property notes a
TRANSCRIPT
Property
Law A
Proff Mqeke
1. Meaning, Function and the Changing Face
of the Law of Property
1.1 The meaning of property
The BoR states that property is not limited to
land, s25 (4) (b), but on the same hand, it does
not define the meaning of property. Property
has various alternative means, and can be
described as a thing – ownerships, property as
patrimonial interests acquired through
1
personal endeavour, or property as comprising
of patrimonial interests.
According to Badenhorst, the word property
signifies varies, different but distinct legal
concepts.
- 1st it may signify a right of ownership in a
legal object
- 2nd it may also refer to the legal object, (or
thing) to which this right relates.
- 3rd it may denote a variety of legal
relationships qualifying for the protection as
such under the Constitution.
Therefore in these three instances, property
implies the existence of rights and duties
among individuals mutually, and between
specific individuals and the state.
2
Property in the broad sense may include
patrimonial rights and objects. In order to
distinguish LoP from the Law of Obligations,
the law must be limited to include only the
various legal norms that regulate those legal
relationships between legal subjects
concerning things, hence the emphasis on real
rights, things and patrimonial rights serving as
the object of limited real rights.
Under common law, the expression property
embraces both the object of real rights
(corporeal and incorporeal things) and real
rights themselves. In South African modern
law, contractual rights to performances (e.g.
shares in a company), apart from the rights of
a lessee where the huur gaat voor koop rule
3
applies, are generally not regarded as property
rights, as illustrated in the Diepsloot Case.
The private law concept of property is
described as a bundle of rights in corporeal
things:
- Right of alienation
- Right to exclude others
- Right to derive an income
All three in RDL form a dominion, where the
owner has all three rights; he has the absolute
and exclusive right to property.
4
1.Right of alienation: this is a right to do as
you please with your property (sell, donate
etc)
- Geyser v Msunduzi Municipality 2003:
s118 of the Act, stresses the provision of
restrained transfer of removable goods.
The Registrar of Deeds may not register
transfers of removable goods unless there
is an order of the court, e.g. if the owner
wants to sell the property, one must ensure
that nothing is owed on the property (e.g.
water and electricity).
The plaintiff sold the house for R100 000
but never stayed in the house, she always
rented the property out. When it was time
to sell, she could not as she owed the state
R63 000 more than the selling price.
5
- Mkontwana case: the house could not be
transferred without the amount owing to
the state being settled. The CC dealt with
the matter in a later case.
2.Right to exclude others: there are means to
legal remedies, namely, rei vindication
which is a remedy which allows the owner
to regain their land if it has been taken
without their consent.
- Diepsloot Case, an association of concerned
residence brought this case forward,
concerning homeless people who had been
evicted elsewhere during land reforms in
1991 and now established a squatter camp in
Diepsloot. Residence saw that this would
devalue their land. The CC found in favour
of the state, finding that the administrator
6
had acted in terms of the law and thus there
was no wrongfulness.
- Kayalami case: The government established
a transit camp on State-owned land, which
had previously been used as a prison farm.
The purpose of the transit camp was to
house people from Alexandra Township
who had been displaced by severe floods.
The intention was that the persons to be
accommodated there would move to
permanent housing when such became
available, and that the transit camp would
then be dismantled. This plan was made
without any prior discussions with residents
in the vicinity. A residents’ association
called on the relevant Minister to suspend
operations. The Court a quo had found that
the scheme was not one for temporary
7
shelter, but rather “a development for an
indefinite period which on the probabilities
would be utilized on a permanent ongoing
basis, either by the proposed occupants or by
the government”. It set aside the decision,
finding that such could not be validly
implemented without complying with the
various statutes, laws, by-laws and
regulations. In a unanimous judgment (per
Chaskalson P) the Court upheld the appeal
and substituted for the order of the Court a
quo an order dismissing the application. The
Court held that there was no reason why the
government as owner of property should not
have the same rights as any other owner. If it
asserted those rights within the framework
of the Constitution and the restrictions of
any relevant legislation, it acted lawfully.
8
The contentions to the contrary advanced by
the residents had therefore to be rejected.
3.Right to derive an income: this is also the
right to make profit from your property (e.g.
rent it out)
- FNB case: certain FNB vehicles were leased
to partners. One was sold in terms of an
instalment sale (ownership is only passed
when the last instalment is paid). The right
to derive an income was interfered with, by
the Commissioner of SARS.
LoP is constitutionalised and protected in the
BoR, this means protection can only be
obtained on the basis of the Constitution itself,
taking into account the purpose of the
Constitution and the property clause.
9
1.2 Persons and institutions bound by the LoP
As stated in the FNB case, no one may be
deprived of property. Such is stated in the
- Property clause s25 (1) in the Constitution:
o No one may be deprived of property
except in terms of the law of general
application and no law may permit
arbitrary deprivation of property.
- The Interim Constitution
10
o In the Transkei Public Services
Association Case, the IC affected the new
Public Services Act which reduced the
benefits enjoyed by the Transkei
Association. They challenged the new
code, stating it is unconstitutional as it
took away benefits without consultation.
The benefits, which included employment
benefits, were fundamental rights;
therefore the new code was in conflict
with s28 of the IC. The courts stated the
meaning of property had to be extended to
encompass state housing subsidies – the
court assumed this without deciding it as it
referred to the Reich article.
The Reich article stated that new
property consists of various types of
state benefits, e.g. employment
11
benefits, welfare grants and housing
benefits. These benefits can not be
taken away without due process, i.e.
there must be a hearing. Furthermore,
the court held that the existing notions
were inadequate as they did not
recognise the benefits of new
property.
o The courts set out the basic test for new
property in the Logan v Zimmerman Brush
case: it stated that the hallmark of property
is the individual integrity (entitlement)
granted in state law which cannot be
removed apart from in the courts.
o Bell v Burson dealt with the suspension of
a driver’s license. Statutes allowed for the
suspension if the driver caused an
accident. The court stated that the Act
12
allowed for suspension without due
process.
- The new Constitution:
o s25 (1-9) – Meaning of property: This
section is written in negative terms (no
one may…)
s4 (a) – states that the public interest,
includes the nations interest to land
reform, and to reforms to bring about
equitable access to all SA’s natural
resources; and
(b) – property is not limited to land
o The legal significance of meaning: With
regards to the FNB case, para 46 – 49, the
court sets out the property challenge (test)
and considers the meaning of s25 more
broadly.
The test comprises of 7 issues:
13
A) – does that which is taken
away from FNB by the operation
of s114 (Customs and Excise Act)
amount to ‘property’?
B) – has there been a deprivation
of such property by the
Commissioner?
C) – if there has, is such
deprivation consistent with the
provisions of s 25(1)?
D) - if not, is such deprivation
justified under s36 of the
Constitution (limitation clause)?
E) - if it is, does it amount to
expropriation for the purpose of
s25 (2)?
14
F) – if so does the deprivation
comply with the requirements of
s25 (2) (a & b)?
G) – if not is expropriation
justified under s36?
S25 embodies a negative protection of
rights and does not expressly
guarantee the right to acquire, hold
and dispose of property.
Ss 4 – 9, underline the need for and
aim at redressing one of the most
enduring legacies of racial
discrimination of the past, i.e. the
grossly unequal distribution of land in
SA. Under the new Constitution, the
protection of property as an individual
right is not absolute but is subject to
societal considerations.
15
o Deprivation
Mkontwana Case, para 65 states: It
was held in the FNB case that the law
that results in a deprivation of
property must, in addition to showing
an appropriate relationship between
means and ends, be procedurally fair.
1.3 Deprivation
A) The Constitution allows for deprivation of
land as long as there is rationality and
legislative context. The word deprivation may
be misleading, and must therefore be
distinguished from expropriation. Any
16
interference with enjoyment with property
involves a degree of deprivation to the holder.
- In the Mkontwana case there was a minority
judgment by O’Regan and a majority by
Jacob J.
o Majority said that it was not necessary to
define deprivation. It depends on the
extent of the interference of equipment or
use of property. This was taken from the
FNB case which dealt with ownership.
o Minority, didn’t discuss the issue of
interference with property or ownership,
therefore neither did it consider the
capacity nor ability of the owner.
B) Deprivation leads to expropriation as stated
in s25 (2)
17
- The word expropriate is used to describe the
process where the Public Office
(government) takes away property for a
public purpose against the failure of
payment
o The Harksen Case: The husbands’ estate
was sequestrated by the Master of the HC,
which arose to expropriation of the wife’s
estate. The aim was to temporarily
inconvenience the wife, not to take away
property. The court held therefore, that
there was no expropriation. Expropriation
is permanent and in this case it was only a
temporary inconvenience.
- FNB case para 57-59 states expropriation is
a subset, therefore s25 (1) deals with all
property and deprivations (including
expropriation). If the deprivation infringes
18
(limits) s25 (1) and cannot be justified under
s36, that is the end of the matter i.e. the
provisions is unconstitutional. However, if
the deprivation passes the scrutiny under s25
(1), then it can be asked whether or not it is
expropriation. If it is expropriation, then it
must pass scrutiny under s25 (2) (a) and
make provisions for compensation under s25
(2) (b).
- S25 (3) deals with the manner of
expropriation mentioning a balance between
public interest and those affected by the
expropriation, by means of compensation.
C) Constructive Expropriation (CE) or
Regulatory Taking
19
- CE is done in terms of state powers to
regulate the use of property in the public
interest for the protection of others. It states
that expropriation must be accompanied by
compensation. CE is the middle ground
between expropriation and deprivation. E.g.
If the construction of roads cuts across a
farm, the road is for the public, but the farm
is privately owned. The owner now carries
the burden which the state must dually
compensate.
- Steinberg Case: the plaintiff bought property
in 1994, but only occupied it much later.
There was a construction scheme to build a
road affecting the property, which was
known to her. The local municipality
proclaimed and approved the scheme which
meant the plaintiff could not sell her land.
20
The plaintiff recognised that the scheme did
not amount to expropriation but could be
seen as CE under s25. The application was
dismissed. The difference between
expropriation and deprivation was found to
be fundamental to the case. The court held
that the application was an advanced
notification and therefore premature. The
plaintiff had suffered no loss as nothing had
physically happened yet. There was mere
deprivation.
- The Van Der Walt article pg 464 – 471
states that foreign sources recognise CE. The
court says CE blurs the distinction between
expropriation and deprivation and is seen as
undesirable. Steinberg is the only case to
recognise this doctrine. CE is treated as if
21
expropriation has already taken place and
therefore compensation needs to be made.
D) Arbitrary Deprivation
- The Constitution allows for deprivation but
it cannot be arbitrary. In the FNB case para
62, the word arbitrary depending on its
statutory context, may only impose a low
level of judicial scrutiny, requiring nothing
more than the absence of bias, or bad faith to
satisfy such scrutiny. It was stated that
arbitrary, as used in s25, is not limited to
non rational deprivations, in the sense of
there been no rational connection between
means and ends. It refers to a wider concept
and a broader controlling principle that is
more demanding than an enquiry into mere
rationality. At the same time, it is a narrower
22
and less intrusive concept than that of the
proportionality evaluation required by s36.
This is because the standard set in s36 is
‘reasonableness and justifiability’, whilst the
standard set in s25 is ‘arbitrariness’.
o Procedural fairness also means that the
state should exercise its power in terms of
clear rules and principles set out in
advance. Exercise of state power is
arbitrary, if it does not follow rules or is
unpredictable.
o Substantive arbitrariness, falls between
rationality and proportionality.
1.4 Search and Seizures
This is the power relating to the criminal and
civil forfeiture of property.
23
Park-Ross and Another v Directors Office of
serious Offences 1995 (2) BCLR 198l, This
case challenged the constitutionality of s5 and
6 of Act 117 of 1991.
- S5 states that, if the director has reason to
suspect a criminal offence has taken place,
he has the power to hold an enquiry and the
suspect is to appear
- S6 states that the director may enter and
search premises of accused and seize books
etc without any notice. This section was said
to be in violation of s28 (2) of the IC which
dealt with deprivation of property. The court
held that it was in accordance with law, and
in fact the only way deprivation may be
done. Under the new Constitution must be
done in terms of general application
24
o Rationality: this means that there must be
a rational relationship between the means
employed (deprivation) and the end sought
to be achieved.
o Proportionality: forfeiture must not be
disproportionate when measure against the
gravity of the offence. There must be a
proven offence and something specially
connecting the property to the
commissioner of the offence.
25
1.5 Law of Property and Things
- The law of things is manifested in private
law. In the past, this branch of law is known
as the law of things, not it is the law of
property. Property refers to a large variety of
assets that make up a persons estate or
belongings and which serve as objects of the
rights that such a person exercises in respect
thereof. Things merely denote the object of
the right in the restricted meaning of
referring only to corporeal or material
objects.
- Rights in terms of Land Reform Legislation
(ESTA), identifies an occupier as a person
who lives on another’s land with the
26
consensus of the owner. These people have
rights protected by the Constitution.
o In the Nkosi case, the issue put forward is
whether the right of residence included the
right to bury without notification to the
owner. The court stated that this right does
not exist.
o Nhlabathi case, this case came before the
land claims court, challenging s6 (2) of
ESTA. A widow and her children were
denied the burial of her husband, they
wanted permission for the deceased to be
buried where he worked all his life. They
stated that s6 (2) (da) was an infringement
to the right not to be arbitrary deprived of
property; right not to have property
expropriated without compensation; and
was also an intrusion by parliament on
27
private property. The court said that the
establishment of a grave was a minor
intrusion of land and would therefore
devalue the farm. The courts had to
balance the rights of the owner with the
rights of the occupiers (vulnerable people)
1.6 The Social Function and Substance of LoP
- LoP seeks to ensure that the right of
ownership is not used in a manner that
harms society, e.g. restrictions placed on the
owners ability to erect buildings on his land;
anti pollution regulations, factory
regulations and sanitary regulations.
- Limitations may be imposed by private law.
In the interest neighbours e.g. the law
relating to nuisance.
28
- In the P.E Municipality case, the court
enforced the importance of s26 (3) read
together with s25. It acknowledges that a
home is more than just shelter, as it is also a
zone of personal intimacy and security. To
demolish a home there needs to be an order
from the court.
1.7 The New Property Framework
- Since 1994, parliament has enacted
legislation aimed at development such as the
Development Facilitation Act (DF A) 67 of
1995. This Act created new concepts such a
beneficial occupation and initial ownership
o Beneficial occupation – there are several
Acts which protect the precarious title
(Alexkor case), e.g. Restitution of Land
Rights Act, Informal Land Rights Act,
29
Communal Land Rights Act, and DFA.
Beneficial occupation states that people
settled for more than 5 years have a
protected tenure and cannot be removed;
the DFA concept is that this beneficial
occupier makes a living off of that land.
Parliament has thus extended the concept
of real rights.
o Initial ownership – s 61 of the DFA gives
s62 its right. Land can be registered in
order to create a structure of the land
without going through the Deeds
Registration Act.
30
2. Sources of Law of Property
There are 4 main sources of current law of
property:
- Common law
- Legislation
- The Constitution
- Case Law
2.1 Common Law
31
A) RL – many of the concepts and
terminology used today is from RL. E.g.
the notion of dominion is taken from RL.
The Romans used the word dominius to
describe the owner of things, and the right
of ownership was absolute. There was a
distinction between ownership (real rights)
and possessions (holding of things). As
stated ownership was the most
comprehensible right with absolute power.
B) Germanic Customary Law – this was
derived from the Netherlands in the 16th
century. An important aspect is the law
relating to the registration of real rights.
This was brought in through the Harris
case: it was stated that the transfer of
immovables may only take place by an
32
order of a Magistrate – coram legi loci.
The case explains the system of land
registration through the Deeds
Registration Act to accommodate the
current trends served to modernise the
current system in SA. Germanic customs
have some distinction in SA in terms of
movables and immovables.
C) English Law – SA has borrowed from
English Law, e.g. the recognition of
atonement as a mode of delivery of
movables. In Kusa Kusa CC v Mbele 2003
(2) BCLR 222 (LCC), Gildenhys AJ stated
that under the Common Law any owner of
land is entitled to apply to a court for an
eviction order, by simply alleging his
ownership of the land and stating that
someone else in occupying the land.
33
All the above are still being used but have
been modified by legislation and the
Constitution.
2.2 Legislation
The bulk of LoP come from legislation.
A) The Deeds of Registries Act 47
of 1937 (examinable)
S3 – the duties of the Registrar of Deeds
S4 – Powers of the Registrar of Deeds
S6 – cancellation of deeds (only done by
order of court)
S7 – inspection of records
S13 – when registration takes place
S16 – how real rights will be transferred
S63 – restriction on registration of rights
in immovable property
34
S7 Inspection of records and supply of
information
(1) Each registrar shall on conditions
prescribed and upon payment of the prescribed
fees, permit any person to inspect the public
registers and other public records in his
registry, other than the index to such registers
or records, and to make copies of those records
or extracts from those registers and to obtain
such other information concerning deeds or
other documents registered or filed in the
registry as prior to the commencement of this
Act could, customarily, be made or obtained.
(2) Notwithstanding anything to the contrary
in any other law contained, no person
(including the State) shall be exempted from
35
the payment of the prescribed fees referred to
in subsection (1).
S63 Restriction on registration of rights in
immovable property
(1) No deed, or condition in a deed, purporting
to create or embodying any personal right, and
no condition which does not restrict the
exercise of any right of ownership in respect
of immovable property, shall be capable of
registration: Provided that a deed containing
such a condition as aforesaid may be
registered if, in the opinion of the registrar,
such condition is complementary or otherwise
ancillary to a registrable condition or right
contained or conferred in such deed.
36
B) Expropriation Act 63 of 1975
The Act governs the procedure of
expropriation and states that expropriation
must comply with the Promotion of
Administration of Justice Act, therefore it
must be lawful and procedurally fair.
- Lebowa Mineral Trust Beneficiary
Forum case: an act of expropriation in
terms of the Expropriation Act must
satisfy additional requirements of the
Administration Act. The Act designates
government officials as expropriators. In
terms of the Constitution expropriation
can only take place in terms of public
interest, s25. Expropriation must follow
a strict procedure in terms of the Act,
e.g. the expropriatee must be informed
37
and the extent of land to be taken must
be stated.
C) Extension of Security of Tenure
Act 62 of 1997
The long title states that the Act is aimed at
promoting long term security of tenure for
lawful occupiers of rural and protecting them
against unfair eviction by:
- Establishing a mechanism by which these
occupiers can obtain independent land rights
(s4 and 6)
- Stabilising the day to day ownership
between land owners and occupiers of rural
land (s5 – 7)
- Protecting lawful occupiers against unfair
eviction (s1-3 and 8 – 25)
38
Scope: the Act mainly applies to rural and
peri-urban areas. It has a restricted scope as it
only intends to benefit lawful occupiers who
have permission to occupy land belonging to
someone else. Further restriction of the scope
is that it excludes labour tenants; persons who
use or intend to use the land for industrial,
mining, commercial or commercial farming
purposes; and persons with an income
exceeding R5 000 a month.
S 6 of the Act is important to take note of:
Rights and duties of occupier:
6. (1) Subject to the provisions of this Act, an
occupier shall have the right to reside on and
use the land on which he or she resided and
which he or she used on or after
39
4 February 1997, and to have access to such
services as had been agreed upon with the
owner or person in charge, whether expressly
or tacitly.
S6 (2) without prejudice to the generality of
the provisions of section S and subsection
(1) and balanced with the rights of the owner
or person in charge, an occupier shall have the
right—
(a) to security of tenure:
(b) to receive bona fide visitors at reasonable
times and for reasonable periods:
Provided that—
(i) the owner or person in charge may impose
reasonable conditions that are normally
applicable to visitors entering such land in
order to safeguard life or property or to
40
prevent the undue disruption of work on the
land; and
(ii) the occupier shall be liable for any act,
omission or conduct of any of his or her
visitors causing damage to others while such a
visitor is on the land if the occupier, by taking
reasonable steps, could have prevented such
damage;
(c) To receive postal or other communication:
(d) to family life in accordance with the
culture of that family: Provided that this right
shall not apply in respect of single sex
accommodation provided in hostels erected
before 4 February 1997;
(e) Not to be denied or deprived of access to
water; and not to be denied or deprived of
access to educational or health services.
(3) An occupier may not—
41
(a) Intentionally and unlawfully harm any
other person occupying the land;
(b) Intentionally and unlawfully cause material
damage to the property of the owner or person
in charge;
(c) Engage in conduct which threatens or
intimidates others who lawfully occupy the
land or other land in the vicinity; or-
(d) Enable or assist unauthorised persons to
establish new dwellings on the land in
question.
(4) Any person shall have the right to visit and
maintain his or her family graves on land
which belongs to another person, subject to
any reasonable condition imposed by the
owner or person in charge of such land in
order to safeguard life or property or to
42
prevent the undue disruption of work on the
land.
D) The Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act.
This is a very important Act as it has affected
common law contents of dominium and
ownership of land. This Act applies
specifically to unlawful occupiers of land and
is concerned with the proper regulation of
eviction procedures as they apply to unlawful
occupiers. The strategy of the Act is to
stabilise existing unlawful occupation of land
in order to ensure that eviction of unlawful
occupiers only takes place when it if fair and
equitable to do so. The Act does not create or
strengthen rights but it ensures that unlawful
occupiers are evicted by way of proper legal
43
procedures which take into consideration
historical, social and human factors.
E) Land Reforms Act (Labour Tenants) Act 3
of 1996
This Act is restricted to a very specific and
circumscribed category of rural land users
known as labour tenants. Labour tenants are
distinguished from farm workers on the basis
that labour tenants are not primarily salaried
labourers (they provide labour to the land
owner in exchange for occupying the land).
The Act excludes farm workers. The
protection of this Act works in two directions:
- The Act provides tenure security for labour
tenants by confirming their right to occupy
the land in question and ensuring that they
cannot be evicted from this land. The Act
44
prohibits labour tenants older than 60, or
who can’t provide labour personally and
have no appointed successors; family
members are allowed to continue living on
the land for 12 calendar months after the
death of such a labour tenant.
- Labour tenants are enabled to acquire
ownership and other rights of some of the
land. If the requirements in s1 are satisfied,
one may applied for land rights or financial
assistance. In this instance, the labour tenant
forfeits his rights as a labour tenant but now
gains rights as a land owner
2.3 The Constitution
- The Constitution is a source which has the
power to override the common law, s25 and
26. There is an emphasis on the promotion
45
of the spirit, purport and the objects of the
BoR (s39 (2)).
2.4 Case Law
- NB the Transkei Public Servant Association
v Government of RSA 1995 BCLR 1235
(TK)
3. The Legal Concept of Property
Both the IC and the FC have concepts of
property in private law including
- The right in a legal object
- The object to which that right relates
- Property as rights
- And property as objects of rights.
46
The only real right in property is ownership.
There are, however, limited real rights, where
the owner still retains ownership of the
property. Everyone has real rights but these
may be limited, such as the following:
- Mortgage: this is a right a creditor exercises
over a debtor of land. The property is given
to a creditor as a securer of debt until the
loan is paid out
- Lease: this creates a bilateral relationship
between the lessee and the lessor. The lessee
exercises some right over the property for
some time with the lessor. The lessee can
sub-lease with a third person. Before the
occupation, the owner has a personal right.
After occupation, the owner has limited real
rights.
47
- Servitude: a right possessed by one person to
use another's property. There are two kinds:
personal and praedial (arising from or
consequent upon the occupation of land)
- Liens: the right to take and hold or sell the
property of a debtor as security or payment
for a debt or duty.
o FNB case: the right of retention until the
owner has been compensated for services
rendered. There must be continuous
possession of property otherwise it is a
lost right.
3.1 Property as a Right
A right is a claim of a legal subject to a legal
object as against other persons. Property in the
sense of rights is seen as ownership, real rights
48
or patrimonial rights such as personal rights
and immaterial property rights.
- Patrimonial rights are rights having
patrimonial value, whereas personality rights
are not capable of forming part of a person’s
estate.
- Patrimonial objects have economic or
material value. Things, immaterial property
and performances are patrimonial objects.
o The right to a thing is real rights
o The right to performance are personal
rights
o The right to immaterial property is
immaterial property rights.
Chairman of Public Service Committee v
Zimbabwe Teachers Association 1996 BCLR
1189. The PSC of Zimbabwe amended the PS
49
regulations which had stated that bonuses were
to be paid to employee employed on 1
January, whose employment was continuous,
in November. The amendment now stated that
bonuses were to be paid later, or reviewed or
not paid at all in 1995. The Teachers
Association challenged this in court. The
appeal court held that the bonus was a gift and
not a right and could therefore be withheld as
long as it was done procedurally.
3.2. Definition of a Right
A right is legally recognised and is a valid
claim by a legal subject in respect to a legal
object.
- Bearers of rights in terms of the Constitution
o FNB case: the applicant was a juristic
person. The judge stated that companies or
50
corporations have become very important
aspects of the business world, therefore
juristic persons do have rights.
o S8 (4): the protection of the BoR extends
to juristic and natural persons, to the
extent required by the nature of the right
and the nature of the person.
3.3 Objects of Rights
An object is anything that a person can acquire
and hold rights, these are both corporeal and
incorporeal rights. An object of a right is a
thing.
Corporeal things are things that can be touched
(tangible).
Incorporeal things are intangible
51
3.4 Things
A thing is a legal object of a real right and is
therefore the most important legal object. In
terms of its characteristics a thing can be
defined as a corporeal or tangible object which
is an independent entity subject to juridical
control by a legal subject for whom it is useful
and of value. There are 5 characteristics of a
thing:
- Corporeality
- External to humans
- Independence
- Subject to juridical control
- Useful and valuable to humans
52
Corporeality
In RL corporeals were defined as things that
could be felt or touched (it is a thing that can
be perceived by any of the 5 sense). The
modern definition of corporeality includes
objects that occupy space such as a cylinder
with oxygen. Examples of things that are
excluded in SA definition of corporeal things
are: gravity, heat, light, sound and electricity.
These can be sensorially observed but cannot
be described in terms of space.
Several incorporeal or intangibles have been
recognised as things, where the object of the
real right is not a corporeal thing, but another
subjective right. E.g. real rights (with things as
objects); intellectual property rights (as
intellectual property as object); personality
53
rights (with aspects of personality as objects);
and creditors rights (with obligations as
objects). If any of these subjective rights
serves as the object of the real right, in terms
of common law, it is now an incorporeal thing.
- In Badenhorst v Belju Pretoria Sentraal
1998, it was held that the membership
interest in a close corporation (creditor’s
right against the close corporation) is an
incorporeal immovable that can be attached
to a sheriff.
External to Humans
54
A human being can not be a legal object as
they are legal subjects. Corpses or parts of
corpses may be classified as legal objects, but
those which fall outside legal commerce. Parts
of bodies which can no longer be connected to
a human being can be regarded as things (e.g.
hair to make a wig)
Independence
It is a requirement that a thing must be a
definite and distinct entity that exists
separately. E.g.:
- Water, land, sand and air, must first be
separated by human activity into
recognisable and manageable entities before
they will be regarded as things which fall
within legal commerce (air and oxygen must
be contained in cylinders).
55
- Immovable things come into being after
demarcation on an approved and registered
surveyors plane, diagram, aerial photo or
general plan – the Deeds Registries Act 47
of 1937. I.e. a building erected on land
usually forms part of the immovable thing.
- A sectional title unit as an immovable thing
is described in terms of the registered
sectional plan – Sectional Titles Act 95 of
1986.
Subject to Juridical Control
Corporeal entities which are not open to
juridical control are not classified as things.
E.g. heavenly bodies like the sun and moon as
well as aspects of nature like the sea and air.
Useful and Valuable to Humans
56
Things must be useful and valuable to legal
subjects and must be destined to satisfy their
needs. If a thing is not useful and valuable to
the legal subject there is no legal relationship.
There is no need for economic value but at
least must have a sentimental value. The test
for value is objective – something will remain
a thing as long as it satisfies your or someone
else’s needs.
3.5 Classification of Things
In order to classify a thing, the question
whether it is susceptible to being privately
owned is asked. If yes, the thing is res intra
commercio. If no, res extra commercium.
57
Negotiable and Non Negotiable Things
Res Intra Commercio – negotiable things
- Things owned by a natural or legal person or
things in a deceased or insolvent estate – res
alicuius.
- Things capable of being owned but which, at
a particular stage, are not owned by anyone
– res nullius.
- Things no longer within the physical control
of an owner and in respect of which the
owner no longer has the intention to be
owner – resderelictae
- Things lost and no longer within the
physical control of the owner but in respect
of which the owner has not lost the intention
to be owner - res deperditae
58
Res Extra Commercium – non negotiable
things
- Natural resources falling outside legal
commerce and which are available to all
people – res communes omnium (common
things). A portion of common things can
become private and can be sold. The
Romans had 3 examples of common things:
air, running water, sea and seashore. Any
interference in the use of common things
would result in a delictual remedy i.e. actio
injuriarium.
- Things owned by the state and used directly
for the public’s benefit are called res
publicae. These public things are state
property as they are intended for public use
but they are held by the government. E.g.
59
public rivers, national parks, public roads,
the sea and the seashore.
o Public rivers – the National River Act
1994. The state is a trustee for national
water resources. Individuals may use
water for domestic needs but with
common law, the public is only entitled to
use the public river for navigation
purposes i.e. trade or sports.
Transvaal Canoe Union case: the
applicants applied for a declaration,
that their members be allowed to use
Crocodile River for canoeing and use
the land (owned by vicarian owners)
adjacent to the river to carry the
canoes across. The application was
dismissed. The question before the
court was whether the right of the
60
public to navigate the river would
also, as an off-right, entitle the canoers
to carry their canoes across the land
along side the river. Van Der Walt
stated that the right of navigation on
navigable public rivers must be
interpreted and exercised restrictively
with as little encroachment on the
rights of the vicarian owners.
Furthermore he said ‘one of the most
important rights of owners of land and
as such owners of vicarian land is the
right of quiet and undisturbed use of
the property.’ Therefore consent
would be needed, except in
emergencies, to cross the land.
o The Sea and Seashore Act – the sea and
seashore belong to the president as the
61
trustee. No portion of neither may be
alienated except in terms of the Act. The
local authority may be allowed to let part
of the sea if the Mayor is under the
impression that the public will not be
negatively affected. This also refers to
territorial waters (e.g. lakes). There is a
limit to the powers of the authorities that
has been specified to a 3 mile radius,
anything beyond is governed by
international law.
- Religious things – these are things that are
dedicated to worship. Some belong to
churches, municipalities or families e.g. the
use of a cemetery is governed by the
municipality.
o ESTA secures the rights to bury on
another’s property
62
Nkosi and Mhlabathi case
Movable and Immovable Things
- Immovable things: these are units of land
and everything permanently attached to it by
means of attachment, as well as sectional
title units. Incorporeals are sometimes
described as immovables e.g. real rights –
servitude.
Movable things: these are things are
anything that can be taken from one place to
another without causing injury to that thing.
They are sometimes known as corporeals.
- Movables may become immovables if they
are attached to the land, this depends on:
o Objectivley the manner of the thing and
o Objectively the manner of its annexation
(objective test).
63
o Subjectively the intention of the owner of
the movable at the time of its annexation
(subjective test).
- The McDonalds Case 1950 AD, property
was sold to a syndicate, of which Jacobson
was part of and had contractual rights for;
the payment was due in 4 years. In this case,
the elements to determine whether
immovable has since become an immovable
was set out: elements
o Each case has to be considered on facts
o The nature of a particular thing must be
considered
o The degree and manner of the attachment
must be looked at
o NB - The intention of the person who
annexed it must be assessed – was it a
permanent or temporary annexation.
64
- There are certain distinctions between
movables and immovables, these are set out
below:
o Transfer of ownership – in movable
things, the transfer takes place by delivery
of the thing to the receiver. In immovable
things, transfer takes place by registration
in the Deeds Registry.
o Alienation of Land Act 68 of 1981 – a
contract to alienate immovable things
must meet the formalities prescribed in
terms of the Act
o Real security – Hypothecation, is the
ability to use something as a security of
debt. With regards to immovable things
real security is provided by the
registration of mortgages. With regards
to movable things, security is provided by
65
a pledge or the registration of a notarial
bond (the debtor cannot do anything with
the property)
o Execution of assets – where a debtors’
assets are sold in execution, movables
must first be attached and then his
immovables.
o Theft and arson – theft only occurs with
movables. Arson can only occur with
immovables.
66
Fungible and Non-Fungible Things
- Fungible things are a group of things which
can be replaced by similar things. This
means that they do not have individual
characteristics which make them
irreplaceable. They are often things which
are referred to in trade with reference to
weight, measure or number.
- Non-fungible things have individual
characteristics or value that makes them
irreplaceable. E.g. an original painting.
- A fungible thing can, because of additional
reasons become non-fungible. E.g. a family
Bible.
- The distinction is important in the following
circumstances
67
o In a contract the fungibility of a thing can
be determined by the parties. Fungibility
might influence the consequences of a
contract. E.g. if the parties agree that a
thing is irreplaceable, if it is destroyed
before transfer, it cannot be replaced and
in some instances, the contract may be
void or compensation may be claimed.
o A fungible thing cannot be pledged with
the intention that it may be replaced by a
similar thing.
o In terms of legacy a non-fungible thing
cannot be replaced by a similar thing. If
this thing is destroyed, the legacy lapses.
o Money is classified as a fungible thing
Consumable and Non-Consumable Things
68
- Consumable things are depleted in value or
consumed by normal use e.g. food.
- Non-consumable things are essentially
maintained even if normal wear and tear
occurs through use e.g. house, car.
- The distinction is important in the following
circumstances:
o In a contract concerning the loan or lease
of consumables, it is intended that the
borrower or the lessor consume the thing
and replace it with a similar thing when
the contract is over.
o A usufruct can only be given regarding
non-consumable things. This is because
there is a requirement that a things be kept
in the same condition (salva rei
substantia).
69
A quasi usufruct can only be given
regarding consumable because then
the holder of the right is compelled,
upon termination of the agreement to
return things of the same amount and
quality as those consumed.
o Money is regarded as a consumable thing,
and a quasi usufruct can be given in
respect of money.
Divisible and Indivisible Things
- A thing is divisible if it can be divided into
smaller components whilst retaining its
nature and function and without the value of
the components been less than the original
value. E.g. a piece of land or sack of mealies
can be divided into 2 or more parts.
70
o Division is important in the case of joint
ownership in property. If the thing is
indivisible, the court will order one of the
parties to become the owner, but must
compensate the others.
Bennett v Le Roux 1984 (2) 134: The
deceased left property in his will to his
6 children in equal and divided share.
The administrator wanted to sell the
property, but one of the children said
no and made an offer to buy the land.
Another person wanting to buy the
land was prepared to outbid Le Roux.
The court said one must be guided by
equity therefore one of the joint
owners must have the first bid – and
the payment must be used as
compensation to the other children.
71
- Indivisible things cannot be divided without
changing the value, nature or function of a
thing. E.g. a painting or a chair.
Single and Complex Things
- Single things exist independently without
being composed of particular components
72
i.e. they are independent entities and not
attached to anything else
oBoth corporeal and incorporeal
- Complex things are compositions of different
components, consisting of independent
things in a new unit e.g. a house, a car etc.
These components have lost their
individuality and are now regarded as one
thing. There are 4 elements of complex
things:
oPrincipal thing – this exists independently
and can be the object of real rights. It does
not form part of another thing either as a
component or as a supplement. In Khan v
Minister of Law and Order, a principle
thing was decided as one that give the
ultimate thing its character, form and
73
function. E.g. a diamond that is added to a
thing, a car.
oAccessory thing – this can exist
independently of the principal thing but
which has merged with or been mixed
with the principal thing to an extent that it
has lost it independence. E.g. when a
house is bought with furniture inside.
oAuxiliary thing – this exists independently
and separately of the principle thing but
because of its economic value, destination
or use, is no longer an independent thing.
There is no real physical connection with
the principal thing. E.g. a key to a door.
Senekal v Roodt: the applicant bought a
farm with a house and specified
furniture. In the study there was a
wooden unit matching the panelling of
74
the room. There was also a bar unit with
a wooden counter fixed to the floor with
loose stools, along with 2 steel cabinets.
The old owner put the cabinets in the
store room, but the new owner put them
back. Ackerman J referred to the
McDonald case and stated that none of
the things were accessories. It was
stated that if one takes view of them as
auxiliary things which are there to
permanently compliment the principal
thing, then they serve the same function
as accessories.
Falch: the plaintiff bought a house with
a stove but through negotiations no one
mentioned anything about it. But
however when he moved in, the stove
was gone. He claimed the stove was part
75
of the contract of sale and the court held
that the seller should have said the stove
was excluded in the negotiations but
failed to do so.
oFruits – these are produced by the
principal thing without the principal thing
being consumed or destroyed. Before
separation from the principal thing, the
fruits are accessory things and belong to
the owner of the principal thing. However
fruits are destined to be separated from the
principal thing and exist independently.
Natural fruits: the young of animals, or
the fruit of trees.
Civil fruits: rent, interest on capital,
profit and dividends.
76
77
Registerability of Real Rights
- Section 16 and 63 of the DRA states that
ownership of land can only be conveyed
from one person to another through the Deed
Registrar.
- Personal v Real Rights: there is a theoretical
distinction between the 2, i.e. classical and
personal theories
oClassical: this distinction is drawn from
RL. Real and personal rights differ with
regard to the object of the right. With real
78
rights there is a close relationship between
the holder of the right and the thing itself,
and the thing itself is the object of the
right. With personal rights there is a
relationship between people, and it is the
right of a person against another person. In
this case the object is the action which
must be performed by the debtor to the
creditor (e.g. to give something, do
something or refrain from doing)
oPersonal: the holder of the right can
enforce remedies against interference of
the right. A real right is absolute and can
be enforced against anybody, whereas a
personal right (creditor’s right) is relative
and can be enforced against a specific
person or persons. A personal right is
always placed upon an obligation of one
79
person to perform a certain action for the
benefit of the holder of the right (the
creditor). The obligation usually derives
from a contract. In the case of a real right
there is no debtor because the right does
not rest upon the contract - it is a direct
relationship between the holder of the
right and the thing. This real right allows
the holder to use the property and exclude
all others from interfering.
Ex Parte Geldenhuys: distinguishing between
real and personal rights
- In a mutual will a husband and wife left a
farm to their children in undivided shares i.e.
co-ownership. Once the eldest child reached
majority the land was to be divided amongst
the children in equal portions and the child
80
with the portion upon which the homestead
was built should monetarily compensate the
others. The Registrar of Deeds refused to
register the conditions stating that they did
not create real rights. The children had real
rights in the form of undivided co-ownership
shares and once the subdivision was
completed each of them would acquire
individual ownership of the portion of the
farm. However 2 conditions of the will
created problems:
oThe will stipulated conditions with regard
to the time and manner of subdivision
when usually the co-owners are free to
decide when and how they want to
subdivide the common property. This
placed a restriction upon the common law
freedom to subdivide as well as creating
81
rights to enforce the prescriptions. The
issue was whether these rights to have the
subdivision done at a specific time
(majority) and in a specific manner (equal
portions) created real or personal rights.
oThe court questioned whether the right of
the other children to claim the money from
the child with the homestead portion was a
real or personal right.
- The DRA in s63(1) states that only real
rights in land may be registered and the
Registrar of Deeds refused in this case
because he thought these were personal
rights. Distinction of the rights is also
important in terms of enforceability – only
personal rights can be enforced against a
specific debtor (the other children); real
rights can be enforced against any person
82
(subsequent owners should the child sell
their portion).
- Subtraction from Dominium Test
oFirstly the court must first look at the
obligations created by the right
oSecondly the court must look at the effect
and the intention of the obligations
oIf the obligation is a burden upon the land,
the right is a real right that may be
registered. This obligation affects all
owners of that piece of land irrespective of
their personal identity.
oIf the burden is placed on a specific
person, the right is a personal right and
may not be registered. The obligation does
not affect subsequent owners as the burden
is on the specific person’s capacity and not
the capacity as the owner of the land.
83
- The first set of obligations (majority and
equal portions) affects all co-owners and
subsequent co-owners. Because the co-
owners loose some of their normal
entitlements there is a burden upon the land
i.e. a subtraction from the dominium. The
right is therefore a real right and must be
registered.
- The second set of obligations places a burden
upon one child only and is a one-off burden,
which rests upon a specific person in their
personal capacity i.e. the right does not
subtract from the dominium. The right is
therefore a personal right which may not be
registered. However the court decided that
both rights should be registered together
because of the obligations close connection.
Lorentz v Melle
84
- Two parties bought a farm together as co
owners and concluded a contract that they
would subdivide the farm into 3 portions and
transfer one portion to each while remaining
co-owners of the third. Another term was
that if one of them was to establish a
township on their portion, the other party
would acquire a right to half of the profits.
- The issue was whether the obligation to pay
the sum of money (which was already
registered) created a real or a personal right.
- Application of the subtraction test found that
the obligation did amount to a subtraction
from the dominium and that the parties
intended to establish such a subtraction.
However the obligation did not affect the
owner’s right to the use of the land in the
physical sense. This meant that limited real
85
rights can only be created when they result in
a subtraction from the owner’s right to the
physical sense of the property.
- The court found that an obligation to pay a
sum of money could never constitute a real
right but would always be a personal right.
This is based on the idea that a real
obligation must place a physical burden upon
the owner’s entitlements of use and
enjoyment.
86
Registration of Personal Rights
The General Legal Position
S63 (1) of the DRA states that only real rights
in land may be registered this allows for real
rights in land to be created or transferred. Real
rights in movables are usually not registered
since they are created and transferred by
delivery.
87
Personal rights in land may not be registered
and if registered by mistake, they not
transformed into real rights – Lorentz case.
An exception was made in the Geldenhuys
case where a personal right was registered
together with a real right because they were
closely related.
Low Water Properties v Wahloo Sand
On a piece of land there was a piece of land
which was divided into 2 portions. The
owner of the land executed a notarial deed
granting certain servitudes (including a
positive obligation to draw water from a
borehole, to supply a pump to extract the
water and to maintain a pipeline) over that
land in favour of the 2 owners of the portions
88
of the farm as grantees in their respective
capacities.
The owner of the land sold his land to W
who now became the owner subject to the
servitudes in favour of the 2 portions.
The notarial deed created certain real rights
in favour of the owners of the farm and that
it also created certain personal rights in
favour of the farm owners with the
correlative obligations upon the grantor
(owner of the land).
W complied with the real rights but denied
obligation to comply with the personal
rights.
This case looks at the amendments to s63 (1)
of the DRA which prohibit the registration of
personal rights unless they are
complementary to registerable condition or
89
real rights. Secondly it defines the nature of
servitutal rights that are capable of
registration.
A right is capable of being a real right
despite the fact that it imposes such an
obligation.
The court pointed out that the purpose of the
amendments of s63 (1) was to accommodate
situations that arose in Geldenhuys and
authorise actions of the Registrar since
Geldenhuys
Secondly the provision does not mean
personal rights may be registered per se it
merely authorised a condition being
registered. Therefore personal rights may not
be elevated to real rights.
Schedhelm v Hermain
90
An owner of a farm maintained a windmill to
convey water to anther farm. The main farm
was sold and the new owner refused to take
on the responsibility of the windmill.
A full bench found that terms casting
obligations in faciendo upon the servient
owner (supplier farm) do not constitute real
burdens upon the land. The mere fact that
becoming an owner of property does not pass
on the burden of purely personal obligations.
The fact that the rights were registered at the
deeds office does not alter them from being
mere personal rights into servitutal rights.
The court said that the purchaser of the
servitude can only be bound if he expressly
agreed to be bound by the terms at the time
of purchase.
91
Class of Personal Rights Known as:
Jura in personam ad acquirendam
Registrar of Deeds Transvaal v Ferreria Deep
6. Acquisition of Real Rights: General
Principles
92
LoP is characterised by a number of principles
that form the basis on which numerous legal
rules have developed and the framework
within which future developments can take
place. They are:
- The principle of Numerus Clausus
- The Absolute Principle
- The Publicity Principle
- The Specificity Principle
- The Transmissibility Principle
- The Abstract Principle
6.1. Numerus Clausus
This is also known as closed systems. The
main aim of this principle is to attain certainty
and predictability in LoP. The 2 requirements
are:
93
- Only recognised real rights can be
constituted; and
- The content of a recognised real right is
fairly rigid and not susceptible to radical
change by the party creating the specific
right.
SAL does not formally recognise the principle
of numerus clausus and is very cautious of
recognising new real rights outside the
traditional categories, with the consequence
that the content of the new real right is
strongly influenced by the content of the
analogous real right that provides the basis for
its recognition.
RL adopted this closed system recognising 6
categories of real rights, namely: ownership,
94
servitude, pledge, mortgage, perpetual quick
rent and grant. However, during the middle
ages there was a change where more real
rights were recognised. In the case Ex parte
Geldenhuys, the test for recognition of real
rights is set out under s63 of the Deeds
Registration Act:
- In this case land was bequeathed in co-
ownership of the 5 children of the testator
subject to a usufruct in favour of the
surviving spouse. The will provided for
subdivision of the land into equal portions as
soon as the eldest surviving child attained
majority, in the form of drawing lots by the
surviving testator and the major child. The
second provision stated that the child to
whom was allotted the portion on which the
homestead stood would pay some money to
95
each of the other children within the
following 5 years. The Registrar of Deeds
refused to register these 2 provisions. The
first provision constituted a real burden on
the land and the court decided it was
registerable. The court found the second
provision to be registerable as it gave effect
to the intention of the testator and was
closely connected to the first condition. The
provisions were regarded as merely creating
personal rights, under the contingency
principle, and the Registrar concluded that
only personal rights were created. The
contingency principle states that only a
vested right may qualify for registration; but
not every vested right is real and therefore
not registerable.
96
Under the DRA, s3 (1) contains a
comprehensive list of registerable rights. S3
(1) (i) states that the Registrar of Deeds may
register rights not mentioned in s 3 (1). This
illustrates that the Doctrine of Numerous
Clausus is not recognised in SA.
6.2 Absolute Character
- In CL real rights were seen to be absolute so
no one could interfere with them. This meant
that the owner of a real right had the remedy
of rei vindication i.e. whenever one finds
ones property in someone else’s possession,
one can claim it back.
- The absolute character of a real right finds
expression in the notion of ownership as
potentially the most extensive power in the
respect of a thing. Ownership as the most
97
extensive real right is distinguished from
limited real rights which do not give rise to
such extensive powers and that an owner
cannot simultaneously have ownership as
well as a limited real right in respect of the
same thing.
- However, under the new Constitution, no
rights are absolute and this is justified under
s 36. The 2 cases that recognised that no
rights are absolute were the FNB and
Mkontwana case – this was done through
ESTA and PIE. The effect of PIE on the CL
concept of ownership is very important
(EXAMINABLE).
98
6.3 Publicity Principle (NB)
- One aim of LoP is to give publicity to the
legal relationship between a person and a
thing and to allow correspondence between
the legal and the legal and factual situation.
- The publicity element is demonstrated in
SA’s system of transfer of ownership:
o Movables: the processor of a movable is
deemed to be its owner and transfer of
movables is effected only by delivery
since delivery publicises a change of
ownership.
Various constructive modes of
delivery do not adhere strictly to the
principle of publicity.
o Immovables: the publicity principle is
served by the fact that the transfer of
ownership or a real right in immovables is
99
effected by registration of the transfer in
the deeds registry. Since the deeds office
is open to the public, anyone can ascertain
the owner of a specific piece of land as
well as the limited real rights which
burden the land.
- This principle also plays a role in the
institution of prescription by means of which
ownership is acquired by a person who
possesses a thing without interruption for a
period of 30 years as if he was the owner.
- Publicity also limits the applicability of rei
vindication by means of estoppel (A bar
preventing one from making an allegation or
a denial that contradicts what one has
previously stated as the truth.).
o If an owner creates an impression that a
third party is the owner of his thing or has
100
the power to dispose of the thing, he is
estopped from denying that the impression
created by him is the truth.
6.4 Specificity Principle
- This principle finds expression in the fact
that real rights can only exist in respect of
specific thing. Thus, an owner does not have
a general right in respect of all the assets of
his estate but a specific real right in respect
of each individual thing. Moreover, although
a person can bind himself by contract to
alienate his whole estate, the act of transfer
is accomplished by transfer of each separate
asset. Furthermore a person is not allowed to
pledge his movables in general.
- The separate real rights in a thing and its
components are not permissible, so a
101
notarial lease can not be registered in respect
of a portion of a farm only.
- The specificity principle can sometimes be
relaxed, where:
o A personal servitude of use (usus) can be
established in respect of a house on a farm
although the house is only a component of
the farm.
o A notarial bond is allowed in respect of
the movable things of a debtor in general
and even in respect of future things.
o A covering bond is only determinable to
the extent that the maximum amount of
the debt secured must be indicated and
cession in securitatem debiti of future
debts is to a certain extent allowed.
- Kain v Khan 1968 (4) SA 251 (C)
102
6.5 Transmissibility Principle
- Unlike personality rights, real rights are
freely transmissible to heirs and cessionaries
subject to only limitations imposed in favour
of the transferor, third parties, heirs and
creditors. Exceptions to this principle are
personal servitudes which are highly
personal limited real rights and thus
inalienable.
- The alienation of praedial servitude is also
partly restricted because it is a cession to the
dominant tenement means that it can only be
alienated with the dominant tenement to
which it adheres.
- The transmissibility of a thing or a real right
can be restricted by the registration of
certain conditions in the deeds registry. In
the case of mortgage and pledge the parties
103
can agree that alienation of the mortgaged
thing will be excluded until the debt is
extinguished.
6.6 The abstract Principle
- Under an abstract system of passing of
ownership, the mere intention of the parties
to pass ownership is sufficient without
reference to the underlying causa for the
transfer.
- The principle originated in RL, was
developed by lawyers of the 17th century and
then was accepted into modern law.
- The principle guarantees certainty by
disallowing the invalidity of an underlying
causa to affect the existence or validity of a
transfer.
104
- The real agreement to pass ownership is
treated in abstracto, i.e. totally independent
from the contractual agreement which
provides the causa for the transfer. Although
the system simplifies matters for the
transferee, it does not leave the transferor
who has transferred an object by virtue of an
invalid causa without a remedy. However,
he may still claim by condictio on the
grounds of unjust enrichment
- The principle is not absolute and has
exceptions:
o Certain forms of invalidity of the contract
are considered so material that they affect
the real agreement, and also where the
validity of the transfer will conflict with
an absolute statutory prohibition.
105
o It is possible for the parties to the contract
to provide that the transfer of ownership
will only be valid if the causa for the
transfer is valid.
- An objection to the principle is that it works
unfairly towards the transferor who is left
with a condicito on the ground of unjust
enrichment instead of a rei vindictio,
especially in cases where the transferee is
insolvent.
Klerk NO v Van Zyl and Maritz NNO and
Another and Related Cases
J had forged the signature of C who did not
even know the agreement even existed.
Subsequently the registration of transfer of
the unit in the name of C was affected in a
mortgage bond. The signature of C was
106
forged and the bond passed without C’s
knowledge or consent. The application was
for the retransfer to the insolvent party
because of the conduct of the previous
owner.
The court looked at the abstract and causal
theories. It was held that the abstract theory
relating to the passing of ownership, i.e.
provided that the agreement to transfer
ownership was valid, ownership would in
general pass irrespective of the defect as long
as the intention and cause is to transfer. This
applied to movable and immovable property.
The court held further that the causal theory
states that if the cause of transfer is
defective, ownership can not be passed
irrespective if delivery takes place or the
deed is signed.
107
Although SA CL follows the abstract theory,
especially with regard to movables, in this
case the judge held that there was no
ownership because the other party did not
sign (causal theory because of the defect
with regard to the cause).
Mvusi v Mvusi
Mvusi was a wealthy man who died intestate
in 1963. He was married in community of
property and in terms of choice of law rules;
the marriage was compelled by CL. At the
time of death, he owned a farm in the
Transkei. The magistrate appointed the eldest
son as the representative of the other
children. The son transferred the property to
108
himself and sold it to Mr Kerso, a relative.
Complaints were brought to the magistrate
and the magistrate informed the son of the
cancellation of appointment. It was held that
the son must comply with the rules of the
devolution of the estate. However the estate
was already transferred and registered in K’s
name. The grandson of Mvusi sent an
application against the eldest son to
retransfer the property to the deceased. In
1991 the eldest son died and the grandson
became the executor.
The court applied the abstract theory and
subsequently the eldest son was appointed
and had the right to do with the land as he
pleased. K had the intention to accept the
property so that ownership could pass to him.
109
However in applying the causal theory, there
would be misrepresentation on the part of the
eldest son and thus no transfer
The court applied the causal theory but stated
that the abstract theory should be applied in
SA
110
Modes of Acquisition of Real Rights
This depends on two factors
1. Whether or not the real right is newly
created without the co-operation of a
predecessor
2. Whether or not the real right is already
in existence and merely transferred from
one person to another or created with the
co-operation of a predecessor in title
Original Acquisition of Real Rights
The acquiring of real rights by certain means
Occupation in the case of an unowned
thing
Accession, specification, mingling, mixing
and prescription
111
This is constituted with unilateral acts or a
series of acts by the acquiring person
Title of the acquirer is not derived from any
predecessor and so not affected by infirmities
in the title of the predecessor
Derivative Acquisition of Real Rights
This is as a result of bilateral transactions
involving the co-operation of the predecessor
or a representative
1. Dichotomy Between Contract and Delivery
In most cases real rights are already in
existence and transferred from one person to
another
112
This happens with the co-operation of the
owner of the thing concerned
The real right is not transferred though until
delivery has been made of the thing
Transfer does not complete the transaction
but gives in effect
2. Essential Elements in the Transfer of Real
Rights
The connection of the transfer of real rights
and the completion of a contract is not totally
ignored
Essential elements must be present before
delivery of a thing or registration has effect of
transferring ownership or other real rights
113
a. Thing to which the real right relates is
able to transfer or create real rights, a
thing in commerce
b. The transferor must be legally
competent to transfer it
c. Transfer must be effected by the holder
of the real right concerned or by a duly
authorized agent on their behalf
d. Transferee also must be legally
competent and must register in their name
e. Only the transferee can accept the
transfer of the real right
114
f. Can only be effected by means of one of
the recognized forms of delivery for
movables and registration for
immovables
g. Physical delivery is never sufficient to
transfer a real right to a thing
A mental element of intention must be
added
h. Only passes to the purchaser when the
full purchase price is paid unless credit
has been granted
i. Transfer has to be based on just cause
(iusta cuasa) which gives rise to transfer
3. Abstract and Causal Theories of Transfer
115
Abstract The agreement to transfer a real
right is valid the real right will
usually pass in the pursuance and
on implementation thereof
The underlying contract and act of
transfer (real agreement and delivery
or registration) are separate
Casual When legal system makes the transfer
of a real right dependent on a valid
underlying contract
Initially casual system applied in South
African law but was changed to be abstract
system
A formulation of just cause (iusta causa)
was put into place by the courts
116
This theory gives greater certainty to legal
traffic
4. Just Cause Giving Rise to Transfer (iusta
causa traditionis) and Theories of Transfer
A putative cause is required for the
effectiveness of such a transfer
There may be direct evidence of an intention
to pass and acquire ownership
If this is so then there is no need to rely on
preceding legal transactions to show
ownership has passed
5. Real Agreement – Vitiating Circumstances
117
If an underlying contract it does not
necessarily apply to the real agreement and the
transfer of the real right can continue
If the real agreement is defective the transfer
of the real right cannot continue
118
Good Faith or Doctrine of Notice
The DoN is compared with constructive notice
Constructive Notice – this is the presumption
of knowledge, s7 of the DRA.
The DoN – this has been applied if a
purchaser acquires ownership of a thing sold
knowing:
oThat it has been previously sold to another
person;
oThat the acquisition is in conflict with a
holder’s right of option or pre-emption or
with a duty imposed on the seller not to
sell without the consent of another person;
oOf the right of a lessee to occupy the thing
sold
Application of the DoN takes place by
forcing the acquirer of the real right to give
119
affect to the earlier personal rights, as
stipulated below:
a. A successive sale – a seller sells a
thing to A and then subsequently sells
the same thing to B and gives him
delivery or transfer thereof. A would be
entitled to claim cancellation of the
second sale and delivery to B, if B had
known of the first sale to A. Situations
may arise where B has no knowledge of
the fact that the owner is already in a
contract. B is known to be acting in
good faith. The general rule is that the
purchaser’s bona or mala fides must be
determined as at the time he takes
delivery or transfer (for immovables).
b. Unregistered Servitude – if A and B
enter into an agreement where A
120
becomes entitled to have a servitude
registered over the land of B, A now has
a personal right to claim that B should
co-operate in registration because this is
a requirement in the creation of a
servitude. Once registration has been
completed any subsequent purchaser of
the land will automatically be bound by
the servitude as the object is the land
itself. However if B sells his land to C
before registration, C’s knowledge or
ignorance of A’s potential real right is
important. The object of A’s personal
right from his agreement with B is a
performance to be done by B only and
not the land. If a person is aware of an
unregistered servitude when buying
property, the third party can apply for
121
that servitude to be registered. But if he
is unaware, that application cannot be
made.
c. Leases where the Huur Gaat Voor
Koop – in a long lease of land a lessee is
protected by the HGVK rule once the
lease has registered in accordance with
the DRA, or in absence of registration,
for the first 10 years of the lease when
possession is taken place. In the case of
a short lease the lessee is protected by
the HGVK rule when possession has
taken place. In these circumstances the
lessee has a real right and a subsequent
purchaser will take transfer of the land
subject to the lease. However before
application of the rule the lessee has a
personal right only and performance is
122
to be done by the lessor and not the land
itself.
d. Sale in Conflict with an option, pre-
emption or duty not to sell without prior
consent will be declared null and void
and entitle the holder of the prior
personal right to claim transfer or
delivery of the thing.
e. Sale in conflict with a right of security
- the new owner is bound to perfect real
security rights to which the predecessor
was bound if he had prior knowledge of
it.
Foundation and Requirements of the
Doctrine of Notice –
oExistence of prior personal right against
holder of a real right
123
oInfringement of a personal right by
subsequent acquirer of land
oKnowledge of existence of prior personal
right by acquirer of real right
124
7. Ownership: General Principles
Concept of Ownership
Ownership is a real right embracing the power
to use (ius utendi), to enjoy the fruits (ius
fruendi), consume the fruits (ius abutendi), to
possess (ius possidendi), to dispose of (ius
dispondendi), to reclaim the thing from anyone
who wrongfully withholds it (ius negandi).
Ownership is an absolute exclusive and an
absolute right.
Absolute in the sense that an owner can do
whatever he pleases with the object of his
ownership. However the absolute entitlement
exists within the boundaries of the law,
restrictions can come either from objective
125
law or restrictions placed upon it by the
rights of others. Therefore no owner never
has the unlimited right to exercise the
entitlements in absolute freedom and in his
own discretion (Gien v Gien)
The content of ownership is determined within
the context of each individual case and 2
aspects must be looked at – entitlements and
limitations.
1. Entitlements of the owner:
a. Control allows the owner to physically
control and keep a thing
b. Entitlement to use is the right to use
and benefit from a thing
c. The entitlement to encumber is the
right to grant limited real rights in respect
of the thing
126
d. Entitlement to alienate is the right to
transfer the thing to someone else
e. Entitlement to vindicate is the unique
right of the owner to claim a thing from
another person.
These entitlements can be limited by statutory
measures, limited real rights of other persons
or personal rights of other persons against the
owner:
Limited real rights limit the owner’s
dominium in terms of subtraction and are
enforceable against the owner’s successors in
title.
Personal rights do dot limit the dominium of
the owner and are not enforceable against
successors.
Ownership does not consist of a bundle of
entitlements which can be separated. It is an
127
abstract concept and always implies a subject-
object and a subject-subject relationship.
Therefore the content of ownership varies
because the entitlements of the owner vary
from time to time regarding the same
relationship. Entitlements are not the essence
of ownership but they determine the extent of
the legal relationship between the owner and
the thing at a certain time.
2. Limitations imposed on ownership:
Ownership must be exercised subject to the
requirements of objective law and the rights of
3rd parties. Therefore entitlements must be
exercised in accordance with the social
function of the law in the interest of the
community. This means that ownership may
be infringed in the interest of the community
128
but must always be reasonable and equitable.
These limitations may be divided into 4
categories:
a. Public Law Limitations – (statutory
limitations) imposed on all owners of a
particular kind of property for the benefit
of society of a whole or in the interest of
certain sections of society. Ownership may
be limited by the state. E.g. mining and
water laws and marketing regulations.
i. Constitutional limitations allow for
deprivation or expropriation (s25)
ii. PE Municipality case – statutory
restrictions such as PIE where the
interests of landowners have to be
weighed up against the interest of the
squatters during eviction applications.
In this case an eviction order the
129
granted in favour of the landowner,
but the order was suspended due to the
squatters’ right to housing.
iii. Limited Real Rights of 3rd Parties –
these limitations limit the owner’s
ownership (dominium) since it is a
real burden on the thing (subtraction).
It is enforceable against the owner and
his successors in title. These
limitations are created in the case of
immovable property by registration in
the deeds registry and movables by
delivery. E.g. real servitudes such as a
right of way or personal servitudes.
b. Private Law Restrictions – ownership
is limited in the interest of private
individuals. These are found in the sphere
of neighbour law which is aimed at
130
achieving harmony between neighbouring
landowners. This rule can also fall under
delictual liability if damage is negligently
caused. In terms of the rules of necessity
the window of a neighbour may be broken
in order to summons the fire brigade or
extinguish the fire.
Neighbour Law
Neighbour law allows for ownership to be
limited not in the interests of the community,
but in the interests of neighbours.
The Purpose
This is to create harmony between neighbours
by weighing the rights and obligation in the
exercise of entitlements against each other in
131
order to balance conflicting ownership
interests.
Nuisance
The basis of neighbour law is that land must
be used in such a way that another person is
not prejudiced or burdened. E.g. smoke smells,
noise, unpleasant displays. Nuisance can be
described by 2 instances, a narrow sense or a
broad sense.
1. Narrow Sense
This is an infringement on the neighbour’s use
and enjoyment of his land which constitutes an
infringement of a personality right (e.g. his
health) or an entitlement of use (e.g. the right
to the undisturbed enjoyment of his property).
These infringements can be prevented by an
132
interdict. Reasonableness is used as a point of
departure:
a. The nuisance must be repetitive or
continuous because a single action of short
duration must be tolerated, except if there
is a reasonable expectation that the activity
will be repeated.
b.Only annoying actions are unreasonable if
the community is of that opinion.
c. The action or activity must be a nuisance
according to a normal person.
d.The location of the properties and whether
they are residential, business or industrial
areas are important in determining
reasonable actions.
133
Case Law
Dorland v Smit: this case illustrates nuisance
of unpleasant display. Two neighbours’
property was divided by a common property
wall one owner put up an electric fence with
signs. The other owner objected as the
fencing causing potential danger to his
gardener, visitors and grandchild. The court
looked at if the activity of the offending
owner exceeds that which the complainer
could reasonably be expected to tolerate. The
court held that the offender was exercising
his rights of ownership.
Rademeyer v Western Districts Council: the
applicant was not successful with an interdict
to prohibit noise, water and air pollution by
134
squatters because he was not able to prove
that the nuisance would be permanent. The
court also considered ESTA.
Gien v Gien: the respondent erected an
apparatus producing loud explosives to scare
away baboons from his vegetable garden.
The machine worked day and night and
disturbed the neighbours. The respondent
could muffle the machine or switch it off at
night without impairing its effectivity. It was
decided that there were requirements for
interdict
oThe applicant must prove a clear right
oThe respondent must intrude upon that
right
oNo other remedy must provide
satisfactory protection of the right
135
The court also assessed the following
questions:
oWere the acts of the respondents
reasonable and fair?
oDid the respondent act in bad faith or
with expressed single intention to cause
discomfort for the plaintiff?
oWas the respondent’s use of his
property normal?
oWere the respondents actions harmful to
the other party because he is an
abnormally sensitive individual or
would they have had the same reaction
upon the normal and not unduly
sensitive person?
136
2. Broad Sense
This is an infringement of the neighbour’s
exercise of entitlements in general, or actions
by the neighbouring owner that caused
damage. Compensation can be claimed or the
infringement can be prohibited with an
interdict.
Damages are claimed with the Actio Legis
Aquiliae
Nuisance in the wide (broad) sense which
causes damage to the neighbour constitutes a
delict. Delict has 5 elements:
o An act or omission;
o Which violates the law (unlawfulness);
o Committed in a culpable way (intent or
negligence);
o Which action caused (causality);
137
o Damage or injury to the injured party.
Case Law
Regal v African Superslate: the predecessor
of the respondent allowed slate waste to
accumulate in a place from where it was
being washed onto the appellant’s land. The
omission to prevent this spillage was
unlawful but because it was expensive and
unpractical (therefore unreasonable) to
expect prevention, the appellant’s application
was denied. It was decided:
o The EL regarding nuisance does not
form part of SA CL, and
reasonableness must be made on the
basis of RD principles.
o Reasonableness is the determining
criterion in the weighing of interests
138
of neighbouring owners and occupiers.
I.e. the exercise of entitlements must
be within reasonable limits and the
neighbour must tolerate this within
reasonable limits.
o Where the unlawful actions of the
neighbouring owner caused damage to
his owner, liability is determined with
reference to Actio Legis Aquiliae
Lateral and Surface Support
A land owner is entitled to the support
supplied by the land of the neighbour for land.
Therefore there is an obligation on neighbours
139
to use their own land in the way that the lateral
and surface support is not undermined by
excavations for building or mining.
RL: Roman jurists asked if the offending
owner acted unlawfully – fault was not a
requirement. Other determining factors were:
oThe magnitude and immediacy of the
damage
oThe question whether the offending use
was normal?
oThe motive of the offender
oThe real advantage of the offender
oThe prejudice suffered by the injured party
RDL: the courts found that the very sections
used in RL were no longer known by their
names but their underlying principles were
accepted into RDL. E.g. property should not
be used to injure other people
140
EL: the court stated that the duty of lateral
support was inspired by EL.
SAL: the following principles are applied:
oIt is only necessary to prove that the
neighbour has disturbed the lateral and
surface support, and not culpability –
Demont v Akal Investments. The plaintiff
alleged as a result of the defendant’s
excavation, he removed earth from the
vicinity of the plaintiff’s house and
negatively deprived the plaintiff of lateral
support. Consequently the plaintiff’s house
subsided, walls cracked and the building
was condemned by the local municipality.
oThe plaintiff need not prove wrongfulness,
but must prove that the damage has been
caused by the removal of lateral support –
Gijzen v Verrinder
141
oLiability of the actor is not based on delict
but on the interference of the right by the
owner.
oThe duty of lateral support applies only to
land in its natural state and not in respect
of buildings and additions. If excavations
on neighbouring land caused damage to
buildings, the owner of the land on which
the building is situated has no claim.
Encroachments
These can be from buildings or from the
branches or roots from plants planted on the
neighbouring land. SAL recognises the rule
that the land owners entitlements extend into
the air above and the earth below the land.
142
Interference of these entitlements can result in
remedies.
Buildings: CL allows the land owner to
build on his land but may not exceed the
vertical boundaries of his boundaries. The
foundations of the buildings or additions may
not exceed the boundaries below the ground
nor in the air. The following are remedies for
such encroachments:
oRemoval of the encroachment – the owner
may demand the encroachments to be
removed although he doesn’t have to do it
himself. Reasonableness and fairness are
determined by the lapse of time since the
owner became aware of the encroachment;
the nature and degree of the
encroachment; and the cost of removing
143
the encroachment in relation to damages
suffered by the owner.
oCompensation – this can be awarded to the
land owner if he did not exercise his right
to removal or if it would be unreasonable
to demand removal.
oTransfer and compensation – the
defendant can be ordered to take transfer
of the part of the land on which the
encroachment took place for
compensation. The compensation thus
includes the cost of transfer, the value of
the part without the encroaching
improvement and payment of damages
because the encroaching action took away
part of the land owners land.
oTermination and compensation – the land
owner can terminate the defendants
144
occupation of the encroaching building but
must compensate the defendant for the
value of improvements made on his land.
This only applies if the encroachment
constitutes an independent building and is
not a slight encroachment forming part of
the building on the neighbouring land.
Branches, Leaves and Roots: where the
branches and leaves of plants encroach on
the air above the landowners land or if the
roots encroach on the land under the surface,
the following remedies are used:
oThe landowner can request the owner of
the neighbouring land to cut off or remove
the encroaching branches. If this is not
done within a reasonable time the
landowner can ask for an order to remove
the encroachments himself.
145
oIf the plants are planted on the neighbours
land these will become the property of the
neighbour, who can then remove or keep
them
oIf the roots of trees planted on the
neighbours land encroach on the land of a
land owner, he can remove the roots
himself.
146
147
Co-Ownership
Definition
Two or more persons cannot simultaneously
exercise different kinds of ownership
regarding the same object, but may be co-
owners of a thing at the same time. Co-owners
cannot divide the thing physically whilst the
co-ownership still exists, and a co-owner
cannot alienate the thing without the consent
of the other co-owner. However a co-owner
can alienate his undivided co-ownership share.
The entitlements are exercised jointly in
accordance with the undivided shares. No one
co-owner has the right to change the character
of the property e.g. an agricultural farm cannot
148
be changed into a grazing field by a single co-
owner. Co-ownership is established in the
following ways:
Inheritance: when a testator leaves an
indivisible thing to more than two people
provided that it may not be divided, it is
owned by the heirs in co-ownership
Conclusion of a marriage in community of
property: this implies that the parties are co-
owners of all things in the common estate in
equal, undivided shares
Mixing: this is when different things of
different owners are mixed, the mixed thing
mixes in such a way that a new thing is
created. The previous owners of the mixed
things become co-owners in relation to their
contribution.
149
Estate holdership: the spouse of the deceased
continues the community of property with
their heirs of the deceased spouse
Voluntary association without legal
personality: the members of an association
are co-owners of the assets of the association
in undivided shares. Such a co-owner may
not alienate his undivided share.
Contract: this is a means by which two or
more people can jointly buy a thing and have
the ownership transferred in undivided
shares through delivery or registration
Kinds of Co-Ownership
There are 3 kinds of ownership, these are: free
co-ownership, bound co-ownership and
common co-ownership
150
Free Co-ownership: this means that the only
legal relationship which exists between the
parties is the co-ownership of the thing.
oA co-owner can independently alienate his
undivided co-ownership share.
oThe co-ownership can be terminated
unilaterally because no other legal
relationship exists.
oThe joint exercise of entitlements is not
determined by an underlying relationship
between the co-owners (it can be arranged
by contract).
oThis undivided share is not necessarily
equal, the portion is determined by the
instrument creating the co-ownership.
151
Bound Co-ownership: this results from an
underlying legal relationship between
common owners which forms the basis of
their common ownership and implies that the
owners cannot terminate the common
ownership while the legal relationship still
exists (e.g. marriage or partnership and
voluntary association). Bound common
ownership has the following implications:
oA common owner can usually not alienate
his share of a common ownership as long
as the underlying legal relationship still
exists.
oThe joint exercise of entitlements is
determined by the underlying legal
relationship (e.g. a marriage in community
of property follows the law of matrimonial
152
property to determine the way in which the
spouses may exercise their entitlements)
oThe common ownership can not be
terminated unilaterally by a common
owner while the underlying legal
relationship still exists.
Common Co-ownership: this exists between
two pieces of property. The rules regulating
the rights of neighbours with regard to
boundary walls are based on 2 concepts:
oEither neighbours are the co-owners of the
boundary walls or;
oThey own the boundary wall up to the
middle
153
Rights and Obligations of Co-Owners
Alienation and Burden: co-owners must be
given permission before something can be
alienated or burdened with real rights
Use: co-owners must jointly decide how the
thing is to be used on the basis of a use
agreement. Every co-owner is entitled to use
the thing reasonably and in accordance with
the portion of his share, this means that the
thing may not be used to the detriment of the
other co-owners. Erasmus v Afrikander
Proprietary Mines: if there is a dispute about
the conduct of a co-owner, the court has to
consider whether the conduct constitutes an
unreasonable user, inconsistent with the user
to which the property was destined and to the
154
detriment of the rights of the other co-
owners.
Profit, income and fruit: co-owners are
entitled to an equal share of the fruit, income
or profits proportionate to their share. This
applies even if the profit was initiated by one
co-owner, except in the case where the co-
owners agreed that every co-owner may
appropriate the fruit of the use of the
property proportionate to his share.
Maintenance and expenses: co-owners are
obliged to contribute to the maintenance and
expenses regarding the property
proportionate to their shares.
Right of veto: the decisions of the majority
of co-owners regarding the use of the
property are not necessarily binding on the
minority, as they can veto. Co-ownership can
155
be terminated or the reasonableness of the
co-owners can be tested by the court through
a prohibitive interdict.
Remedies
The control and use of the property are usually
regulated by means of a mutual agreement
between the co-owners but applications for
division may be submitted when there is a
dispute.
Division puts an end to the co-ownership: if
the division is not practical then the property
may be sold by a private auction and the
proceeds shall be shared.
Interdict: a co-owner which exceeds his
entitlements can, by means of an interdict, be
prohibited by the other co-owners from
continuing his use.
156
Subdivision: if the property is divisible any
co-owner can at any time claim the
subdivision of the property in accordance
with every co-owners share, this is done by
of the action communi dividundo.
157
158
Modes of Acquisition
There is a distinction between original and
derivative acquisition of ownership:
Original does not depend on the lawful
ownership of a legal predecessor, this means
that the benefits and the obligation of the
previous owner are not usually passed to the
new owner. If there is no previous owner,
acquisition of ownership takes place through
appropriation (occupatio) of a thing that is
not owned (res nullius) or a thing that has
been abandoned (res derelictae). Derivative
acquisition depends on the lawful ownership
of a previous owner.
Original acquisition does not require the
cooperation of the previous owner but for
derivative acquisition ownership can only
159
take place legally with the previous owners
is not necessary.
Modes of Original Acquisition
Appropriation ( occupatio )
This is defined as the unilateral taking of
possession of an unowned thing (corporeal
movable or immovable) which is not in the
ownership of any other person, with the
intention to become the owner of the thing
(animus domini). E.g. wild animals, things
belonging to the enemy and things that have
been abandoned by their owners. Lost items
are not included because when lost they are to
be reported to the police and when found,
given back to the owner.
160
The Game Theft Act is one of the statutes that
govern ownership of wild animals which are
res nullius. E.g. if the game escapes from land
that is sufficiently enclosed or from a pen,
kraal or vehicle, the owner does not lose
ownership of the game.
Accession ( accession )
This literally means the increase or addition to
a thing. Voet describes it as a method of
acquiring ownership, by which a thing
becomes another’s because it accedes to a
more principle thing of that other. The test for
an accessory thing is to determine which of the
two (principle and accessory) things retains,
and who loses, its identity. There are three
methods:
161
1. Natural accession – this takes place by the
process of natural fusion.
a. Alluvion: this is the gradual adding of
soil to a piece of land by water e.g. silt.
b. Avulsion: this is the extension of a
piece of land through the sudden addition
of a piece of land through flooding or the
flow of water.
c. The offspring of animals: ownership
of a young offspring is vested in the owner
of its mother who is prima facie entitled to
the ius fruendi. In cases of a usufruct or a
lease the terms of the relationship
determine who the owner of the offspring
will be.
162
2. Industrial accession – this takes place due
to human effort
a. Planting and Sowing of Trees: if a
person has planted seeds on another’s
land, their ownership is vested in the
owner of the land as soon as they have
taken root, although the planter may have
a claim for compensation against the
owner. A tree planted to a boundary of
land can also be acquired in ownership by
the owner of the adjoining land if its roots
penetrate his land.
b. Buildings: this is the permanent
attachment or annexation of buildings,
pumps, walls or other structures which
become the property of the owner of the
land. There are 3 factors which must be
considered:
163
i. The nature of the thing
ii. The manner or its annexation
iii. The intention of the owner of the
movable at the time of its annexation
In the McDonald case it was decided that
an owner cannot be deprived of his
property without consent except in very
limited circumstances. This case gave rise
to 3 approaches: traditional, new and
omnibus.
Traditional Approach
This is where the subjective intention of the
owner becomes important only if the first 2
criteria (nature and function) are not decisive.
164
If this is so, one is now to look to the new
approach. But if the first 2 criteria are
decisive, there is no need to look to the new
approach.
The New Approach
The intention of which the attachment is made
(3rd factor) is the most important – the first 2
factors (nature and function) are only
indicative to the intention.
Omnibus Approach
This considers the purpose and causal link of
the attachment. This takes into consideration
all 3 factors.
165
c. Other forms of Industrial Accession:
these are inweaving, writing, painting and
welding where the owner of the end
product needs to be determined
i. Inweaving: the owner of the cloth
becomes the owner of the thread
ii. Writing: the writer becomes the owner
but must compensate the owner of the
paper with the same quality and type of
paper.
iii. Painting: ownership depends on the
quality of the painting or the value of
the material on which it has been
painted.
iv. Welding: thee attachment must not
amount to specification; a principle
thing and an accessory thing must be
166
distinguishable and the attachment must
not be easily separable.
3. Mixed Accession – this is where there is a
mixture of natural and industrial accession
e.g. the acquisition of fruits. Fruits belong to
the owner of the fruit bearer or to the person
who gathered them. Before separation, fruits
do not have ownership problems, after
separation they can be owned by usufruct or
a lease.
4. Specification – this is where someone used
someone else’s product to produce
something new e.g. grapes into wine. The
following are the requirements for
specification:
167
a. The new product must be created.
b. The end product cannot be returned
into original product.
c. The CL provides that the manufacturer
that creates the new product becomes the
owner of the thing. There must be no
agreement between the manufacturer of
the new thing and the owner of the
materials used.
J Cohen Motors SWA v Alberts – the
plaintiff bought a truck from the defendant
and fitted 6 new tyres. The truck was
being paid for used dishonourable
cheque’s, the defendant cancelled the
contract and repossessed the vehicle with
the new tyres. The defendant wanted his
types back. The judge held that the
168
plaintiff had complied with the
requirements of specification.
5. Mingling and Mixing –
a. Mingling – refers to the mixing of
liquids. If separation can reasonably (in
light of the value of the liquids and the
costs of separation) be effected no change
of ownership takes place unless there was
consent. If no separation the result is co-
ownership in proportion to the respective
contributions.
b. Mixing – when solids are mixed in
such a way that identification of the
original elements is impossible, the result
is co-ownership if there was consent
169
6. Prescription – acquisitive prescription is
an original way of acquisition in terms of
which a real right is acquired in respect of
movable or immovable things by means of
the open and undisturbed position thereof or
the exercise of rights in respect thereof for an
uninterrupted period of 30 years. It does not
matter if the position is bone fide
(intentional) or mala fide (non intentional).
The purpose is not only to punish the
previous holder for not exercising the right
but also to ensure legal certainty regarding
the de facto position. Legal certainty is not
only for the interest of the person in whose
favour prescription runs but also in the
interest of 3rd parties as well as preventing
extended litigations regarding ownership.
170
Foundations of acquisitive prescription can
be found in the Prescription Acts and CL.
The CL governed situations not affected by
the provisions of the Act therefore it is only
used as a residual source. Act 68 of 1969 is
applied to prescriptions started from 1
December 1970, whereas Act 18 of 1943
applies to prescription before 30 November
1970. Act 68 only has retrospect in terms of
s5
Elements of Possession – s1 of Act 68
Possession: this relates to the physical
(corpus) control of the thing. It shows
relation between the thing and the owner
(detention) coupled with the intention to
become the owner of the thing (animus
domini) which is referred to a civil
171
possession. There is no possession without
corpus.
Possession must be open: this relates to the
fact that possession must be blatant for
everyone to see. This is referred to nec
clam
Possession must not be obtained by force:
if a person needs to keep physical control
of a thing with force (nec vi), prescription
will not run in his favour
Possession must be without the consent of
the previous owner: this is nec precario.
People such as insolvents who are already
owners cannot gain from the Act.
Interruption of Prescription
172
Interruption can take 2 forms: namely
naturally or by civil means
S2 states that in the case of natural
interruption if the possessor voluntarily
abandons his position, the prescription is
interrupted and terminated. Prescription
will not be interrupted by involuntary loss
of possession if possession is regained
within 6 months.
S4 states that in the case of civil
interruption if the prescription has been
temporarily interrupted by the serving of a
process, but it is not finally interrupted by
a final judgment the prescription continues
Suspension of Prescription
173
In terms of s3 the prescription is postponed
in certain circumstances and resumes when
these circumstances come to an end.
Examples regarding suspension -
Minority: if the owner of a farm is a minor
e.g. 3yrs, a major takes possession of the
farm with the animus domini. When the
minor attain majority (18yrs later) his
minority has no affect on the completion
of period of prescription.
The person in favour of whom the
prescription is running is outside SA or is
married to the person who the prescription
is running against, prescription will be
postponed.
Consequences of Prescription
174
After the completion of the period of the
prescription, the possessor becomes the
owner of the thing. In the case of movables,
ownership passed (and was not transferred
by delivery); in the case of immovable’s
ownership passed without registration. The
new owner can in terms of s33 of the DRA
apply to have the property registered in his
name.
Derivative Modes of Acquisition
For derivative transfer of ownership the
cooperation of the transferor (the current
owner) is required. Ownership passes and is
acquired by a bilateral legal act between the
current owner and the prospective owner,
which is fulfilled by either delivery of the
thing or registration of the transfer. The result
175
is that the owner accepts all rights and
obligations that exist in respect of ownership.
The requirements for transfer of ownership
according to the derivative method are:
The thing must be negotiable (res
incommercio),where real rights can be
acquired and transferred.
The transferor and the transferee must have
contractual capacity
The transferor must be the owner of the thing
and no person can transfer more rights than
he himself has (nemo plus iuris) and
therefore the owner is the only person who
can transfer ownership
176
Ownership must be accepted by the
transferee, his nominee, or agent
Transfer of ownership for movables takes
place only if the thing is delivered to the
transferee in a legally accepted way. For
immovable’s, transfer takes place by
registration in the deeds registry.
Delivery and registration must take place
with the intention of the owner to transfer
ownership and the intention of the transferee
to accept it.
There must be a legal cause (causa) for the
transfer
If transfer is on the basis of contract of sale
ownership is only transferred to the buyer if
the full price has been paid unless credit has
been granted
177
1. Delivery
Delivery (traditio) is the transfer of the
physical control of the movable to the
transferee so that he can exercise control with
the intention to be the owner (animus domini).
There are 2 types of delivery: actual (traditio
vera) and onstructive (traditio ficta).
Actual delivery indicates that the movable is
actually handed over to the transferee
Constructive delivery takes place where the
act of transfer is not as explicit as an actual
delivery. This can take place if the transferee
was in physical control of the thing but did
not previously have the intention to be the
owner. As soon as the intention of the parties
178
change and the transferee controls the thing
with the intention to be the owner,
constructive delivery has taken place.
Categories of Constructive Delivery
Clavium traditio – this is where due to its
nature or size, a thing cannot actually be
handed over the transferee, but an instrument
by means of which the transferee is able to
exercise physical control is handed to him.
E.g. delivering the keys to a car, the delivery
of the registration certificate of the car.
Delivery with the long hand (traditio longa
manu) – this is where due to its nature, size
and weight; a thing cannot be delivered
physically but is instead pointed out. E.g. a
179
heap of bricks or a heard of cattle. There are
certain requirements:
oThe intention of the parties to effect
delivery must be clear
oThe thing must be pointed out by the
transferor to the transferee in the presence
of the thing
oThe transferee must be able to exercise
physical control.
oThe thing must be identified clearly.
Delivery with a short hand (traditio brevi
manu) – the transferee must already have
physical control but without the necessary
intention to be the owner, therefore delivery
takes place when the intentions of the parties
180
change. No physical delivery is required.
E.g. lessee deciding to buy leased property.
Constitutum Possessorium – this is where
ownership is transferred without the thing
actually being delivered. The thing remains
in the physical control of the previous owner
who exercises control for or on behalf of the
new owner. E.g. clothes bought and paid for
are left with the seller for alterations.
Requirements:
oThe transferor must be in control of the
thing as owner;
oThe previous owners intention to be owner
is terminated by change of intention;
oParties relying on this delivery have to
prove the intention of transfer in spite of
181
the fact that the transferor controls the
thing;
oThe reason (causa) why control is under
the transferor after transfer of ownership
must be explicitly identified. This prevents
fraud.
Attornment – this takes place if ownership of
a movable is transferred from one party to
another, but at the time of transfer the thing
is in the physical control of a 3rd party.
Ownership is transferred to the transferee if
the 3rd party agree to exercise physical
control on behalf of the transferee and no
longer on behalf of the transferor. The
requirements of attornment are as follows:
oThe parties to the transfer, A, B and C,
must be in agreement that the physical
182
control would in future be exercised on
behalf of B in terms of his intention to be
owner.
oThe person in physical control must have
been in control at the time when the
transfer took place – Caledon case.
2. Registration
The Publicity Principle – the application of
the publicity principle registration is required
for the creation, transfer and termination of
all real rights in immovable property. In CL
the custom was to draft written transfer
documents and formally hand these to the
holder of the right, this documents registered
as proof of transfer.
183
The History of Registration of Land
The Registrar of Deeds was originally
responsible for the preparation of transport of
deeds. This responsibility was authorised to
advocates and later to qualified conveyances.
The SA system of land registration is a
gradual development from colonization
which is a contrast with The Torrens System
which was properly planned and developed
from its onset.
The Structure of the SA System of Land
Registration
S 16 of the DRA provides that ownership
may be conveyed from one person to another
only by means of a deed of transfer executed
184
by the Registrar unless otherwise set out in
other legislation. Further more other real
rights in land may be conveyed from one
person to another only by means of a deed of
cession attested by a notary public and
registered by the Registrar. The cadastral
system forms the basis of the broader scheme
of registration.
The Cadastral System
Efficient land title registration is impossible
unless land is divided into units which are
properly surveyed and represented on a
diagram or a general plan. An approved
diagram establishes the description of a
specific land unit; the extent and boundaries;
and the description, position on or in relation
185
to the unit of any servitude feature already
registered or to be registered.
The Land Survey Act regulates the survey of
land units and the preparation of diagrams
and plans by registered land surveyors.
Every registerable land unit must have its
own diagram except if the Surveyor-
General has approved a specific plan for a
specific area. A diagram approved by the
SG must be attached to every deed of
grant except one in respect of land which
has been alienated and reacquired by the
state.
Every diagram deed has a reference which
correlates to the deed of transfer or
certificate of transfer thus ensuring
identity of the land.
186
The Deeds Registries Act
The aim of the Act is to regulate
administrative matter of registration in an
orderly, clear and practical fashion to
provide the best protection and security
through publicity of their land use and
control. This Act represents a unification
and codification of land transfer principles.
Process of Registration
The whole process of lodgement,
preparation and registration of the deeds of
transfer and notification of the parties
involved should take 14 days. Regulation
45 (3) to the DRA allows for registration of
187
deeds within 5-6 working days after
lodging, if no objection exists.
Lodgement of documents at the deeds
registry by all the conveyance’s involved in
a specific transfer take place
simultaneously. The deeds are sent to the
deeds examiners-in-chief who determine
whether the relevant deeds are accepted or
rejected and returned to the conveyancers
for revision. A deed is executed by a
conveyancer in the presence of the
Registrar who attests it.
Roll Players:
Registrar of Deeds – a Registrar of Deeds
heads each deeds registry office in SA and
188
his chief ensures uniformity in practice
and procedure throughout SA. The duties
and functions of the Registrar are
contained in s3 of the DRA:
oMake endorsements in connection with
the registration of any deed to give
affect to registration.
oKeep registers containing information
necessary for an efficiently secure
system of registration and ready for
reference to any registered deed.
Conveyancer – this is an attorney admitted
by the HC into the profession. He appears
before the Registrar on behalf of an owner.
Only conveyancers are allowed to prepare
and sign certain deeds and documents
relevant for registration and lodgement.
189
Protection of Ownership
190
There are remedies available for the
infringement of entitlements;
1. Real Remedies – these restore physical
control or remove any infringement.
oRei vindicatio: this is the action where an
owner can recover an existing and
identifiable thing from any person who is
exercising unlawful control. It does not
matter if the person acquired control in
good faith or paid for it and the owner
need not compensate them. Damages can
only be claimed from a bone fide
controller in exceptional circumstances of
fraudulent alienation or consumption of
the thing. Requirements:
The owner must prove ownership of the
thing
191
Only an existing and identifiable thing
can be reclaimed
The property must be in the control of
the defendant.
Defences that can be used against rei
vindicatio:
The defendant can prove that the
claimant is not the owner of the thing
If the thing has been destroyed or is
unidentifiable
If the defendant was not in physical
control of the thing when rei vindicatio
was instituted.
The defendant can show that he has a
limited real right or a personal right.
192
This right must be enforceable against
the owner
The defendant with a lien over the thing
remains in physical control until the
obligation which gave rise to the lien
has been fulfilled by the owner.
An occupier in terms of the Land
Reform or the Labour Tenants Act,
ESTA, or PIE may raise this as a
defence until such an occupiers claim
has been dismissed by a court.
Limitations on rei vindicatio – in the case
of CL in circumstances where the
occupiers right is not based on statutory
occupation of property (PIE, ESTA), the
court does not take the personal
193
circumstances of the occupier or the
availability of alternative housing into
consideration when granting eviction
orders – s26 (3) of the Constitution.
Estoppel: is a defence that can be raised
against rei vindicatio if the owner acted
in a specific way. The requirements are
if the owner of a thing:
Culpably (intentionally or
negligently)
Created the impression that
ownership was transferred to
controller
And the controller thus exercises
control with the owners intent
To his detriment
194
The controller can raise estoppel
against the rei vindicatio
Stolen Money: if stolen money has
become unidentifiable as a result of
mixing, the owner cannot institute the
rei vindicatio since the thing has been
lost. If it has not been mixed, the rei
vindicatio cannot be instituted if it was
acquired in good faith.
oActio Negatoria: this is a real action aimed
at protecting the exercise of an owners
entitlements arising from his ownership.
The requirements are:
Can only be instituted by an owner of a
thing
195
Can be instituted as a result of an
infringement or a holder of a servitude
exceeds his entitlements
Can be instituted in respect of movables
and immovable’s
Can result in a declaratory order or
damages.
oInterdict: this is a summary court order
where a person is either ordered to do
something, stop doing something or
refrain from doing something, so a to stop
or prevent an infringement of property
rights. The requirements are:
Proof of a clear right with regard to
property
196
Proof that the respondent infringed upon
the right unlawfully in an ongoing and
continuing way or there is reasonable
expectation thereof
Reasons why there is no other effective
remedy.
oDeclaratory Order: this is a court order
issued upon application, in which the court
sets out the rights and duties of parties to a
dispute before the actual infringement
takes place. The requirements are:
Proof of an actual, existing or future
right / duty regarding property
Proof of an existing or real dispute
about those rights / duties
Convincing reasons for the order
197
2. Delictual Remedies – these do not aim to
restore physical control they are aimed at a
person in order to claim compensation for
damage or injury, the owner experienced in
respect of this property.
oActio Ad Exhibendum: this is instituted
by the owner against the controller of a
thing which has fraudulently lost physical
control, in which case the value of the
thing can be claimed. The requirements
are:
The thing must have been destroyed or
alienated on purpose
It could have been consumed or
destroyed or alienated in any other way
198
The controller must have been mala fide
at the time of destruction
This remedy is only available to the
owner of the destroyed property
oCondictio Furtiva: this is instituted by the
owner against a thief or a thief’s heirs and
is an action in which the thing or the
highest value of the thing can be claimed.
If the thing is still in the control of the
thief or his heirs it should be claimed with
the rei vindicatio and the actio ad
exhibendum would be used if the thing
was destroyed on purpose. The
requirements are:
The owner or anyone with a lawful
interest in the thing can institute this
199
remedy if he retained ownership or
interest in the thing from the date the
theft until the date of the action
If the thing is destroyed and the owners
ownership is terminated thereby, the
previous owner retains the remedy
The claimant must prove that the
defendant removed the thing with
fraudulent purposes.
oActio Legis Aquiliae: this is used to claim
damages for patrimonial loss is a thing has
been damaged or destroyed in a culpable
way. The normal requirements for
delictual liability must b met.
An act or omission pertaining to a thing
Which in an unlawful way and
200
Performed with a culpable disposition
resulted in
Damage or injury to the owner
3. Enrichment Actions – the owner of a thing
can claim from the controller the amount
with which the controller’s estate has been
enriched due to the consumption or
alienation of a thing. If a bone fide controller
alienated the thing for value or derived
benefit from its consumption, the question
arises whether the owner can enforce an
enrichment action against the controller for
the purchase price or the benefit derived
from the consumption of the thing. The
enrichment claim that can be possibly be
201
used is the condictio sine causa. The
requirements are:
The controller must have been enriched
The owner must have been
impoverished
The enrichment must have been at the
expense of the owner
The shift of value must have been
without legal cause (sine causa)
The owner must have transferred the
control of the goods to the controller
who must have alienated them bone fide
The balance of the purchase price that
the controllers sold the thing for can be
claimed.
202
203