercises control
with the intention to obtain some or other benefit.

BRIEFLY DISCUSS HOW BOTH DIRECT & INDIRECT CONTROL

CAN BE EXERCISED OVER A THING WITH REFERENCE TO
RELEVANT EXAMPLES. (4)

Direct control is exercised immediately by the person who actually

holds the thing. E.g., drive own car.

Indirect control is exercised by the person who holds through another

person. E.g. Employee who uses Employer’s car to make deliveries.

DEFINE: CONTROL (3)

Control of a corporeal thing consists of 2 things: a physical & mental

element. Physical element is the way in which the thing is actually
held & mental element is the mental attitude with which it is held.

DEFINE: LAWFUL CONTROL (2)

Control of corporeal things is lawful when it’s acquired & is held in

accordance with applicable rules & principles.

DEFINE: UNLAWFUL CONTROL (2)

Physical control of a corporeal thing which was acquired or is held in

contravention of the applicable property rules will not be recognized or
protected by the law & is unlawful control.

DISTINGUISH BETWEEN: BONA FIDE & MALA FIDE CONTROL (2)

Bona fide control: Refers to a person being unaware that control is

unlawful.

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Mala fide control: Refers to the knowledge that the control is unlawful.

DISTINGUISH BETWEEN: CONTROL & POSSESSION (2)

Control:
Control of a corporeal thing consists of 2 things: a physical & mental
element. Physical element is the way in which the thing is actually
held & mental element is the mental attitude with which it is held.

Possession:
Physical control with the intention of an owner.

X & Y ARE CO-OWNER OF THE FARM “WATERVAL”. THEY

PURCHASE CERTAIN FARM IMPLEMENTS FROM K THE
COOPERATIVE I.T.O. A CREDIT AMOUNT. K RESERVES
OWNERSHIP OF THINGS. FARM-IMPLEMENTS CONSIST OF
PLOUGH, HARVESTER, TRACTOR, SPADES, HOES & PICKS. T
STEALS PLOUGH. HARVESTER LEFT WITH FARM WORKERS ON
NORTHERN-EASTERN SIDE OF FARM WHERE IT’S REQUIRED IN
AUTUMN WHEN WHEAT IS HARVESTED. Z THE NEIGHBOUR
BORROWS TRACTOR FOR MONTH TO USE ON HIS OWN FARM.
WHEN SHE IS FINISHED SHE LENDS HER RENTED TRAILER TO X
& Y IN RETURN FOR LOAN OF TRACTOR.
INDICATE WITH WHICH INTENTION DO THE FOLLOWING
PERSONS EXERCISE CONTROL:

1. X & Y WITH RESPECT TO FARM IMPLEMENTS (1)

Intention to hold for own benefit.

2. X & Y WITH RESPECT TO TRAILER (1)

Intention to hold for own benefit.

3. T WITH RESPECT TO PLOUGH (1)

Intention of an owner.

4. FARM WORKER WITH RESPECT TO HARVESTER (1)

Intention to control the thing on behalf of X & Y.

5. Z WITH RESPECT TO TRACTOR (1)

Intention to hold for own benefit.

QUINTON ACCIDENTLY SINKS A BOREHOLE ON FREDS FARM &

ERECTS A WINDMILL THERE, THINKING THAT THE WINDMILL

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WAS ON HIS SIDE OF THE BOUNDARY. HOW WOULD YOU

DESCRIBE QUINTONS LEGAL POSITION IN RELATION TO THE
WINDMILL? (5)

Accepting that windmill acceded to the land, Quinton is a bona fide

unlawful possessor. His possession is unlawful since land isn’t his
property. He thinks it is his land & therefore has the intention of an
owner. He isn’t aware of the fact that he is in unlawful possession & is
therefore bona fide.

DISTINGUISH BETWEEN: LAWFUL & UNLAWFUL CONTROL (4)

Lawful control:
Control of corporeal things is lawful when it’s acquired & is held in
accordance with applicable rules & principles.

Unlawful control:
Physical control of a corporeal thing which was acquired or is held in
contravention of the applicable property rules will not be recognized or
protected by the law & is unlawful control.

DEFINE: LAWFUL HOLDER (2)

Lawful Holder:
A person who physically controls the thing with the owner’s
permission or on another legal basis, in order to derive some limited
benefit from it.

CONTROL OF CORPOREAL THINGS IS AN ELEMENT OF

OWNERSHIP, POSSESSION & HOLDERSHP. EXPLAIN BRIEFLY
CONTROL (4)

Control:
Control of a corporeal thing consists of 2 things: a physical & mental
element. Physical element is the way in which the thing is actually
held & mental element is the mental attitude with which it is held.

Ownership & lawful holdership are the only forms of lawful control &
possession & unlawful holdership are forms of unlawful control.

DISTINGUISH BETWEEN: POSSESSION IN GOOD & BAD FAITH (4)

Possession in bad faith:
Is a person who’s aware of the fact that he is not legally recognized as
the owner, since he doesn’t conform with the requirements of
ownership, but he nevertheless has the intention of an owner. E.g.,
thief.

Possession in good faith:

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Is a person who isn’t recognized as the owner of the thing, because he

doesn’t comply with the requirements for establishing ownership, but
who has the intention of the owner, on the incorrect presumption that
he is in fact the owner.

BARNEY IS A FARMWORKER FOR SAM, HE OCCUPIES &

CULTIVATE A PORTION OF HIGHLANDS. SAM HAS AN
ARGUMENT WITH THEM & THEY REFUSE TO WORK. SAM
REMOVES THEIR FURNITURE & CLOTHING FROM THE HOUSE.
HE BREAKS DOWN THEIR HOUSES. THEREAFTER HE BURNS
EVERYTHING. BARNEY WANT RESTORATION OR THEIR
POSSESSIONS ASAP.

2. SAM AVERS THAT BARNEY WAS NEVER IN CONTROL OF THE

HOUSES BECAUSE AT THE RELEVANT TIME, HE WAS LIVING
ELSE WHERE ON FARM WHERE THEY WERE HARVESTING
THEIR CROPS. WILL SAM SUCCEED IN THIS DEFENCE? (2)

No Sam will not succeed in his defence because Barney exercised

indirect physical control.

Indirect control is exercised by the person who holds through another

person. E.g., Employee who uses Employer’s car to make deliveries.
DISTINGUISH BETWEEN: LAWFUL HOLDER, BONA FIDE
UNLAWFUL HOLDER & MALA FIDE UNLAWFUL HOLDER &
EXAMPLES OF EACH (7)

Lawful Holder:
A person who physically controls the thing with the owner’s
permission or on another legal basis, in order to derive some limited
benefit from it.

Unlawful Holder:
A person who doesn’t regard or conduct himself as the owner & who
recognizes & respects the owner’s ownership to the thing, but whom
physically controls it for the sake of the limited benefit he derives from
it, without the owner’s permission or other legal ground for his
control.

2 Classes:

1. Bona fide unlawful holder:

A person who physically controls the thing but he is unaware of that
fact, since he is under the incorrect impression that he has the
necessary permission or legal ground to control it.

2. Mala fide unlawful holder:

A person who knows that he doesn’t have the consent for controlling
the thing, but he exercises physical control over it for the sake of the

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limited benefit that he can derive from it – not with the intention of an
owner.

CO-OWNERSHIP

Ways to establish co-ownership:

1) Inheritance
2) Marriage in community
3) Mixing
4) Estate holdership
5) Voluntary association without a legal personality
(partnership)
6) Contract

Bound co-ownership:
An underlying legal relationship forms the basis of the co-ownership.
Co-owners can’t terminate the relationship while the underlying legal
relationship still exists.
Cannot sell/encumber his share

Free co-ownership:
The only legal relationship, which exists between the parties, is the co-
ownership of the thing.
Co-owner can sell/encumber his share independently

Obliwitz case: difference between free and bound co-ownership:

CO-OWNERSHIP

Two or more persons can be co-owners of a thing at the same time.

Co-ownership – a thing is owned by several people in undivided co-
ownership shares.
The co-owners can’t divide the thing physically, while the co-
ownership still exists and a co-owner can’t sell or encumber the thing
without the consent of the other co-owners.
It is however possible for a co-owner to sell/encumber his undivided
co-ownership share.
The entitlements to the thing aren’t divisible but the co-owners must
exercise the entitlements jointly in accordance with his undivided
shares.

WAYS TO ESTABLISH CO-OWNERSHIP

1. Inheritance
2. Concluding of a marriage in community of property
3. Mixing
4. Estate holdership
5. Voluntary association without legal personality
6. Contract

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1. Inheritance: when a testator leaves an indivisible thing to 2 or

more / leaves a divisible thing to 2 or more, provided that it may
not be divided, it’s owned by the heirs in co-ownership.

2. Conclusion of a marriage in community: implies that the parties

to the marriage are co-owners of all the things in the common
estate in equal undivided shares as long as the marriage exists.

3. Mixing: when movable things of different owners are mixed,

without the permission of the owners, in such a way that the
mixture creates a new thing, it’s owned by the owners in co-
ownership.

4. Estate holdership: the surviving spouse in a marriage in

community of property continues the community of property with
the heirs of the deceased spouse.

5. Voluntary association without legal personality: the members of

such an association are co-owners of the assets of the association
in undivided shares. Such a member can’t alienate/encumber his
undivided share because of the unique consequences flowing from
his contract of membership of the association.

6. Contract: by means of a contract 2 or more can jointly buy a thing

and have the ownership transferred in undivided shares through
delivery (movable) or registration (immovable)

BOUND COMMON OWNERSHIP:

Definition: Exists between common owners as a result of an
underlying legal relationship between them, which forms the basis of
their common ownership of the thing and which implies that the
common owner cannot terminate the common ownership while the
legal relationship still exists.

IMPLICATIONS OF BOUND COMMON OWNERSHIP:

1. A common owner can’t usually alienate/encumber his share of
the common ownership as long as the underlying legal
relationship still exists.
2. Joint exercise of entitlements of ownership is determined by the
underlying legal relationship.
3. A common owner can’t terminate common ownership
unilaterally while the underlying legal relationship still exists.
E.g.: partnership – where the underlying legal relationship between
partners is determined by the law of partnerships and the partnership
contact between the parties.

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FREE CO-OWNERSHIP:
Definition: it means that the only legal relationship, which exists
between the parties, is the co-ownership of the thing.

IMPLICATIONS OF FREE CO-OWNERSHIP:

1. Co-owners can sell/encumber his undivided co-ownership share
independently
2. The co-ownership can be terminated unilaterally because no other
legal relationship exists between the parties, which would make
such a termination impossible.
3. The joint exercise of entitlements isn’t determined by an underlying
legal relationship.

Oblowits Case:
Difference between partnerships and co-ownership
1. Co-ownership isn’t necessarily established by contract while a
partnership is always established by a contract
2. Co-ownership doesn’t include community of profit and loss while
partnerships do.
3. Co-owner can sell his undivided co-ownership share without the
permission of his co-owners, while a partner cannot.
4. One co-owner isn’t automatically representative of another, while
partners are.
5. Co-ownership doesn’t necessarily have a basic profit motive while
partnerships do.

RIGHTS AND OBLIGATIONS REGARDING PROPERTY:

1) Alienation and Encumbrance:
A co-owner must give permission before a thing can be sold or
encumbered
2) Use:
Co-owners must decide jointly how the thing is to be used. The use
of a thing by a co-owner must be in accordance with the size of his
share in the property.
3) Profit, Income and Fruit:
Co-owners are entitled to an equal share of fruit income or profit
regarding the property proportionate to every co-owners share.
One owner can therefore not appropriate for himself the full profit
of the property through independent use.
E.g.: where the land was leased without the permission of the other
co-owners – the co-owner who got the rent was obliged to share
with the others in accordance with their share in the property
(Schultz)
4) Maintenance and Expenses:
Co-owners are obliged to contribute to the maintenance and
expenses regarding the property proportionate to their shares.
5) Right to Veto:
The decision of the majority of the co-owners about the use of the
property isn’t necessarily binding on the minority, the minority can

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veto the majority decision = co-ownership can be terminated / the

reasonableness of the co-ownership can be tested by the court.

ENTITLEMENTS REGARDING THE UNDIVIDED SHARES

A co-owner can in the case of free ownership at any time sell or
encumber his share of the property without the cooperation of the
other co-owners and even against their will. The share in the joint
property can be encumbered by a limited real right given by the co-
owner to a 3rd party regarding the thing proportionate to the co-
owners share.

If the thing is divisible the co-owner can agree that a co-owner can
exercise his right in respect of his share regarding a specific part of
the property. If the thing is indivisible the co-owner may agree to
divide the use of the thing on the basis of time.

The shares in the joint property need not be equal. A co-owner can by
sub-dividing his share, alienate a part of his share to a 3rd party who
then becomes a co-owner, while he himself retains a share.
What can be objected to, is a co-owner giving use rights in the
property to a 3rd party without the permission of the other co-owners,
but a co-owner can lease his share to a 3rd party without permission
from the others.

REMEDIES
Although control and use of property is regulated by means of a
mutual agreement between co-owners, it can happen that the
agreement of division/use isn’t complied with or that the parties cant
agree on the agreements content.
In these circumstances it’s necessary to approach the court for
assistance.
= 1. Damages or Division of profit
2. Interdict
3. Sub-division

1. Damages or Division of profit:

If a co-owner should exceed the reasonable use of a thing by using the
thing for a purpose not previously used or if the extent of his use
should be larger than his share, the other co-owners can claim
damages or division of profit resulting from the use from such a co-
owner.

2. Interdict:
A co-owner who exceeds his entitlement of use in terms of his share
by using the property unreasonably can by means of an interdict be
prohibited by the other co-owners from continuing this use.

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3. Sub-division:
If the property is divisible any co-owner can at any time claim the sub-
division of the property in accordance with every co-owners share.
It’s a requirement that co-owners must first attempt to divide the
thing among themselves in accordance with everyone’s share, but if
such division isn’t achieved the court is asked by means of the actio
communio dividendo to make such division (Theron Case).

POSSIBLE QUESTIONS: CO-OWNERSHIP

DEFINE: FREE CO-OWNERSHIP (3)

Co-Ownership:
The situation where two or more persons own the same thing at the
same time in undivided shares. Its NB to note that is the abstract
concept of ownership that’s divided, not the thing itself. DIVIDED
INTO FREE CO-OWNERSHIP & BOUND CO-OWNERSHIP.

Free Co-Ownership:
The co-ownership is the only relationship between the co-owners.

MENTION THE REMEDIES FOR CO-OWNERSHIP (3)

1. Damages or division of profit

2. Interdict
3. Claim for subdivision

DEFINE: BOUND CO-OWNERSHIP (4)

Co-Ownership:
The situation where 2 or more persons own the same thing at the
same time in undivided shares. Its NB to note that is the abstract
concept of ownership that’s divided, not the thing itself. DIVIDED
INTO FREE CO-OWNERSHIP & BOUND CO-OWNERSHIP.

Bound Co-Ownership:
Exists where there is an underlying legal relationship between the co-
owners, which determines the basis of their co-ownership, for e.g.,
marriage in community of property, a partnership or a voluntary
association.

DISCUSS TWO OF THE REMEDIES AVAILABLE TO CO-OWNER (8)

Damages or division of profit:

If a co-owner should exceed the reasonable use of the thing, in terms
of his share by using the thing for a purpose not previously used or
intended or if the extent of his use should be larger than his share,
the other co-owners can claim damages or the division of profit
resulting from the use from such a co-owner

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Interdict:
A co-owner who exceeds his entitlements of use in terms of his share
by using the property unreasonably, can, by means of an interdict, be
prohibited by the other co-owners from continuing this use –
PRETORIUS N NEFDT & GLASS.

Subdivision:
If the property is divisible any co-owner can at any time claim the
subdivision of the property in accordance with every co-owner’s share.
It is a requirement that the co-owners must 1st attempt to divide the
thing amongst themselves in accordance with everyone’s share, but if
such a division isn’t achieved the courts is asked by means of the
actio communi dividundo to make such a division.

BRIEFLY DISCUSS THE STEPS THAT CAN BE TAKEN IF CO-

OWNERS CANNOT REACH AN AMOUNT ON THE SUBDIVISION OF
THE COMMON PROPERTY (5)

1. Court may be approached with the actio communi dividundo to

make such a division.
2. If parties do approach court, it’s usually expected of co-owners to
submit a proposed subdivision.
3. If it’s, however, impossible for the co-owners to agree on the sub
division of the property, court will order a division.
4. If thing is indivisible or if it would be uneconomical or detrimental
to physically divide property court may order that thing be sold &
proceeds thereof be divided among the co-owners in accordance
with their shares
5. Or court may order that 1 co-owner compensate another co-owner
in accordance with his share after property has been valued.

DISTINGUISH BETWEEN: FREE & BOUND CO-OWNERSHIP WITH

REFERENCE TO DEFINITION OF CO-OWNERSHIP (7)

Co-Ownership:
The situation where 2 or more persons own the same thing at the
same time in undivided shares. Its NB to note that is the abstract
concept of ownership that’s divided, not the thing itself. DIVIDED
INTO FREE CO-OWNERSHIP & BOUND CO-OWNERSHIP.

Free Co-Ownership:
The co-ownership is the only relationship between the co-owners.

Bound Co-Ownership:
Exists where there is an underlying legal relationship between the co-
owners, which determines the basis of their co-ownership, for e.g.,

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marriage in community of property, a partnership or a voluntary

association.

MENTION 4 WAYS IN WHICH A CO-OWNER CAN ENCUMBER HIS

UNDIVIDED SHARE IN COMMON PROPERTY (4)

1. Alienation or burdening
2. Use
3. Profit, income & fruits
4. Maintenance & expenses.

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TERMINATION OF OWNERSHIP
TERMINATION OF LEGAL RELATIONSHIP
1. Transfer of ownership: A person loses ownership of his/her thing
when he/she transfers it to another person by means of delivery or
registration

2. Loss of physical control (thing becomes res nullius) = Ownership

comes to an end when a thing becomes a res nullius (e.g., by loss of
control of wild animals or where tamed animals lose the habit of
returning). Here a distinction is drawn between a res derelict (which
is a thing which has been abandoned by the owner with the
intention of no longer being the owner) and a res deperdita (which is
a lost thing). The former becomes a res nullius, but the latter
remains the property of the owner

3. Operation of law: Ownership is terminated by operation of law,

for example in:
• Accession
• Acquisitive prescription
• Attachment and sale in execution
• Confiscation (by the state)
• Expropriation
• Forfeiture
• Insolvency
• Manufacture, and
• In terms of a number of statutory provisions (e.g.,
demolition of a house erected in contravention of building
regulations).

TERMINATION OF POSSESSION AND HOLDERSHIP:

Causes of loss of possession and holdership:

1. The possessor or holder dies
2. The thing which is possessed or held is destroyed or lost
3. The physical element of control is lost
4. The mental element of control is lost
5. Control is transferred to someone else
6. Possession or holdership is terminated by operation of law

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REMEDIES FOR OWNERS AND OTHERS:

REMEDY FOR THE OWNER

Rei vindicatio:
Used by the OWNER of a thing, to recover the THING against any
person who has control over it.
The person using this remedy must prove:
• Ownership
• The Thing exists & can be identified
• Defendants was in control at the time the action was instituted

Actio ad exhibendum
Instituted by the OWNER, against the Former controller who mala fide
alienated or destroyed the thing and they are claiming the Market
value of the thing at the time of alienation/Destruction
• Must prove:
Intentional alienation/destruction
• Mala fide conduct
• Loss

Actio negatoria
Is instituted by the owner, against the violator, prohibiting the
exercise of certain entitlements to the holder of a servitude.
Must prove OWNERSHIP and there were physical infringement of the
entitlements of ownership

REMEDIES FOR OWNERS AND ANYONE WITH LAWFUL CONTROL

Interdict:
Instituted by the owner or the lawful holder, against the person who
violated their right, this is an order to direct or prohibit certain
conduct

The applicant must prove:

• He has a Clear right
• There was a Unlawful infringement of the right
• No other remedy is available

Condictio furtiva
Is instituted by the owner or a person with a lawful interest, its
instituted against the thief or his heirs, and the thing or the highest
value of the thing since the theft is claimed
Applicant must prove
• Ownership/retention of lawful interest from the date of the theft to
the date of institution of action.
• Theft/removal with deceitful intent by defendant.
• That defendant is an heir

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Clifford v Farinha: plaintiff was the lessee of a car and bore the risk of
damage to the car. The plaintiff went on holiday and left his house in the
care of a family member. The family member took the car without the
plaintiff’s permission and drove it to a shopping center, where she
parked and locked it. The car was stolen from the parking lot and the
plaintiff instituted an action against the family member for damages.
Reasons for various remedies not being available in the Clifford case:
1. Rei Vindicatio: the plaintiff wasn’t the owner of the car. The
defendant was also not in control of the car when the action was
instituted.
2. Actio ad exhibendum: the defendant didn’t part with the car
voluntarily, it was stolen and its loss wasn’t caused intentionally
or negligently by the defendant.
3. Action for delictual damages: loss of the car wasn’t caused by the
fault of the defendant.

In these circumstances, where all the possibilities have failed, the

lessee was said to have the condictio furtive available to claim the
value of the car from the thief.

Actio legis aquiliae

Instituted by the Owner, Bona fide possessor or holder against a
person who has caused damage and they are claiming damages

The applicant must prove:

• Act is unlawful
• Defendant acted intent/negligence
• Proprietary right in thing
• Patrimonial loss
• Causal connection between the patrimonial loss & conduct of
defendant

Declaratory order:
Is instituted by the owner, possessor or holder, against the opponent
in a dispute: apply for an order setting out the rights and duties of the
parties involved in the dispute.

The applicant must prove:

• He has an Existing future right/duty
• There is a Real dispute
• Requirements for the right/duty relied

SPOLIATION ORDER:
Definition: is a summary remedy, issued on urgent application,
aimed at restoring control of property to the applicant from whom it

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was taken by unlawful self-help, without investigating the merits of

the applicant’s control.

The spoliation remedy is also known as the amendment van spolie, it’s
a unique remedy aimed at undoing the results of the taking of
property by means of unlawful self-help. The idea is that people
should enforce and protect their property rights by legal means and
procedures and not by self-help and force.
Because its aim is at restoring peace and order, the spoliation remedy
doesn’t investigate the merits of any of the parties interested in the
property.
The court is simply interested in a factual investigation, namely
whether there is in fact proof of existing control (whether lawful or not)
and proof of unlawful spoliation of that control.

Requirements:
1. Proof that the applicant was in peaceful and undisturbed
control of the property –
• Control must have existed peacefully and
undisturbed for a period long enough and in a
manner stable enough, to qualify any unlawful
disturbance as a breach of peace.
• The mere intention of control is insufficient. The
applicant must prove that she was in a better and
stronger corporeal relationship with the property
than anyone else.
• The control required for the spoliation remedy may
also be shared control – spoliation usually consists
of one partner ousting the other from the exercising
shared control.

2. Proof that the respondent took or destroyed that control

by means of unlawful self-help or spoliation:
There must be existing peaceful and
undisturbed control, which is unlawfully
spoilated by the respondent. Two elements:
1. The respondent must have spoilated
the applicants control – this doesn’t
mean the respondent must actually
take control – partial deprivation of
control is also spoliation.
2. The spoliation must be unlawful – it’s
an action not authorized by a proper
legal procedure and which amount to
self-help.

NINO BONINO: Z rents a billiard room in Newtown from S. In

terms of the lease agreement Z is not allowed to serve alcohol on
the premises or stay open after twelve at night. S and Z insert a

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term in the agreement entitling S to take control of the premises

if Z contravenes any of the terms of the lease. Z serves alcohol to
his friends on the premises and holds rowdy parties until sunrise.
The neighbours complain to S about this. S removes the locks
from the building and fits new locks. He locks all entrances to the
premises and effectively debars Z from using or entering the
premises. Z applies for a spoliation order.

Z is a lessee and before S removed the locks Z had physical control of

the billiard room with the permission of S in order to derive a benefit
from it. Therefore Z is a lawful holder. The lease agreement is the legal
ground in which S’s permission is incorporated.

The purpose of the spoliation remedy is to protect the legal order in a

unique way. Also it is aimed at the prevention of self-help, which may
result in a breach of the peace. A spoliation order summarily undoes
the consequences of such self-help without reference to the
unlawfulness or otherwise of the pre-existing control which is to be
restored. The courts therefore do not investigate the merits of the
rights of the parties. Relevant cases are Nino Bonino

Z will have to prove that he had

1. (i) Peaceful and undisturbed control of the billiard room and
that
2. (ii) S disturbed his control in an unlawful manner

Z will be successful because it is clear that S disturbed Z’s peaceful

and undisturbed control in an unlawful manner. S cannot rely on the
clause in the lease agreement entitling him to take control of the
premises. This will entitle to take the law into his own hands, which is
against public policy. The clause would entitle S to be the judge in his
own case since he can decide if there was a breach of contract. Nino
Bonino v De Lange.

Defences ALLOWED against the spoliation remedy:

a. Applicant didn’t have the requisite control
b. Respondent didn’t commit spoliation
c. Unreasonable delay in bringing the application
d. Impossibility of restoration
e. Counter-spoliation
f. Special plea based on spoliation

Counterproof: The respondent can offer counter proof that the

applicant didn’t in fact satisfy the requirements – by proving the
applicant didn’t have control or the respondent didn’t commit
spoliation.

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Unreasonable delay: The urgent nature of the spoliation remedy = the

applicant is expected to bring it as soon as possible after spoliation
took place. If the applicant delays too ling in bringing the application
it may be assumed that she permitted the respondents action, thereby
making it lawful.
If the delay is shorter than one year it can still be unreasonably long,
but then the respondent must show reasons why its too long – if the
delay is longer than a year it may still be reasonable but the applicant
must show reasons why its still reasonable and not too long.

Impossibility:
When its impossible to restore the applicant control the spoliation
remedy losses its impact, since the courts cant force the respondent to
do something which is impossible = impossibility is a valid defence.
Impossibility is usually accepted where the property is either
destroyed or damaged beyond repair or transferred to an innocent 3rd
party from which it can’t be claimed back.

However, in Fredericks: it was held that restoration may be ordered

where it can be effected with materials of a similar nature to the
materials, which had been destroyed. In this case the spoliator
destroyed the materials on purpose so that restoration would become
impossible.
Ierse Trog CC: where the court held that a spoliation order can be
granted where the property has not been entirely destroyed. The court
here granted an order for the rebuilding of a wall and a degree of
substitution of the building materials.

Rikhotso: emphasised the inherent nature of the spoliation remedy,

that is, the fact that it is aimed at restoration of control, and refused
such an order. The court argued that if the materials were destroyed,
restoration is impossible and the spoliation remedy is not the
applicable one. In such circumstances a delictual claim for damages is
the appropriate remedy.

Counter-spoliation: It’s a defence based on the assertion that the

respondent’s actions amounted to lawful rather than unlawful self-
help. It’s accepted that a limited and reasonable measure of self-help
in the defence of ones property against unlawful intrusion is
permissible provided it occurs during the original intrusion and
doesn’t constitute a new or separate occasion of self-help.

Nature and extent of relief:

The spoliation remedy is a summary remedy which is instituted
urgently and which provides no more than temporary relief.
It’s not meant to protect rights, it doesn’t require the court to
investigate the presence of rights and it can’t grant rights. All it does
is restore the situation as it was before the unlawful spoliation took

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place, so that any dispute can be solved property by a court of law or

by legal procedures.

POSSESSORY INTERDICT:
Definition: it’s a regular action based on the merits of a stronger right
to control of a corporeal thing and it’s used to claim the thing itself or
the value from anyone with a weaker right.

The plaintiff uses this remedy to recover the thing, on the basis of her
stronger right to control of it, from anyone with a weaker right than
herself.

Requirements:
1. Proof that the plaintiff has a right in the property, and
that this right is stronger than any right, which the
defendant might have.
2. Proof that the defendant is in control of the property or
was responsible for its unlawful removal from the
plaintiffs control
3. If the plaintiff wants to claim damages (when the property
is destroyed) the normal requirements for the delictual
action for damages must be satisfied.

ENRICHMENT ACTION:
Definition: is a remedy with which the plaintiff can recover
compensation for unjustified enrichment from the owner of the
property, which was improved without legal cause by the plaintiff

Unjustified enrichment must be compensated.

Unjustified enrichment takes place when the property of one person is
improved by another person without legal cause, so that the owner is
enriched at the expense of the improver.
Improvement can take the form of actual physical improvement or
prevention of loss by expenditure of money.
This action isn’t aimed at protecting a right – it’s awarded to
possessors and holders who improved the property of others without a
right.

Requirements:
1. Proof of action or expenses undertaken by the plaintiff to
improve the defendant property or save it from damage
2. Proof that there’s no contract or other legal cause for such
action or expenses being undertaken.
3. Proof that the defendant is enriched at the plaintiff’s expense in
the process.

1. Proof of action or expense:

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The plaintiff must have undertaken some physical

improvement or expense with regard to the defendant
property
Categories of improvements:
i. Necessary improvements or expenses- essential for
the preservation and maintenance of the property
ii. Useful improvements or expenses – which aren’t
necessary but still enhance the property and
increase its market value – building a bathroom in a
house that doesn’t have one
iii. Luxurious improvements or expenses – which are
neither necessary nor useful and even when they
might increase the market value they, are
undertaken on a personal whim.

2. Absence of legal cause:

There may not be good legal cause such as a contract in
terms of, which the improvements are undertaken.

3. Enrichment at the plaintiffs expense:

The defendant must be enriched at the plaintiff’s
expense. The plaintiff is poorer and the defendant richer
as a result of the plaintiffs action.

4. Application to possession and holdership:

This remedy is for people who improve property of others
and therefore it’s of special interest to possessors and
holders of property, both lawful and unlawful.
It’s not aimed at protecting a right, but rather at ensuring
that anybody who improves another persons property is
compensated, therefore it can be used by both lawful and
unlawful controllers of property.

Nature and degree of relief:

Relief available in enrichment action:
a. A claim for payment of compensation, which is the sum,
calculated when the action is instituted, by which the
defendant is enriched or the plaintiff is impoverished.
b. In some cases the plaintiff may be allowed to simply
remove the improvements
c. In some cases the plaintiffs claim may be enforced by way
of right of retention or lien, which is a limited real security
right allowing the plaintiff to retain control of the
defendants property until compensation is paid

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POSSIBLE QUESTIONS: PROTECTION & TERMINATION

MENTION THE METHODS OF TERMINATION OF OWNERSHIP (3)

1. Death of the owner

2. Destruction of the thing
3. Termination of the physical control & owner’s intention.

FRED OWNS OF A BIKE. BARNEY STEALS THE CAR. BARNEY

GIVES THE BIKE TO HIS SON BAM BAM TO USE. AGAINST
WHOM CAN FRED INSTITUTE THE CONDICTIO FURTIVA? WHAT
ARE THE REQUIREMENTS FOR REMEDY & WHAT CAN FRED
CLAIM (5)

Q can institute it against the thief & his heirs. (Thief still alive, so
against him).

Requirements:
1. Only if his right or interest was retained from the date of the theft
to the institution of the action
2. Against thief or heirs
3. Can’t be instituted together with rei vindicatio – in the alternative.

Q can claim the thing itself or the highest value of the thing since the
theft.

JULIE AND SHEREE ARE CO-OWNERS OF WATERVAL. THEY

PURCHASE FARM IMPLEMENTS FROM KIM THE COOPERATIVE
IN TERMS OF A CREDIT AMOUNT. KIM RESERVES OWNERSHIP
OF IMPLEMENTS. WHICH CONSIST OF TRACTOR, A PLOUGH,
HARVESTER, SPADES, PICKS & SHOVELS. FRED STEALS
PLOUGH & GIVES IT TO HIS SON BAM BAM TO USE. (5)

CAN JULIE AND SHEREE MAKE USE OF THE ACTIO AD

EXHIBENDUM?

No, because Julie and Sheree aren’t the owners, because K reserved
ownership & only he can use this remedy.

AGAINST WHOM CAN IT BE INSTITUTED?

It can be instituted against the former controller who mala fide

alienated or destroyed the thing.

WHAT ARE THE REQUIREMENTS FOR A SUCCESFUL RELIANCE

ON THIS REMEDY?

Requirements:

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1. That the person intentionally alienated or destroyed the thing

2. That the person did it an a mala fide conduct
3. The owner obtained a loss.

NAME THE REQUIREMENTS FOR AN INTERDICT (3)

v Setlego

Requirements:
1. A clear right
2. Unlawful & continuing infringement of right
3. Reasonable expectation of unlawful infringement in future
4. There’s no other effective remedy

NAME THE REQUIREMENTS FOR EACH OF THE FOLLOWING

REMEDIES:

(1) REI VINDICATIO (3)

1. Owner must prove ownership of thing

2. Only an existing & identifiable thing can be reclaimed
3. The property must be in control of the defendant when action is
instituted.

(2) CONDITIO FURTIVA (5)

1. Ownership or interest in thing must have been retained from date

of the theft until the date of the institution of the action
2. Previous owner retains this remedy even if owner’s ownership is
terminated as a result of the destruction of the thing
3. Action can only be instituted against thief or his heirs (if the thing
itself can no longer be claimed, claim will be for highest value of
thing since theft)
4. Action cannot be instituted with the rei vindicatio but only in the
alternative.

WHAT IS THE CONTENT OF THE ACTIO NEGATORIA (1)

An owner can use the actio negatoria against the holder of a servitude
who exceeds his entitlement in terms of the servitude or anyone who
usurps the entitlements of the holder of a servitude.

SIMON THE SON OF X & Y LEASES A PORTION OF HIS PARENTS

FARM. WHEN HIS FATHERS FARM IMPLEMENTS ARE STOLEN
HE LENDS SOME OF HIS EQUIPMENT TO HIS FATHER X TO USE.
THEY HAVE AN ARGUMENT. X IN HIS ANGER BREAKS S’s
EQUIPMENT. INDICATE WHICH REMEDY IS AVAILABLE TO S &
WHAT THE REQUIREMENTS FOR SUCCESS ARE. (4)

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Action for delictual damages (Actio legis Aquiliae).

Requirements:
1. Act is unlawful
2. Defendant acted intentionally/negligently
3. Proprietary right in thing
4. Patrimonial loss
5. Causal connection between the patrimonial loss & conduct of
defendant.

DEFINE: CONDITIO FURTIVA (4)

Condictio furtiva:
Is an action, which can be instituted, by the owner or a person with a
lawful interest in claiming the thing or its highest value since the theft
from the thief or person who removed the thing with deceitful intent.

S BUILDS A HOUSE MADE OF CORRUGATED IRON FOR THE

HERDSMEN. HE BOLTS THE CORRUGATED IRON TO A CEMENT
FOUNDATION ON THE FARM OF HIS PARENTS (X & Y). AFTER
THE TERM OF THE CONTRACT OF LEASES HAS EXPIRED S
WANTS TO REMOVE THE HOUSE. X & Y WARN HIM THAT HE
CAN’T DO THAT BECAUSE THIS WOULD AMOUNT TO THEFT. X &
Y ARGUE THAT THEY BECAME OWNERS OF THE CORRUGATED
IRON HOUSE BY ACCESSION. S REMOVES THE HOUSE. CAN X &
Y CLAIM THE RETURN OF THE BUILDING MATERIAL WITH THE
REI VINDICATIO. WILL THEY SUCCEED? SUBSTANTIATE FULLY.
(8)

The requirements for rei vindicatio which the owner must use are:
1. Owner must prove ownership of thing
2. Only an existing & identifiable thing can be reclaimed
3. The property must be in control of the defendant when action is
instituted

X & Y could only have become owners of the building material by

attachment.
In relevant case law, MacDonald v Rabin, the court determined 3
criteria’s, which determine if a movable thing is attached to an
immovable thing in such a way that it becomes part of the immovable
thing, namely:
1. Nature & Purpose of the attached thing
2. Manner & Degree of attachment &
3. The Intention of the attacher.

The intention factor was relevant in 3 more cases, namely

1. Standard Vacuum,
2. Theatre Investments &
3. Konstanz Properties.

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According to all 3 criteria it’s clear that the house didn’t become part
of the land & therefore X & Y will not succeed in getting back the
material from S.

X OWNER OF FARM. X PURCHASES TRACTOR FROM C THE

COOPERATIVE I.T.O. A CREDIT AGREEMENT. C RESERVES
OWNERSHIP OF TRACTOR. T STEALS TRACTOR & GIVES IT TO
HIS SON S TO USE. WHICH REMEDY IS AVAILABLE TO X,
AGAINST WHOM CAN IT BE INSTITUTED & WHAT ARE THE
REQUIREMENTS? (5)

X can institute the Condictio Furtiva.

Owner or person with lawful interest can institute this action, against
the thief or his heirs.

Requirements:
1. Ownership or retention of lawful interest from the date of theft to
the date of institution of action
2. Theft or removal with deceitful intention by Defendant.
3. That Defendant is an heir

REQUIREMENTS FOR ESTOPPEL (4)

1. Representation
2. Fault
3. Detriment
4. Causal connection

v Quenty’s Motors Case

NAME 6 WAYS IN WHICH OWNERSHIP IS TERMINATED BY

OPERATION OF LAW (6)

1. Accession
2. Prescription
3. Attachment & sale in execution
4. Confiscation
5. Expropriation
6. Insolvency

S RENTS A CAR FROM CAR RENTAL AGENCY. IN TERMS OF THE

LEASE S IS LIABLE FOR ALL DAMAGES TO CAR. S GOES ON
HOLIDAY & ASKS Z, HIS SISTER IN LAW TO PARK CAR IN HER
GARAGE WHILE HE IS AWAY. SHE AGREES. ONE SATURDAY Z
REMOVES CAR & TAKES HER DAUGHTER TO DOCTOR. CAR
STOLEN FROM PARKING LOT. CAR CAN’T BE TRACED & CAR
RENTAL AGENCY CLAIMS CAR FROM S. SINCE S IS UNABLE TO

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RETURN THE CAR, HE PAYS CAR RENTAL AGENCY & CLAIMS

THE AMOUNT FROM Z. (8)

(1)WHICH ACTION IS APPLICABLE?

Conditio furtiva

(2)WHAT ARE THE REQUIREMENTS?

1. Ownership or interest in thing must have been retained from

date of the theft until the date of the institution of the action
2. Previous owner retains this remedy even if owner’s ownership is
terminated as a result of the destruction of the thing
3. Action can only be instituted against thief or his heirs (if the
thing itself can no longer be claimed, claim will be for highest
value of thing since theft)
4. Action cannot be instituted with the rei vindicatio but only in
the alternative

(3)WILL S SUCCEED?

The same facts apply in Clifford case & yes he will succeed because
of this case.

DEFINE: ACTIO AD EXHIBENDUM (4)

Actio ad exhibendum:
Is an action in terms of which the owner can claim the market value of
the thing from a person who intentionally destroyed or alienated the
thing with mala fide intention.

REI VINDICATIO REQUIREMENTS & 3 RESTRICTIONS ON ITS

APPLICATION (6)

Requirements:
1. Owner must prove ownership of thing
2. Only an existing & identifiable thing can be reclaimed
3. The property must be in control of the defendant when action is
instituted

Restrictions:
1. Sale in execution
2. Statutory limitations on eviction
3. Estoppel (FNB: Quenty’s Motors Case).

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POSSIBLE QUESTIONS: PROTECTION & TERMINATION OF

POSSESSION AND HOLDERSHIP

MENTION THE CATEGORIES OF EXPENCES OR IMPROVEMENTS

WHICH CAN BE AFFECTED TO A THING (3)

1. Necessary – maintain car – service.

2. Useful – mags – improve car
3. Luxurious – fluffy dash

NAME REQUIREMENTS FOR: MANDAMENT VAN SPOLIE (2)

1. Proof that the applicant was in peaceful & undisturbed control

of the property.
2. Proof that the respondent took or destroyed that control by
means of unlawful self-help or spoliation.

NAME DEFENCES ALLOWED AGAINST SPOLIATION REMEDY (6)

1. Applicant didn’t have the requisite control

2. Respondent didn’t commit spoliation
3. Unreasonable delay in bringing the application
4. Impossibility of restoration
5. Counter-spoliation
6. Special plea based on spoliation

X & Y ARE OWNERS OF FARM WATERVAL. Q & R, THE PARENTS

IN LAW OF X ARE OWNERS OF THEIR FARM PULANG. S OWNER
OF FARM HIGHLANDS. M HAS RIGHT OF HABITATION WITH
RESPECT TO THE FARMHOUSE ON WATERVAL. S HAS A LEASE
WITH Q & R I.T.O. WHICH HE CAN USE A PORTION OF THEIR
FARM FOR GRAZING PURPOSES. Q & R HAS RIGHT OF
UNDISTURBED USE OF A ROAD OVER FARM OF S. (12)

BRIEFLY DISCUSS THE NATURE OF THE LIMITATION ON

OWNERSHIP OF:

1. X & Y

X & Y (owners of Waterval). M has right of habitation with respect to

the farm house on waterval. This right constitutes a personal
servitude, which is a limited real right. The right of habitation limits X
& Y’s ownership of farm in that M can live in farmhouse as long as
she lives.

2. Q & R

Q & R (owners of Pulang). S has a creditor’s right in terms of the lease

for grazing purposes on a portion of Pulang. This creditor’s right limits

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the ownership of Q & R in respect of the portion that is being leased

only. The creditor’s right is based on the contract of lease between S &
Q & R. In terms of the contract S may use that portion of the land for
grazing purposes.

3. S

S (owner of Highlands). R & Q has the right of undisturbed use of a

road over Highlands. If this right was granted to Q & R in their
capacity as owners of Pulang the right will constitute a practical
servitude (praedial servitude – land). If the right was granted to them
in their personal capacity the right will constitute a personal
servitude. All servitudes are limited real Rights.

BERT & CEDRIC FARM LABOURERS OF SAM, OCCUPY &

CULTIVATE A PART OF THE FARM OF SAM. SAM HAS AN
ARGUMENT WITH THEM. HE REMOVES THEIR CLOTHES &
POSSESSIONS & THROWS THEM AWAY. HE ALSO DEMOLISHES
THEIR HOUSES & BURNS THE BUILDING MATERIALS. BERT &
CEDRIC INSTITUTE THE MANDAMENT VAN SPOLIE AGAINST
SAM. THEY CLAIM THE RETURN OF THEIR POSSESSIONS & THE
REBUILDING OF THEIR HOUSES. SAM RAISES THE DEFENCE
THAT RESTORATION IS IMPOSSIBLE BECAUSE HE THREW AWAY
THEIR POSSESSIONS & DESTROYEDD THE MATERIAL THAT THE
BUILDINGS WERE MADE OF. WILL SAM SUCCEED IN THIS
DEFENCE? (8)

Impossibility is one of the admissible defences the respondent can

raise against the applicants claim of mandament van spolie.
Impossibility is usually accepted where the property is either
destroyed or damaged beyond repair or transferred to an innocent 3rd
party from whom it can’t be reclaimed.

There are decisions, which make it clear that the court can do more
than just order restoration of control. Where reparations or re-
assembly are possible & still within the limits of reasonable repairs
they should be incl. in the restoration order.

However, in Ierse Trogg CC v Sultra Trading it was confirmed that

the rebuilding of a wall that had been demolished cud form part of
spoliation order, even though some replacement materials might be
required.

From what has been decided in the above decision, it would appear
that the type & nature of the materials destroyed play a role in the
court’s approach to allow the defence or not. From the facts it appears
that both the clothing & building material was totally destroyed. If the
decision in the case of Rikhotso v Northcliff is followed the S would

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succeed in his defence of impossibility, but the principle enunciated in

Ierse Trogg CC v Sultra Trading would state otherwise.
WHAT ARE DIFFERENT METHODS OF TERMINATION OF
POSSESSION & HOLDERSHIP? (6)

1. Death of the subject (possessor or holder)

2. Object destroyed or lost
3. Physical element terminated
4. Mental element terminated
5. Transfer of control
6. Loss through operation of law

BRIEFLY DISCUSS THE PURPOSE & REQUIREMENTS OF THE

MANDAMENT VAN SPOLIE (8)

Purpose:
The spoliation remedy is a summary remedy which is instituted
urgently & which provides no more than temp relief. It’s meant to
protect Rights, it doesn’t require the court to investigate the presence
of rights & it can’t grant rights. All it does is restore the situation as it
was b4 the unlawful spoliation took place, so that any dispute can be
solved properly by a court of law or by legal procedures.
Requirements:
1. Proof that the applicant was in peaceful & undisturbed control
of the property.
2. Proof that the respondent took or destroyed that control by
means of unlawful self-help or spoliation.

B LEASES A PART OF THE LAND OF S WHERE B ERECTS A

DWELLING. B DOESN’T PAY THE RENT. S BREAKS DOWN
DWELLING, REMOVES B’s POSSESSIONS & CLOTHING & THROWS
THEM AWAY.

1. INDICATE WHETHER B CAN CLAIM THE RETURN OF THE

POSSESSIONS. (3)

B can rely on the Possessory Interdict.

It’s a regular action based on the merits of a stronger right to control

of a corporeal thing & it’s used to claim the thing itself or the value
from anyone with a weaker right.

B, must prove that he has a stronger right than S, he must proof that
S is in possession of the property or responsible for destroying it & if B
wants to claim damages the normal requirements for delictual action
for damages must be satisfied.

2. S BURNS THE MATERIAL OF THE DEMOLISHED DWELLING. B

CLAIMS RESTORATION. S RAISES DEFENCE OF IMPOSSIBILITY

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BECAUSE MATERIAL IS DESTROYED. WILL THIS DEFENCE

SUCCEED? (4)

Impossibility of restoration is a valid defence, S can raise against B’s

claim of spoliation remedy. Impossibility is usually accepted where the
property is either destroyed or damaged beyond repair or transferred
to an innocent 3rd party from whom it can’t be reclaimed. If the
decision in relevant case law Rikhotso is used then S would succeed
with his defence of impossibility.

3. INDICATE WHETHER S CAN RAISE THE DEFENCE THAT SINCE

S IS OWNER OF THE PROPERTY S HAS THE RIGHT TO BREAK
DOWN & REMOVE THE POSSESSIONS. (2)

No S can’t raise that defence since it adds up to unlawful self-help. He

should protect his property rights by legal means & procedures.

Z RENTS A BILLIARD ROOM IN NEWTOWN FROM S. I.T.O. THE

LEASE AMOUNT, Z IS NOT ALLOWED TO SERVE ALCOHOL ON
PREMISES OR KEEP IT OPEN AFTER 12 AT NIGHT. S & Z
INSERT A TERM IN THE AMOUNT ENTITLING S TO TAKE
CONTROL OF PREMISES IF Z CONTRAVENES ANY OF TERMS OF
LEASE. Z SERVES ALCHOL TO HIS FRIENDS & HOLDS A PARTY
UNTIL SUNRISE. NEIGHBOURS COMPLAIM BY S. S REMOVES
LOCKS FROM BUILDING & FITS NEW ONE’S. HE LOCKS ALL
ENTRANCES TO PREMISES & EFFECTIVELY DEBARS Z FROM
USING OR ENTERING PREMISES. Z APPLIES FOR A SPOLIATION
ORDER. BRIEFLY INDICATE THE NATURE OF THIS REMEDY,
REQUIREMENTS & Z’s CHANCES OF SUCCESS. REFER TO COURT
CASES. (5)

Purpose:
The spoliation remedy is a summary remedy which is instituted
urgently & which provides no more than temp relief. It’s meant to
protect rights, it doesn’t require the court to investigate the presence
of rights & it can’t grant rights. All it does is restore the situation, as it
was b4 the unlawful spoliation took place, so that any dispute can be
solved properly by a court of law or by legal procedures.

Requirements:
1. Proof that the applicant was in peaceful & undisturbed control
of the property.
2. Proof that the respondent took or destroyed that control by
means of unlawful self-help or spoliation.

In relevant case law Nino Bonino the same facts of this e.g. apply. It
was decided that no man is allowed to take the law into his own

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hands & if the person does that the court will restore the situation as
it was before.

Z will succeed.

APART FROM THE SPOLIATION REMEDY & THE INTERDICT,

MENTION ONE OTHER REMEDY THAT CAN BE USED TO
PROTECT POSSESSION & HOLDERSHIP. INDICATE THE AIM,
AGAINST WHOM IT CAN BE INSTITUTED & THE REQUIREMENTS.
(5)

Condictio Furtiva:

Aim:
Is a special delictual remedy used to recover the value of the thing,
which was stolen or lost from the thief or his heirs.

Against Whom:
Thieves & heirs.

Requirements:
1. Proof of ownership or any other lawful interest, which isn’t
automatically terminated when property is stolen.
2. Proof that the thing was stolen by the defendant or that the
defendant is an heir of the thief.
3. Proof that the thing was destroyed, lost or disposed of & isn’t
recoverable.

A NUMBER OF DWELLINGS WERE ERECTED ON LAND

BELONGING TO X, WITHOUT HIS CONSENT. THE
UNAUTHORISED DWELLINGS WERE DEMOLISHED BY X & THE
MATERIALS WERE BURNT. Y APPLIED FOR SPOLIATION ORDER
RESTORING CONTROL OF HER DWELLING.

1. WHAT WOULD YOU HAVE TO PROVE TO SUCCEED IN THIS

REMEDY? (3)

Requirements:
1. Proof that the applicant was in peaceful & undisturbed control
of the property.
2. Proof that the respondent took or destroyed that control by
means of unlawful self-help or spoliation.

WILL Y SUCCEED IN THESE CIRCUMSTANCES? REFER TO CASE

LAW (7)

In Fredericks Case it was held that restoration may be ordered where

it can be affected with materials of a similar nature to the materials,

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which had been destroyed. In this case the spoliator destroyed

materials on purpose so that restoration would become impossible.
v YES

This approach was followed to a certain extent in Ierse Trogg CC v

Sultra Trading where the court held that a spoliation order can be
granted where the property hasn’t been entirely destroyed. Court may
order for rebuilding of a wall & a degree of substitution of the building
materials.
v YES

But the court in Rikhotso Case emphasized the inherent nature of

the spoliation remedy, that is, the fact that it is aimed at restoration &
refused such an order. Court argued that if materials were destroyed,
restoration is impossible & spoliation remedy isn’t applicable. In such
circumstances a delictual claim for damages is appropriate remedy.
v NO
So acc to Fredericks & Ierse Trogg, Yes Y will succeed, but acc to
Rikhotso Y won’t succeed & should rather rely on a delictual claim for
damages.

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LIMITED REAL RIGHTS

SERVITUDES AND RESTRICTIVE CONDITIONS

Ownership is never absolute or unlimited, and is limited in the
interest of the community, of neighbors and of other holders of rights,
either by statutory provisions, or by limited real rights to the property
or by personal rights against the owner of the property.

Definition of servitudes:
Definition: Servitude is
1. A limited real right to the movable or immovable property of
another
2. Which grants the entitled person (holder of the servitude)
certain specific entitlements – usually the entitlements of use
and enjoyment
3. And these entitlements limit the entitlements of the owner in
respect of the thing in one-way or another.

Servitudes have the following characteristics:

1. The holder of the servitude gets a limited real right in the
property of another, which he can protect and enforce with a
real remedy.
2. The servitude only grants entitlements of use and enjoyment to
the holder of the servitude which must be respected and
tolerated by the owner
3. No person can get a servitude over his own property
4. The holder of the servitude may not transfer the servitude to
another
5. The entitlements must be exercised reasonably by the holder of
the servitude.

PRAEDIAL SERVITUDES:
Definition: a praedial servitude is:
1. A limited real right
2. In the land of someone else (immovable property) – servient
tenement
3. Which grants the holder of the servitude certain entitlements of
use and enjoyment
4. In his capacity as owner of the dominant tenement

Characteristics:
1. It can only be granted in respect of immovable property
2. There are always 2 pieces of land involved – a dominant and a
servient tenement. The holder of the servitude is the holder of
the dominant tenement, and he exercises the entitlements of
use and enjoyment resulting from the servitude with regard to
the servient tenement in his capacity as owner of the dominant
tenement

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3. The limited real rights vests in the holder of the servitude in his
capacity as owner of the dominant tenement (not in his personal
capacity) = successors in title of the owner of the dominant
tenement are automatically entitled to the servitude.
4. The burden on the servient tenement is transferred
automatically to the new owner (in his capacity as owner) when
the land is transferred. It’s a burden on the property and is
enforceable against the owner of the servient tenement and all
his successors in title.
5. In principle praedial servitudes are perpetual, but it may be
made subject to a resolutive condition or term.
6. The dominant and servient tenements must be located next to
or near each other.
7. A benefit which increases the value or usefulness of the
dominant tenement must vest in the owner of the dominant
tenement and his successors in title
8. In principle servitudes are indivisible – the only exception is in
the case of subdivision of the servient tenement which leads to
partial liberation since not all the parts of the servient tenement
can serve the dominant tenement
9. The entitlement of the servitude holder can never be such that
the owner of the servient tenement is compelled to perform a
positive act. There can only be an obligation on the owner of the
servient tenement to tolerate the holder of the servitudes
entitlements.
10. It usually comes into being by registration in the Deeds
registry as a conditional clause in the title deed of the servient
tenement.

Categories of praedial servitudes:

A distinction is made between: rural praedial servitudes /
Urban praedial servitudes / Statutory praedial servitudes

Rural:
1. A right of way:
This includes the right of the owner of the dominant
tenement to drive, walk, and herd cattle and transport
products over the servient tenement within reasonable
bounds
2. A right to draw water:
This includes the right to water livestock on the servient
tenement, to lead water over the servient tenement etc
3. A right to grazing
4. A right to fetch wood

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Urban:
1. The right of the holder of the servitude that his building may be
supported by a building on the servient tenement
2. The right of the holder of the servitude to insert a beam of his
building into the building of the servient tenement
3. Right of the holder of the servitude that his building may
encroach on the boundary between the 2 tenements
4. The right to have pipes or electrical cables installed over the
servient tenement

Statutory servitudes:
1. The right to dam, drain, store and lead water
2. The right to extend a scheme in terms of S25 of the sectional
titles act.

PERSONAL SERVITUDES
Definition: a personal servitude is:
1. A limited real right
2. To movable or immovable property of someone else
3. Which grants entitlements (use and enjoyment rights) in respect
of the thing
4. To the servitude holder in his personal capacity.

Characteristics:
1. A personal servitude accrues to the holder of a right in her
personal capacity, but as it’s a limited real right it must meet
the requirements. It must limit the entitlements (dominium) of
the owner and must be enforceable against the owner, his
successors in title and 3rd parties
2. The servitude isn’t transferable – the holder can’t allow another
person to exercise certain entitlements to the thing.
3. Although it vests in the holder of the servitude in her personal
capacity, it’s not a creditors right but a limited real right
4. A personal servitude can be granted IRO movable and
immovable property and since it vests in her personal capacity
there is no dominant tenement
5. In the case of a servitude over movable property the holder of
the servitude may, usually, not consume the property but must
return it after termination of the servitude with its essence
intact, taking normal wear and tear into consideration.
6. In the case of movable property, a personal servitude can be
granted orally. Usually the movables must be delivered to the
holder of the servitude
7. Personal servitudes terminate at the death of the holder of the
servitude or on completion of the term for which the servitude
was granted. The servitude lapses after 100yrs if no specific
time is set.

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Common law personal servitudes:

• Usufruct
• Use
• Habitation

Usufruct: USE: HABITATION:

Definition: is a Definition: it’s a Definition: is a
personal servitude limited real right in limited real right in
which, as a limited terms of which the terms of which the
real right, grants the holder of the right holder of the right is
holder of the right to acquires the entitled to occupy a
use someone else’s entitlement to use of home belonging to
property (including the property for the the owner while
the fruits) and to benefit of himself leaving it
return the thing and his household substantially intact
substantially intact while keeping it The holder of the
to the owner on substantially intact. right isn’t entitled to
termination of the The entitlements the fruits
usufruct. may not be exercised .
by anyone else than
Requirements in the holder of the
respect of the servitude
property: The user is entitled
- Movables or to collect as much
immovable fruit as necessary for
Non-consumables his and his
and consumables. households daily
consumption – fruits
Entitlement of the cant be sold
usfructry is the use
and enjoyment of the
thing
He’s entitled to the
fruits of the thing.
Usufruct isn’t
transferable, but a
usufructuary may
lease out the farm or
grant grazing rights
to another to keep
rent or
compensation
himself

CRITERION OF REASONABLENESS:
This means the holder of the servitude must exercise the
entitlements within reasonable bounds, while the owner must

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tolerate it within reasonable bounds. The balancing of the

interests of both parties is the criterion:
a. The owner is entitled to use his land in the normal
manner, provided it’s not in conflict with the entitlements
of the servitude holder
b. The holder of the servitude is entitled to exercise his
entitlements within reasonable bounds, if there’s a
conflict of interests the holder of the servitude will have
preference over that of the owner

ACQUSITION OF SERVITUDES:
REGISTRATION:
Limited real rights IRO immovable property is established by means of
registration in the Deeds registry.
• An agreement creating a servitude between 2 parties and
which isn’t registered only results in creditors rights
between the parties, which aren’t enforceable against the
owners successors in title or 3rd parties.
• 3rd parties are usually not bound by an unregistered
servitude between the contracting parties. However in
terms of the doctrine of knowledge a 3rd party who had
knowledge of the agreement in terms of which
entitlements were granted, can be held to the terms of the
agreement.

Grant v Stonestreet
Facts: illustrate the application of the doctrine of knowledge.
A right of aqueduct was created by means of agreement in 1865
between the owners of farm A (dominant tenement) and farm B, but it
was never registered. The successor in title of the owner of farm B had
no knowledge of the right and it was never enforced against him – the
next successor of farm B did have knowledge of the written agreement.
When the owner of farm A tried to enforce it by means of a court order,
he claimed the right was only a creditor's right and was only enforceable
between the contracting parties
The court decided:
a. The unregistered servitude agreement is enforceable
against the contracting parties
b. Because the successor in title to the owner of farm B had no
knowledge of the agreement, it’s not enforceable against
him
c. The next successor of farm B did have knowledge of the
agreement so its enforceable against him because of the
doctrine of knowledge – the agreement wasn’t terminated
because of the previous owner of B’s lack of knowledge of
the agreement
d. The doctrine of knowledge will only be applicable if the
contracting parties intended to bind their successors in title.

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Servitudes are registered in the following ways:

1. The inclusion of the entitlement or allowances resulting from a
will or agreement in the conditional clause of the deed of
transfer of the immovable property
2. The registration of a notarial deed in the Deeds registry

DELIVERY:
A personal servitude in respect of movable property – the property
must be made available to the holder of the servitude in such a way
that it enables him to exercise his entitlements.
The owner of the thing at all times retains the intention to be owner
but delivers the thing with the intention that the holder of the
servitude can exercise his entitlements
A written agreement isn’t required for the establishment of a personal
servitude, but an oral agreement makes it more difficult to satisfy the
burden of proof.

COURT ORDER: WAY OF NECCESSITY

A servitude created by prescription is often enforced by means of a
court order. A person who neglects to register a servitude arising from
an agreement can be compelled to do so by means of a court order
The owner of land who doesn’t have access to a public road, can apply
to the court for a court order to grant a way of necessity

Guidelines:
1. Claim to way of necessity: a landowner of landlocked land is
entitled to access of the nearest public rd over the land of a
neighbor.
2. The nature of the way of necessity: the court can, depending on
the circumstances, issue an order that the way of necessity may
only be used in emergency situations or on a continuous basis
3. Determination of land over which way of necessity runs: the
general principle that applies is that the nearest route, causing
the least amount of damage or burden to the owner must be
used
4. Determination of route and width of way of necessity: the route
that causes the least damage to the owner should be used
5. Compensation: only payable when the route is used on a
continues basis
6. Registration: not required

REMEDIES:
Remedies available to the holder of the servitude:
a. The actio confessoria is a real remedy by means of which the
holder of the servitude can prohibit any limitation to the

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reasonable exercise of his entitlements by means of a court

order – can also claim compensation for damages
b. An interdict
c. Declaratory order
d. Spoliation order to effect restoration of control
e. A edictal claim for damages

Remedies to the owner of the property:

1. The actio negatoria is an action against the holder of a
servitude who exceeds his entitlements
2. An interdict
3. Declaratory order
4. A edictal claim for damages

TERMINATION
1. Fulfillment of condition or term
2. Merger
3. Abandonment
4. Impossibility
5. Prescription
6. Expropriation

1. Fulfillment of condition or term;

Both praedial and personal servitudes granted subject to the
fulfillment of a condition or granted for a certain period are
terminated if the condition if fulfilled or if the period ends

2. Merger:
In terms of the principle that no person can have a servitude
over his own property, a servitude is terminated if the holder of
the servitude becomes the owner of the property

3. Abandonment:
A holder of a servitude can abandon the servitude in favor of the
owner. Implicitly = if the holder allows the owner or 3rd party to
act in such a way that it becomes impossible to exercise the
servitude.

4. Impossibility:
This happens if non-consumable encumbered thing is destroyed
or if the nature of the thing changes to such an extent that it
becomes impossible to exercise the entitlements any further –
fountain becomes permanently dry

5. Prescription:
Prescription takes place if the servitude isn’t exercised for an
uninterrupted period of 30yrs

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6. Expropriation: A servitude can be terminated by expropriation

RESTRICTIVE CONDITIONS:
Definition: restrictive conditions in the narrow sense
a. Are limited real rights
b. Registered at the time of township establishment by the
original owner or developer against all or certain of the
stands in a specific township area
c. Which limit the free use and enjoyment by the owner of
such land
d. To the benefit of the other owners in their capacity as
owners of stands (real restrictive condition) or
e. To the benefit of a person in his personal capacity
(personal restrictive condition)

Real restrictive conditions:

1. The benefit arising from the restrictive condition vests in all or
certain of the owners of stands in certain township area in their
capacity as owners of stands
2. A real restrictive condition is classified as a stipulation in favor
of a 3rd party (stipulatio alteri) in the sense that the original
township owner negotiates with every owner of a stand to
benefit from the other stand owners
3. Its established at the time of township establishment in that its
registered against the title deed of stands in the township

Personal restrictive conditions:

a. if the condition is registered against all or certain stands at the time
of the township establishment to the benefit of a certain person; it’s a
personal restrictive condition
c. The construction of a stipulation in favor of a 3rd party
isn’t applied to explain the legal nature, since every stand
is not at the same time encumbered and benefited
d. Personal restrictive conditions are also established during
township establishment

PUBLIC SERVITUDES:
Definition: grants certain entitlements to the general public IRO
certain land, which limits the owner’s entitlements

It can be established in 1 of the following ways:

1. Reservation for the benefit of the public in the alienation of state
land
2. The use of a road by the general public

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POSSIBLE QUESTIONS: LIMITED REAL RIGHTS: SERVITUDES &

RESTRICTIVE CONDITIONS

DEFINE: PERSONAL SERVITUDE (4)

Personal Servitude:
This is
1. A limited real right
2. To movable or immovable property of someone else
3. Which grants entitlements (use & enjoyment rights) in respect of
the thing
4. To the servitude holder in his personal capacity.

HOW IS THE REQUIREMENTS OF REASONABLENESS APPLIED IN

SERVITUDES? (4)

The requirement of reasonableness means that the holder of a

servitude must exercise his entitlements within reasonable limits,
while the owner must tolerate the exercise within reasonable limits.
The criterion, which is applied, is the same as in neighbour law,
namely the conduct of a reasonable person. Balancing the interests of
the parties is always the criterion.

This means that the:

1. Owner can use his land as he normally would
2. Holder of the servitude exercises his rights within reasonable
limits (Brink v Van Niekerk)

BRIEFLY NAME REQUIREMENTS FOR A WAY OF NECESSITY AS

SET OUT IN VAN RENSBURG (7)
1. Claim to way of necessity
2. The nature of the way of necessity
3. Determination of land over which way of necessity runs
4. Determination of route & width of way of necessity
5. Compensation (if permanent)
6. Registration (not required)
7. Court order

SAM HAS ENTERED INTO AN AMOUNT WITH FRED I.T.O. WHICH

THEY GRANT HIM THE RIGHT TO USE THE ROAD OVER HIS
FARM. THIS AMOUNT IS IN WRITING BUT NOT REGISTERED.
FRED SELLS HIS FARM & NEW OWNER REFUSES TO LET SAM
USE THE ROAD. DISCUSS THE POSITION OF SAM WITH
REFERENCE TO RELEVANT CASE LAW. (4)

In relevant case law Willoughby the difference between a registered &

unregistered servitude agreement was said to be, in the 1st case the
entitlements are based on a limited real right & as a real burden they
are enforceable against the owner, his successors & 3rd parties. In the

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2nd case they are based on creditor’s rights & are only enforceable
against the current owner in his personal capacity.

So Sam can only enforce the servitude against Fred, & not against the
new owner.

NAME THE REQUIREMENT FOR: CREATION OF A PREADIAL

(REAL) SERVITUDE (6)

1. Can only be granted in respect of immovable property

2. There are always 2 pieces of land involved – a dominant
tenement (holder of servitude) & servient tenement (land owner).
3. Limited real right vests in the servitude holder in his capacity as
owner of the dominant tenement (not personal capacity). His
successors are automatically entitled to the servitude.
4. When land is sold, the burden of the servient tenement is
transferred to new owner.
5. Dominant & servient tenement must be located next to or near
each other.
6. The entitlement of the servitude holder can never be such that
the owner of the servient tenement is compelled to perform a
positive act. He only has to tolerate the holder of the servitude.

DISTINGUISH BETWEEN: MAIN GROUPS OF SERVITUDES (2)

1. Praedial (real) servitudes – right over land.

2. Personal servitudes – right against person

JULIE AND SHEREE ARE CO-OWNERS OF FARM & THEIR CAR,

BUT FARM IMPLEMENTS WERE PURCHASED FROM
COOPERATIVE KIM ITO A CREDIT AMOUNT. KIM RESERVED
OWNERSHIP. JULIE AND SHEREE OWE THE LAND BANK,
R100000 & TO SECURE THIS DEBT THE LAND BANK HOLDS A
MORTGAGE OVER FARM. JULIES MOTHER MARY HAS A RIGHT
OF HABITATION OVER THE OLD HOMESTEAD WHERE SHE LIVES
AT PRESENT. SAM HAS A RIGHT OF WAY & DRIVES OVER HIS
GRANDPARENTS FARM PULANG EVERY DAY TO CHECK HIS
CATTLE ON WATERVAL. A MINING CO HAS MINING RIGHTS
OVER WATERVAL, PULANG, & HIGHLANDS
INDICATE THE NATURE & TYPE OF RIGHT INVOLVED IN EACH
OF THE FOLLOWING SITUATIONS:

MINING CO IN RELATION TO THE OLD HOMESTEAD (2)

Limited real right – personal servitude (usufruct)

SAM IN RELATION TO HIS GRANDPARENTS, JULIE AND SHEREE

FARM, PULANG (2)

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Limited real right – servitude (praedial right)

MENTION THE REMEDIES WHICH ARE AVAILABLE IN CASE OF

NON-COMPLIANCE WITH RESTRICTIVE CONDITIONS (3)

1. An interdict
2. A delictual claim for damages

NAME CHARACTERISTICS OF A PERSONAL SERVITUDE (7)

1. It accrues to the holder of the right in his personal capacity

2. It’s not transferrable
3. It’s a limited real right
4. It can be acquired over movable or immovable property
5. Holder of servitude may, usually, not consume the property but
must return it after termination of servitude with its essence
intact
6. It can be granted orally in case of movable property & by
registration of immovable property
7. Terminates on death of holder of servitude or on completion of
term for which it was granted. In case of a legal person, for a
period of a100yrs or for the period agreed upon.

LINDY AND JEFF HAVE AN AMOUNT WITH ROB I.T.O. WHICH

THEY UNDERTAKE TO REGISTER SERVITUDE OVER THEIR
FARM IN FAVOUR OF HIGHLANDS.

1. BEFORE THE SERVITUDE CAN BE REGISTERED, JEFF DIES &

HIS WIFE NOW WISH TO USE THE ROAD. BRIEFLY ADVISE HER.
(2)

In principle, S’s wife isn’t entitled to rely on the praedial servitude for
use of road, since servitude wasn’t registered against the title deed of
the servient tenement.

2. AFTER SERVITUDE HAS BEEN REGISTERED, JEFF DIES & HIS

WIFE NOW WISHES TO USE THE ROAD. BRIEFLY ADVISE HER.
(2)

S’s wife is entitled to use the road, if she is the owner of the dominant
tenement, since servitude was registered in favour of dominant
tenement & against the servient tenement.

3. BEFORE SERVITUDE CAN BE REGISTERED, JEFF SELLS FARM

& NEW OWNER NOW WISHES TO USE ROAD. ADVISE HIM (2)

In principle, the new owner isn’t entitled to use the road, since
servitude wasn’t registered against the title deed of servient tenement.

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4. AFTER SERVITUDE REGISTERED, JEFF SELLS FARM & NEW

OWNER WISHES TO USE ROAD. ADVISE HIM (2)

New owner is entitled to use road, as owner of the dominant

tenement, since servitude was registered in favour of dominant
tenement & against servient tenement.

MARY HAS A RIGHT OF HABITATION OVER A HOMESTEAD ON

JULIE AND SHEREES FARM. JULIE AND SHEREE DECIDED
THAT MARY IS TOO OLD TO STAY IN THE HOMESTEAD. SHE
REFUSES TO GO TO A RETIREMENT VILLAGE. THEY DECIDE TO
GET AN EVICTION ORDER AGAINST HER & ASK YOU TO APPLY
FOR THE ORDER. ADVICE THEM FULLY (5)

Julie and Sheree ownership is limited by Mary’s right of habitation.

Mary’s right is a limited real right called a personal servitude. Mary’s
right limits Julie and Sheree’s ownership until her death or she
repudiates her right. Before that time they can’t evict her from the
homestead. Therefore, Julie and Sheree’s eviction order won’t succeed.

NAME GENERAL CHARACTERISTICS OF SERVITUDES (5)

1. Holder of servitude gets a limited real right in property of

another, which he can protect & enforce with a real remedy.
2. Servitude only grants entitlements of use & enjoyment to holder
of servitude which must be respected & tolerated by owner.
3. No person can get a servitude over his own property.
4. Holder of the servitude may not transfer servitude to another.
5. Entitlements must be exercised reasonably by the holder of the
servitude.

DEFINE: SERVITUDE (7)

Servitude:
Servitude is
1. A limited real right to the movable or immovable property of
another
2. Which grants the entitled person (holder of the servitude)
certain specific entitlements – usually the entitlements of use &
enjoyment
3. And these entitlements limit the entitlements of the owner in
respect of the thing in one way or another.

Praedial (Land) Servitudes:

This is
1. A limited real right
2. In the land of someone else (immovable property) – servient
tenement

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3. Which grants the holder of the servitude certain entitlements of

use & enjoyment
4. In his capacity as owner of the dominant tenement

Personal Servitude:
This is
1. A limited real right
2. To movable or immovable property of someone else
3. Which grants entitlements (use & enjoyment rights) in respect of
the thing
4. To the servitude holder in his personal capacity.

DISTINGUISH BETWEEN: PERSONAL & LAND SERVITUDES (2)

Personal servitude: Servitude is against the person himself.

Land servitude: Servitude is registered in favour of the land.

DISCUSS THE CRITERION OF REASONABLENESS IN EXERCISE

OF SERVITUDES. BRIEFLY REFER TO “BRINK V VAN NIEKERK”
(10)

Acc to Brink v Van Niekerk the criterion of reasonableness means

the holder of servitude must exercise the entitlements within
reasonable bounds, while the owner must tolerate it within reasonable
bounds. The balancing of the interests of both is the criterion:

1. Owner is entitled to his land in the normal manner, provided it’s

not in conflict with the entitlements of the servitude older.
2. Servitude holder is entitled to exercise his entitlements within
reasonable bounds; if there’s a conflict of interests the servitude
holder will have preference over that of the owner.

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LIMITED REAL RIGHTS - SECURITY

TWO TYPES OF SECURITY

Personal security: Real security:
Definition: implies a creditor, on the Definition: the creditor gets a
basis of performance due to him as a limited real right in the property of
result of a creditors right against a the debtor or surety, as security for
debtor (principal debt), also gets a the payment of the principal debt, by
creditors right against another the debtor to the creditor until the
person as security for the payment of payment of the principal debt
the principal debt. Real security rights are limited real
rights over another person's thing

Such rights can be created by

AGREEMENT:
- Pledge
- Mortgage

Or can be created by OPERATION OF

LAW:
- Landlords hypothec
- Tacit hypothec of the credit
grantor
- Judicial pledge
- Liens

REAL SECURITY: PLEDGE AND MORTGAGE

Introduction:
• A creditor who gets a credit right against a debtor has a claim
against the debtor in his personal capacity only.
• The basis of the creditor’s right may be a contract between the
creditor and the debtor or a delict committed against the
creditor or the unjustified enrichment of the debtor to the
detriment of the creditor.
• The amount owning by the debtor to the creditor in terms of the
creditors right is called the PRINCIPAL DEBT
• To ensure the debtor performs in terms of the creditors right the
creditor can require the debtor to give security.

General principles IRO Real security:

1. Real security is enforceable against the property of the debtor as
long as the debtor owes the creditor an amount in terms of a
valid principal debt
2. Real security = creditor gets limited real rights to the property of
the debtor which is enforceable against the debtor personally
and all 3rd parties = double legal relationship:
a. Creditors rights of the creditor against the debtor because
of the principal debt between them

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b. Limited real right of the creditor in movable/immovable

property of the debtor as security
3. If the debtor doesn’t settle the principal debt as agreed, the
creditor has a preferential claim to the proceeds if the property
is sold in execution
4. The real security exists in respect of the principal debt and all
interest
5. Creditor doesn’t usually acquire any entitlements of use and
enjoyment in respect of the property.
6. The property of the debtor is usually used as security for the
principal debt but it’s also possible to use the property of a
surety into a contract or mortgage

PLEDGE:
Definition: corporeal/incorporeal property of the pledgor (debtor) is
given to the creditor in a pledge as real security for the payment of the
principal debt, grants the pledgee (creditor) a limited real right to the
property as security until the principal debt has been paid in full.

The pledge object:

requirements:
1. Only movable property delivered as security
2. Corporeal movable property – a single object/
collection of objects can be used as security
(farming equipment)
3. Incorporeal movable property can also be used as
security – shares in a co
4. Fruits of an object (hanging or separated) form
part of the object of the pledge.

Delivery:
Real delivery or delivery with the short hand
Constitutum possessorium isn’t a recognized method of delivery to
establish a pledge because the property remains in the control of the
owner.
Pledgee must continuously exercise control in respect of the property
to keep his limited real right over the property
If he willingly loses control – the limited real right terminates.
If the property is removed from his control without his permission and
the pledgee gets the pledged property back with or without legal
process, he can still exercise his limited real right over the property.

MORTGAGE:
Definition: mortgage is a requirement in respect of
movable/immovable property of the mortgagor (debtor/surety)
granting the mortgagee (creditor) a limited real right to the

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movable/immovable property as security until the principal debt has

been paid in full.

The object:
Requirements:
1. The object in the case of movables is a single/ collection of
corporeal property – required notarial bond over the defined and
specified movable property of the debtor without the
requirement that it be delivered to the creditor.
2. Immovable property = mortgage can be required in respect of
corporeal and incorporeal property (sectional titles act)
3. Fruits of a movable form part of the object, except in the case
where a right to fruits is granted to the mortgagee – in terms of
immovable property all attachments by means of accession form
part of the object of the mortgage.
4. The immovable property of a minor/person under curatorship
can only be mortgaged with permission of the master of the
Supreme Court.

Registration Requirement:
Immovable’s: Creditor gets limited real rights to the object after
registration of the mortgage bond in the Deeds Registry.

Movable = notarial bond is registered and a limited real right

established without delivery to the creditor.
Creditor gets limited real rights to the object after registration of the
mortgage bond in the Deeds Registry.
Movable = notarial bond is registered and a limited real right
established without delivery to the creditor.

A special notarial bond is a bond A general notarial bond burdens

attested by a notary and all the movable property (e.g. all a
registered over certain movable farmer's farm implements,
property of a mortgagor (debtor) tractors and livestock) of a
in favour of a mortgagee (creditor) mortgagor (debtor). This notaries
as security for the repayment of bond creates no limited real right
the principal debt. After the but has certain advantages for the
registration of the special notarial mortgagee (creditor) in the case of
bond it grants a limited real right the mortgagor's (debtor's)
over the specified movable insolvency.
property to the mortgagee
(creditor) without the movables
being delivered to the mortgagee
(creditor). This form of security is
beneficial to the mortgagor
(debtor) since he/she can, unlike
in the case of pledge, still use the
movables while they serve as
security.

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Ikea Trading: ISSUE: To determine whether a notarial bond is valid

when the movable property over which the bond is registered is only
described and specified in an attachment to the bond.
SCA: The Security by Means of Movable Property Act in terms of which
movable property must be described in the notarial bond in a manner
that deems it ``readily recognizable''.
The test to determine whether the movable property is ``readily
recognizable'' is whether a third party can recognise the movable
property from the description in the notarial bond
According to the court a notarial bond must, as far as possible, have
the same characteristics as a pledge. Physical control of the pledged
thing is required (delivery by way of constitutum possessorium is not
possible since physical control is required for a valid pledge) and
serves as publication to third parties. The notarial bond, as in the
case of physical control for a pledge, serves as publication of the
existence of a real right to third parties. The notarial bond must
therefore contain a complete description of the object of the real
security right.
Application of legal principle to facts
In this case: the notarial bond that is registered in favour of L is
invalid as the movable property is not ``readily recognizable'' from the
notarial bond

Perfecting clause in a notarial bond

General notarial bonds and special notarial bonds before the
enactment of the Security by Means of Movable Property Act 57 of
1993 do not create real security rights over the relevant movable
property of the mortgagor in favour of the mortgagee. In terms of a
valid and enforceable perfecting clause in the bond, the mortgagee can
vest a limited real right of pledge by taking control of the movable
property securing the creditor's right. The mortgagee can get control
in terms of the perfecting clause when (i) the mortgagor agrees to it, or
(ii) in terms of a court order for specific performance and execution, if
he/she refuses.

RULES:
Immovable is mortgaged by means of registration of the mortgage
bond
Mortgage bond must contain:
• Description of the mortgagor and mortgagee
• Description of the immovable property
• Admission that the principal debt is owing
• Reason for the debt
• Any other conditions
The mortgage is noted in the mortgage register and endorsed on the
deed of transfer of the encumbered immovable property after the
owner of the land signs it and it’s attested by the Registrar of deeds.

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Unregistered agreement to mortgage property doesn’t grant the

creditor a limited real right to the property.

Immovable property encumbered with a mortgage can usually only be

transferred to the new owner after cancellation of all existing
mortgages.

Categories of Mortgages:
Kustingsbrief: is a mortgage in favor of the seller of the land as security
for the unpaid balance of the purchase price/ in favor of any other
person/financial institution who advanced the balance of the purchase
price to the buyer.
• Its registered with the transfer of the property to the buyer

Covering Bond:
Mortgage registered as security for an amount that will be lent or
advanced to the mortgagor by the mortgagee in future/ for future
debts in general.

Surety bond:
Registered against the property of the surety of the debtor, who
undertakes to give security to the creditor for payment of the principal
debt by the debtor.

Participation bond:
Registered in terms of the requirements of the Participation Bond Act,
in the name of the nominee co as mortgagee over the immovable
property of the mortgagor who was granted a loan by the nominee co

Land bank mortgage:

Security for money advanced to farmers by the land bank for
agricultural purposes – only agricultural land can serve as the object
of security.

UNENFORCABLE CONDITIONS:
Clauses in pledge agreement
Clause for summary execution (execution without court order)
The pledgor and pledgee may agree that, in case of default payment,
the pledgee may sell the thing without an execution order from the
court. Such a clause is valid and, should such a sale take place, the
pledgor may seek the protection of the court if he/she was prejudiced
by the sale (Osry, Loubser). After the debt has been satisfied, the
pledgor is entitled to the balance of the proceeds and he/she may
claim it by means of the action upon pledge of the pledgor who has
discharged his/her debt (actio pigneraticia directa).

Clause that pledgee may keep thing if pledgor fails to pay (pactum
commissorium)

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The clause that the pledgee may keep the thing, if the pledgor fails to
pay his/her debt is invalid (Sun Life Insurance Co).

Clause that pledgee may buy thing at specific price

Voet regards a stipulation that the pledgee may buy the thing at a
specific price as valid, its application was restricted in Ashington to
the case where the agreement was made after the debt had become
due or, where the agreement preceded the due date, only if the pledgor
at the time of non-payment was prepared to part with ownership of
the thing at the agreed price. The pledgor and pledgee may also agree
that the pledgee may keep the thing at a fair price or at a price
determined by a third party, if the pledgor and pledgee cannot reach
consensus (Bock)

Clause that debt may not be redeemed

Such a clause, preventing the pledgor from paying his/her debt and
having the pledged article restored to him/her, is invalid (Michell).

Pactum antichresis
Normally, the pledgee may not use the fruits of the thing given in
pledge. However, the parties may agree that the pledgee may do so,
instead of claiming interest on the amount owing by the pledgor.

Termination of mortgage and pledge:

1. Destruction of property
2. Payment of principal debt
3. Loss of physical control
4. Cancellation of bond (mortgage)
5. Sale of security object
6. Creditor becomes owner of the security object
7. Court order

REAL SECURITY RIGHTS CREATED BY OPERATION OF LAW

INTRODUCTION:
Real security rights are sometimes granted to a specific person by
operation of law, in the absence of any agreement between the parties
and even against their will.
Security rights arise automatically to protect interests that could be
considered important for legal order.

TACIT HYPOTHEC OF THE LESSOR:

Created by operation of law – hypothec of the landlord over movable
property of the lessee who is in arrears with rent payments = this
hypothec secures the landlords claim for rent in arrears and is created
by law as soon as the lessee is in arrears with rent payments.

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The hypothec is created automatically by operation of law and as soon

as the rent is paid the hypothec is extinguished by operation of law
The landlord has to make the hypothec effective by attaching the
property in terms of the court order.

Definition: it’s a real security right created by operation of law to

secure the landlords claim against the lessee for rent in arrears –
hypothec applies to movables of the lessee on the premises.

Rule: the hypothec applies to movable property belonging to the lessee

and present on the premises – but in certain circumstances it can
include the property of 3rd parties = set out in Bloemfontein
Municipality v Jackson:
Facts: Jackson sold furniture to a hire-purchase (creditor) and kept
ownership until the payment of the last installment. The purchaser
removed the property from the premises leased from the municipality,
without informing the seller/landlord.
When the rent fell into arrears the furniture was attached by the
municipality as landlord for sale in execution. When Jackson’s protested
to the furniture being attached, the court had to decide when the
property belonging to a 3rd party would be subject to the landlord’s
hypothec.

Requirements set out by the court:

1. Property must be the landlord’s premises with the knowledge of

its actual owner.
2. The property must be on the premises with some degree of
permanence and not merely temporarily.
3. The property must be on the premises for the lessee’s own use
and benefit
4. The landlord must have been unaware of the fact that the
property belongs to someone else and not to the lessee.

TACIT HYPOTHEC OF THE CREDIT GRANTOR

Credit Amendments Act: the credit grantor retains ownership of
movable property sold in terms of a credit agreement transaction,
until the credit receiver pays the last installment of the purchase
price.
On payment of the last installment ownership is transferred to the
purchaser.
Should the credit receiver become insolvent before payment of the last
installment, ownership of the property passes to the curator of the
insolvent estate and the credit grantor is protected by a hypothec in
terms of S84 of the Insolvency Act.

Definition: real security right with regard to movables and it secures

the credit grantors claim for outstanding payments in terms of the

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credit agreement, in cases where the credit receiver becomes insolvent

before payment of the last installment.

S84 of the Insolvency Act: which creates this tacit hypothec aims at
protecting the interests of other creditors – if the debtor becomes
insolvent when the debt on the property, which was bought in terms
of a credit agreement, is much smaller than the value of the property –
the fact that the credit grantor retains ownership as security might be
unfair to other creditors with larger claims.
For that reason the credit grantor claim is secured by a tacit
hypothec, while ownership is transferred to the transferee, who can
then use the property to the benefit of as many creditors as possible.

S84 also provides the possibility for the creditor to claim physical
control of the property from the transferee in order to transform the
tacit hypothec into a pledge – tacit hypothec isn’t a very strong form of
security and therefore the credit grantor would rather get a pledge by
claiming physical control.

JUDICIAL PLEDGE:

Definition: real security right, which secures a creditors claim against

a debtor and is established by obtaining a writ of execution against
the debt and attaching the property.

Any creditor who has no real security to secure her claim against the
debtor can get security in the form of a judicial pledge in terms of a
writ of execution.
On attachment the creditor gets a real security right similar to a
pledge over movables/mortgage over immovables.
Ito the writ of execution and on attachment the creditor can have the
property sold in execution by the sheriff and the creditors claim then
enjoys preference = it must be satisfied 1st from the proceeds of the
sale.

STAUTORY SECURITY RIGHTS:

Created in legislation dealing with debtor creditor relationships

Categories:

1. Statutory mortgage is created when a real security right over

movable/immovable is established without the normal
requirements for such a right.
2. Statutory fictitious pledge – is created when a right of pledge
over movables is created in the absence of real delivery/control
of property subjected to the pledge.
3. Prefferent rights are security rights which don’t amount to real
security but which provides a preferent claim to the property.

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LIENS:
said to be real security rights created by operation of law to secure
outstanding debts.
Liens or rights of retention came into operation when 1 person is in
control of the property of another, who owes the controller money.
In certain circumstances the controller is then allowed by law to
refuse to return the property to the owner unless he pays the
outstanding debt.

Definition: lien/right of retention allows the holder of the property to

refuse to return the property to the owner unless the owner pays an
existing debt to the holder.

Categories:
1. Debtor-creditor lien
2. Enrichment lien

Debtor-creditor lien:
If the debt arose from a contract = debtor-creditor lien, which is
enforced against the other contracting party only = personal obligation
which is enforced against a specific person (debtor)
Creditor knew the debt was incurred by a specific debtor and therefore
the lien is enforced against that person only.

Definition: it’s a lien which secures payment of a debt incurred in

terms of a contract and is therefore a personal obligation which can be
enforced against the contractual debtor only.

Enrichment liens:
If the debt arose from unjustified enrichment = where the owner was
enriched at the cost of the controller without legal cause = enrichment
lien which is enforced against anyone and not a specific person only.
The lien is a real burden on the property itself; it affects anyone who
happens to be an owner at a specific time.

Definition: lien which secures payment of a debt incurred by way of

unjustified enrichment and which is a real burden on the property
that can be enforced against anyone who happens to be the owner of
the property.

Only the 1st two categories of expenses/improvements can form the

basis of unjustified enrichment and an accompanying claim for
compensation.
Categories of expenses or improvements:

1. Necessary expenses/improvements: necessary for the

maintenance or continued existence of the property, unless
these expenses/improvements are undertaken the property will
be destroyed or damaged.

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2. Useful expenses/improvements: not necessary but improve the

property and will increase its market value.
3. Luxurious expenses/improvements: are neither necessary nor
useful and are undertaken only in pursuance of personal taste.

Enrichment liens are classified according to the kind of expense or

improvement from which the enrichment debt arose.

a. Salvage liens – secures payment from enrichment debts

arising from necessary expenses/improvements
b. Improvement liens – secure payment of enrichment debts
arising from useful expenses/improvements.
Acquisition:
Since the whole point of a lien is that the controller wants to refuse to
give the property back to the owner, it’s logical that liens usually
occur in a situation where an owner wants to get her property back
from the lien holder who’s in control of the property.

Since liens are established and enforced through control of the

property, without such control there can be no lien.
Lien holder must have acquired control of the property at some stage
and the lien holder must retain control for the lien to have any effect.
Since the control has a security function based on the refusal to
return it to the owner – lien holder would have to exercise and retain
effective control and would have to be able to exclude others from
taking control away.
As soon as the lien holder loses physical control the lien is terminated
and can’t be revived by the recovery of the property.
If the lien is lost involuntarily (violence) the lien, may be revived on
recovery of the property.

Singh v Santam Insurance:

Facts: Singh the owner of a car that was damaged in an accident – in
terms of the insurance contract Santam had to pay for the repairs which
were affected by X. Once the repairs were completed and paid for
Santam, found out that the insurance premiums were never paid, they
cancelled the insurance policy and took control of the car from X and
refused to return it to Singh – claiming a lien for improvements.

Court denied the claim for a lien and ordered Santam to return the car.
Santam wasn’t in control when the repairs were effected and X’s
possible lien was extinguished when the repairs were paid for, which
was before Santam took control of the car.
No further repairs or costs were incurred once Santam was in control
and therefore there were no further expenses = no unjustified
enrichment, no principal debt and consequently no basis for a lien.

Enforcement:

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Lien is a defence mechanism; they are used when the owner claims
her property back with the rei vindicatio, the lien holder then
responds by refusing to return the property until the debt is paid.
If the court agrees that the respondent has a lien, the defence will
succeed and the owner will be forced to pay debt before the property
can be claimed back.

Anyone can rely on a lien if the requirements are met – but a lien is a
discretionary remedy, which means the court has discretion to allow it
or not.
The court will exercise its discretion in recognizing a lien by looking at
all the circumstances and deciding if it would be just to enforce it.

Requirements for a lien:

1. The owner must be claiming it back from the defendant

2. Defendant must be in control of the property
3. Defendant must retain the property to secure payment of a debt
owed to the holder by the owner
4. This debt can arise out of a contract or unjust enrichment
5. The court must be convinced that in the circumstances, it
would be justified to exercise its discretion and recognize the
lien.

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POSSIBLE QUESTIONS: REAL SECURITY

NAME THE CIRCUMSTANCES IN WHICH THE GOODS OF 3RD

PARTIES ARE SUBJECT TO THE TACIT HYPOTHEC OF A LESSOR
AS SET OUT IN “BLOEMFONTEIN MUNICIPALITY v JACKSON
LIMITED” (4)

1. Knowledge of the owner

2. Measure of permanence
3. Lessee’s own use & benefit
4. Landlord unaware that goods belong to 3rd parties

INDICATE WHETHER THE FOLLOWING TERMS IN A SECURITY

AMOUNT ARE ENFORCEABLE, OR NOT: (3)

1. THE PLEDGEE MAY KEEP THE PLEDGED OBJECT IF THE

PLEDGOR DOES NOT REPAY THE PRINCIPAL DEBT IN FULL
WITHIN 6 MONTHS:

No, Unenforceable.

2. THE PLEDGEE MAY SELL THE PLEDGED OBJECT WITHOUT

RECOURSE TO THE COURT IF THE PLEDGOR DOESN’T REPAY
THE PRINCIPAL DEBT IN FULL WITHIN 6 MONTHS:

Yes, Enforceable.

3. THE MORGAGEE MAY SELL THE FARM WITHOUT RECOURSE

TO THE COURT IF THE MORGAGOR DOESN’T REPAY THE
PRINCIPAL DEBT IN FULL WITHIN 6 MONTHS:

No, Unenforceable.

HOW WAS A RIGHT OF RETENTION FORMULATED IN BUZZARD

ELECTRICAL (3)

A right of retention is a right, which permits the holder of a thing to

retain it in order to compel payment, & it is therefore dependent on
the existence of a principal debt.

MENTION THE MAIN FORMS OF SECURITY (2)

1. Personal
2. Real
X & Y ARE CO-OWNERS OF FARM & THEIR CAR, BUT
FARMIMPLEMENTS WERE PURCHASED FROM COOPERATIVE K
ITO A CREDIT AMOUNT. K RESERVED OWNERSHIP. X & Y OWE
L THE LAND BANK, R100000 & TO SECURE THIS DEBT THE

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LAND BANK HOLDS A MORTGAGE OVER FARM. X’S MOTHER M

HAS A right OF HABITATION OVER TH OLD HOMESTEAD WHERE
SHE LIVES AT PRESENT. S HAS A RIGHT OF WAY & DRIVES
OVER HIS GRANDPARENTS FARM PULANG EVERY DAY TO
CHECK HIS CATTLE ON WATERVAL. A MINING COMPANY HAS
MINING RIGHTS OVER WATERVAL, PULANG, & HIGHLANDS.
INDICATE THE NATURE & TYPE OF RIGHT INVOLVED IN EACH
OF THE FOLLOWING SITUATIONS:

1. K IN RELATION TO THE FARM IMPLEMENTS (2)

Real right – OWNERSHIP.

2. L IN RELATION TO X & Y’s FARM (2)

Limited real right – mortgage (real security)

DEFINE: NOTARIAL BOND AS CONTEMPLATED IN SECURITY BY

MEANS OF MOVABLE PROPERTY ACT (5)

Notarial Bond:
Is a bond registered over specified corporeal movable property of the
m’or defined in such a way that it can be recognised easily. On
registration it grants the m’ee a limited real right.

BRIEFLY EXPLAIN THE OPERATION OF THE TACIT HYPOTHEC

OF A CREDIT GRANTOR IN THE CASE OF INSOLVENCY (6)

In terms of the CREDIT AMOUNT ACT the credit grantor remains the
owner of the movable property until the credit receiver has paid the
last instalment of the purchase price. If the credit receiver becomes
insolvent b4 payment of the last instalment, OWNERSHIP of the
movable passes to the trustee of the insolvent estate & the credit
grantor (who then loses OWNERSHIP) is safeguarded by a hypothec in
terms of SEC 84 of the INSOLVENCY ACT. The hypothec of the credit
grantor is a real right, which secures his claim against the insolvent
estate for the outstanding instalment. The credit grantor who obtained
possession of the property can claim as a pledgee in terms of SEC 83
of the INSOLVENCY ACT.

X INVOLVED IN ACCIDENT. CAR INSURED WITH SANTAM. X

TAKES CAR TO Z FOR REPAIRS. AFTER REPAIRS COMPLETED &
PAID FOR BY SANTAM, SANTAM REALISES THAT THE PREMIUMS
HAD NEVER BEEN PAID. SANTAM CANCELS INSURANCE
CONTRACT & COLLECTS CAR FROM Z. SANTAM REFUSES TO
GIVE CAR TO X. X CLAIMS CAR WITH REI VINDICATIO FROM
SANTAM.
WILL X BE SUCCESSFUL? REF WITH CASE LAW (8)

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The facts of this question are based on those of Singh v Santam

Insurance. In that case Santam contended that it was entitled to
retain possession of car under a lien, on basis of unjustified
enrichment from the repairs. Court had to decide whether or not there
was an enrichment lien. To determine that, Court considered a
number of principles regarding the existence of a lien for unjustified
enrichment.

To succeed the insurer had to prove:

1. There was enrichment
2. The enrichment incurred while the insurer was still in control of
the car
3. It obtained control lawfully
4. Attornment took place, if the insurer claims that a 3rd party
exercised control over object on its behalf.

So yes X will succeed in his claim, because Santam didn’t obtain

lawfully.

DEFINE: COVERING BOND (4)

Covering Bond:
Is a mortgage registered for an amount that will be lent or advanced to
the mortgagor by the mortgagee or for future debts in general. It
serves as continuous covering security to the maximum amount
mentioned in the mortgage bond.

DEFINE: SALVAGE LIEN (4)

Salvage Lien:
A form of enrichment lien which secures payment of enrichment debts
arising from necessary expenses or improvements.

DISTINGUISH BETWEEN: LIMITED REAL RIGHT & CREDITOR’S

RIGHT (PERSONAL RIGHT) (5)

Limited real right is a limited right to specified uses of property

belonging to someone else.

Creditor’s right is a claim enforceable against a specific person. In

principle it’s not registrable.

BOB AN EMPLOYEE OF BEN WISHES TO BORROW R1000 FROM

HIM. BOB OFFERS HIS WATCH AS SECURITY. BEN ACCEPTS
WATCH & MAKES BOB SIGN A DOCUMENT IN WHICH THEY
AGREE THAT BEN MAY KEEP THE WATCH IF BOB DOESN’T
REPAY LOAN IN FULL WITHIN 3 MONTHS. ADVISE BOB AS TO
VALIDITY OF THE AMOUNT THAT BEN MAY RETAIN THE WATCH.
(5)

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The agreement constitutes a PACTUM COMMISSORIUM, which is

unenforceable if it was the intention that Ben would become owner of
the watch on Bob’s failure to pay the debt. They may agree that Ben
takes over the watch at an agreed amount. This agreement will
however only be enforceable if the agreed price is not less than the
market value of the watch.

DEFINE: JUDICIAL PLEDGE (4)

Real security right, which secures a creditor’s claim against a debtor

& is established by obtaining a writ of execution against the debt &
attaching the property.

BRIEFLY COMPARE: PLEDGE & NOTARIAL BOND (6)

Pledge:
Corporeal or incorporeal property of the pledgor (debtor) is given to the
creditor in a pledge a real security for the payment of the principal
debt, grants the pledgee (creditor) a limited real right to the property
as security until the principal debt has been paid in full.

Notarial Bond:
NB is registered against movable property of the m’or (debtor) as
security for the payment of the principal debt to the m’ee (creditor) &
after registration; this grants the m’ee a limited real right to the object
of the security without these objects being delivered to the m’ee.

DEFINE: IMPROVEMENT LIEN (2)

Secures payment of enrichment debts arising from useful expenses or
improvements.

NAME THE 4 CATEGORIES OF REAL SECUITY (4)

1. Pledge (movable property)

2. Mortgage (immovable property)
3. Cession
4. Security granted by the operation of law in respect of property of
the debtor to the creditor.

DISTINGUISH BETWEEN: DEBTOR-CREDITOR LIEN &

ENRICHMENT LIEN (5)

Debtor-Creditor Lien:
It’s a lien, which secures payment of a debt incurred in terms of a
contract & is therefore a personal obligation, which can be enforced
against the contractual debtor only.

Enrichment Lien:

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Lien which secures payment of a debt incurred by way of unjustified

enrichment & which is a real burden on the property that can be
enforced against anyone who happens to be the owner of the property.

JENNIFER TAKES A TRACTOR, WHICH SHE PURCHASED ON

CREDIT FROM KEVIN, THE COOPERATIVE, TO A GARAGE FOR
REPAIRS. SHE GIVES ORDERS TO GARAGE TO REPLACE THE
STEERING WHEEL BECAUSE IT’S BROKEN. FURTHER, SHE
REQUESTS GARAGE TO INSTALL A CANOPY OVER DRIVERS
SEAT WHICH WILL KEEP OUT SUN & SHE ASKS THAT TRACTOR
BE PAINTED PINK BECAUSE SHE’S BORED WITH THE GREEN.
JENNIER STOPS PAYING INSTALLMENTS TO KIM, FAILS TO PAY
GARAGE FOR REPAIRS & DISSAPPEARS. KIM CLAIMS THE
TRACTOR FROM GARAGE WITH REI VINDICATIO. DISCUSS THE
LEGAL POSITION OF THE GARAGE FULLY. (10)

According to facts given owner of tractor, Kim, the co-operative never

contracted with the garage & tractor was repaired & improved without
his knowledge. In this situation garage has lost its normal contractual
claim & lien by the disappearance of the debtor, & they are now
actually in a position of an enrichment creditor. Therefore garage can
rely on a claim for compensation, based on unjustified enrichment &
backed up by an enrichment lien.

Claim based on unjustified enrichment, isn’t limited to the © & can be

enforced against anybody who was enriched at the garage’s expense.
This would include the owner of the property, because owner is
usually enriched when property is improved.

In normal contractual claim the debt is the amount stipulated in

contract, but in an enrichment claim debt is actual amount of
enrichment at the time when action is instituted.

Enrichment will include necessary & useful expenses, but not

luxurious expenses. Enrichment claim will be limited to amount by
which owner was enriched by repair of the steering wheel &
installation of the canopy & nothing else, so garage can’t claim
anything from paint job from K.

If Court grants garage a lien to enforce their claim against the owner
the lien will be limited to payment of this amount not the full © price
which was originally quoted to the disappearing Jennifer.

NAME DIFFERENT CATEGORIES OF MORTGAGES (7)

1. Kustingbrief
2. Money lend & advanced
3. Covering bond

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4. Surety bond
5. Participation bond
6. Notarial bond

PETER SELLS HIS CAR TO JOHN, BUT HE CAN’T PAY THE

PURCHASE PRICE TO PETER IMMEDIATELY. PAUL (JOHN’s
FATHER) CONCLUDES A CONTRACT OF SURETYSHIP WITH P
I.T.O. WHICH HE UNDERTAKES TO PAY THE AMOUNT DUE TO
PETER IF JOHN SHOULD FAIL TO DO SO. A FEW DAYS LATER,
JOHN DUE TO HIS NEGLIGENCE IS INVOLVED IN A COLLISION
WITH EDWARD. JOHN UNDERTAKES TO PAY THE COSTS FOR
REPAIRS TO EDWARD’s CAR BUT CANT DO SO IMMEDIATELY. AS
SECURITY OF COSTS FOR REPAIRS, JOHN OFFERS HIS
MOTORCYCLE TO EDWARD AS A PLEDGE. AGAINST THIS
BACKGROUND ANSW FOLLOWING Q’s:

1. WHAT ARE THE DIFFERENT TYPES OF SECURITY APPLICABLE

HERE? (2)

Personal security = Suretyship.

Real security = Pledge over motorcycle.

2. WHAT IS THE NATURE OF THE RIGHT IN EACH CASE? (2)

PS = the creditor also gets a creditors right to 3rd party.

RS = creditor gets a limited real right in the property of the debtor.

X’s CAR DAMAGED IN ACCIDENT. M INSURED CAR WITH S, AN

INSURANCE CO, WHICH MUST INDEMNIFY LOSS. S INSTRUCTS P
A PANEL BEATER TO EFFECT REPAIRS. AFTER REPAIRS & PAID
FOR BY S, S REALISES THAT PREMIUMS HAD NEVER BEEN PAID
BY M. S CANCELS INSURANCE CONTRACT & COLLECTS CAR
FROM P. S REFUSES TO GIVE CAR TO X. X CLAIMS CAR FROM S
WITH REI VINDICATIO. AGAINST BACKGROUND ASWR Q’s:

1. WILL X BE SUCCESSFUL? (3)

Yes because facts are relevant to Singh v Santam where Singh could
succeed with her claim because Santam didn’t obtain control over the
car lawfully.

2. DISCUSS POSITION OF PANEL BEATER (5)

Any lien the panel beater might have had against X or M ended when
S paid for the repairs because a lien depends on the existence of a
principle debt. The panel beater was in lawful control of the car.

DEFINE: KUSTINGBRIEF (5)

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Is a mortgage in favour of the seller of the land as security of the

unpaid balance of the unpaid purchase price in favour of any other
person or financial institution who advanced the balance of the
purchase price to the buyer – it’s registered with the transfer of the
property to the buyer.

BRIEFLY DISCUSS THE ACCESSORY PRINCIPLE IN THE LAW OF

REAL SECURITY (2)

Real security: creditor gets limited real right to the property of the
debtor which is enforceable against the debtor personally & all 3rd
parties.

DEFINE: MORTGAGE (4)

Mortgage is a requirement in respect of movable or immovable
property of the m’or (debtor/surety) granting the m’ee (creditor) a
limited real right to the movable or immovable property as security
until the principal debt has been paid in full.

NAME 6 WAYS IN WHICH A PLEDGE CAN BE DISTINGUISHED (6)

1. It’s a limited real right

2. Over the debtor’s thing (property)
3. Delivered to
4. The creditor
5. As security for payment of the principal debt
6. Which debtor owes the creditor

X & Y PURCHASE THEIR FARM IMPLEMENTS FROM THE

COOPERATIVE K I.T.O. A CREDIT AMOUNT. K IS NOT
PREPARED TO GRANT CREDIT UNLESS THEY GIVE SECURITY
THAT THE INSTALLMENT WILL BE PAID. THEY AGREE THAT K
WILL RESERVE OWNERSHIP. BEFORE X & Y HAVE PAID LAST
INSTALMENT THEY BECOME INSOLVENT. ADVISE K TO HIS
LEGAL POSITION. (5)

The facts comply with the operation of the TACIT HYPOTHEC OF A

CREDIT GRANTOR in the case of insolvency credit grantor remains
owner of movable property until last instalment paid of purchase
price. If credit receiver becomes insolvent before payment
OWNERSHIP of movable property passes to the trustee of the
insolvent estate & the credit grantor (loses OWNERSHIP) is
safeguarded by a hypothec in terms of SEC 84 of the INSOLVENCY
ACT. The hypothec of the credit grantor is a real right, which secures
his claim against the insolvent estate for the outstanding instalment.

S HANDS OSTRICH FEATHERS TO Z TO SELL ON HIS BEHALF. Z

IS UNABLE TO SELL ALL FEATHERS. Z ADVANCES A LARGE SUM

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OF MONEY TO S & AGREES THAT HE WILL TRY TO SELL ALL

THE FEATHERS IF NECESSARY AT A PUBLIC AUCTION.
FEATHERS WILL SERVE AS A PLEDGE OBJECT FOR REPAYMENT
OF MONEY WHICH Z HAS ADVANCED TO S. Z SELLS FEATHERS
AT PUBLIC AUCTION & BUYS THEM AT A VERY LOW PRICE. S
AVERS THAT SALE IS INVALID SINCE IT WAS EXECUTED ITO AN
INVALID SUMMARY EXECUTION CLAUSE (PARATE EXECUTIE-
CLAUSE). WILL S SUCCEED? (8)

v Same facts as in Osry Case

Conditions that execution can take place without recourse to the

Court indicate that the creditor may on default sell the object of
security without recourse to the Court & be entitled to the proceeds.

In relevant case law Osry: in the case of default the pledgee must sell
the thing at a public auction to the highest buyer after the debt has
been satisfied the pledgor can claim the balance of the proceeds.

S will not succeed because the sale was invalid.

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MINERALS
The Mineral and Petroleum Resources Development Act 28 of 2002
defines ``mineral'' as follows:
``Mineral’’ means any substance, whether in solid, liquid or gaseous
form, occurring naturally in or on the earth or in or under water and
which was formed by or subjected to a geological process, and
includes sand, stone, rock, gravel, clay, soil and any mineral
occurring in residue stockpiles or in residue deposits, but excludes:
1. Water as a carrier of minerals;
2. Petroleum
3. Peat

Mineral and Petroleum Resources Development Act vests all mineral

and petroleum resources in the State, to be held by it as custodian for
the benefit of all the people of South Africa.
In effect the common-law rule that the owner of the land is also the
owner of all unsevered minerals in the land has been abolished.

Prospecting rights and mining rights must be applied for and these
rights may be granted only by the State. The exercise of these rights,
as well as the maximum exploitation and utilisation of minerals, is
fully controlled by the State subject to certain transitional measures
contained in the Act.

WATER:
The Water Act 54 of 1956 distinguished between public and private
water. Public water could not be owned by anyone. In the case of
private water the owner of the land was also the owner of the water
under the land.

In terms of the National Water Act 36 of 1998 there is no longer a

distinction between public and private water. The State is the trustee
of the water and the water belongs to all the people of South Africa.

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CREDITORS RIGHTS OF OTHERS

LANDLORD AND TENANT:

definition: lease is a use right, in the form of either a limited real right or a
creditors right, in terms of which the lessee is entitled to occupy and use the
property of the lessor against payment.

Short-term lease: Unregistered long-term Registered long term

creates creditors rights lease: lease:
only Are enforced against creates limited real
Can enforce it against new owners in 2 cases rights and are
new owners who were only: protected- enforced
aware of the contract = Enforced on the basis of against any new owner
doctrine of notice OR the huur gaat voor koop of the property as a real
The rule that an rule for the 1st 10yrs burden, a limited real
existing lease overrides but not for longer than right, whether the new
a new sale (huur gaat that OR enforced purchaser was aware of
voor koop). against the new owner the lease or not.
with prior knowledge of
the lease – doctrine of
notice – lease is
enforced for the whole
period agreed to in the
contract and not for
10yrs only.

POSSIBLE QUESTIONS: MINERAL RIGHTS, WATER RIGHTS,

LESSEE’S (TENANT’S) RIGHTS

DEFINITIONS:

Lease:
Lease is a use right, in the form of either a limited real right or a
creditors right, in terms of which the lessee is entitled to occupy & use
the property of the lessor against payment.

Mineral: (acc to Mineral & Petroleum Resources Development Act)

Mineral means any substance, whether in solid, liquid or gaseous
form, occurring naturally in or on the earth or in or under water &
which was formed by or subjected to a geological process, & includes
sand, stone, rock, gravel, clay, soil & any mineral occurring in residue
stockpiles or in residue deposits, but excludes:
1. Water, other than water taken from land or sea for the extraction of
any mineral from such water,
2. Petroleum, or
3. Peat.

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WHY ARE MINERAL RIGHTS UNIQUE? (2)

Mineral rights are unique because they remain separated from

OWNERSHIP even if the same person is owner of the land & holder of
the mineral rights.

EXPLAIN OPERATION OF “HUUR GAAT VOOT KOOP” RULE (6)

In the case of Genna-Wae Properties v Medio-tronics the huur gaat

voor koop rule is explained:
1. The alienation of leased immovable property doesn’t bring the lease
to an end
2. The purchaser of the land is substituted for the old lessor by
operation of law.
3. The new owner acquires all the rights & all the obligations of the
lessor, (include the obligation to allow the lessee to continue the
lease, provided that the lessee pays the rent & observe all other
obligations under the lease.
4. The lessee in turn, is bound by the lease & as long as the new
lessor recognises the lease the lessee cannot resile from the lease.

WHEN WILL THE HUUR GAAT VOOR KOOP RULE APPLY? (6)

Short term lease:

A short term lease creates creditor’s rights only, but traditionally it is
said that the lessee acquires a real right as soon as she occupies
(takes possession of) the leased premises. Accordingly, the lessee is
protected against new owners of the property in 2 cases:

1. The contract & all rights arising from it will be enforced against
new owners who were aware of the contract as if they were parties
to the contract. This enforcement of the contract against non-
parties is based upon the doctrine of notice & it means that the
lessee can keep the new owner to the lease contract as if it were
concluded between them.

2. The lessee is protected against all other new owners of the

property, even if they are unaware of the lease, on the basis of the
rule that an existing lease overrides a new sale (huur gaat voor
koop). It is often said that this rule provides the lessee with a
limited real right in the property, but it’s probably better to say
that the lessee has a specially protected creditor’s right, which is
enforced against new owners of the property as if they were parties
to the contract lease agreement. Although the protection of the
lessee is restricted to lessees who are already in occupation, this
approach seems questionable: the fact of physical control cannot
create a limited real right in immovable property – delivery or

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control only creates real rights with respect to movables. Real

rights with respect to immovable property are usually created by
registration, because of the cost involved & practical considerations
short-term lease are not registered. The protection which the lessee
gets from the rule that an existing lease overrides a new sale
means that she is able to demand that the new owner honour the
existing lease agreement on the same basis as before the sale, for
the rest of the original lease term. If the contract gave the lessee
the option to extend the lease the new owner would also be held to
that.

DISTINGUISH BETWEEN: A REGISTERED LONG TERM LEASE &

AN UNREGISTERED LONG TERM LEASE (5)

Registered long-term lease creates limited real rights. They are

enforced against any new owner of the property as a real burden,
whether the new purchaser was aware of the lease or not.

Unregistered long term lease are enforced against the new owner in 2
cases only, on the basis of the huur gaat voor kop rule for the 1st
10yrs of its existence & on new owners with prior knowledge of the
lease on the basis of the doctrine of notice.

v Willoughby’s Case

X & Y ENTERED INTO A CONTRACT OF LEASE WITH S. I.T.O.

CONTRACT S CAN USE FARM OF X & Y FOR GRAZING
PURPOSES. X & Y DECIDE TO UTILISE THE WHOLE FARM
THEMSELVES BY STARTING A NURSERY. THEY CHASE ALL S’s
LIVESTOCK BACK TO HIS FARM & CLOSE OFF THE GATE TO
THEIR FARM. THEY FORBID S FROM USING THEIR FARM ANY
LONGER FOR GRAZING PURPOSES. S WANTS LEGAL ADVICE. (5)

I.t.o. the lease contract S has a creditor’s right to use the farm for
grazing purposes. X & Y’s OWNERSHIP is limited by the agreement.
S’s creditor’s right is enforceable against X & Y personally & doesn’t
burden the property. Therefore it is not enforceable against successors
in title of X & Y. (=Personal Servitude).

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PROPERTY IN TERMS OF THE CONSTITUTION

Property has always been protected in terms of the South African

common law.
Although ownership is restricted by law and the rights of others, it’s
the most comprehensive real right that a person can have to a thing.

The constitution now recognizes it as a fundamental right = S25

protects the right to property.
No right in the Bill of Rights is absolute and therefore property rights
are also not absolute and can be limited in terms of the law of general
limitation (S36) or the limits set in S25

The constitution influences both public and private law – a person’s

ownership in respect of his farm is a real relationship and isn’t only
regulated by the law of property but also by the constitution, as property
is protected in the constitution

The constitution requires that the sources of private law – common

law, customary law and legislation – have to be interpreted and
applied with due regard to the values in the constitution:
S39 (1): when interpreting the bill of Rights the courts must promote
the values that underlie an open and democratic society based on
human dignity, equality and freedom, MUST consider international
law and MAY consider foreign law.

Property clause S25:

Property:
1) No one may be deprived of property except in terms of the law of
general application and no one may permit arbitrary deprivation
of property.
2) Property must be expropriated only in terms of the law of
general application:
a) For public purposes or in the public’s interest
b) Subject to compensation, the amount of which and the
time and manner of payment, which is agreed to by the
affected parties or the court?
3) The amount of compensation and the time and manner of
payment must be just and equitable, reflecting a balance
between the public interest and the interests of those affected,
having regard to all the relevant factors, including:
a) Current use of the property
b) History of the acquisition and use of the property
c) Market value of the property
d) Extent of direct state investment
e) Purpose of expropriation

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Although S25 (1 & 2) have been formulated negatively, they guarantee

the basic entitlement to acquisition, to hold and dispose of the
property.
Rights to property can’t be limited unless the requirements are
fulfilled.

The property guarantee allows for state interference with rights to

property under certain circumstances and subject to certain
conditions.
If a person alleges that there has been an infringement of his property
right, which is protected by S25, he has to prove that an infringement
to the property did take place.

Claimant must prove:

a) The property right is protected in terms of S25
b) The right was infringed

Definition of property in terms of S25:

Includes more than real rights = ownership and real rights. Other
rights which may also be protected under S25 include: personal
rights, immaterial property rights.
These rights aren’t absolute but are limited by the general limitation
clause in S36 as well as the limits in S25, which make provision for
the deprivation and expropriation of land.

Deprivation

State actions, which interfere with the right to property without taking
away ownership.
The state may interfere with the use of private property provided that
it does so with the due process of the law.

The deprivation clause ensures that the state will only interfere with
rights to property if this is done in accordance with the law of general
application.
Deprivation should be reasonable and just as provided for in S36.

Deprivation is of a general nature and is to the benefit of everyone.

NO COMPENSATION is paid for deprivation.

If a certain regulation prevents you from building a block of flats on

your land – your land isn’t taken away from you but you are deprived
of your entitlement to build whatever you want to build.

Expropriation

The expropriation clause in S25 = the state has the power to

expropriate property in terms of the law of general application for a
public purpose or public interest against payment of compensation:

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The court takes into account the following factors:

• Current use of the property
• History of acquisition and use of the property
• Market value of the property
• Extent of the states investment
• Purpose of the expropriation.

Differences
Expropriation Deprivation
a) Pay compensation a) No compensation
b) Property is taken away by b) The state just exercises
the state – ownership of the authority in respect of the
property vests in the state property and does not get
c) Must be for a public ownership
purpose or in the publics c) Need not be for the public’s
interests interest or for their benefit.

General limitation clause S36

a) Rights in the bill may be limited only in terms of the law of
general application to the extent that the limitation is
reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into
account all relevant factors including:
1) The nature of the right
2) The NB of the purpose of the limitation
3) The nature and extent of the limitation
4) The relation between the limitation and its purpose
5) Less restrictive means to achieve the purpose

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POSSIBLE QUESTIONS: CONSTITUTIONAL PROPERTY LAW

WHAT IS THE RELEVANCE OF SEC 39 OF THE Constitution? (3)

Sec 39 contains the principles of interpretation & provides how
Chapter 2 of the Constitution must be interpreted. The BORs must be
interpreted in such a way that values which underlie an open &
democratic society based on human dignity, equality & freedom are
promoted.

YOUR CLIENT X, ASKS FOR LEGAL ADVICE. SHE OWNS A

VALUABLE PIECE OF UNDEVELOPED BEACHFRONT PROPERTY
OUTSIDE CAPE TOWN. X INHERETED PROPERTY FROM HER
FATHER, WHO BOUGHT THE PROPERTY 2 YRS AGO WITH THE
INTENTION OF DEVELOPING IT AS AN UPMARKET HOLIDAY
RESORT. BUT WHEN X STARTED MAKING EQUIRIES ABOUT THE
POSSIBILITIES OF DEVELOPMENT, SHE DISCOVERED THAT A
NEW CONSERVATION ORDINANCE, PROMULGATED JUST 6
MONTHS AO (JUST MONTHS AFTER THE CONSTITUTION CAME
INTO OPERATION), PLACES AN ABSOLUTE PROHIBITION ON
DEVELOPMENT OR ANY BUILDING IN THE RELEVANT AREA.
PROPERTY CONSULTANTS TOLD X THAT HER PROPERTY IS
NOW PRACTICALLY WORTHLESS & THAT NOBODY WOULD BUY
IT FROM HER AT ANY COST. WHAT IS HER LEGAL POSITION?
(6)

This is Deprivation of property.

Which means:
State actions may interfere with property without taking away
OWNERSHIP. The deprivation clause ensures that the state will only
interfere with the right to property if it’s done in accordance with the
law of general application = Sec 36.

Deprivation: benefits everyone & no compensation is paid.

If certain regulations prevent you from building a block of flats on

your land – your land isn’t taken away from you but you are deprived
of your entitlements to build whatever you want.

B & C LIVE IN THE CITY & WORK FOR S. THE FARM HIGHLANDS
WAS TAKEN FROM THEIR PARENTS IN 1923 I.T.O. RACIALLY
BASED LEGISLATION & AGAINST COMPENSATION. INDICATE
WHICH FACTORS WILL BE TAKEN INTO CONSIDERATION IN
DETERMINING THE AMOUNT OF COMPENSATION PAYABLE ITO
THE PROPERTY CLAUSE IN THE CONSTITUTION (5)

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1. Current use of the property.

2. History of acquisition & use of property.
3. Market value of the property.
4. Extent of state investment.
5. Purpose of the expropriation.

GIVE 6 EG’S OF RIGHTS WHICH COULD QUALIFY AS

“PROPERTY” ITO THE Constitution (6)
1. OWNERSHIP of movable
2. OWNERSHIP of immovable
3. Limited real rights in movable & immovable
4. Creditors rights based on contracts & delicts
5. Creditors rights in movable & immovable
6. Immaterial property rights
7. Labour rights
8. Claims against the state wealth (Pension).

DISTINGUISH BETWEEN:
DEPRIVATION & EXPROPERTYRIATION ITO THE CONSTITUTION
(6)

Deprivation restricts the owner’s use & enjoyment of property in the

public interest without taking the property away. No compensation is
paid.
Expropriation takes the property away from the owner for public use.
Compensation is paid for expropriation only.

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LAND REFORM:
3 main categories:

RESTITUTION OF LAND RIGHTS:

S25 (7): a person/ community dispossessed of property after 19 June
1913 as a result of past racially discriminatory laws is entitled to
either restitution of the property/ equitable redress.

Restitution of land rights Act:

S2: a person will be entitled to restitution of a land right if:
a) He is dispossessed of a right in land after 19 June 1913
as a result of past racially discriminatory laws/ conduct
b) It’s a deceased estate disposed of the right
c) He is a direct descendent of a person referred to above
Claims must be lodged no later than 31 December 1998

In the cases of claims that can’t be resolved, the Land Claims Court
can make a decision: can make the following orders:
• Restoration of land
• Grant by the state of an alternative state owned land
• Payment of compensation by the state
• Alternative relief

LAND TENURE REFORM

S25 (6): a person/ community whose tenure of land is legally insecure
as a result of past racially discriminatory laws are entitled to either
tenure which is legally secure/ comparable redress

Land Reform (Labour Tenants) Act: It provides for security of tenure

for labour tenants and those persons who occupy/ use land as a
result of their relationship with labour tenants
Labour tenant is defined as: A person:
a) Residing or who has a right to reside on a farm
b) Who has the right to use cropping/ grazing land on the farm
c) Whose parents/ grandparents resided or resides on the farm

Labour tenants have residential/ grazing rights on the land in return

for their labour. S5 of the Act: tenant can only be evicted in terms of a
court order – if it’s just and equitable and the labour tenant refuses/
fails to provide labour to the owner despite 1 calendar months notice
in writing/ the tenant has committed a material breach of the
relationship between himself and the owner.

Extension of Security of Tenure Act: Applies to occupiers = people who

occupy land lawfully.
Occupier: person residing on land that belongs to another and who has
or on the 4 February 1997/ thereafter has had consent = but excludes
someone using the land for mining, commercial farming, or industrial

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purposes but includes someone who works the land himself and doesn’t
employ anyone who isn’t a member of his family
S8: Occupier’s right of residence may be terminated on a lawful
ground if it’s just and equitable.

Prevention of Illegal Eviction from and Unlawful Occupation of Land

Act 19 of 1998
The purpose of the Act is to provide for procedures to evict unlawful
occupiers (sometimes known as ``squatters''), the principle being that
nobody may evict an unlawful occupier of land without the authority
of a court order.
A part of the eviction process of unlawful occupiers is that certain
circumstances must be considered before an unlawful occupier may
be evicted. These circumstances include the rights and needs of the
elderly, children, disabled persons and households headed by women
and, in certain cases, the availability of alternative accommodation for
the relocation of the unlawful occupier.

REDISTRIBUTION OF LAND:
S25 (5): the state may take reasonable legislative and other methods
within its available resources to foster conditions which enable
citizens to gain access to land on an equitable basis.
Housing Act:
Redistribution of land also means the provision of housing – for
homeless: S26 of the constitution:
a) Everyone has the right of access to adequate housing
b) The state must take reasonable legislative and other
measures within its available resources to achieve the
realization of this right

FORMS WHICH A HOUSING DEVELOPMENT SCHEME FOR RETIRED

PERSONS CAN TAKE

1. Sectional Title Scheme

2. Share Block Scheme
3. Membership of a Club
4. Registered Long Term Lease
5. Not a Time Sharing Scheme

Share block Scheme:

This Act regulates the operation of Share block Schemes & provides
for related matters. Ito this legislation a shareholder acquires a
creditor’s right to use part of a building (flat, office or shop) or a piece
of land acc to their shareholding. The Share block CO can be the
owner or lessee of the relevant building. The object of the
shareholder’s right is not an independent immovable object but is the
right to use a specific part of the building for a specific period.

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Sectional Title Scheme:

The division of buildings & the land on which they stand into sections
& common law prop & for the acquisition of separate ownership of the
sections together with co-ownership of common prop which together
make up a unit.

POSSIBLE QUESTIONS: LAND REFORM

INDICATE THE PURPOSE OF THE RESTITUTION OF LAND

RIGHTS ACT (2)

The Restitution of Land rights Act provides for the different means
& detailed procedures aimed at restoring rights in land of which
persons or communities were dispossessed in terms of racially
discriminatory laws.

INDICATE THE 3 MAIN CATEGORIES OF LAND REFORM

PROGRAMMES (3)

1. Land restitution
2. Land redistribution
3. Upgrading of security of tenure (Land Tenure Reform)

TO WHICH CATEGORY DOES THE DEVELOPMENT FACILITATION

ACT BELONG? (1)

Land tenure reform or redistribution.

BRIEFLY EXPLAIN WHAT EACH OF THE FOLLOWING ACTS

REGULATE: (3)

1.) UPGRADING OF LAND TENURE RIGHTS ACT:

To upgrade & transform certain rights in respect of land to full

OWNERSHIP.

2.) LAND REFORM (LABOUR TENANTS) ACT:

To provide for the security of tenure of labour tenants & to regulate

the position of those persons who occupy or use the land through
their relationship with such labour tenants.

3.) EXTENTION OF SECURITY OF TENURE ACT:

To provide for measures to facilitate long-term security of land tenure.

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STATE THE PURPOSE OF THE LAND REFORM (LABOUR

TENANTS) ACT (3)

1. Regulates the position of labour tenants.

2. Stabilizes the relationship by preventing unjust evictions of
labour tenants.
3. Emphasizes the obligation of the tenants to provide labour in
exchange for land rights or to enable labour tenants to acquire
land which they occupy in terms of their labour tenancy.

BRIEFLY EXPLAIN THE 3 MAIN ASPECTS OF LAND REFORM (3)

1. Restitution of land rights: This process is aimed at restitution

of specific land that was taken away from specific people in the
apartheid era. (Sec 25(7) of Constitution)

2. Redistribution: is aimed at obtaining land & making it

available quickly & cheaply, both for residential purposes in
urban areas & for other purposes in the rural areas. (Sec 25(5)
of Constitution)

3. Improving the security of tenure of existing land rights: The

purpose is to improve the quality & security of existing land
tenure rights especially where it was prevented under apartheid
laws. (Sec 25(6) of Constitution)

NAME THE REMEDIES PROVIDED I.T.O. THE RESTITUTION OF

LAND RIGHTS ACT (3)

1. Restitution of land of which the claimant was dispossessed.

2. Provision of alternative land.
3. Compensation.

B & C LIVE IN TOWN, BUT WORKS FOR S WHO THE OWNER OF

THE FARM ‘HIGHLANDS’. THIS FARM HAD BEEN TAKEN AWAY
FROM B & C’s PARENTS IN 1923 ITO RACIALLY BASED
LEGISLATION. B & C NOW APPROACHES THE LAND CLAIMS
COURT TO ASK THAT THE FARM BE RETURNED TO THEM.
WHICH STATUTE IS APPLICABLE IN THIS CASE & WHY CAN
THEY RELY ON IT? (2)

Statute: Restitution of Land rights.

They can rely on it because…

Sec 25(7) says a person or community dispossessed of property after

19 June 1913 as a result of past racially discriminatory laws is
entitled to either restitution of the property or equitable redress
(Court).

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NAME THE CATEGORIES OF THE LAND REFORM & INDICATE

WHICH LEGISLATION SUPPORTS EACH CATEGORY (5)

1. Restitution of Land rights : Sec 25(7) of the Constitution

2. Land Tenure Reform: Sec 25(6) of the Constitution.

3. Redistribution of Land: Sec 25(5) of the Constitution.

DISTINGUISH BETWEEN LAND RESTITUTION & LAND

REDISTRIBUTION (4)

Land Restitution:
Is aimed at fixing dispossession of land that took place in the past.

Land Redistribution:
Is aimed at rectifying unequal distribution of land in general.

EXPLAIN THE DIFFERENCE BETWEEN THE 3 CATEGORIES OF

LAND REFORM (6)

Redistribution of Land rights:

A person or community dispossessed of property after 19 June 1913
as a result of past racially discriminatory laws is entitled to either
restitution of the property or equitable redress (Sec 25(7) of the
Constitution).

Land Tenure Reform:

A person or community whose tenure of land is legally insecure as a
result of past racially discriminatory laws is entitled to either tenure
which is legally secure or comparable redress (Sec 25(6) of the
Constitution).

Redistribution of Land:
The state may take reasonable legislative & other methods within its
available resources to foster conditions which enable citizens to gain
access to land on an equitable basis. (Sec 25(5) of the Constitution).

WHAT IS THE PURPOSE OF THE RESTITUTION PURPOSE &

UNTIL WHICH DATE COULD CLAIMS BE INSTITUTED ITO THE
RESTITUTION OF LAND rights ACT (4)

Purpose:
A person or community dispossessed of property after 19 June 1913
as a result of past racially discriminatory laws is entitled to either

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restitution of the property or equitable redress (Sec 25(7) of the

Constitution).

Date:
31 December 1998.

NAME THE 5 ORDERS THAT THE LAND CLAIMS COURT CAN

MAKE ITO SEC 35(1) OF THE RESTITUTION OF LAND RIGHTS
ACT (5)

1. Restoration Of land.
2. Granting by the state of an alternative state owned land.
3. Payment of compensation by the state.
4. Alternative relieve
5. Beneficiary of a state support program

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