PROPERTY LAW LECTURE NOTES – 2014 (1) [MS L STONE]

Section A: Definition and classification of property; real and personal rights

*Van der Walt and Pienaar Introduction to the Law of Property 6th edition (2006) 1 – 36

Badenhorst et al Silberberg and Schoeman’s The Law of Property 5th edition (2006) 1 – 70

Mostert et al The Principles of The Law of Property in South Africa (2010) 19 – 50

1. Introduction
Van der Walt1 states that “the law of property deals with the rights and actions of persons with
regard to things and other forms of property, as well as other relations between persons and
property. It describes the ways in which property rights can be acquired and exercised lawfully
and the remedies by which they are protected against infringement, as well as the legal results
and implications of other relations between persons and property”.
2. Definition and functions of the law of property
The Law of Property is the sum totals of the various legal norms which regulate the legal
relationships between persons and legal objects and in this regard also the legal relationships
inter se [between themselves]. It also regulates the rights and duties between specific
individuals and the state.
The legal meaning of property
Property is everything which can form part of a person’s estate, including corporeal things and
incorporeal rights and interests. In the technical sense, property means “rights” of people
in/over certain objects; these rights entitle an individual to take certain action in respect of the
object. “Property” can also refer to the objects themselves. Property is not only concerned with
ownership: it is concerned with real rights in general. It includes:
1. The nature and characteristics of the particular object (corporeal, incorporeal, movable,
immovable)
2. The relationship between the person and the object (owner, lessee)
3. The relationship between the person and other persons in respect of the object
4. The weight that the economic/political system attaches to such an object and the
relationships involved
5. The Constitution also determines whether such an object and its relationships deserve
protection as property or should be regulated by the state (mining rights, for instance).
Patrimonial objects
“Object” is anything with regard to which a person can acquire and hold a right.
Patrimonial rights:
A legally valid claim by a subject to a certain object.
Real rights

1
Page 7.
A real right is a right to a thing. In general, they are said to be enforceable against the world at
large. This gives the owner the right of vindication – taking back his property. A real right is a
right which a person holds in a thing which belongs to him (ownership). A legal subject can also
have limited real rights in respect of an object where he has a right in a thing belonging to
someone else (servitude).
There are three legal senses of property:
1. It signifies/refers to ownership of a legal object
2. It refers to the legal object in which the right of ownership relates
3. All the legal relationships that qualify for constitutional protection even though they may not
amount to the right of ownership or the object to which ownership relates [Property Clause
of the Constitution, for example, security of tenure]
Functions of the Law of Property
People assert rights to objects that have value to them; that satisfy their economic
needs/desires. The law of property is primarily concerned with the regulation of the acquisition
and the use of those objects which members of society require for their wants and needs
(whether they have sentimental or patrimonial value).
The sum total of all the rights which a person can exercise over an object is referred to as
dominium or ownership. It includes:
 The right to use
 The right to alienate
 The right to destroy
 The right to exclude others (subject to the Constitution)
 The right to make property available for use by others

Freedom and responsibilities of property

Freedom of property is said to be a basic right. Society, as represented by the state, must
guarantee an owner’s power to deal with his/her property as s/he deems fit and protect him/her
from interference of others in the exercise of power. However, no society allows absolute
freedom.

There are various restrictions imposed on owners in the exercise of their rights
 Restrictions under public law
 Restrictions dealing with building legislation and regulation
 Other legislation that regulates an owners power to alienate (Credit Agreement Act)
 Restrictions which fall under the common law (nuisance, encroachment)
 Contractual restrictions which are self-imposed (leasing a house to a tenant)
 Mortgage; where the house acts as security
 Constitutional restrictions which are usually imposed in the public interest
The changing face of the Law of Property
New social and economic situations lead to changes in the conception and function of the law
of property. For example, leases. Traditionally, an owner was expected to exercise physical
control over his property. However, today there is no need for a physical connection between
an owner and his property. Property, particularly in a socialist state is also dependent on labour.
Without it, property would not function. Conversely, ownership of property gives the owner
power over labour and also over resources. Property and things are not identical concepts.
Property includes a wide variety of patrimonial assets (in/tangible, in/corporeal) which includes
shares in a company or intellectual property.
3. Sources of property law
The sources of current property law are2:
(a) (Roman-Dutch) common law [which is now subject to the requirement that it
must be interpreted in light of the Constitutional ideals of human dignity, freedom
and equality]
(b) Statutory law (legislation), such as the Diamonds Act 56 of 1986 and the Mineral
and Petroleum Resources Development Act 28 of 2002
(c) Case law (precedent)
(d) Customary law
(e) Constitution (chapter 2)

4. Characteristics of a “thing”
A thing is the legal object of a real right and is the most important legal object.
What is a “thing”?
Things are a specific category of property defined with reference to its characteristics. A thing
can be defined as a corporeal or tangible object external to persons and which is, as an
independent entity, subject to juridical control by a legal subject, to whom it is useful and of
value.3 The characteristics of a thing are:
1) Corporeality
It must be tangible, meaning that it must occupy space and be capable of sensory perception
by any one of the five senses.
See the examples referred to by van der Walt on page 14, where he highlights that
increasingly, intangible, incorporeal things such as a telephone and bandwidth system
constitutes a creditor’s right and is considered property. 4 He also cites the example of shares in
a company as things, irrespective of the fact that they are neither tangible nor perceptible. 5
2) External to a person
A human being can never be the object of a right; they are only ever subjects.
Parts of bodies which can no longer be connected to a human being can be regarded as
negotiable things, for instance hair used to make a wig. This is, however, subject to the
provisions of the Human Tissue Act 65 of 1983, especially regarding the availability of human
reproductive cells and organs for the purposes of artificial reproduction and organs for the
purposes of organ transplantation (as the sale of organs is strictly prohibited). 6
3) Independent/individual
It must be a definite and distinct entity which exists separately. Water, land, sand and air must
first be separated by human activity into recognisable and manageable entities before they can
be recognised as “things” which fall within legal commerce. Air, for example, must first be
contained in cylinders.
For example, immovable things come into being after demarcation on an approved and
registered surveyor’s plan, diagram, aerial photo or general plan – Deeds Registries Act 47 of
2
Ibid, 4.
3
Ibid, 13.
4
Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (SCA).
5
Ben-Tovin v Ben-Tovin 2001 (C).
6
Van der Walt, 14.
1937 and Land Survey Act 8 of 1997. A building erected on land usually forms part of the
immovable thing.
4) Susceptible to human/juridical control
Must be susceptible to human/juridical control. Mountains and the sea, for example, cannot be
controlled by humans.
5) Must be of use and value to the legal subject
The object must be destined to satisfy the needs of the legal subject. Use/value is determined
objectively, but things of purely sentimental value are still recognised as property.

5. Classification of property
Property can be classified in two ways:
1.1 Property that is negotiable (res in commercio)
This is property that can be owned by natural/legal persons or can be the object of other real
rights. It is property that is susceptible to private ownership.
a. Res alicuius: Things that are owned by natural/legal persons, or things that are in the estate
of deceased/insolvent persons.
b. Res nullius: Things capable of being owned but which at a particular stage are not owned by
anyone (wild animals, birds, and fish). Ownership of such property can be acquired through
appropriation or occupation.
c. Res derelictae: Things not owned because they have been abandoned by the owner (the
owner no longer has the intention to be the owner (animus domini)).
“Abandoned” means:
 The owner has lost physical control of the property
 The owner had the intention to relinquish the property

Such property can be acquired through appropriation or occupation.

d. Res deperditae: Things which have been lost and are no longer within the physical control of
the owner but in respect of which the owner has not lost the intention to be the owner. It cannot
be acquired through occupation/appropriation as they are still owned by someone else.
1.2 Property that is non-negotiable (res extra-commercium)
This is property which cannot be privately owned.
a. Res communes omnium (common things/property): These are things which, by natural
law, are common to everyone but are owned by no one: natural resources which fall outside of
legal commerce and which are available to everyone (air, running water, the sea). The use of
some of these resources is limited by statutory limitations (National Water Act, National
Environment Management: Air Quality Act).
b. Res publicae: Property that is owned by the state and used for the benefit of the public
(roads, national parks, beaches).

Classification of things according to their nature

1) Singular and composite things
- Singular things: exist independently without being composed of particular components (plate
or a cup).

- Composite things: combinations of different components consisting of independent things

forming a new unit (car, building). Although made up of various components, these components
have lost their identity (individuality) through their combinations and the composite thing is
regarded for purposes of property law as one thing. In relation to composite things, a distinction
is drawn between the principal thing and the components.
A composite thing has the following elements: principal thing, accessory thing, auxiliary
thing, fruits
 Principal: exists independently and can be the object of a real right. It does not form part
of another thing, either as an auxiliary thing (supplementary thing) or accessory thing (a
component of something else) (car, computer, electric kettle).
 Accessory: can exist independently but once it is merged/mixed with the principal thing
to such an extent that it loses its independence, it becomes an accessory. The law
recognises the final product only. Therefore treats the combination for all purposes as a
single thing or entity (window frame built into a house, roof of a car, tyres on a car)
 Auxiliary: exists separately and independently of the principal thing but because of its
economic value, destiny, or use is no longer regarded as an independent thing for
purposes of property law. It is not physically attached to the principal thing, but the
auxiliary thing is necessary for the effective use of the principal thing (key to a door/car,
set of tools that are sold together with the car, desks in a classroom)

Senekal v Roodt (1983) 2 SA 602: A home had a built-in bar in it. The bar was made of
wood. Bar stools were made to accompany the bar. The stools were not attached to the bar
itself; they were loose. It was held that the stools were part of the bar as auxiliary things.

Falch v Wessels
A stove in a house was not attached in such a way that it could not be removed but the court
held that the destiny of the stove was for it to form part of the home as a fixture. Accordingly,
the stove was regarded as an auxiliary thing.
 Fruits: produced by the principal thing without the principal thing being consumed or
destroyed thereby. Before separation, the fruits are accessory to the principal thing but
once separated, they exist separately and independently.

Natural fruits: the offspring of animals – once they are born, they are separate, but before that
they are part of the principal. Fruits of tree/crops harvested from a farm.
In the case of natural fruits a further distinction is made between hanging fruits (fructus
pendentes), separated fruits (fructus separati) and gathered fruit (fructus percepti).
Civil fruits: rent, dividends on shares.
Corporeals and incorporeals
 Corporeals: tangible
 Incorporeals: intangible, things consisting of various categories of rights
(intellectual/immaterial/personality property rights)
Patents: inventions
Trademarks: various names/symbols by which products are sold, logos etc. (Coca-Cola)
Service marks: name under which a particular service is provided (South African Airways)
 Trade secrets: certain processes by which products are made, kept secret from
competitors
Copyrights
Shares in a company
Liquor license: entitles the bearer to trade in liquor
Book debts of a company: where a company is owed money

Immovable and movable property

Immovable property: refers to land and everything that is attached to land permanently by either
natural or artificial means.
Movable: a corporeal thing is movable such that it can readily be moved from one place to
another having regard to its size, nature and composition, without losing its identity or integrity.
No single factor is decisive when determining if something is movable or immovable. Note that
property may be movable today and later become immovable (minerals that are still
underground are immovable until they are extracted from the ground; crops that are not yet
harvested [immovable], then harvested [movable]).

A movable thing may be attached to an immovable thing by natural or artificial means in such a
manner that it loses its identity and becomes an integral part of the immovable. This will be
discussed in greater depth under the heading of inaedification.

Van der Walt asserts that all things that cannot be classified as immovable, are movables. 7

The distinction between movable and immovable incorporeal property is of practical importance
in the following circumstances:
(a) Transfer of ownership in movable things takes place by means of delivery of the thing to the
receiver (with the intention that ownership be transferred), while transfer of ownership in
immovable things takes place by means of registration of the transfer (with the intention of
transferring ownership) (in the deeds registry).
(b) A contract to alienate immovable things must meet the formalities prescribed in terms of the
Alienation of Land Act 68 of 1981 (and possibly the Sectional Titles Act 95 of 1986), being
that any contract involving alienation of land must be in writing. A credit agreement in
respect of movable things must meet the formalities prescribed by the National Credit Act 34
of 2005. No other formalities are required for the alienation of movable property.
(c) Real security in the case of immovable things is provided by means of the registration of
mortgages, while, in the case of movable things, security is provided by pledge or the
registration of a notarial bond.
(d) A minor’s immovable things worth more than R100 000 may be alienated or burdened by his
parent or guardian only if an order of the high court is acquired, while immovable things
worth less than R100 000 can, in certain circumstances, be alienated or burdened only with
the approval of the master of the high court.
(e) In cases where a debtor’s assets are sold in execution, his movables must first be attached
and then his immovables. For example, A is a debtor and owes B (creditor) R50 000. B
goes to court and obtain an order to compel A to settle the debt. The next option is to
execute. Here, the court orders attachment of A’s movable assets first. If they are
insufficient to satisfy the debts, then B may seek attachment of A’s immovable property. The
formalities required for attachment of immovable and movable property differ significantly.

7
Ibid, 18.
There are a number of approaches to establish whether something is immovable or movable:
Draw a distinction between real and personal rights
Under this approach, all personal incorporeal rights are movable (book debts, the right to claim
the performance/the right to sue). Personal rights are the rights to claim a performance from a
particular individual.
Draw a distinction between real rights having movable and immovable property as
objects
If the object of the right is movable, then the real right is an incorporeal movable right (usufruct
[right which a person acquires over the use and enjoyment of the property of another for the life
of the subject of the usufruct] over movable property [herd of cattle]).
Apart from this, there are also trading and similar rights: a liquor license is regarded as a
movable incorporeal because it is always issued in respect of particular premises only and
cannot be transferred by the licensee at will. It is not an inherent part of the premises, it is
something issued by the authorities after satisfying certain requirements. Once the license is
issued, the owner cannot transfer the license
If the object of the real right is immovable (mineral rights [they are part of the land on which
they are embedded], a praedial servitude [the object of the right is immovable – right of way
over someone else’s land], a usufruct over land [immovable]), then the real right is an
incorporeal immovable right.
The Deeds Registry Act defines immovable incorporeal property as including any registered
long lease of land or registered right of lease … and a registered right of initial ownership [so it
becomes an incorporeal immovable].
Sugar quota: farmers are given a quota to farm a certain amount for the particular season. The
right is attached to land. It is regarded as an incorporeal immovable property right. [The
difference between a liquor license/sugar quota: the license is issued in respect of a particular
property at a certain point in time while the sugar quota is issued in respect to a particular piece
of land. The ability to produce sugar is an inherent part of the land].
The classification seems illogical because corporeals are tangible and it is thus difficult to
determine whether or not they are im/movable.
The importance of the distinction between movable and immovable property:
It has a practical significance insofar as the law applicable to each category differs. According
to international private law, the law applicable to immovable property is the law of the place
where the immovables are situated (lex loci reisitae) [If immovable property is situated in
Zimbabwe, then the law of Zimbabwe is applicable, even if the owner is in SA].
With regard to movables, the law of the place in which the owner is domiciled is applicable (lex
loci domicilii).
In the area of criminal law, the crime of arson can only be committed in respect of immovable
property. Theft only pertains to movable property.

The creation of the real right of security

a. Immovable property: a mortgage bond must be registered in the Deeds Registry.
If you want to borrow money from the bank, and you borrow against your house, then a
mortgage bond must be registered in the Deeds Registry in favour of the bank. When it is
registered, the real right of security is created as a mortgage bond.
b. Movable property constituting the security must be delivered to the creditor
The property must be delivered to the creditor. It is called a pledge. Pawn brokers use this
method. They retain possession of the property until the debt is settled.
Divisible and indivisible property
Property is divisible in the legal sense only if the nature and function of each of the smaller
parts correspond with that of the property as it was before division and the total values of the
smaller parts is more or less the same as the undivided property. Not every object which is
physically divisible is divisible in the legal sense. Car: physically, a car can be broken into its
various components. But in the legal sense, a car is not divisible because not every component
will correspond with the car as it was before division.
- Liquids are divisible.
- Land is normally divisible.
The classification into divisible and indivisible property normally has significance in disputes
concerning termination of co-ownership [two or more people owning the same item]. When it
comes to termination of co-ownership, the question is important. If it is divisible, then the court
will order a division of that property. But if the property is not legally divisible, then the court will
not order a division, even if physical division is possible. In such a case, the court will order that
the property be sold and the proceeds shared by the co-owners or the court may award the
property to one co-owner subject to him/her paying compensation to the others.
Consumable and inconsumable property
Property is consumable if it is destroyed when used in accordance with its normal destiny.
- Consumables: grain, oil, wine, beer
- Inconsumables: land, houses, paintings
There are practical difficulties with this classification, this is in relation to property that is not
entirely destroyed when it is used for the first time, but which becomes worn out, or less
efficient when used over a longer period.
 Clothing
 Cars
The test is the extent of the reduction in the value of the property. If the reduction in value is
substantial, then it is classified as a consumable.
The importance of this classification is found in the following areas:
- Only consumable property can be the object of a loan for consumption and only inconsumable
property can the object of a loan for use
- A usufruct or a lease can only be created over inconsumable property because the
usufructuary or the lessee must return the property to the owner at the end of the usufruct or
lease less fair wear and tear. There can be no usufruct over land which is intended to be mined
because it cannot be returned in the same condition
Fungibles and non-fungibles
Non-fungibles are property which is individually determined. It is unique by nature and has
distinctive individual qualities or some specific characteristics which makes it different from
other property.
- A particular horse of a particular breed
Fungible refers to property which is not individually determined but is defined with reference to
weight, number or dimensions.
- A load of 1000 bricks
- A case of 24 340ml cans of Amstel
The difference between them: fungibles can be replaced with identical things whereas non-
fungibles cannot be interchanged or replaced. Fungibility and non-fungibility is not always
determined by the nature of the thing. A purchaser of a motor vehicle could select a particular
model but without selecting the particular car itself. It is a fungible because it can easily be
replaced. On the other hand, a purchaser of a car could select a particular model with clear
specifications. In that case, it is non-fungible because it cannot be replaced with any other car.
The distinction is important particularly in the law of sale
It is important with regard to the passing of risk.
- Under the law of sale, once the buyer and seller have agreed on the price and the thing, the
contract is complete [even if delivery has not taken place]. If anything happens to the thing
before it is in the possession of the buyer, then he still has to pay for it. But this rule only applies
to non-fungibles.
- If the contract is in respect of a fungible, then the buyer does not have to pay because risk has
not passed. However, if the fungible is put aside, then risk is said to have passed if the property
is damaged.
- If a non-fungible is destroyed, it cannot be replaced with a similar item without the agreement
of both parties
Patrimonial/property rights
In terms of the law of property, we can distinguish the following property rights with their
corresponding legal objects. Real rights: a right to property. It is a right in corporeal or
incorporeal property belonging to oneself. Ownership is the most comprehensive right a person
can ever have in property. It is enforceable against everyone. Iura in re aliena: If it is a right in
property belonging to another person, it is called a limited real right [a real right less than
ownership]. Mortgage [real right of security over immovables]
- Pledge
- Servitude
Praedial: refers to servitudes over immovable property. There must always be at least two
pieces of immovable property. Personal: encompasses both movable and immovable property
- Registered long lease
- Enrichment lien [where one person does work on property belonging to another person
without authority of the owner but the work the person has done either preserves the person’s
property or improves the market value of the person’s property. That person enjoys a lien or a
right of retention until they are compensated for the work that was done].
Rights in intellectual property: this gives rise to the right of ownership.

Right against another person: this is referred to as a personal right or creditor’s right. This is a
right to a performance.
- An obligation to give someone something may entail a corporeal or incorporeal thing but it
is always a consequence of a person’s right against a person
- Rights deriving from either a contract or labour law [non-property rights]
- NB: this is a personal right, not part of property law.
- Real right: It also includes a right in corporeal or incorporeal property belonging to another
person.
- Limited real right: These are limited rights to specified uses of property which belongs to
someone else.
- For example, the real right of security [mortgage or a pledge]. The effect of this is that the
debtor retains ownership of the property but relinquishes some of the uses involved in that
property.
- Servitude: A gives B a right of access over his property [right of way over his property]. A
does not give up the right of ownership; he simply gives up the right to use and enjoy his
property.
- Lien
- Long term leases
- Mineral rights
- Therefore, the implication of a limited real right is that it restricts the rights of the owner.
The distinction between real rights and personal rights
The distinction is important because real right and creditors’ rights are acquired, exercised and
protected in different ways.
1) Real rights in immovable property [land and everything attached to land]. These are
acquired upon registration of the right in the Deeds Registry [The Deeds Registry Act 63(1):
only rights in immovable property may be registered]. Personal rights are NOT registerable,
even if a personal right is registered by mistake, it does not become a real right.
2) A real right is binding irrespective of who acquires ownership of the property subject to a
real right
- For example, A has a right of way which he enjoys over B’s property [praedial servitude].
The real right created is binding irrespective of who subsequently owns A or B’s property. The
real right attaches itself to the property, and not the person.
3) It is said that a real right can be exercised against the world at large, but a personal right
is binding to a specific person, or group of persons.
A real right is a right over property while a creditor’s right is a right of a person against another
person.
- In the case of a real right, the thing itself is the object of the real right.
- In the case of a personal right, the object is the action. For example, to give something or
to do something or to refrain from doing something which must be performed by the debtor.
In respect of the distinction between real and personal rights, there are two theories that have
been advanced:
- The Classical Theory: this emphasises the difference between the objects of a real right
and a creditor’s right respectively. A real right is the right of a person in a thing, while a personal
right is a right of a person against another person.
- The Personalist Theory: this is based on the manner in which real rights and personal
rights are enforced. A real right is said to be absolute [it can be enforced against anyone]; while
a creditor’s right is relative in that it is enforceable against a specific person, or group of
persons.

A creditor’s right is always based upon an obligation of one person [debtor] to perform a certain
action for the benefit of the holder of the right [creditor]. Such an obligation usually arises from a
contract between two parties.
In the case of a real right, there is a direct relationship between the holder of the right and the
property. It allows the holder to use the property and to exclude others from interfering with it.
There are two reasons why the distinction is important:
1. Personal rights and real rights are acquired and transferred in different ways
2. They are exercised and protected differently
a. Real rights may be exercised against the whole world while personal rights only bind a
specific person or a defined group of persons. The type of right determines the extent to which
and the persons against whom it can be exercised.
b. Real rights fall under the law of property while personal rights usually arise from contract
or delict. Real rights are protected by proprietary remedies while personal rights are protected
by contractual or delictual remedies
c. Real rights are transferred either by registration [immovables] or delivery [movables], while
personal rights are transferred by way of cession. The Registrar of Deeds is required by statute,
subject to very few exceptions, to register real rights in land. Personal rights, subject to a few
exceptions, cannot be registered in respect of immovable property.
Ownership in land is conveyed by a process of publishing and recording the process in the
Deeds Registry (s16). Limited real rights in land which restrict the owner in the exercise of his
entitlements are also registered in the Deeds Registry.
Through the protection that is provided under the Deeds Registry Act, a hierarchy of rights in
land is evident:
- Firstly, the most important right in land is ownership [this right is registerable].
- Second is limited real rights to land [these are also registerable in terms of s63 (1)].
- Other rights and permission are not registerable.
The process of registration is in conformity with the principle of publicity in the law of property.
The transfer of a real right must as far as possible so that anyone who has an interest in that
property must know that it is subject to the rights of someone else. Registration of rights in land
affords the necessary security of rights in title to enable owners thereof to enforce and protect
their rights against the public at large and to use such rights as security to gain access to
finance.
There are certain difficulties that arise in the classification in the real and personal rights.
1. South African law does not have a closed list of limited real rights
2. Principles of freedom of contract and of testation [the right to make a will] allow people to
establish new and peculiar rights in respect of their immovable property. The problem arises in
respect of corporeal immovable property whereby a monetary obligation is attached to the
rights created in respect of an agreement or request in a will. The problem is whether the right
created is a real right or a personal right.
Silberberg (page 55) and Mostert (page 50) states that the approach of our courts in
distinguishing between real and personal rights is to invoke the subtraction from the dominium
test as supplemented by the intention test [did the owner intend to bind successors in title]. The
following case law illustrates this:
- Ex Parte Geldenhuys 1936 OPD 155: A testator bequeaths land to his children. When
the eldest son reaches majority, the farm would be divided. The will contains details on how the
farm should be divided by drawing of lots. Further, it provided that the child who draws the part
that includes the farmhouse had to pay an amount of 200 pounds to his sibling. The court had
to establish whether a personal or real right was created. The court applied the subtraction of
dominium test. De Villiers JP regarded the provisions as to the time and method of subdivision
as constituting limitations on the common-law entitlement of a joint owner to claim a partition at
any time, and furthermore, to claim that such partition be effected either by agreement or by
the court. He was of the opinion that these limitation “form a real burden … on each undivided
share, and not merely an obligation on the person of each child”, that is, he was of the opinion
that the limitations were attached to the respective undivided shares themselves and would
accordingly pass with such undivided shares, if alienated, binding successors in title. The
payment of the 200 pounds created a mere personal right, because the obligation to pay money
cannot easily be held to form a jus in re (right in a thing).
- Lorentz v Melle 1978 (3) SA 1044: In an agreement to divide land, the co-owners agreed
that if either part of the land is developed in future, as a township they and their dependants will
share the profits. In deciding that a real right was not established, because “the conditional
obligation to pay attaches of necessity not to the land (which is not burdened) but merely to the
owner thereof, Nestadt J seems to have applied the subtraction from the dominium test. The
court held that to qualify as a burden upon land (for purposes of the subtraction of the
dominium test) the court required that the curtailment has to be “in relation to the enjoyment of
the land in the physical sense”. The court held that the condition conferred only personal rights
which, even on incorrect registration, were not capable of becoming and did not become a real
right”.
- Nel v Commissioner of Inland Revenue 1960 (1) SA 227: A testator bequeaths land to
his son and links it to an obligation on the son to pay the surviving spouse of the testator either
once off or at regular intervals. The intention of the testator as it appears from his will is
decisive.
- Cape Explosives Works Ltd v Denel 2001 (3) SA 569: A contract of sale of land
contains a use restriction (condition) for example, that it may be used only for industrial or
conservation purposes. It also contains the provision that enables the seller to buy back the
land from the purchaser if the land cannot be used in accordance with the restriction or
limitation. Streicher JA held that to “determine whether a particular right or condition in respect
of land is real, two requirements must be satisfied: (1) the intention of the person who creates
the real right must be to bind not only the present owner of the land, but also his successors in
title; and (2) the nature of the right or condition must be such that the registration of it results in
a “subtraction from the dominium” of the land against which it is registered. The intention
underlying the passing and receiving of transfer of the properties subject to the conditions
referred to in the purchase and sale agreement are of paramount importance.
These two tests are explained as follows:
(1) Subtraction from the dominium test:
De Villiers JP held: “One has to look not so much to the right, but to the correlative
obligation. If that obligation is a burden upon the land, a subtraction from the dominium, the
corresponding right is real and registrable; if it is not such an obligation, but merely an
obligation binding on some person or other, the corresponding right is a personal right, or a
right in personam, and it cannot as a rule be registered.
The subtraction from the dominium test is based upon the reasoning that a limited real right
diminishes the owner’s ownership (dominium) over his or her thing in the sense that it either:
(i) confers on its holder certain entitlements inherent in the universal right of ownership; or (ii)
to some extent prevents the owner from exercising his or her right of ownership. This means
that a limited real right must amount to a diminution of, or a subtraction from the owner’s
dominium over the thing to which the limited real right relates.
(2) The intention test
In recognition of the fact that the subtraction from the dominium test needs to be qualified, it
is also necessary to prove that the parties intended the correlative duty not only to be
binding on the present owner of the thing concerned, but also on all successors in title, for
the duration of such right.
The fact that the parties have made it clear that not only the present owner or transferee but
also his or her successors in title would be bound to give effect to an obligation to refrain from
exercising a certain entitlement inherent in the right of ownership or to suffer something being
done in respect of his or her thing, is indicative of an intention to create an obligation which
would be a burden upon the thing, though it need not necessarily be the only indication
thereof.
SECTION B: OWNERSHIP (INCLUDING SECTIONAL TITLES)

*Van der Walt and Pienaar Introduction to the Law of Property 6th edition (2006) 39 – 164
Badenhorst et al Silberberg and Schoeman’s The Law of Property 5th edition (2006) 91 – 272
Mostert et al The Principles of The Law of Property in South Africa (2010) 89 – 231

1. Introduction
Ownership, as originally conceived, was expressed in the maxim “plena in re potestas” (full
power over a thing) which is the power to freely use and dispose of one’s property within the
limits of the law. Ownership is therefore described in terms of the owner’s exercise of
entitlements regarding the thing. Accordingly, the common law description of ownership is
found in South African case law where ownership is defined in various decisions (see in
particular, Gien v Gien 1979 (2) SA 1113 (T)8) as the most complete and comprehensive real
right that a legal subject can have regarding a thing, or as the real right which gives the owner
the most complete and absolute entitlements to a thing. Even so, it is a right which can be
limited by objective law and by the rights of others (limited real rights or creditor’s rights).
Accordingly, it is not an absolute right.
 Anyone can own property but that ownership can only be exercised with due regard
to the rights of others and the interests of society.
 Historically the limitations of the right of ownership have been an integral part of the
common law concept of ownership

Mostert et al states that “Of all real rights, the right of ownership in its unrestricted form
constitutes the most comprehensive relationship between a person and a thing”.

Silberberg and Schoeman maintain that “ownership is the real right that potentially confers the
most complete or comprehensive control over a thing, which means that the right of ownership
empowers the owner to do with his thing as he deems fit, subject to the limitations imposed by
public and private law.”

Ownership is an abstract concept which is more than the sum total of certain entitlements
regarding the thing, in that it always implies a subject-object and a subject-subject relationship. 9
However, ownership without entitlements is unimaginable, since such an empty right would be
meaningless for the owner. Entitlements determine the extent of the legal relationship between
the owner and the thing at a certain time. Accordingly, ownership implies that:
(a) A legal relationship exists between the owner and a thing (object) in terms of which the
owner acquires certain entitlements;
(b) A relationship exists between the owner and other legal subjects in terms of which the
owner can require that others respect his entitlements regarding the object.
The relationship:
(c) Consists of indeterminate entitlements in that they vary from time to time regarding the
same relationship or regarding different relationships; and
(d) Is limited by statutory measures, limited real rights, creditor’s rights of third parties and the
interests of the community.

8
Van der Walt, 40.
9
Ibid, 42.
The concept of ownership is highly valued because it has implications for the social, economic
and political basis of society. Ownership can be an emotive and politically charged concept,
more so in an environment like South Africa which has a history of apartheid and racist policies
in the context of ownership. Ownership of land and mines are contentious issues as far as SA
is concerned.

Communal property ownership has increased in importance in South Africa in light of the
injunction in section 39(3) of the Constitution which proclaims that the existence of rights and
freedom that are recognised or conferred by customary law is not denied by the fundamental
rights of chapter 2 of the Constitution.

The individuality of ownership is ostensibly found in the fact that the owner’s right is
‘enforceable against the whole world’, which indicates exclusive entitlements of disposition and
enjoyment but this is not entirely true as the right of ownership must also be exercised subject
to the requirements of objective law and the rights of third parties. 10

Ownership can be exercised either positively or negatively. Negative exercise would be

excluding others, for example.

2. Content and Limitations on ownership

An owner has various entitlements in relation to his property. These entitlements are
sometimes referred to as the incidents of ownership. For example:

- The right to use the property (ius utendi)

- Another is the right to fruits including income from the fruits (ius fruendi)
- The right to consume and destroy the property (ius abutendi)
- The right to possess the property (ius possidendi)
- The right to dispose of the property (ius disponendi)
- The right to claim the property from anyone who possesses it without the consent of the
owner (ius vindicatio) [the right to vindicate]
- The right to resist any unlawful invasion (ius negandi)

Note: ownership is not contingent on a person possessing all these rights at any given
time, but this will affect “completeness of ownership”. 11

Statutory measures or use rights of other persons may limit an owner’s entitlements as follows:

i) Law

Common law (neighbour law: nuisance, encroachment);

Statute, such as environment, mineral resources, laws which protect historically important
buildings [The National Heritage Resources Act 25 of 1999: there are also building and
sites which have been declared a national heritage resource, if a building is more than
60 years old, no alterations can be made to the building without applying for permission],
Prevention of Illegal Evictions Act);
The constitution places restriction on the rights of owners (Section 25 and 26)

10
Ibid, 43, where reference is made to the latin maxim sic utere tuo ut alienum non laedas (an owner must use his
property in such a way that another person is not burdened or prejudiced).
11
Ibid, 42.
ii) Subjective rights granted to others

 Limited real rights of such persons regarding the thing and which limit the owner’s
dominium in terms of the subtraction from the dominium principle and which are
enforceable against the owner’s successors in title, such as servitudes; usufructs; use
rights by a tenant; limitations assigned by the owners or previous title-holder and the
maxim nemo plus iuris in alium transferre potest quam ipse haberet (no one can
transfer more legal rights than he/she has); or
 Creditor’s rights that such persons may have against the owner personally, which do not
limit the dominium regarding the thing and which are not enforceable against
successors in title, such as a lease (unless it is registered as a long lease).

While it is difficult to define dominium comprehensively, one of its incidents is the right of
exclusive possession of the res, with the necessary corollary that the owner may claim his
property wherever found, from whomsoever is holding it. Possession of the thing should
normally be with the owner’s consent (through a contractual right, such as a lease, for
example).12

For a discussion on the limitation of ownership in the public interest (most of which you are
already familiar with in light of the previous discussion on Land Reform), see van der Walt on
pages 43 to 46.

3. Forms of Ownership

A. Common Law forms

i. Individual Title
“Free-hold title”: ownership vests in one person only (juristic or natural)
Subject to limitations discussed above

ii. Co-ownership
“Joint-title”: ownership vests in more than one person simultaneously
Each owner acquires an undivided co-ownership share in the res

Two types:
a) Free co-ownership (no underlying relationship, except for the ownership of the thing/things)
b) Bound co-ownership (underlying relationship, such as marriage in community of property or
partnership)

In bound co-ownership:
 cannot divide, burden or alienate undivided share without consent of other co-owner(s)
 co-ownership cannot be terminated unilaterally
 Must use reasonably (use agreement important).
 This form of ownership is difficult, hence the maxim “communion est mater rixarum” (mother
of all disputes)

Establishment of co-ownership: inheritance; marriage in community of property; mixing (when

movables of different owners are mixed, without permission of owners, in such a way that a
new thing is created – the previous owners become the co-owners of the new thing); estate
holdership (surviving spouse in a marriage in community of property continues the community of
property together with the heirs of the deceased spouse); etc.

12
Paraphrased from the classic case of Chetty v Naidoo 1974 (A).
Remedies: Actio communi dividundo

If the property is divisible any co-owner can at any time claim the subdivision of the property in
accordance with every co-owner’s share. The co-owners must first try to subdivide the property
amongst themselves, but if such a division is not achieved the court is asked, by means of the
actio communi dividundo to make such a division. If the court is approached with the actio
communi dividundo to subdivide the property, it is usually expected of the co-owners to submit a
proposed subdivision and in appropriate cases the court can postpone the application to enable
the co-owners to prepare such a proposal.

If it would be uneconomical or detrimental to physically divide the property or if the thing is

indivisible, the court may order that the property be sold and that the proceeds be divided
among the co-owners in accordance with their shares.

ACQUISITION OF OWNERSHIP

I. Original versus Derivative

Original Derivative

By operation of law By transfer (more common)

Unilateral (Single person) Bi-lateral (at least two persons)

Any previous ownership rights terminated Nemo plus iuris rule (infirmities in title)13

Assessed objectively: factual situation Subjective: intention is key (abstract v causal)

determines legal (re)allocation of real rights

No co-operation required Co‐operation required

Eg. Accession, manufacture, prescription Eg. Sale (and delivery)

Original Acquisition

i. Physical control (corpus)

ii. Mental element (animus)

Mostert: “A unilateral act occurs, when specific, objectively determined factors concur (at a
particular point in time) and, upon which, by operation of law, ownership rights are re‐allocated”.

Principle of Publicity:
Ownership must be publicly discernible to allow for certainty in both a legal and social context.

A. Appropriation (occupatio)

The unilateral taking of possession by a person of property which is unowned at the time, which
is res in commercio with the intention of becoming the owner of such property.
13
Nemo plus iuris ad alium transferre potest, quam ipse haberet (a person cannot transfer more rights than they
have).
- Wild animals (res nullius)
- Abandoned property (res derelictae)

The requirements for a person to acquire ownership by appropriation:

1. The claimant must reduce the thing to his effective physical control
2. He must have the intention to become the owner thereof (animus dominium)
3. It must be a corporeal thing which does not belong to anyone

1. Physical control element (corpus)

The claimant must have the ability to exercise his physical control over the property.

Res nullius – wild animals:

R v Mafohla 1958 (2) SA 373 (R)

This case deals with the capture of a wild animal. The complainant had shot and mortally
wounded a kudu. He had followed its tracks but did not locate it until sundown. The following
morning he resumed his search when he whereupon he found the accused and other stealing
the animal. They were charged with stealing the kudu. It was held that they would not be found
guilty of theft because at the time they found it, it was still a res nullius: the complainant had not
reduced the animal to his effective physical control.

Dunn v Bowyer and Another 1926 NPD 516

Two brothers went hunting. Only one of them had a license. The brother with a license gave the
gun to his brother, who then shot and killed a hippopotamus. It was held by the court that he
could not have acquired ownership, because the killing of the hippo was unlawful. However, it is
contended that this judgement was wrong in law.

S v Frost and S v Noah 1974 (3) SA 466 CPD

The accused were catching fish during the off-season, which is a contravention of fishing
legislation. The court held that they could retain possession of the fish because there was no
provision in the relevant fishing legislation that provided for forfeiture, and there would have
been if it had been so intended.

Res derelictae:

Underwater Construction and Salvage Co Pty Ltd v Bell 1968 (4) SA 190 (C)
The claimant had blasted propeller blades on a shipwreck and separated them from the ship.
He took two of them ashore and marked the spot, tying them with a rope. The defendant came
by and collected the remaining blades. The court held that the act of seizure was completed
when the complainant blasted them loose.

3The court held: “to acquire ownership of res nullius, it is not enough to merely see the thing or
to intend to acquire it. There must be a seizure of the thing with the intention of acquiring
ownership thereof. Once there is a seizure, with the intention to acquire ownership, ownership
is acquired and it is not lost by a failure to remain in physical control.”

Reck v Mills 1990 (1) SA 751 (A)

The plaintiff tied a condenser in a shipwreck with a rope and buoy. His intention was to obtain a
blasting license and then return to take the condenser. In the meantime, it was taken by the
defendant. The court held that in that case, the defendant did not have sufficient physical
control over the condenser to have acquired ownership.

The Game Theft Act 105 of 1991

This legislation alters the common law position on acquisition. The aim of the act is to combat,
in the interests of game farming and eco-tourism industry, the poaching of game and regulates
game ownership. The Act then goes on to define what game is and provides that to qualify as
game, animals must be sufficiently enclosed [the Act further defines this term]. For the
purposes of this Act, if game escapes from land that is sufficiently enclosed or from a pen, kraal
or vehicle, then the owner does not lose ownership of it notwithstanding the provisions of other
law or the common law.

If a person in contravention of provisions of any law and without the consent of the owner of the
land hunts, catches or takes possession of game, he does not acquire ownership of it [the
owner of the land remains the owner of the animal in question: lost game is in the same
category as lost property]

Richter v du Plooy
This case deals with a large farm measuring some 800 morgen [800 by 1.5 acres]. This farm
contained wildebeest. Some animals ventured into a neighbouring farm, where they were shot.
The question was whether the owner of the farm could claim compensation for the killing of the
animals. The court ruled that the farm owner did not have sufficient control of the animals.

Lamont v Heyns
The owner kept blesbok [springbok]. The farm was 300 morgen. The owner of the farm
regularly counted his animals and they knew him. In this case the defendant came into the
farm, shot some of the blesbok and it was held that he was liable to pay compensation to the
owner of the farm. If the Game Theft Act were to be applied, Richter would have found relief,
but the case was decided before the Act came into being.

B. Accession (accessio)

Two corporeal things are combined in such a way that the one thing loses its (physical or
economic) independence (the accessory) and becomes a component of another thing (the
principal). The permanent owner of the principal thing by operation of law becomes the owner
of the accessory.

Accession refers to an increase or addition to a thing. This accession can occur naturally or
through human action.

Natural accession
With regard to natural accession, this can involve an increase, for example, if a cow gives
birth to a calf, then the owner of the cow becomes the owner of the calf through natural
accession
The principle that the owner of the principle thing also becomes the owner of the
fruit/accessory is subject to an exception: when the principal thing is the subject of a
lease, or the subject of a usufruct, unless the contract of lease provides otherwise and
because in terms of the very nature of a usufruct [right to use and enjoy property
belonging to another for a certain period], the usufructuary is also entitled to the fruits.

Human action
A bona fide possessor [a person who holds property belonging to another under a
genuine but mistaken belief that he owns that property]
If A buys 10 cows that were stolen, A does not acquire ownership of the cows, but he
does acquire possession of any calves which the cows might have
The test for determining which is the principal thing and which the accessory thing, is based
primarily on the question of which thing has lost its independence (accessory thing) and has
become part of the other thing (principal thing). Other factors are also taken into account, such
as which has the greater mass (principal thing) or value (principal thing) and which servers
merely as decoration (accessory thing).14

1. Accession of movables to immovables

Land (immovable property) is always the principal thing and things attached are accessory
(except in the case of Sectional Title ownership (discussed below)).

This is attachment through human activity. The owner of the immovable (principal thing)
becomes the owner of the composite thing where the accessory was permanently attached to
the principal thing and must in certain circumstances compensate the previous owner of the
movable accessory.

Two types:
i. planting and sowing (plantatio et satio)15
Omne quod implantatur solo cedit (everything planted on the land forms part of the land)
Exceptions: e.g. nursery

ii. building (inaedificatio)

Superficies solo cedit ce quid est superficies (whatever is attached or annexed to land
becomes part of that land)

Inaedificatio

Inaedificatio denotes the permanent attachment of annexation of buildings, pumps, walls or

other structures to land. This principle comes under the Latin maxim of superficies solo cedit cel
quid est superficies and is a trite [firmly established] rule of law.

How does one determine whether a movable which has been attached to an immovable has
become part of the immovable?

The courts developed a three-pronged test. In terms of this test one must look at:
1. The nature and purpose of the movable [objective]
2. The degree and manner of annexation of the movable to the immovable [objective]
3. The intention of the annexor [owner] at the time of annexation [subjective will (ipse dixit)]

Macdonald Ltd v Radin & Potchefstroom Dairies and Industries Co Ltd 1915 AD 454

In this case, P sold a building containing a dairy plant to J. The price was payable in
instalments and P had the right to cancel the contract of sale and repossess the building
together with any improvements made by J if J defaulted in any instalments. Ownership in the
building was only to pass to J on payment of the last instalment. Shortly afterwards, J bought a
twelve and a half ton refrigeration plant from M on hire purchase and installed it into the
building. The plant was embedded in concrete foundations and firmly attached to the walls of
the building with nuts and bolts. However, it could be removed without injury to the premises
and the old plant reinstated at a moderate cost. Before he had paid either P or M in full, J
became insolvent and his estate was sequestrated.

14
Van der Walt, page 103.
15
Read van der Walt, page 104-105.
M claimed the return of the machinery while P claimed the return of the building together with
the dairy plant on the ground that the plant was a permanent fixture of the immovable property.
In this case, it was held that neither the nature of the machinery or the manner of annexation
were conclusive. Therefore the intention of the owner of the movable was decisive. It was
further held that the owner of the dairy plant had not intended the machinery to be a permanent
fixture of the building until he had been paid in full. Therefore the machinery was a movable.

Over time, however, the courts have preferred an interpretation which entails that the annexor’s
subjective intention is decisive (hence the traditional versus the new approach, discussed
below).

Melcorp SA v Joint Municipal Pension Fund (1980)

A lift which had been installed in a multi-storey building was sold on hire-purchase and there
was a condition that ownership of the lift was to remain with the seller and that the lift was to
remain a movable until fully paid for. The purchaser become insolvent and the seller demanded
the return of the lift. The court then had to decide whether the lift was a movable or if it had
become a permanent fixture of the building. The court decided that under normal
circumstances, a lift would be regarded as a permanent fixture in a building but because of the
provision in the contract of sale, the lift was movable. Evident in these decisions is the
emphasis the court put on the subjective element.

Standard Vacuum Refinery v Durban City Council (1961)

This case involves large oil tanks, of which the largest was 450 tons and the smallest was 200
tons which rested on the ground but were not sunk or affixed to it at all, they were only joined to
each other by pipes. The question the court had to decide was whether the tanks were
immovable for the purpose of determining the rateable value of the land [tax which had to be
paid on the land – if they were movable, the rates on the land would be less]. In this case, the
court rules that the tanks had become immovable. This was in spite of the fact that the
company contemplated that it could move the tanks in future if the ground on which they stood
was needed for expansion. However, moving the tanks would have required a feat of
engineering, because it involved cutting up the tanks and later assembling in the new location.
The court decided that the nature and purpose of the tanks, as well as the degree and manner
of attachment [attachment by sheer weight] led to an inference that they were attached
permanently.

See Mpisi v Treble16 for an alternative view.

The Standard Vacuuming case differs from the previous two, because it does not place so
much emphasis on the subjective intention. It was decided so that the subjective intention does
not contradict the facts on the ground. This had led to what some academics call the traditional
and new approach to ineadificatio.

The traditional approach – does not give prominence to the subjective intention. Intention is
important, but if the first two objective factors (nature and purpose of movable, along with
degree and manner of annexation) are taken as being a guide to what the intention was, the
courts will rely on the inferred intention.

The new approach – the emphasis is on the subjective intention/will (ipse dixit) of the owner of
the attached movable.

16
Van der Walt, page 106.
Theatre Investments v Butcher Brothers (1978)
The appellants leased immovable property for the purpose of erecting a theatre and other
buildings. This lease was for 50 years with a right of renewal. Clause 15 of the lease provided
that “at the termination of the lease or any renewal, all buildings and improvements were to
become the property of the lessor without any compensation to the lessee”. The theatre was
built and equipped with theatre seats, fitted carpets, lighting and cinema projection equipment.
When the lease expired, the parties could not agree on the terms of renewal. The lessee
claimed certain equipment as movable and wanted to remove it. The lessor relied on Clause 15
and claimed that the improvements were permanent and that he had acquired ownership of
them. The disputed items related to theatre seats, emergency lighting plant and projection room
dimmer board. It was held that the manner in which the seats had been fitted raised the
inference that the annexor contemplated that they were to remain permanently.

The court took into account the duration of the lease, the possible extension and more
importantly, the fact that the equipment was essential to the functioning of the theatre.

Konstanz Properties v Spilhaus (1996 A (now SCA))

Ownership of irrigation equipment supplied and installed by a third party on a farm. The
wholesaler, Spilhaus, supplied components for an irrigation system to a retailer, subject to a
reservation of ownership. The retailer installed the equipment on Konstanz Properties’ land to
form an irrigation system. Konstanz Properties paid the retailer but the retailer failed to pay the
wholesaler. So Spilhaus sought to vindicate the equipment from Konstanz Properties on the
ground that the property still belonged to it. The court had to decide whether the equipment
remained movable or had acceded to the land. The court held that Spilhaus had not sold a
completed system but rather a number of components, each separately priced and invoiced. So
the different parts could not be regarded as an economic and functional unit. It was further held
that since the components were not impossible to remove and Spilhaus had expressly reserved
ownership, the intention of the owner of the movable prevailed and accession had not occurred.
Spilhaus did not succeed in recovering the equipment. Konstanz Properties relied on the
defence of estoppel, which the court upheld because the owner of the equipment had supplied
it to a retailer knowing that the equipment would be resold by the retailer as part of its stock in
trade. The court held that the owner had been negligent in doing so. This case emphasised the
subjective intention as being the decisive factor, as in the Macdonald and Melcorp cases, which
also placed great emphasis on the subjective intention.

Simmer and Jack Mines v Industrial Property Company (SCA decision)

This court here held that a mine dump was movable in spite of its size and weight. This
decision was wrong because it should not have been determined on the basis of inaedificatio.
Decisions like that in Melcorp have been criticised because decisions that emphasise the
intention at the expense of objective factors seem to overlook the fact that inaedificatio is an
original method of acquisition: the consent of the owner of the movable is not needed for
acquisition. Therefore, to place emphasis on the subjective intention of the owner seems
strange.

Sumatie v Venter 1990 (T)

Here the court adopted what is called the omnibus approach to inaedificatio. In this case, the
court took the view that the purpose of the annexation should be the main criteria and
suggested the following approach: firstly, the main investigation is to determine whether the
attachment indicates that the attached thing has permanently or indefinitely been affixed to land
or any other immovable in such a way that it forms a new and independent entity with the
immovable and has become immovable itself. Secondly, the court said that the purpose (causa)
of the attachment can be determined in the light of the following:
a. The nature and function of the attached thing
b. The manner of attachment
c. The subjective intention of the owner or purpose (destinatio) of the owner of the
attachment at the time of attachment
d. The actions or conduct (factum) of the owner of the attachment
d. Any other relevant facts or circumstances

Thirdly, contradictions or uncertainty with respect to the criteria should be resolved on a

balance of probabilities.

It has been argued that this is the correct application of the principles of inaedificatio. However,
because of the hierarchy of our courts, the Konstanz decision is binding as it emanates from
the Supreme Court of Appeal, which is higher in status than the provincial division, therefore
there has been a continued emphasis on the subjective intention. Therefore the current position
of the law gives preference to the subjective intention of the owner.

Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd

The judge here approved of the Sumatie approach but indicated that he was bound by the SCA
decision in Konstanz Properties.

The correct approach is as follows:

Where the objective assessment of the facts show that the movable has been attached firmly
and is meant for permanent use then introducing a contrary viewpoint based on subjective
intention is not acceptable. Accession should be confirmed. The real or inferred intention
should prevail over the professed or expressed intention (ipse dixit). However, if attachment is
inconclusive, then the court has a choice: it can preserve the new composite thing by
confirming accession or to protect the ownership of the movable by ruling that accession did not
take place.

Auxiliaries: Accession of a movable to an immovable without any attachment

This will become part of an immovable without actual attachment by its function or destination:
where it is destined to serve the immovable property and it is necessary for the effective use of
the immovable.

Senekal v Roodt – one of the rooms had a built-in bar that was accompanied by six loose
stools. It was held that these stools were necessary for the effective use of the bar and so they
were deemed to be immovable.

Falch v Wessels – stove.

What are the remedies where the owner of the immovable has lost ownership due to
accession?

The owner of the immovable may claim compensation for the lost movable.
1. A bona fide [under the genuine but mistaken impression that he is the owner] or mala fide
[knows that the property belongs to someone else] possessor of an immovable will have
an enrichment action for the loss of the attached movable.
 For example, A is in occupation of a house and believes that he owns the house. He
makes improvements to the house [chandeliers] and discovers that the house
belongs to B. A will have an enrichment claim when the house is vindicated with
respect to the improvements made. The claim is based on unjustified enrichment.
2. A lessee who makes improvements on the immovable property is entitled to remove the
improvements at the end of the lease [unless removal will cause damage]. This is called
the ius tollendi: the right of a lessee to remove any improvements which he has made. If
the improvement is made without the consent of the landlord and they cannot be
removed, then the lessee is not entitled to compensation.

1. Natural accession in relation to immovable to an immovable 17

1. Alluvion (alluvio) – an imperceptible/gradual increase in the size or volume of land because

of water. Land, through water action on a riverbed is increased, for example, mud, silt, soil. But
the desposit is on top of existing land, so the land is not enlarged.

2. Avulsion (avulsio) – a sudden increase in the size of land. It usually takes the form of a
sudden and violent avulsion of a piece of land to the existing land. This type of accession is
obsolete because there is a cadastral system of land registration [land has to be measured and
demarcated in size to determine what land belongs to whom].

3. Plantation – if crops are planted on land, the owner of the land becomes the owner of the
crops as soon as they have struck root. If A plants crops on B’s land, then B becomes the
owner of the land. A may be able to claim compensation and if A is a lessee or usufructuary of
the land, then the exception would apply.

2. Accession of a movable to another movable18

This is a situation where a movable is attached to another movable in such a way that a single
thing is formed. One must identify which of the two is the principal thing and which is the
accessory because the owner of the principal thing becomes the owner of the accessory thing
and the former owner of the accessory thing loses his ownership. The composite thing is the
product of accession.

This only occurs subject to the following requirements (which are dependent on the nature of
objects):

a. The new composite thing is permanent (not easily divisible)

ii. The principal and accessory things can be distinguished (not commixtio)
iii. The accession does not amount to manufacture (specificatio)

Principles that are applied when determining what constitutes the principal thing. Special rules
apply to specific things:
Intextura: weaving in of materials – the owner of the material becomes the owner of the
weaving thread even if the thread is more valuable than the material. However, the
owner of the weaving thread has a claim for damages or enrichment.
Scriptura: writing – if a person writes on someone else’s paper, the writer is the owner of
the written piece and he must compensate the previous owner of the paper in a suitable
manner.
Pictura: painting – the painter becomes the owner of the cloth or board of someone else
on which he painted, provided that the painting is more valuable than the cloth or board.
Ferruminatio: welding: the owner of the biggest or heaviest thing (eg: statue) becomes
the owner of the part welded to it, except if that part is more valuable than the statue.

17
Van der Walt, page 103. This is characterised by the absence of human activity.
18
Van der Walt, page 108.
In all other cases, a reallocation of ownership rights takes place by determining which is the
principal thing. The broader criterion of functional and economic attachment is preferable.

What are the requirements for the formation of a composite thing?

1. The various elements of the composite thing must still be recognisable.
2. The composite thing must be difficult to separate
3. It must not amount to the forming of a new thing [accession is not specificatio]

The test for determining the principal and accessory thing:

- This test looks at the value of the two things: the more valuable becomes the principal thing
- This test looks at the bulk/size of the new thing: the more bulky becomes the principal thing
- The most appropriate test is one which looks at which of the two things gives it its identity

Khan v Minister of Law and Order 1991 (3) SA 439 at 403 (the components which give a
composite thing its identity, is the principal thing and all other attachments are accessory
things).

C. Acquisition of fruits “Reverse accession”

General rule:
Owner of ‘producer’ becomes owner of ‘fruit’.

Acquisition of ownership in fruits takes place by means of separation or gathering. Before

separation from the fruitbearing thing the hanging fruits (fructus pendentes) are accessory
things to the principal thing and therefore ownership vests in the owner of the principal thing.
After separation a distinction is made between fruits separated from the principal thing naturally
(fructus separati) and gathered fruits (fructus separati).

A distinction can be made between:

(1) Natural fruits

Young of animals, birds and insects; fruits of trees; plants and grain which can be harvested;
young trees which grow after a plantation is felled and organic and inorganic materials that
renew themselves (wool, milk, salt in a salt pan and river sand).

(2) Civil fruits

Rent, interest on capital, profit from an undertaking and dividends on shares.

After separation and gathering the fruits are usually the property of the owner of the principal
thing, but there are exceptions:

a) A bona fide possessor becomes the owner of all separated fruits after gathering. A mala
fide possessor is not entitled to fruits.
b) A usufructuary is entitled to fruits after gathering but the usufructuary is obliged to maintain
the fruitbearing property.
c) A lessee is only entitled to the fruits after gathering them.

D. Manufacturing (specificatio)
This occurs when one person makes a new product from materials that belong wholly or in part
to another person. Where this occurs without the agreement of the owner of the materials, the
rules of specification determine who the owner of the new product becomes.

Specification must be distinguished from a mere combination of things. Specification must

irretrievably alter the form/nature/chemistry of the thing so that it cannot be restored to its
original form

Requirements:
1. The manufacturing process must irretrievably alter the things that are used or combined
2. A new product (nova species) must result (which cannot be changed back to original
forms)
3. Materials used must belong to someone else
4. There must be no agreement on the use of the materials and no permission from owner
5. It does not matter whether the maker acted in good faith or not because it is an original
method of acquisition, which is a unilateral act

Remedies:

The owner of the material has a claim against the owner of the new thing. In the case of a
person who in good faith thought he was using his own materials, an enrichment claim for the
value of the materials or a claim for damages in terms of the actio legis Aquiliae can be
instituted (if negligence is proved on the part of the manufacturer).

If ownership did not pass because the requirements for manufacture were not met, a claim
against the owner for compensation for his labour may be brought by the maker.

E. Fusing and mixing (Confusio et commixtio)

‘Similar things of more or less equal value belonging to different owners are mingled or mixed
without consent and become inseparable (liquids) or indeterminable (solids)’.

Mixing (commixtio) takes place when solids of different owners are mixed and fusing (confusio)
takes place when liquids and liquid solids of different owners and mixed without their permission
and without it constituting either the attachment of an accessory thing to a principal thing or the
manufacture of a new thing. The joint ownership of the mixed entity is determined on the basis
of the ratio of the constituent elements.

Mixing only occurs when the mixed thing is indivisible. If the thing is divisible (flock of sheep),
mixing does not take place. The mixing must take place without the permission of the owners.

The combined thing becomes co‐owned in undivided shares. For example, money – if money is
mixed with other money so as to be unidentifiable, ownership of the money is acquired through
commixtio.

F. Expropriation

Ownership may be acquired by the state or another person or body by virtue of the provisions of
a statute without the consent of the original owner being required.

Procedure is regulated by the Expropriation Act, in public interest or for public purpose

Movable or immovable
Original method of acquisition of ownership (not derivative) because ownership vests in the
expropriator without the consent or co‐operation of the original owner (unilateral) by operation of
Law but, there is some participation in process (compensation)

May take place only in accordance with an empowering statute,

but:
- state has unrestricted powers to enact expropriation statutes
- powers may be delegated.

G. Forfeiture and confiscation

Read pages 114 – 115 of van der Walt.

H. Acquisitive prescription

There is a distinction between acquisitive/extinctive prescriptions.

Extinctive is a method by which certain debts are extinguished or terminated either in terms of
the common law or by statute. For example, a mortgage terminates after 30 years. In general,
contractual debts are extinguished after 3 years. This is subject to the owner not claiming
payment for the entire duration of that period.

Acquisitive prescription is an original method of acquisition by operation of law of a real right

(ownership or a limited real right) in respect of a movable or immovable thing through an open
and uninterrupted possession thereof or the exercise of rights thereof of property of another for
30 years.

It is unilateral – so where consent is given by the owner for such possession, then prescription
cannot take place.

Note:
- Can obtain full (ownership) and limited real rights (servitudes) by prescription
- Applies to movables and immovable

The rationale/justification for prescription:

1. Prescription is intended to penalise an owner who is negligent by failing to guard his
property
2. Prescription is intended to give effect to an existing factual impression of ownership
created by long uninterrupted possession. It aligns the legal and factual scenarios.
3. It is also intended to create legal certainty in title – an owner will lose his/her ownership if
he does not reclaim possession for 30 years

van der Walt states that “the purpose of acquisitive prescription is not only to punish the
previous holder of the right for not exercising the right but also to ensure legal certainty
regarding the de facto position which has existed for a long period” (Pienaar v Rabie 1983
(A)).19 Therefore, this confirms that the first justification (negligence) is not convincing, as an
owner can (in principle) do with his property as he likes, so is entitled to neglect it. Also,
negligence has never been required and Appellate Division has said that proof of absence of
negligence can never constitute a defence to a claim based on acquisitive prescription.
Therefore, 2 is a better justification because legal rules applicable to prescription aim to

19
Van der Walt, page 115.
continue factual impression of ownership created by long/uninterrupted period of possession;
which could otherwise deceive 3 rd parties and create uncertainty. To promote certainty,
prescription has the consequence that the original owner loses ownership if he doesn’t claim
restitution (vindication) of the thing during period of prescription. Accordingly, the emphasis is
not on negligence of owner; but on incorrect impression created by his negligence and
therefore, negligence is not a requirement.

It originated from Roman-Dutch common law. In modern law, it is largely based on and
governed by statute (which is common law residual).

There are two acts in this regard:

Prescription Act 18 of 1943

Applies from pre‐1970 until 1970, then new Act applies (therefore it only applies in exceptional
circumstances (if at all, considering how long ago it ceased to function)).

This Act defines acquisitive prescription as meeting the following requirements:

(a) The possession of someone else’s movable or immovable things; or
(b) The exercise of a servitude in respect of immovable things;
(c) Continuously for thirty years;
(d) Without force (nec vi);
(e) Openly (nec clam); and
(f) Without the owner’s consent (nec precario).20

The qualification of nec vi implies retention of possession without force, or peaceably. It is now
beyond doubt that a thief or a robber can obtain ownership by prescription, so initial acquisition
of possession may have been by force as long as possession isn’t maintained only by force.

Nec clam requirement means possessor must not possess secretively; possession must be
patent, visible and manifest.

Over time, the requirements that possession must be nec vi nec clam nec and precario were
supplemented in case law by the additional requirement of “adverse user” or “adverse
possession”.

The 1943 Act required possession to be non-precarious (nec precario). Initially used in the wide
sense of “adverse user” and at other times to mean “without permission” or “without consent” –
ie: not with the permission of the owner. If possesses with original consent of owner,
prescription won’t run; but if initial possession was with consent, and that consent fell away,
then the possession is nec precario and prescription begins to run.

High Court decisions then led to introduction (not in Act) of “adverse possession” or “adverse
user” as requirement for acquisitive prescription – meaning ‘use and enjoyment of a thing
without molestation by, and in conflict with the rights of, the owner thereof’.
(A possessor can’t claim acquisition of ownership by prescription if has even once recognised
the superior rights of the owner.)
Pratt v Lourens 1954 (4) SA 281 (N)

So a lessee or usufructuary can never acquire ownership of the object of the lease/usufruct by
prescription.

20
Read pages 116 to 119 of van der Walt.
Malan v Nabygelegen Estates 1946 AD 562
“In order to create a prescriptive title, such occupation must be a use adverse to the
true owner and not occupation by virtue of some contract or legal
relationship…..which recognises the ownership of another.”

It is clear a person who possesses on ground of revocable permission cannot have intention of
an owner (animus domini) and so doesn’t fulfil the requirements of possessio civilis; so
elimination of requirement by 1969 Act did not change the legal position after 1970.

“Adverse user” is not an independent requirement but a component of the possessio civilis that
is required for prescription.
Du Toit v Furstenberg 1957 (1) SA 501 (O)
Bisschop v Stafford 1974 (3) SA 1 (A)

So no difference in principle between possession required for prescription before 1970; and
possession required thereafter. The requirement of nec precario and the “additional”
requirement of “adverse user” accommodated within possessio civilis, namely physical control
of an object with the intention of an owner (animus domini). Animus domini implies an intention
to be and not an intention to become owner.

Interruption and suspension of prescription

Under the common law and the 1943 Act, interruption terminates the running of prescription
which must start de novo (from the beginning).

Under common law prescription did not run against certain categories of persons (who on
account of incapacity or any other reason were prevented from enforcing their rights). These
categories included, inter alia, minors, insane persons, persons under curatorship, persons
absent in the service of the state or by reason of war, married women were subject to
husbands’ marital power, and certain fideicommissaries. Suspension only led to temporary
interruption. Consequence of suspension was that period of suspension was added on to the
period of prescription.

The 1943 Act generally accepted the common law with regard to acquisitive prescription.

Prescription Act 68 of 1969

The Act became effective on 1 December 1970, so it governs any prescription after that point
and is not retrospective.

Section 1 of Prescription Act (1969) defines acquisitive prescription as follows:

(a) A person by prescription becomes owner of a thing
(b) Which he openly and
(c) As if he were the owner
(d) Has possessed
(e) For an uninterrupted period of thirty years or for a period that, together with the periods for
which the things have been possessed in this way by his predecessors in title, would
constitute an uninterrupted period of thirty years.

A was a possessor and was seeking to acquire by prescription property belonging to B. If A had
the property for 10 years and then dies, leaving the property to his daughter C, the years during
which he had the property carry over to her. She starts on 11 years.

According to both acts, there are two requirements (elements) for prescription:
1. Possession of the thing: civil possession, which has two elements
a. The corpus element (physical control)
b. Animus element (the intention to be the owner)

Sufficient and effective physical control is determined objectively by circumstances and must be
consistent with intention.

Manner in which possession obtained not as important as manner in which possession held.

Openly: “so patent that the owner, with the exercise of reasonable care, would have observed
it”.

As if owner (nec precario):

“adverse use” or “as of right” (animus)

Accordingly, one should reasonably be able to deduce from the way in which the possessor
acts, that he possesses the thing as if he were the owner (Forellendam Bpk v Jacobsbaai
Coastal Farms (Pty) Ltd 1993 (C)).

Minister van Lande v Swart 1957 (3) SA 508 (C)

Occasional grazing is not sufficient to establish possession

BUT: Van Wyk v Louw 1958 (2) SA 154 (C)

Held: Distinguishable from Swart as this case involved “an open pastoral Karoo area”, “where
flocks of grazing sheep of the size indicated above are apparent for all to see”.

Extent and degree

Hayes v Harding Town Board 1958 (2) SA 297 (N)

Mere tendering of rates once a year for 30 years did not constitute a detentio

Pienaar v Rabie 1983 (3) SA 126 (A)

Use of part of neighbour’s farm because of mistake regarding the boundary. Demonstrates
control and animus.

Campbell v Pietermaritzburg City Council 1966 (2) SA 674 (N)

Plaintiff sought declaratory order that he had acquired Paddock A by prescription

Council argued:
(i) Plaintiff realized Paddock A was part of Commonage, recognized right of owner
(ii) By‐law allowed usage of Commonage in general (incl. Paddock A) – precario?

Held:
(a) Realization by C (subj.) does not negate use (obj.) openly ‘as if owner’
(ii): C (and his father) used Paddock A ‘as of right’ irrespective of by‐law

2. Temporal requirement: possession must be uninterrupted for 30 years

Act: can add terms of predecessors to his/her coniunctio temporum.

Need not be present continuously, but must possess openly, as if owner for the required time.

Importantly, neither ‘just title’ nor bona fides is required for acquisition of ownership by
prescription. If the possession is unlawful on the sense that it violates a statutory prohibition,
then ownership cannot be acquired by prescription.

R v Marshal 1951 2 SA 326 – the accused was charged with discharging polluted water from a
factory into a river. Their defence was that they had acquired a right to do so by prescription
because they had done so peacefully, openly and as of right for 30 years. The defence failed
on the basis that the discharge was forbidden by law.

The two acts differ in two important respects:

The 1943 Act contained the elements nec vi, nec clan, nec precario. However, the 1969 Act
does not contain the nec vi element. Therefore, someone who acquires possession through
robbery can acquire possession through acquisitive prescriptive. The nec precario element is
also replaced by the requirement of openly as if he were the owner. The nec precario element
(this is equated to “adverse user”: without permission or consent). A lessee or usufructuary can
never acquire ownership by prescription because both categories of holders of limited real
rights acquire possession is based on an agreement with the owner.

Continuity of possession: the running of prescription can be affected through either interruption
or suspension.

Interruption of prescription
For interruption to occur there must be actual loss of physical control.

Natural:
The possessor can either voluntarily or involuntarily give up possession [possession can be
given up because a third party demands (return) of the property – voluntary; or possession can
be given up because the land is flooded (vis maior), or it is taken forcibly by the true owner or a
third party – involuntary]. Immaterial whether the possessor dispossessed by stealth or by
force; nor does it matter whether the possessor has been dispossessed by the owner or an
outsider or whether he has been prevented by vis maior from exercising control over thing.
Actual dispossession must occur; a mere protest by true owner is insufficient.

Not every surrender of physical control amounts to natural interruption [leasing of the property
to another person].

Where the owner demands the property, interruption will only occur when the possessor
actually gives up possession.

The 1969 Act, under section 2, modifies this position by providing that, in the case of
involuntary loss of possession, prescription is not interrupted if the possessor regains
possession either through legal proceedings (such as the mandament van spolie) within six
months of dispossession or does not institute other legal means or is prevented by vis maior
from regaining his possession within one year.

Civil (judicial):
Governed by section 4(1) of the 1969 Act:
This occurs when the owner institutes (and follows through/prosecutes) civil proceedings
(warrant, notice of motion, interdict) asserting ownership explicitly, against the possessor
unless the owner subsequently loses cases or does not enforce judgment. It must be a claim
for restoration of ownership by the owner. Therefore, there is no interruption if the person
claiming ownership does not successfully prosecute his or her claim or if the judgment is
abandoned by the successful plaintiff or if the judgment is subsequently set aside.

If running of prescription is interrupted, it has to start de novo, and only as from the day when
final judgment is given.

A claim for compensation of unlawful occupation will not interrupt prescription

Suspension of prescription

The 1969 Act does not allow the traditional approach. Instead, suspension is only relevant if the
ground of suspension exists within 3 years of completion of period of prescription. What this
means is that completion of prescription is postponed until 3 years have elapsed from time
when ground of suspension ceased to exist.

The owner is thus allowed 3 years after ground of suspension has elapsed to enforce his rights.
(To apply rules of suspension only if impediment occurs at completion of period of prescription
makes sense since only at that stage that owner should have the necessary capacity or have
the opportunity to enforce rights).

Unlike position under common law, the 1969 Act recognises a numerus clausus of grounds of
suspension.

The first group of circumstances relates to the person against whom prescription runs; namely a
minor, an insane person, a woman whose separate property is controlled by her husband by
virtue of his marital power,21 a person under curatorship or a person who is prevented by
superior force from interrupting the running of prescription.

The second group of circumstances relate to persons in favour of whom prescription runs;
namely a person outside the Republic of South Africa, a person married to the person against
whom prescription is running, and a person who is a member of the governing body of a juristic
person against whom prescription is running.

Suspension entails that the period of prescription is “suspended” by circumstances of true

owner and continues to run once they cease to obtain.

21
Although it is questionable whether this ground is still valid/constitutional considering that marital power has been
abolished.
Under the 1969 Act,22 the basic rule is that a person cannot lose ownership by prescription if
he/she “incapacitated” and, once capacity is restored, the Act will not allow prescription until at
least three years after that date. The focus of attention is the final three years of the
prescription period only:
- Suspension or postponement occurs only if the 30 years would have been completed
on/before/within three years after the date on which the impediment ceased to exist
- If the normal prescription period (30 years) ends more than 3 years after the impediment
ceases then there is no postponement
- If it ends within three years of the impediment ceasing to exist, the actual period of
prescription is extended by three years after the impediment ceased

Therefore, if normal period of prescription (30 years) ends after the impediment ceases:

More than three years before the normal prescription period would end:
Prescription unaffected

Either within three years before, or at the same time, or after the normal prescription
would end:
Prescription period extended until three years after impediment ends.

OR

If the normal prescription period (30 years) ends before the impediment ceases, then actual
prescription date will be extended until three years after impediment ceases.

Ask yourself: Is there an impediment at any stage within the final three years of the normal
prescription period?

If yes, have to wait for impediment to cease and then add on three years to ascertain when
actual prescription will take place.

Suspension differs from interruption in that the whole period that had already run did not lapse.
The running of prescription was merely suspended during the existence of the impediment
consent and could recommence when the ground of suspension ceased to exist.

If A, a possessor, were to take possession of property belonging to T, who is a minor,

prescription would not run until T was 18 [when the incapacity has fallen away]

22
Section 3 Completion of prescription postponed in certain circumstances
(1) If –
(a) the person against whom the prescription is running is
- a minor
- is insane
- is a person under curatorship
- is prevented by superior force from using the courts to interrupt subscription
(b) the person in whose favour the prescription is running is
outside the Republic
- married to the person against whom the prescription is running
- a member of the governing body of a juristic person against whom the prescription is running
(c) the period of prescription would (but for the provisions of this subsection) be completed before or on, or
within three years after, the day on which the relevant impediment (as in (a) or (b)) has ceased to exist
then the period of prescription shall not be completed before the expiration of a period of three years after the day
in (c).
 Examples of practical application of prescription

Bob is a minor aged 13. Prescription is running against him. His impediment will cease when
he turns 18.

(The 30yr period of prescription will be completed when he is 15.)

That date is before the date on which the impediment ceases to exist, so prescription will not
be completed before three years after the impediment ceases to exist.

So prescription will run until Bob turns 21.

Bill is a minor aged 17. Prescription is running against him. His impediment will cease when
he turns 18.

(The 30yr period of prescription will be completed when he is 19.)

That date is within three years after the date on which the impediment ceases to exist, so
prescription will not be completed before three years after the impediment ceases to exist.

So prescription will run until Bill turns 21.

Ben is 50 years old. Prescription is running against him. The 30yr period expired last year,
and the person claiming to have acquired ownership by prescription has now approached the
court for an order that the property be transferred into his name. Ben explains to you (his
attorney) that, 25 years ago, he spent two years in a hospital for the mentally ill, on the order
of a court. He asks whether that period can be taken into account in calculating the
prescriptive period (thereby giving him time in which to object).

The answer is that it cannot, as the prescriptive period was completed more than three years
after the date on which the relevant impediment ceased to exist.

Consequences of prescription

Once the requirements for prescription have been complied with, the possessor becomes the
owner. He becomes the owner by operation of law and the former owner (although still
registered as the owner) loses ownership. Delivery or registration is not required because this is
an original method of acquisition. If it is immovable property, the possessor can apply for
registration of the property according to section 33 of the Deeds Registry Act, but that
registration is merely to confirm ownership. The Registrar of Deeds is not entitled to make the
necessary entries without an order of court, and since a court cannot on its own volition take
cognisance of prescription, the person who has acquired ownership by prescription must apply
for an order of court compelling the Registrar to register the land in new name. Applicant must
prove on a balance of probabilities that the requirements of prescription have been complied
with.
Concluding note

Although prescription does run against the state, since 19 June 1971 it has not been possible to
acquire state land by prescription (State Land Disposal Act). Various Provincial Ordinances
contain provisions which more or less correspond with the State Land Disposal Act. The effect
of these is that land owned by, vested in, held in trust or under the control of a local authority
cannot be acquired by prescription.

Derivative modes of acquiring ownership

1. Introduction

Acquisition is derivative if ownership is derived from / dependent on ownership of a previous

owner. It is a bilateral transaction which involves the co-operation of the previous owner. The
acquirer obtains benefits but also assumes the liabilities. Derivative acquisition requires the
cooperation of the previous owner.

There is a distinction between the underlying contract and act of transfer of ownership. This is
different from other systems of law (English law: once A and B conclude a contract of
ownership, ownership is transferred). In our law, the conclusion of the contract itself does not
transfer ownership. The agreement between A and B only creates personal rights. If it is a
contract of sale and A is the seller and B is the purchaser, then personal rights are created in
respect of the agreement. Ownership is only acquired through delivery or registration

The right of ownership is already in existence, but it is merely transferred from one person to
another. When property is thus acquired, the transferee’s [receiving party] rights are affected
by any defects in title which the transferor has. A transferor cannot transfer greater rights than
he has. For example, A steals a car and sells it to B. B cannot acquire ownership over the car
because A did not have ownership. Even if B sells to it C who sells it to D, none of them can
acquire ownership.

What system of transfer is applied under our law?

(1) Causal system

Transfer is dependent on the existence/validity of a valid cause giving rise to the transfer (iusta
causa) such as a contract of sale. If the cause for the transfer of the real right is defective, the
real right will not pass because the transfer is dependent on the validity of the cause. A iusta
causa is thus a sine qua non for a valid transfer of ownership. The original owner can thus
institute his rei vindicatio to reclaim his thing.

The causal system favours the owner of the property in question in the sense that if the
underlying cause is invalid [if the contract of sale is invalid, then the property is still the property
of the owner].

(2) Abstract system

Passing of ownership wholly abstracted from agreement giving rise to transfer. Provided that
the agreement to transfer the real right (the real agreement) is valid, the real right will pass
notwithstanding that the cause (the underlying contract) is defective. Emphasis is placed on the
real agreement. This favours the acquirer and unprotected third parties (certainty). Under this
system, there is a separation between the agreement and delivery and the underlying cause of
transfer.

The abstract system favours the purchaser because it allows ownership to pass even if the
underlying cause was invalid.

Malema and Floyd agree on the transfer of a book. Malema thinks that he is selling the book.
Floyd thinks that Malema is donating the book. There is no consensus – the underlying cause
is invalid. If the causal system is applied, ownership has not passed. If the abstract system is
applied, then ownership has passed because there was an intention to transfer ownership
(there was a meeting of the minds in that regard). In that case, they would have to sort out their
issues, but ownership has been transferred.

Early case law favoured the causal system, but now the abstract system is favoured in the
South African legal system.

Iusta causa only used to infer intention of parties to transfer.

Commissioner of Customs and Excise v Randles Bros and Hudson Ltd 1941 AD 36923

The majority seems to support the abstract system of transfer unequivocally.

The SCA has said that it applies in the transfer of movables and immovable.

See:
Air‐Kel t/a Merkel Motors v Bodenstein 1980 (A)24
Kriel v Terblanche NO en Andere 2002 (6) SA 132
- Applies equally to the transfer of immovable property by registration
Legator McKenna Inc v Shea [2008] JOL 22819 (SCA)
- SCA confirmed abstract theory of transfer applies to immovables
This case involved the transfer of a house. The house was on the market. The owner of the
house had been involved in a serious motor vehicle accident and had been declared
incompetent to manage her own affairs. A curator bonis was appointed to manage her affairs.
The curator, a lawyer, sold her house. Afterwards, the first respondent had recovered, and was
declared capable of managing her affairs. She sued for return of that house. Her ground for
returning the house was that the contract of sale was invalid. The ground on which the contract
was deemed invalid was that he house had been sold before the first respondent had received
letters of curatorship [he was not competent to have sold the house]. The contract was also not
in writing. Since there was no valid contract, the appellant wanted her house back. Invalid as it
was, the court concluded that there was a valid transfer of ownership. The court held that for a
transfer of ownership, there were two requirements: delivery (in the case of immovables, this is
effected by registration) and secondly, a real agreement (there must be an intention to transfer
ownership and intention to receive).

Rationale:
The main reason for applying an abstract system of transfer is the legal certainty it brings about
in commercial dealings. However, despite strong support for an abstract system of transfer,
there is still a tendency in some cases to support the causal system (as invariably there is
concern about fraudulent agreements).
23
Discussed on page 127 of van der Walt.
24
Dicussed on page 126 of van der Walt.
The principle of publicity

Our law requires that the transfer of real rights should be advertised as much as possible, in the
interest of 3rd parties. This publicity is achieved, to a large extent, by registration. In the case of
movables, publicity is achieved by some form of delivery. Delivery satisfies publicity because in
our law, there is an assumption that the possessor of property is also the owner. This is a
rebuttable presumption. Publicity is most effective in the case of immovable property. The
doctrine of notice protects the registered owner and the public.

What makes these rights enforceable is not registration per se because once a right is created
it becomes enforceable.

It is important to note that only real rights in immovable property can be registered – a personal
right cannot become a real right because it has been registered by mistake

The doctrine of notice

Registration of real rights to immovable property provides the basis for protection. There are
certain situations where unregistered real rights are also protected. This protection is based on
the doctrine of notice.

- If A becomes aware that B has an unregistered right over certain property, then A cannot
be allowed to then take advantage of the lack of registration and act in a manner that will
prejudice B. A may not act in a manner to defeat B’s potential real right which he is aware of
- The principle is that no one may derive a benefit or advantage from his own bad faith
(mala fide)

Double sales

A sells a car to B. Before B has taken delivery of the car, A sells the same car to C, to whom it
has been delivered after payment. C’s acquisition of ownership depends on whether or not he
was aware of the previous sale because he cannot act in bad faith at the expense of B. B is left
to pursue other remedies.

Unregistered servitudes

For a praedial servitude to confer real rights on the holder, it must be registered. Until then, it
only confers personal rights.

A acquires a right of way over B’s property. This right of way is unregistered. Subsequently, B
sells the property to C. Will C be bound to recognise the unregistered servitude? Only if C
knows of the existence of the servitude, then may A enforce the right. If C refuses, A can
pursue personal remedies against B.

Right of option or pre-emption

A purchaser may buy property which is subject to a right of option or pre-emption.

A right of option: an option is applied under contract. In terms of the law of contract, when an
offer is made with an option, it means that the person who is making the offer stipulates that the
offer will remain open to the other person for a specified period.

- A makes an offer to sell his car to B and says that the offer remains open for 30 days.
Before 30 days have expired, that property cannot be sold to someone else.
- A made an offer to B and gave him that option for 30 days. A then decides to sell the car
to C before the 30 days have expired. Can C acquire ownership over the car? If he is aware of
the option open to B, then no. If not, yes.

The right of pre-emption: a situation where one party promises another that should he decide to
sell certain property, the other party will be offered the right to buy it first, before the offer is
made available to anyone else. If A gives X a right of pre-emption is respect of a car, but A then
sells the car to Y and if Y was aware of the right of pre-emption, then he will not acquire
ownership.

It must be remembered that, in order for the doctrine of notice to be applied, it is not necessary
to prove that the purchaser, for example, was acting fraudulently.

There are three requirements:

1. A prior personal right must exist against the holder of a real right
2. The acquirer of the real right must be aware of the existence of a prior personal right
3. The acquirer must infringe the pre-existing personal right

Knowledge is measured as at the time of transfer.

The requirements for a valid transfer of ownership

1. A real agreement [subjective]
The intention to transfer ownership on both parties – to transfer and receive
2. Some form of conveyance/delivery [objective]

This is either delivery or registration.

Transfer of ownership only takes place where there is delivery or registration accompanied by a
real agreement. There are exceptions to the principle [marriage in COP, each spouse
automatically acquires ownership; where a person is declared insolvent, his estate
automatically vests in the trustee].

2. Requirements for valid transfer of real rights 25

For passing of ownership by either delivery/registration:

1. The thing must be a negotiable (res in commercio) 26

2. The question of intention: the transferor must intend to transfer ownership and the transferee
must intend to receive ownership. This is required at the time of transfer.
a) A sells a car to B. before delivery has taken place, B is declared insolvent and the
estate is under a trustee.
3. The transferor:
a) must be capable (legally competent) of transferring ownership
i. must have contractual capacity (be a major and not be insane or otherwise
prohibited)
25
van der Walt, page 125.
26
A thing in respect of which real rights may be acquired and transferred.
 b) Transfer must be effected by the holder of the real right (owner) or a duly authorised
agent
Maxim: Nemo plus iuris ad alium transferre potest, quam ipse haberet:
i. A non-owner needs the agreement of the owner to sell. If that seller does not
have co-operation, the purchaser may never become the owner
ii. An owner can recover his property from anyone who has it without his consent.
When the owner does recover his property, he is not obliged to compensate the
possessor.
iii. Where the transferor’s rights are limited, the transferee will take the property
subject to those limitations: the transferee takes the property subject to any
infirmities in the predecessor in title
4. Transferee:
a) The transferee must be capable of acquiring ownership (legally competent)
b) Similarly, only the transferee (or agent) can accept the transfer
5. There must be delivery or registration
6. In a cash sale, the price must be paid.
a) In an ordinary credit sale, ownership passes on delivery because payment has been
postponed to a future date. A credit sale may be subject to a suspensive condition in
the passing of ownership
b) Payment by currently dated cheque: if it is a cash sale, does payment by cheque
amount to “cash”? Payment by a currently dated cheque amounts to cash, provided
that the cheque is honoured upon presentation. If the cheque was dishonoured, there
is no payment. If the cheque is honoured, then the effective date of payment is the
date of sale and not the date of presentation of the cheque.
c) Giving of credit can be implied in certain situations:
i. Where a purchaser accepts a post-dated cheque
ii. If a seller delays in recovering the goods after the buyer has failed to pay, he will
be deemed to have given credit. It appears that a delay of more than 10 days is
“giving credit”
iii. Credit can also be implied on the basis of previous dealings between parties
• Ericson Motors v Protea Motors – if one garage had a vehicle that the other didn’t have,
they would buy the car and then pay for it by cheque. In one instance, one dealer took a car
from the other dealer and sold it to the customer. The cheque was dishonoured and the court
had to determine if ownership had passed. The court held that because of their previous
dealings, ownership had passed.
iv. In a credit sale, the seller can always reserve ownership
7. Real Agreement
At moment of delivery, transferor must have intention of transferring ownership (animus
transferendi dominii) and transferee must have intention of accepting ownership (animus
accipiendi dominii) (Subjective requirement)
8. Transfer can only be effected by means of one of the recognised forms of delivery
(Objective requirement)
a) delivery applies to movables
b) registration applies to immovable.

The latter two requirements (7 and 8) are the essential elements to derivative transfer.

Real agreement (subjective) plus transfer by traditio (delivery/registration) equals act

of transfer of real rights

NOTE: Sale of movables:

Ownership, notwithstanding delivery, does not pass unless either the purchase price is paid or
security or credit for its payment is given. Presumed to be cash if no contrary agreement.
Transfer of land:
Tendency to regard the act of registration, because of its formal nature, as the only element of
the act of transfer. However, this is not supported by case law.

3. Contract vs Delivery
Ownership does not pass on mere agreement between the parties – but only on delivery or
registration. In South African law the agreement giving rise to transfer is strictly separated from
the delivery or registration itself.

Contract creates only personal rights and obligations

Transfer of a real right through the real agreement is a separate legal transaction.

So there are two separate legal acts, each with its own requirements:
i. Contract of sale/donation
(obligation creating agreement)

ii. Real agreement

Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 (SCA)

Valid Real agreement?

Real agreement must meet all the common‐law requirements for a valid contract (such as the
contractual capacity of parties, consensus regarding the thing, absence of error, and so on). In
certain contracts the vitiating element attaches to both the preceding contract and the real
agreement (e.g. illicit diamond dealing).

Real agreement need not meet all the requirements for a preceding obligation‐creating
agreement (alienation of land – writing).

Summary: Normally three juristic acts are involved in the passing of ownership:
i. The obligation‐creating (contractual) agreement;
ii. The real agreement to transfer/receive ownership (subjective element); and
iii. The actual delivery/registration of the property (objective element).

In terms of South African law, ownership is transferred irrespective of the legitimacy of (i), when
there is a valid real agreement, coupled with delivery (movables) or registration (immovables).

4. Delivery (traditio)
Ownership in a movable corporeal thing is transferred by delivery (transfer of possession).

Definition:
Delivery is the transfer of the physical control to the transferee in order to enable him/her to
exercise control of the movable (corpus) with the intention to be the owner (animus domini).

4.1 Actual/literal handover to transferee (traditio vera)

This indicates that the movable is actually handed over to the transferee in such a way that the
transferee is able to exercise physical control with the intention to be the owner.
The delivery may even be made to a representative or employee of the transferee. If the
necessary intention regarding the transfer and receipt of ownership is present, it is regarded as
transfer of ownership through actual delivery.

4.2 Constructive delivery (traditio ficta)

In constructive delivery (fictitious delivery) there is no physical handing over of the goods but
the law recognises some other act as being equivalent to actual delivery because of a change
in the intention with which the thing is controlled which indicates the intention that ownership is
transferred.

Forms of constructive delivery:

Mode Trigger Physical Mental Considerations

Clavium Goods Symbol of Intend that

traditio contained in exclusive means to handling over
warehouse or take physical symbol
other container control delivers goods
Traditio Goods too Pointing out in Intend that Transferee must
longa large/external presence of transferor Be able to take
manu factors prevent transferee remains in possession
delivery possession without legal
until transferor assistance
removes them
Constitutum Goods to be Pre-existing Intend that Causa
possessorium used by possession ownership will detentionis
transferor after by transferor transfer even is vital!
transfer of though
ownership in transferor will Factual inference
terms of maintain must
agreement possession support inference
of bona fide
conduct
Traditio Transferee in Pre-existing Intend that Factual inference
brevi possession Possession by ownership will must support
manu before transfer transferee transfer inference of bona
fide conduct

Attornment Third party in Tri-partite Third party Mere

possession of must agree to notification of
goods when agreement: hold on behalf third party of
third party must change of
ownership have legal cause of the
ownership
transfers/passes for control of transferee, and is insufficient –
goods no longer the must be party to
transferor agreement

4.2.1 Clavium traditio (symbolic transfer)

This is usually used where goods to be delivered are in a warehouse or container. The
transferee will be given a symbol that enables him to exercise physical control over the goods
requested. That symbol could be the keys to the warehouse. It is important that the transferee
has exclusive control of the goods in question.

If A (transferor) gives keys to B and A retains a spare key to the warehouse with B’s
knowledge, there is no delivery because the B does not have exclusive control.

Other symbols may be used: warehouse receipts or bill of lading (which is used in international
sales of goods). For example, A (based in Durban, rice importer) decides to buy and import 10
tonnes of rice from India. The rice must be delivered by port in Durban. Bombay to Durban
takes 4 – 6 weeks. It would not be sensible to wait for the rice to arrive physically. The system
of symbolic delivery allows him to deal with the rice. Delivery is effected when he receives the
bill of lading. It is utilised in Cost Insurance and Freight contracts. He has a description of the
goods, as well as insurance. The document can be delivered to the transferee well before the
goods arrive. He can transfer ownership of the goods. A bill of lading is said to be a negotiable
instrument.

4.2.2 Traditio Longa Manu

It is a method which is normally utilised when the property to be delivered is either bulky or
heavy or in a situation where special arrangements have to be made for the delivery of the
goods (permit). This form of delivery takes place when the goods are pointed out to the
transferee or his agent. Once they are pointed out, delivery has been effected.

Yapa v Ntsoko: Cattle were intended for lobolo. At that time, the cattle could not be moved
because of veterinary restrictions. So the cattle were pointed out to the representatives of the
transferee. The court held that ownership had been transferred by delivery longa manu.

4.2.1 Traditio Brevi Manu (delivery by the short hand)

This form of delivery takes place when the property to be delivered is already is already under
the possession of the transferee as a result of a previous arrangement (the transferee may be
in possession of the property as a borrower or as a pledgee or as a lessee).

In that instance, if A is the owner of a book, which was borrowed by B, who then borrows it. In
that case, delivery takes place through a change of intentions. The physical element has
already been satisfied when he borrowed the book.

Meintjies v Wilson: The director of a company was owed money by a company. To settle the
arrears in salary, the company transferred its office furniture and equipment by delivery brevi
manu but then a creditor of the company attached the furniture and the question before the
court was whether the furniture could be attached. The court held that it could not, because
delivery had already taken place in favour of the director.

It has been suggested that this form of delivery can be misleading. If B was in possession of
property and subsequently buys it, then there is no means of showing third parties that
ownership has transferred. In our law, there is a presumption that the possessor of property is
the owner.

4.2.4 Constitutum possessorium

It is the opposite of brevi manu. It takes place where the transferor retains possession of the
property to be transferred under an arrangement or agreement with the transferee.

A buys a watch from a jeweller (B). They agree that B will change the strap and the watch
remains with the jeweller until A collects it later. Ownership will be transferred because of a
change in intention. B gives up the intention to be an owner and intends to be the possessor on
behalf of A. A now holds the intention of an owner.

This type of delivery is viewed with suspicion because it can mislead third parties. If the
transferor who is in debt can claim that his property has been sold to B to escape payment.

There are certain conditions:

 The transferor must be the owner and be in possession of the property at the time of
transfer
 The second condition is that the transferee must cease to possess as owner and
become possessor on behalf of the transferee
 The transferee must consent to the transferor becoming possessor on his behalf
 There must be a distinct cause for detention [cause nova detentionis]

4.2.5 Attornment

There are three parties: the transferor, the transferee and a third party.

At the time of delivery, the property will be under the possession of the third party. C is holding
the property, under an arrangement with A. A sells the property to B. The three parties agree
that C is no longer holding the property on behalf of A, but B.

This type of delivery is used in credit/hire-purchase agreements

The first three are derived from Roman law. The fifth one is derived from English law.

5. Registration

Registration occurs in the Deeds Registry. There are nine registries. Each office contains a
Deeds Register. This falls under the Deed Registry Act 19 of 1937.

- Positive system: Every transaction which is registered becomes conclusive proof of the right in
question; irrebuttable.
- Negative system: [this is our system] registration is not conclusive proof of the right in
question, but it is very strong evidence.

General registration in Deeds Registry is the mode in terms of which immovable property is
transferred. (traditio).

Application of the publicity principle.

Deeds Registries Act 47 of 1937 establishes a uniform system of land registration for the
whole of South Africa. Registration of transfer occurs in the nine Deeds Offices throughout the
country. Each registration office has a Registrar of Deeds and several officials.

Main aim: ‘to compile a complete register of all land; public as well as private, showing the
ownership of every parcel and any limitation or restriction to which that ownership may be
subject’.
Positive or negative system?:
Modified negative system of registration – the correctness of the registered information is
not guaranteed. Based on the real agreement. Accuracy of the information in the deeds office
is nowhere expressly guaranteed, no protection is given to bona fide acquirers of deficient “real
rights” resulting from inaccuracies.

~~~~~~~~~~

Statutory forms of ownership

i. Sectional Title

Van der Walt & Pienaar Introduction to the Law of Property 6th edition (2011) 59 – 70
Badenhorst et al Silberberg and Schoeman’s The Law of Property 5th edition (2006) 441 – 492
Mostert et al The Principles of The Law of Property in South Africa (2010) 100 – 103
Sectional Titles Act 95 of 1986, as amended
Sectional Titles Schemes Management Act 8 of 2011

1. Introduction

“It’s not called complex living for nothing”.

Sectional title ownership contrasts diametrically with the common law principles of ownership of
immovable property. It is a unique statutory intervention. 27 In particular, sectional title
ownership varies from the principles of superficies solo cedit (buildings form part of the land) or
omne quod inadeificatur solo cedit (everything built on the soil belongs to the soil) and culus est
solum eius est caelum (the owner of the soil is the owner of the sky above it). As such, it is a
hybrid of individual and bound (statutory) co-ownership, taking the form primarily of flats and
town houses.

The need for apartment ownership in modern-day South Africa became evident because of a
serious shortage of residential accommodation, the scarcity of urban land, the high cost of
developing new townships and ever escalating building costs. Accordingly, legislative
intervention and innovation gave rise to the concept of sectional ownership, or ownerships of
parts of land and buildings. As such, sectional title ownership in South Africa is governed by the
Sectional Titles Act 95 of 1986, which was introduced in the 1970s, but amended subsequently.

While the status quo created by the Sectional Titles Act (1986, as amended) remains largely
unchanged as far as the creation and structure of bodies corporate is concerned, 28 the Sectional
Titles Schemes Management Act, 8 of 2011 (the Act) 29 is primarily intended to effectively

27
See Silberberg and Schoeman.
28
For example, section 10(7) and (8) of the Act require that rights of exclusive use and enjoyment of parts of the
common property may be conferred upon members of the body corporate, which information must be contained in
the rules and
(a) include a layout plan to scale on which is clearly indicated—
(i) the locality of the distinctively numbered exclusive use and enjoyment parts; and
(ii) the purposes for which such parts may be used; and
(b) include a schedule indicating to which owner each such part is allocated.
However, since this allocation has already been made and approved, it is accepted that such allocation continues
to operate subsequent to the entry into force of the Act.
regulate sections and common property in sectional titles schemes by way of enforceable
rules.30

2. The nature of sectional ownership

Section ownership creates a new legal object; a new type of rights; a new type of juristic person;
and regulates the registration and alienation of sectional title units.

(a) New res (legal object)

Legally separates nominated sections of the property (res) from the land as such, from the
common parts of the building(s) and from each other.

There are three elements of sectional title ownership. This new res (sectional title “unit”) is
capable of being the object of real rights. The res (“unit”) is made up of:
i. “the Section”: Individual ownership of part of a building (principal component)
ii. An undivided share in the common parts of the buildings and property: co-ownership
(accessory component) in an undivided share, calculated in terms of a formula set out in the Act
(participation quota).
iii. These “common parts of the building” are administered and controlled by the body
corporate.31

(b) New types of use rights

General:
“Common parts” of the buildings and land are owned jointly in undivided shares by owners of
“units”. The shares are proportionate to the right-holder’s section. BUT, the Act does provide
for reservation of rights of exclusive use over portions of the common property (parking bays,
courtyards, patios) by particular unit owners. Such rights are linked to, but separate from, the
rights accrued as a result of the ownership of the res (unit).

(c) New type of juristic person

One automatically becomes a member of the body corporate when one purchases a sectional
unit and becomes a member of the association of sectional owners. This differs markedly from
an ordinary voluntary association under Common Law (eg. Social club) and statutory law.

Membership is not voluntary

- Can only be dissolved by means of an application to Court

The Body Corporate:

 Meets annually
 Elects trustees
 Manages the payment of levies
 Is responsible for enforcement of management and conduct rules (statutory)

(d) Registration

29
To date, this Act has not entered into force. However, it is anticipated that it should become operative within the
next few months.
30
Rules means rules as defined in section 1 of the Sectional Titles Schemes Management Act. Furthermore,
section 10(12) of the Act states that any rules made under the Sectional Titles Act are deemed to have been made
under this Act.
31
Sectional ownership clashes with some of the classical doctrines of both the law of property and the law of
association.
Previously: In terms of the South African system of land registration (Deeds Registries Act),
land is transferred without reference to the buildings and/or improvements on it, because they
are regarded as integral parts of the land. However, the Sectional Title Act:
 Changed some provisions of the Deeds Registries Act
 Changed system of transfer of ownership in some respects (New “deed of transfer” format)

A sectional title unit consists of a section of the building and an undivided co-ownership share of
the common parts of the building and the land. It is therefore a combination of individual
ownership and joint ownership – a sectional owner acquires a unit, which comprises individual
ownership (such as a flat) and tied co-ownership of common areas, including the outer skin of
the building , called the common property. The co-ownership share is calculated according to a
formula prescribed by the Act, called a participation quota. This is a percentage (in decimal
form) of the total floor area of the scheme. The Sectional Titles Act provides for the reservation
of rights of “exclusive use” over parts of the common property, in favour of particular unit
owners, such as parking bays, courtyards, patios, garden areas, balconies, etc.

The participation quota is crucial to a number of sensitive issues within the context of sectional
titles. It is the numerical quantification of a sectional owner’s share in the common property,
and determines the extent of a sectional owner’s financial obligations regarding administration
and maintenance costs within the scheme, and the influence that the respective sectional
owners have in the scheme’s management. In residential schemes, participation quotas are
calculated on the size of the floor area of each section of the scheme. For non-residential
schemes, the participation quota depends on the discretion of the developer.

According to sections 11 to 13 of the Sectional Titles Act, registration of a sectional title plan
has the effect of legally separating the different sections from the land as such, from the
common parts of the building(s) and from each other, so that each constitutes an independent
legal entity. A sectional title unit is capable of being the object of real rights, such as ownership
and servitudes.

A central characteristic of sectional ownership is the compulsory membership of the juristic

person responsible for the management of the sectional title scheme. A body corporate is the
sum of all unit owners (who are automatically members) and has separate juristic personality.

The three elements of sectional ownership (namely individual ownership of a section, joint
ownership of the common property, and membership of the body corporate) are inextricably
linked and as a rule cannot be alienated separately.

Exclusive use rights obtained through registration in terms of section 27 of the Sectional Titles
Act are generally referred to as “genuine” rights of exclusive use, giving rise to rights that are
deemed in terms of section 27(6) to be rights to urban immovable property, and that may be
classified as statutory, sui generis real rights. Such rights have been described as so closely
akin to ownership as to be virtually indistinguishable. 32

3. Content of sectional title ownership

Ownership of a sectional title unit creates a real right, but the Act restricts the freedom of the
owner to use his thing as he pleases. For example, he/she cannot exercise rights in such a way
as to deny to others’ rights. Furthermore, he/she must pay the levy towards management/
maintenance of the scheme

32
Body Corporate of the Solidatus Scheme No SS23/90 v De Waal at 99e-f.
Owner has all the incidental rights of ownership subject to certain statutory limitations, such as:
The title deeds: restrictions registered on the title deeds such as servitudes over the common
property in favour of particular sections.

Furthermore, section 44 imposes duties on an owner, including:

 Duty to allow reasonable access to duly authorized persons for the purposes of inspection
and maintenance
 Duty to keep section in good order and repair
 Not to interfere with or cause a nuisance to other occupants
 To keep the body corporate informed of any change of real rights in his section and
 If a purpose is specially registered on the plan to use his section for that purpose only.

Conduct rules further restrict the owner (e.g. pets, refuse disposal, the parking of vehicles upon
the common property, damage to the common property, the external appearance of the section,
signs and notices, littering, laundry and washing lines, letting of units and pest control).

Alienation of section: section 15B(3)(a) – (cannot sell until paid all his dues).

4. How a sectional title scheme works

(a) The property

A scheme may begin with a piece of land on which buildings are then erected or it may involve
the conversion of existing buildings currently owned by the developer under the maxim
superficies solo cedit.

If the building is to be a new building then obviously it must confirm to any regulations which
would normally apply and be approved by the local authority concerned.

(b) An architect or land surveyor acting on behalf of the developer must inspect the property
and certify it complies with any operative Town Planning Scheme, Statutory Plan or conditions
subject to which a development was approved in terms of any law. If there is non-compliance
condonation must be obtained from the local authority.

(c) Draft Plans (Section 4)

A Sectional Plan and a block plan must now be prepared. A land surveyor must prepare the
block plans which concern the land and its measurement. He may also do the plans of the
section but an Architect would normally be employed for this. (A developer who intends to
establish a scheme shall cause a draft Sectional Plan to be submitted to the Surveyor General
in terms of Section 7).

(d) Notification to tenants

If the building is an existing building then in terms of Section 4(3)(a) the developer is required to
notify every lessee who is leasing a portion of the premises. The developer must give 14 days
notice calling a meeting at which:-

i) details of the scheme are given, and

ii) information regarding tenants rights in terms of Section 10 are given

Provided that the developer need not comply if the lessee in writing says that he is aware of his
rights and he has no intention of purchasing his unit.

(e) Surveyor General and Registrar of Deeds

The draft Sectional Plans completed in terms of Section 4 are then submitted to the Surveyor
General for approval of the Plan and then to the Registrar of Deeds for the registration of the
sectional plan and for the opening of the Sectional Title Register in terms of Section 11. 33 The
Registrar will then, when the requirements of the Act and any other relevant law have been
complied with, register the Sectional Plan and open the register in terms of Section 12 of the
Act.

(f) Tenant Protection

Where a developer is converting a building which has tenants in occupation the Act offers these
tenants a measure of protection from sudden ejectment by virtue of the provisions of Section 10
which also gives the tenants a right of first refusal in respect of the purchase of those sections
which they are leasing. (The developer must offer the unit to a tenant and sit the guaranteed
period of 90 days and not evict the tenant for a further 180 days (unless the tenant refuses to
pay his rent or causes a nuisance)).

(g) Sale of units

Once registration has been effected the way is now open for the developer to transfer his
ownership in the various sections to purchasers.

Assuming that the developer has no difficulties in relation to tenants he will sell his units to
purchasers who will acquire ownership of the units by endorsement on the sectional title deed
signed by the Registrar. Coupled with the ownership of the separate section the purchaser also
becomes a co-owner of the common property in undivided shares. Transfer is effected by a
conveyancer.

(h) Creation of the body corporate

Now there are several owners who each have separate ownership of their sections and
ownership of the common property in undivided shares. Who makes the decisions regarding
upkeep of the common property; for example, roofs, plumbing, exterior walls, gardens etc.? Are
there any controls in relation to exercise by the various owners of their rights in relation to their
own sections and in relation to the common property? Obviously someone has to be in control
and there must be some control over the power which he exercises on behalf of all of them.
The Act deals with these problems by the creation of a body corporate of which each owner
automatically becomes a member upon acquisition of ownership of his section.

(i) Direction of the body corporate

The body corporate functions according to the provisions of the Act and Regulations and certain
rules in much the same way as a company. The value of the vote attached to membership
depends upon the participation quota allotted to each section according to a formula for
calculation set out in the Act which is based on size of the section. The participation quota must
be set out in the schedule to the sectional plan which is registered. The participation quota is
also used to determine the proportional share of the individual owner in the common property,
the amount of the contribution he must make towards the expenses of the body corporate and
his proportional liability for its debts. There is a procedure whereby the members can make
rules to alter the value of the vote accorded to a quota but time does not permit us to examine
this now.

The board of trustees exercise the management function of the body corporate subject to
restrictions set out in the act or the rules or in a resolution of the members in general meeting.

33
Only a “developer” may apply for the approval of a scheme and a developer must by definition be the registered
owner of the land
 5. Management of a sectional title scheme

A sectional title scheme must be controlled and managed by means of rules, which come into
force upon establishment of the body corporate, and provide for the management and
administration of the scheme and the use and enjoyment of the sections and common property.

The rules are divided into two groups, management rules and conduct rules. Standard sets of
“management” and “conduct” rules are automatically applicable, but the provisions therein may
be substituted, added to amended or repealed to the extent permitted by the Sectional Titles Act
in particular and the law in general. These rules are prescribed respectively by Annexures 8
and 9 to the regulations to the Sectional Titles Act. The conduct rules in Annexure 9 deal
exclusively with the use and the enjoyment of the sections and the common property (section
1(1) “rules” and section 35(2)). Examples of matters regulated by the standard conduct rules
are the keeping of animals, refuse disposal, parking vehicles on the common property, littering,
washing lines, the storage of inflammable materials and the eradication of pests.

These rules are set out in GN R664 GG11245 dated 8 th April 1988 and have been amended by
several further Government Notices. The former apply automatically but there is provision for
the developer to “substitute” management rules when he applies for the opening of a sectional
title register to the extent prescribed in the regulations. These rules can be amended by the
body corporate, also “as prescribed by regulation”. The latter also apply automatically but the
developer seems to have a freer hand to alter these when he applies for the opening of the
sectional title register provided that as altered they are not in conflict with any management
rules. The body corporate has the same power by special resolution.

The management rules are concerned with the administrative matters of the scheme. They
deal with such matters as election of trustees, powers and duties of the trustee, improvements,
finances, managing agents and meetings of members, including the convening of and
procedures for such meetings.

The conduct rules are more related to the use and care of the sections and common property.
The body corporate consists of two organs, the board of trustees who, like the board of directors
of a company, are elected in terms of the rules by the members in general meeting and they
constitute the other organ.

If a body corporate wishes to alter, cancel or substitute management rules, a unanimous

resolution is necessary, while alterations, cancellations or substitutions of the conduct rules
necessitate a special resolution.

Section 35(4) of the Sectional Titles Act provides that the rules bind the body corporate, the
owners and any person occupying a section, and section 35(5) requires that the registrar be
notified of rules substituted, added to, amended or repealed, before such substitutions,
additions and the like become operative. These provisions ensure sufficient publicity of the
rules, as well as enforceability of the rules among the sectional owners.

6. Enforcement of the rules of the Body Corporate

The Act has introduced innovative, practical and binding mechanisms for bodies corporate to
enforce34 the rules of the body corporate for the fact that rules of bodies corporate were often
unenforceable during the previous dispensation. Accordingly, with respect to enforcement of
34
Section 10(4) of the Act explicitly states that the conduct and management rules of the body corporate bind the
body corporate and the owners of the sections and any person occupying a section.
rules, the most important provisions of the Act are sections 2(5), 3(1)(t), 4(i), 10(2), 10(3) and
13(1)(d), which provide:
2(5) The body corporate is, subject to the provisions of this Act, responsible for the
enforcement of the rules and for the control, administration and management of
the common property for the benefit of all owners.
3(1)(t) [The body corporate’s main functions and powers are] in general, to control,
manage and administer the common property for the benefit of all owners.
4(i) [The body corporate may] do all things reasonably necessary for the
enforcement of the rules and for the management and administration of the
common property.
10(2) The rules must provide for the regulation, management, administration, use and
enjoyment of sections and common property
10(3) The management or conduct rules contemplated in subsection (2) must be
reasonable and apply equally to all owners of units.
13(1)(d) An owner must use and enjoy the common property in such a manner as not to
interfere unreasonably with the use and enjoyment thereof by other owners or
other persons lawfully on the premises.

Section 10(2), as read with 10(5)(a) and (b) of the Act, dictates that conduct rules may be
substituted, added to, amended or repealed by special resolution of the Body Corporate,
provided that such conduct rules may not be irreconcilable with any prescribed management
rule and it has been brought to the Ombud’s notice that such amendment or repeal is being
sought and subject further to the fact that the Ombud must be satisfied that such substitution,
addition, amendment or repeal is reasonable and appropriate to the scheme.

To ensure compliance with the Act, a copy of the [amended] rules must be lodged with the
Ombud,35 who is responsible for certifying such rules as being appropriate to the Body
Corporate and therefore entailing that such rules are binding and enforceable as of the date of
such certification.

7. Functions and duties of the Body Corporate and Trustees

Section 10(6) of the Act provides that the body corporate must:
(a) keep a copy of all rules;
(b) have the rules available for inspection at meetings of trustees and owners;
(c) deliver a copy of the rules to each person who becomes an owner or occupier;
(d) deliver to all owners a copy of any rules substituted, added or amended and details
of any rules repealed;
(e) on request by an owner or any person authorised in writing by an owner, deliver a
copy of all rules to such owner.

It is also pertinent to state that section 9 of the Act regulates proceedings on behalf of the Body
Corporate. Section 9(1)(b) is relevant for the fact that it entitles an owner to initiate proceedings
on behalf of the Body Corporate when the Body Corporate does not take steps against an
owner who does not comply with the rules. The procedure for same is stipulated in section 9(2)
(a) and states: “Any such owner must serve a written notice on the Body Corporate calling on
the Body Corporate to institute such proceedings within one month from the date of service of
the notice, and stating that if the Body Corporate fails to do so, an application to the Court under
paragraph (b) will be made”.

35
It is not yet clear who the Ombud for Sectional Titles Schemes is. This information is likely to be gazetted within
the foreseeable future.
The Act prescribes the powers and functions of the Trustees (duly elected), acting on behalf of
the Body Corporate, subject to any restriction imposed or direction given at a general meeting of
the owners of sections.36 Accordingly, in addition to the functions contemplated in section 7(1)
of the Act, the Trustees of the Body Corporate must receive and may consent to applications for
subdivision of sections or consolidation of sections, made by the owners of sections; and that
such consent must not unreasonably be withheld by the Trustees. 37 Furthermore, the Trustees
are deemed to be the owner of the land for the purposes of an agreement in respect of the
beacons and boundaries of the common property, in terms of the Land Survey Act 8 of 1997. 38

8. The holding of meetings and voting for purposes of passing unanimous

and special resolutions39
By virtue of section 6(1) of the Act, the Body Corporate retains the discretion to decide that time
and form of the meetings of the Body Corporate. However, procedurally, section 6(2) provides
that the Body Corporate must, at least 30 days prior to a meeting of the body corporate where a
special resolution or unanimous resolution will be taken, give all the members of the Body
Corporate written notice specifying the proposed resolution.

Section 6(3) goes further to clarify the requirements for effective notification. Accordingly, the
notice must be:
(a) delivered by hand, or sent by fax or e-mail to a member; and
(b) sent by pre-paid registered post to the address of a member’s section in the scheme; or
(c) sent by pre-paid registered post to a physical or postal address in the Republic of
South Africa that a member has chosen in writing for the purposes of such notice.

Section 6(5) states that a member may be represented in person or by proxy at such meeting,
provided that a person must not act as a proxy for more than two members.

With respect to the calculation of votes, section 6(7) states that when votes are calculated in
number, each member has one vote. However, section 6(6) prescribes that when votes are
calculated in value, each member’s vote is calculated either:
(a) as the total of the quotas allocated to the sections registered in that member’s name; or
(b) in accordance with a rule made in terms of section 10(2), 40 whichever is applicable.

As it pertains to unanimous or special resolutions, section 6(8) dictates that where the
unanimous resolution would have an unfairly adverse effect on any member, the resolution is
not effective unless that member consents in writing within seven days from the date of the
resolution. In this regard, it is section 6(9) which states that a body corporate or an owner who
is unable to obtain a special or unanimous resolution may approach the Chief Ombud for relief,

36
Section 7(1) of the Act.
37
Section 7(2)(b) of the Act.
38
Section 7(3).
39
As far as definitions are concerned, a ‘‘special resolution’’ means a resolution
(a) passed by at least 75% calculated both in value and in number, of the votes of the members of a body
corporate who are represented at a general meeting; or
(b) agreed to in writing by members of a body corporate holding at least 75% calculated both in value and in
number, of all the votes.
A ‘‘unanimous resolution’’ means a resolution
(a) passed unanimously by all the members of the body corporate at a meeting at which
(i) at least 80% calculated both in value and in number, of the votes of all the members of a body corporate who are
present or represented; and
(ii) all the members who cast their votes do so in favour of the resolution; or
(b) agreed to in writing by all the members of the body corporate.
40
Section 10(2) governs both conduct and management rules (as prescribed by the Sectional Titles Act 1986),
which are able to be amended, repealed, etc and are subsequently subject to the approval of the Chief Ombud.
thereby mitigating the effect of an unreasonable refusal of a member to consent to a resolution
taken.

It is therefore recommended that a date for the next meeting of the Body Corporate be
determined and a minimum of 30 days’ notice be provided, given that a special resolution will
have to be taken as the rules of the Body Corporate will be amended through such special
resolution.

9. Compliance with legal requirements and providing notification to the

Chief Ombud
Section 3(1)(o) of the Act requires that the Body Corporate notifies the Chief Ombud, the local
municipality concerned and the registrar of its domicilium citandi et executandi, which is its
address for service of any process.

Section 10(5)(a) provides that if the management or conduct rules contemplated in subsection
(2) are substituted, added to, amended or repealed, the developer or the body corporate must
lodge with the Chief Ombud a notification in the prescribed form of such substitution, addition,
amendment or repeal. Thereafter, the Chief Ombud is obliged to certify his/her approval of
amended rules.41

10. Establishment and marketing of a sectional title scheme

Read pages 447 to 459 of Badenhorst et al Silberberg and Schoeman’s The Law of Property 5th
edition (2006).

11. Sectional owners’ entitlements and duties and sanctions and settlement of
disputes

The exercise of a sectional owner’s entitlements is subject to the limits imposed by law and the
rights of others. Within the context of sectional titles, these limits are defined not only by
common law, but also by the rights of the body corporate to control the common property, and to
enforce the rules of the sectional title scheme, as well as by certain statutory duties imposed
upon the sectional owner. See Badenhorst page 477; 486 – 491.

Enforcement of financial obligations

First National Bank of Ltd v Body Corporate of Geovy Villa 2004 (3) SA 362 SCA

Facts: Ms Thisinyana Agathe Radebe (Radebe) was the registered owner of the unit, with FNB
as the only mortgagee. At the time of the registration of the bond the amount owing by Radebe
to the bank was R108 000-00. On 11 December 2000 the body corporate obtained judgment
against her for outstanding levies and costs in an amount of R8 600-00. The execution debt
remained unsatisfied and the unit was sold at a judicial sale in execution for an amount of R32
000-00. On 15 February 2002 the bank informed the body corporate in writing that it was not
willing to accept the purchase price obtained at the sale. The body corporate’s written response
on 27 February 2002 was that it enjoyed a preference above that of the bank as bondholder and
that it did not require the bank’s approval for the sale in execution.

The body corporate applied to the Transvaal Provincial Division for an order declaring that the
bank, as bondholder over the unit in question, did not enjoy a claim preferent to its claim as
judgment creditor in respect of arrear levies and related costs and that the provisions of section
66(2) of the Magistrates’ Court Act 32 of 1944 were inapplicable. In addition, it sought an order
41
Section 10(5)(c) and section 11(3)(e) of the Sectional Titles Act, 1986.
directing the sheriff to transfer to, and register the unit in the name of, the purchaser who had
purchased it at a sale in execution on 12 February 2000.

Issue: whether the respondent’s claim as judgment creditor in respect of arrear levies and
related costs due by an owner of a dwelling unit in a sectional title development is preferent to
the claim of the appellant as holder of a mortgage bond over the unit. In other words, this case
concerned the question of the interaction between section 15B(3)(a)(i)(aa) of the Sectional
Titles Act and section 66(2) of the Magistrates’ Courts Act and the determination of whether a
judgment creditor’s claim for arrear levies and related costs in respect of a dwelling unit in a
sectional title development is preferent to the claim of the holder of a mortgage bond.

Legal principles used and applied: it had been a long-standing practice in dealing with the
provisions of section 66(2) of the MC Act to regard a mortgagee as having a claim preferent to
that of a body corporate. A body corporate was not entitled to sell the unit without regard to the
security it enjoyed in terms of the mortgage bond. It submitted that the effect of the order sought
by the body corporate would be to render its security valueless and that all mortgagees in its
position would be exposed to having their security sold without notice to them for amounts
sufficient only to cover debts due to the bodies corporate.

In terms of the case of Johannesburg Municipality v Cohen’s Trustees 1909 TS 811 the local
authority has a right to veto the transfer of property until its claims in respect of rates are
satisfied. The result, of course, was to create, in effect, a very real and extensive preference
over the proceeds of rateable property realised in insolvency; and to compel payment of the
burden thus imposed before a sale of such property could be carried through, even in cases
where insolvency had not supervened. The hold over the property thus given to the local
authority is entirely the creation of the statute; its object was to ensure payment of the liabilities
due by ratepayers as such, and one would therefore think that it was intended to continue until
all liabilities arising out of rates had been discharged.

A body corporate’s claim to arrear levies does not create a lien in the strict legal sense or, in the
words of s 55(2) “a claim ranking in priority” to other claims. The right may be “not wholly in the
nature of a lien or a hypothec but sui generis”, but it is nothing more. The basis upon which this
conclusion is drawn is that commercial undertakings (indeed the public generally) requires
certainty from our law rather than doctrinal purity or juristic rightness, and mortgage bonds have
enjoyed a certain and preferred existence for many years, which should not be disturbed. If
Parliament wishes to bring about a change, then the intention to do so must be clearly
expressed and the ambit of the change clearly defined.

Ratio: Radebe’s estate was not sequestrated and the bank’s claim as mortgagee is preferent in
terms of the provisions of s 66(2) of the MC Act. The body corporate consequently does not
have the right to sell the unit in question in execution without reference to the security afforded
to the bank by the mortgage bond. It follows that the Court below erred in making the order it
did and the appeal was upheld.

Obiter: The court dealt with the extraordinary results that would follow and impact upon
bondholders in the event of the body corporate having a preferent right. Hartzenberg J who
heard the application in the Court below, in his judgment at 73D-74D, before interpreting the
relevant statutory provisions, dealt with the reverse side of the coin and considered the
difficulties experienced by bodies corporate who are faced with owners who default in their
obligations to pay levies and related costs and the consequent socio-economic problems.

These problems clearly weighed heavily with the learned judge when he interpreted the
statutory provisions in question. In an unreported judgment in the Transvaal Provincial Division
in Regspersoon van Solitaire v Julian Candice Neeuwfan (20 May 2002-case no: 22118/2001),
Swart J expressed similar concerns. In the article by CG van der Merwe, the learned author
considered whether a body corporate’s claim for outstanding levies should not be converted into
a form of statutory hypothec that would qualify as a true preferent right. In respect of insolvency
he submitted that a body corporate’s ability to recover arrears fully may be impeded by the
existence of a pre-existing mortgage on a unit justifying the creation of a form of statutory
hypothec in favour of a body corporate.

Bodies corporate have to be vigilant and take early steps to recover monies due to them so as
to minimise possible negative effects on owners of other units within a development. In the main
the problems raised are for consideration not by the courts but by the Legislature.

Order: The order of the Court a quo was set aside and substituted with the following: ‘The
application is dismissed with costs including the costs of two counsel (to the extent employed)’.

Enforcement of non-financial obligations

The Sectional Titles Act does not provide the body corporate with effective sanctions in the case
of non-compliance with non-financial obligations. Some sanctions contained in the rules include
(i) that persistent breach of the conduct rules, despite written warning by the trustees or
managing agent to refrain from such breach, will result in the sectional owner involved being
denied the right to vote for ordinary resolutions at general meetings; etc.

12. Payment of levies and procedure for recovery of same in the event of non-
payment
Section 3(2) of the Act provides that liability for contributions, save for special contributions,
accrues from the passing of a resolution to that effect by the Trustees of the Body Corporate,
and may be recovered by the Body Corporate by an application to the Ombud from the persons
who were owners of units at the time when such resolution was passed, provided that upon the
change of ownership of a unit, the successor in title becomes liable for the pro rata payment of
such contributions from the date of change of such ownership.

Accordingly, in the event of a unit owner falling into arrears with respect to levy contributions,
the Body Corporate may make an election as to whether it wishes to refer the matter to the
Ombud or to a court of law. It will obviously be less expensive referring the matter to the
Ombud, but it may depend on the circumstances, particularly if there is a dispute by the owner
as to whether the amount has been correctly determined.

Pause for reflection:

Can a court issue an ejectment order against persons who continually contravene the
conduct rules of the scheme?
See Badenhorst, page 489 – Body Corporate, Shaftesbury Sectional Title Scheme v Rippert’s
Estate and Others

Other forms of ownership/possession

ii. Share blocks

Ownership of a unit in a share block scheme is referred to as pseudo-ownership as it represents

a combination of common law possession and company law rules, which create the “illusion of
ownership”.

A share block scheme is one in which a company which has real rights to a property allocates to
its shareholders a right to use and enjoy a portion or the whole of that property for a particular
period. The share does not pay a dividend.

The “owner” acquires a personal (not real) right in respect of the property. The Company is the
owner or holder of the real rights in the property.

Distinction between sectional title and share block schemes

Sectional Title Share block

Person owns the “unit” (real right) Person acquires a personal right against the
company to use property

Developer must own the land and establish It is quicker and easier to set up a share block
the scheme

Difficult to convert to Share Block Easy to convert to Section title

~~~~~~~~
PROTECTION OF OWNERSHIP42

I. Introduction

Our law jealously protects the right of ownership but that protection is subject to various
restrictions: constitution, common law, statute, self-imposed restrictions [under contract]. Under
the common law there is a very important rule: nemo dat qui non habet. You cannot transfer
what you don’t have: you cannot transfer more rights than you hold.

What are the remedies provided for for the protection of ownership?

1. Real remedies
2. Delictual remedies
3. Unjustified enrichment

When looking at remedies, one must find the most appropriate remedy, then identify the
requirements of the remedy, then identify what the owner gains by the particular remedy.
The final step is to look at what is referred to as the recovery of disputed property (res litigiosa).
The question here is whether disputed property can be sold.
- Property is sold by A and transferred to B under a contract which is either void or voidable.
- The position in South African law is that disputed property can be validly sold. The
contract between B and C is valid inter parties but C will be bound by the judgment of the court

42
Van der Walt, page 144 et seq.
if A institutes action for recovery of the property. A will be able to recover the property by
execution without fresh proceedings.

Real remedies

These involve the restoration of the property to the owner: restoration of physical control of the
property to the owner. Real remedies may also involve confirmation of the ability of the owner
to exclude others from access, use or enjoyment of that property. For example, an interdict
would be one instance where an owner excludes others.

Rei vindicatio

This is the most important remedy as far as protection of ownership is concerned:

It is based on the principle that an owner cannot be deprived of his property without his
consent. Our law says that an owner is entitled to recover his property from anyone who has it
without his consent. This principle was confirmed in the leading case of Chetty v Naidoo. The
principle in that case is that an owner can recover his property from anyone who has his
property without his consent wherever he may find the property. In this case, a lease was
involved:

Chetty v Naidoo: The lease had expired and the defendant claimed that there was an
agreement that the lessee should continue to be in occupation of the property. The lease
expired but she claimed that she was entitled to stay on the property under a new arrangement.
The court found that she didn’t have entitlement. The owner who instituted the rea vindicatio
was successful in acquiring an ejectment order (when the property concerned is immovable,
the solution is an ejectment order).

Another important principle in our law is: nemo dat qui non habit. Therefore, when a non-owner
purports to transfer rights from a bona fide third party, the true owner remains the owner and
can vindicate the property.

In order to succeed under the rei vindicatio, the owner has to fulfil three requirements:

1. Proof of ownership
This must be proven of a balance of probabilities.
- Once the owner has proved ownership, its continuation is presumed.
- The owner is not required to show that the defendant is in possession of the property
unlawfully.
- If an owner makes an admission that the defendant had acquired possession with his
consent [contract], he now has to prove that the contract in question has been terminated.
o An owner proves ownership of immovable property through production of the title deeds of
the property
o An owner proves ownership of movable property through production of proof of purchase,
invoices, registration documents of a vehicle

2. Proof that the defendant was in possession at the commencement of the action
If the defendant is not in possession at the commencement of the action, restoration is
impossible. This is not the appropriate remedy.

3. Proof that the property exists and is clearly identifiable

If the property is no longer in the same state, [acceded to immovable, destroyed], then this is
not the appropriate remedy.
Once these three requirements are satisfied, the onus is on the defendant to provide a
justifiable reason why he should retain possession.

Effect of the rei vindicatio

- Where the rei vindicatio succeeds, the owner is not obliged to compensate the defendant,
even if the property was acquired in good faith
- The defendant is required to restore the property along with its fruits
- But there is an exception to this: if the defendant is a bona fide possessor, he is entitled to
take any fruits that accrue before commencement of the action
- Sometimes the defendant fraudulently parts with possession in order to defeat the
vindication action. In that case, the owner must seek a delictual remedy

There are limitations to the rei vindicatio:

1. Common law: the defence of estoppel can be raised in certain circumstances.
2. Statutory restrictions: these restrictions relate to land.

- Section 23 (6) of the Constitution:

No one may be evicted from their land without a court order and only after all the relevant
circumstances have been considered.

- Prevention of Illegal Eviction and Unlawful Occupation of Land: section 4 (1)

This is applicable in lease agreements and sales in execution and any other situation where a
person is being evicted from a home, dwelling or shelter. It is applicable in residential homes,
but not to buildings which are used for commercial purposes. If land/house is used for business,
trade or industrial purposes, the rei vindicatio can be used to evict a person.

- The Magistrates’ Court Act: A sale in execution cannot be challenged if the purchaser of
that property bought it in good faith. The previous owner cannot challenge the sale in execution
and subsequent transfer of ownership

- Insolvency Act: Sales conducted by company liquidators and trustees of liquidated estates
are treated as sales in execution

- If the court has already awarded the property to the plaintiff, the defendant can raise the
plea of acceptio rei judicatae (matter adjudged).

- Stolen money and negotiable instruments that are payable to bearer cannot be vindicated
if the person who has the negotiable instrument has given value for it and he has acquired
these in good faith [Woodhead v Gunn]

The defences to the rei vindicatio:

- Estoppel
- The defendant can prove that the plaintiff is not the owner of the property
- The defendant is no longer in possession of the property
- The property is no longer identifiable [destroyed]
- The defendant can show that he has ius possidendi [right to possession, unsuccessful in the
Chetty case]

Estoppel
Ownership is not disputed, but possession cannot be recovered for the duration of the estoppel
(suspends an owner’s right to vindicate). 43 Estoppel is used in situations where the manner in
which the owner has conducted himself necessitates he be stopped from recovering
possession.

This arises where the owner has placed his property in the control of someone else and the
owner has negligently given the impression (in the eyes of a third party) that this person who is
in control is in fact the owner or is at least entitled to dispose of it.

The defence has to prove four requirements:

1. Representation by the owner by word or conduct that the person who disposed of his
property was the owner or authorised to dispose of that property
2. The representation must have been made negligently in the circumstances
3. The representation must have been relied upon by the person who is raising estoppel
4. Reliance on the representation has caused the defendant to act to his detriment

Experience has shown that it is a very difficult defence and the courts have said that when an
owner has entrusted his property to someone else, it is not enough. It must be entrusted in
such a way that the owner has indicated that the person has dominium or the right to dispose.

- When an owner gives documents of title to the possessor

- The owner allows the possessor to possess the property in circumstances that are
misleading: the owner of a car a car goes to a dealer and instructs him to sell his car. He allows
him to display the car with his stock in trade. Third parties would assume that the car is owned
by the dealer, even where the owner has instructed the dealer to phone him before a sale

(1) Electrolux v Khota: someone by the name of Bailey used a fictitious name, Grubb, and
ordered 15 refrigerators and instructed the seller to place them outside the place where he
conducts business to be moved into a store room later. He told Electrolux that he would pay for
them by cheque, payable on demand. He then sold them to Khota at a discount. The cheque
given to Electrolux by Bailey (Grubb) was dishonoured and the owner sued Khota, who pleaded
estoppel.

- The defence failed: the court held that the owner’s negligence must be proven to be real and
proximate cause of the purchaser’s belief that the possessor did have dominium or ius
disponendi.

Concor Holdings v Potgieter: in this case, the appellant was a manufacturer and supplier of
paving stones. These were sold subject to a reservation of ownership until the stones were fully
paid for. He supplied paving stones to a builder, knowing that he would install them on the
property of another person. The builder did not pay the manufacturer, as he was declared
insolvent. The manufacturer then sought to vindicate the paving stones from the respondent.
The defence of estoppel was successfully raised because the court held that the appellant had
negligently misled the respondent by allowing him to believe that the builder had the authority to
transfer ownership of the stones. In fact, the alienation of the paving stones had taken place
with the approval of the manufacturer. The court laid down two requirements where the defence
of estoppel relies on the conduct of the owner:
- If there is representation by conduct, the representor ought to know that such representation
will be relied upon and he must have foreseen that the representee will be misled.
43
According to the case of AGS van Suid-Afrika v Capes 1978 (4) SA 48 (C), estoppel applies to both immovable
as well as movable property, although it is used more often with respect to movables.
-The representee must have acted reasonably in interpreting that representation.

Konstanz Properties v Spilhaus: the court said that there was no accession and estoppel in
this case was successful: the owner supplied the irrigation system knowing that it would be
installed.

Grosvenor Motors v Douglas 1956 (3) SA 420 (A): the plaintiff sold and delivered a car to K.
K had been introduced to the seller by a car salesmen, who told the Douglas that K was a good
customer and employed. K said that he had left his chequebook in Welkom. The salesman was
instructed to accompany K to fetch the chequebook. It was arranged that the car would be given
to K on delivery of the cheque. Since the documents for the car had been mislaid, K requested
that he be given documents indicating “why he was in the car”, and to indicate that he had
bought the car. K paid by cheque (which was dishonoured) and then sold the car to the
respondent. The question to be decided was whether this document was a representation. It is
imperative to prove that impression created is that the person in control is the owner or had the
authority to dispose of property. In addition, is not necessary to prove intention.

-The court said that the document could not be stretched that either the car had been sold for
cash or credit.

-The court went on to say that even if the document was calculated to mislead others, and even
if the plaintiff had been negligent, the document could not be said to be the proximate cause of
the sale. K’s charm and sweet talking was what the defendant relied upon, rather than the
document. Misplaced confidence does not amount to negligence.

- Even though the plaintiff had conducted business in a manner not altogether in accordance
with the standards of more cautious commercial practice, the court did not find that he was
negligent

Quenty Motors v Standard Bank - Because the car was displayed in the garage with the car
owner’s stock. There was negligence, reliance and then prejudice.

In most cases of estoppel, someone buys property, gives a cheque which has been
dishonoured and the “fly by night intermediary” sells the property. The intermediary usually flees
or is broke. If the owner’s rei vindicatio succeeds, the defendant loses. Either way, someone
loses. The courts have said that negligence must be alleged and proven.

Consequences of successful defence of estoppel?

- Immune from rei vindicatio
- Bona fide acquisition?

Actio negatoria

This is also a real action. The purpose of the action is to assert the owner’s right in the property
by excluding others from exercise of rights over the property and one of the consequences of
the action is that the owner can obtain an interdict against anyone who is interfering with the
exercise of ownership. This action has three requirements:
1. Proof of ownership
2. Proof that the property exists and is clearly identifiable
3. Proof of infringement by the defendant
a. Either by exceeding the rights that have been given to him or;
b. That the defendant is exercising a right which he/she does not have
Delictual remedies

This is where restoration of physical control is impossible:

- The property has been lost/destroyed or so damaged that it is no longer clearly identifiable
The owner of the property claims compensation for loss suffered because his/her property has
been alienated, damaged or destroyed or the owner has been prevented from exercising
possession/exercise of any right in that property [a lease of a property – the lease expires and
the leasee remains in possession of the property].

There are 3 types:

- Condictio furtivia
- Actio ad exhibendum
- Actio legis acquiliae

Condictio furtiva (stolen property)

This is a real remedy. It is available where there has been a theft.

- The owner institutes this action against the thief or the heirs of the thief. It is not available
to a bona fide or mala fide acquirer of the property, or an accomplice of the thief
- If the action succeeds, the highest value of the property since the theft was committed will
be awarded.
- This action is available to the owner or anyone who has an interest in the property (a
lessee, for example).
- Theft is given a wider meaning than in criminal law: for the purposes of this action, it is
sufficient that the defendant took possession of the property without consent of the owner

In the case of movables, this action can be used pending the rei vindicatio. The requirements:
i. Ownership
ii. The thing exists and is identifiable
iii. The defendant’s conduct amounts to an unlawful/ultra vires infringement of the owner’s
entitlements.

Clifford v Farinha – the plaintiff was a lessee of a motor vehicle and the plaintiff went overseas
and parked the car in his garage. His sister-in-law, without permission drove the car to a
shopping complex, where it was stolen. The plaintiff sued the sister-in-law and it was held that
he was entitled to this action.

Actio ad exhibendum

This is a personal action arising in delict from Roman law. It was instituted in conjunction with
the rei vindicatio and the aim was to compel the defendant to produce the thing to be
vindicated. The defendant must have wrongfully disposed of the property, in bad faith, in order
for the applicant to succeed with this claim.

In modern law, this particular action is instituted by the owner against anyone who wrongfully
and intentionally disposed of the property. The owner will be entitled to recover the value of the
property since it cannot be produced anymore. The basis of this action is mala fides on the part
of the defendant.

- B sold a car to C. The car is the property of A. A learns that the car is with C and informs
C of his ownership of that car. C, having been informed that A is the owner of the car, sells it to
D. D writes off the car in an accident.
- A cannot institute the rei vindicatio because the property has been destroyed. The most
appropriate action is then the actio ad exhibendum.

There are four requirements:

1. Proof of ownership: this actio can only be instituted by an owner; a person who may have
an interest in the property but is not an owner is not entitled to the action
2. An intentional act of disposal: sale, destroyed, etc.
3. An element of mala fides; this is the basis of the action
4. Proof of patrimonial loss or damages

If the action succeeds, the owner recovers the value of the property at the time of disposal

Actio legis acquiliae (general delictual action)

Where the property is damaged or destroyed negligently or intentionally by the defendant. The
claim is not limited to physical damage to the property; it also includes purely economic loss.
The requirements for the action:
1. Act or omission
2. Wrongfulness (negligence or culpa)
3. Causation
4. Patrimonial loss

Actio in personam

Owner suffers patrimonial loss as a result of loss/infringement.

Claim for compensation, physical return not possible.

Unjustified enrichment

Available when a person has been unjustifiably enriched at the expense of another person. This
is a last resort.

Condictio sine causa

This is a claim against anyone who has been unjustly enriched at the expense of the owner. In
terms of our law, no one can be unjustly enriched at the expense of someone else.
- It could be resale or consumption
The requirements for this action:
1. The defendant has to be enriched and the plaintiff must be impoverished
2. The enrichment of the defendant must be at the expense of the plaintiff
3. The enrichment must have been unjust

Despite the Constitution, owners still maintain the right to exercise and retain control. Law
offers owners extensive protection when ownership is infringed/limited.

Transfer of ownership is founded on the owner’s entitlement to alienate - nemo plus iuris
transferre potest quam ipse habet.

Marcus v Stamper and Zoutendijk 1910 AD 58

SECTION C: POSSESSION

Van der Walt and Pienaar Introduction to the Law of Property 6th edition (2006) 167 – 222
 Badenhorst et al Silberberg and Schoeman’s The Law of Property 5th edition (2006) 273 – 319
Mostert et al The Principles of The Law of Property in South Africa (2010) 65 – 86

The term possession is used by lawyers and lay persons alike but the understanding of the
term may differ. It is a nebulous concept with no precise meaning. Its meaning may depend on
the context and the purpose for which the word is being used.

Possession describes the situation where a person has physical control (detentio) of a thing
together with the mental attitude (animus possidendi) that includes a consciousness of that
control.

There is a divergence of opinion as to whether to regard possession as a right (a real right) or a

factual situation. It should be regarded as a right sui generis.

Possession often constitutes an entitlement flowing from some other right a person has, such
as pledge, lessee or borrower or an owner may possess property on account of the real or
personal rights they may have. But this does not take into account the fact that even a
possessor without legal entitlement, eg: a thief, is protected by the mandament van spolie.

One must draw a distinction between someone who is a possessor and someone who is a
custodian.

- A owns a bicycle and B steals it. B goes to a shopping mall on the bicycle and sees C. He
tells C to hold onto the bicycle momentarily. A sees the bicycle with C and takes the bicycle
from C by force. Can C institute the spoliation order? He cannot form an intention to derive a
benefit because he is merely the custodian thereof.

Definition
At the very least possession denotes a compound of a physical situation and a mental state
involving a person’s physical control of a thing (corpus) and that person’s mental attitude
(animus) towards that thing.

Before a possessor can be regarded as a possessor he/she:

 Must be in effective physical control of the property
 Have the intention to derive a benefit from the possession

Possession of both movable and immovable property may be acquired by either delivery
(traditio) or occupation (occupatio).

The test for initial acquisition of possession is stricter than for its continuation.

Possession need not always be exclusive. Partners or spouses (whether married in or out of
community of property) can jointly possess property.

An agent may exercise physical control on behalf of the possessor.

The mental element must be present. However, it is impossible to give a definition to the
mental element (Marais v Engler Earthworks (Pty) Ltd 1998 (2) SA 450 (E)).

The determination of the content of the mental element may depend on the purpose or object of
the property, eg: possession for the purpose of acquiring ownership requires the presence of
the intention of an owner (animus domini) in addition to the physical element.
In statutory offences, the meaning of possession usually depends on the interpretation of the
legislation relevant to the offence. It might well be that, unlike in the Property Law context,
mere physical control is sufficient (eg: possession of illicit diamonds).

What constitutes the elements for protection of possession with respect to invoking a spoliation
order is a tricky question. The mental element is complied with if the holding by the applicant is
with intention of securing some benefit for him/herself. But such intention is interpreted widely.

Right of possession and right to possession

A distinction is drawn between the

 Ius possessionis (right of possession)
 Ius possidendi (right to possession)

The use of ius possessionis is only available to one who is actually in possession of a thing

The ius possidendi entitles one to demand possession of a thing and may exist in addition to or
independently of the ius possessionis.

 The owner, pledge, lessee or borrower may possess a thing in respect of their respective
real or personal rights over it. When actually in possession, they will have both the ius
possessionis and ius possidendi.
 A thief, on the other hand, will only have the ius possessionis, hence a thief may invoke
the mandament van spolie.
 A person may therefore have the intention to control a thing without actually being in
possession of the particular thing, and conversely may have the right of possession (ie:
being in physical control) without having the ius possidendi.

Example:
 A is the owner of a car which he/she drives and parks in the garage every day. A has
both the ius possessionis and ius possidendi.
 When A leases the car to B for a month, B acquires the ius possidendi by reason of the
contract, but will only have the ius possessionis when the car is actually delivered to him.
 After one month, if B has not returned the car he/she will still have the ius possessionis
but the ius possidendi has reverted to the owner.
 If C steals the car and sells it to D, a purchaser in good faith, D will only acquire the ius
possessionis as the ius possidendi remains with the owner. Remember the nemo dat rule.
 A thief and a purchaser in bad faith (mala fide), eg: the purchaser of stolen property, both
have the ius possessionis, but cannot acquire the ius possidendi.

The elements of possession

There are two requirements to become a possessor:
(a) The person must be in effective control of the thing; and
(b) The person must have the intention to derive a benefit from the possession.

Objective/physical control element

The physical control must be effective.

This can be acquired by either delivery (movables) or occupation/appropriation (immovables).

The degree of physical control required depends on the nature and purpose of the thing, eg:
whether it is movable or immovable, large or small.

 The more portable the thing is, the more actual physical control is needed to satisfy the
corpus element, eg: a pen and a ship.
  The degree of physical control will differ when dealing with wild animals (R v Mafohla),
ships (Cape Tex Engineering Works (Pty) Ltd v SAB Lines), shipwrecks (Reck v
Mills; Underwater Construction and Salvage Co (Pty) Ltd v Bell), land (Nienaber v
Stuckey), buildings and building sites (Scholtz v Faifer).

Wild animals

R v Mafohla – wounding an animal is insufficient for purposes of acquiring ownership by

occupation (taking physical control of it).

Shipwrecks

Reck v Mills – The first respondent failed to prove that he had obtained physical control over
the condenser. Attaching a rope with a buoy to the condenser did not constitute the obtaining
of the control thereof.

The court required direct physical control over a wreck or part thereof. Possession can only be
acquired of those things which are physically removed from the wreck.

It was held obiter that the fastening of a rope with the attached buoy to a part of the wreck
would not be enough to constitute the required direct physical control.

The authors in Silberberg criticise the test laid down by the appeal court as too rigid, as too
much attention is focussed on constant physical control. They prefer the approach in
Underwater Construction and Salvage Co.

Underwater Construction and Salvage Co (Pty) Ltd v Bell – While on the one hand it is not
sufficient that there is a mere ‘seeing’ of the thing claimed, ownership is acquired as soon as
there is a seizure with the intention of becoming owner. Ownership once acquired, cannot be
lost by failure to remain in physical control.

The fact that the blades had not been hoisted onto Underwater Constructions’ ship did not
mean that they had not been seized at all.

There was a seizure – a taking of possession – as soon as they were forced apart from the
wreck, and this having been done with the intention of acquiring ownership rendered the
plaintiff the owner thereof.

Ships

Cape Tex Engineering Works (Pty) Ltd v SAB Lines – in this particular case, the applicant
had carried out repairs on a ship that was owned by the respondent. When the work was
completed, the applicant left two of its employees on board the ship, continuously for 24 hours
a day, in order to retain possession of the ship for purposes of exercising a lien over the ship.
The respondents did not pay for the repairs and the applicant applied for a rule nisi preventing
the respondent from removing the ship, claiming that it had a possessory lien over the vessel.
On the return day it was held that the applicant had failed to prove that it had the necessary
physical control of the vessel to establish a possessory lien.

The respondent nevertheless removed the ship so the applicant now applied for a spoliation
order so that they could continue to exercise a lien. That application failed because the court
ruled that the applicant did not have effective physical control of the ship: the act of leaving two
employees on the ship was insufficient for purposes of physical control. The court said that
because the ship was at all times under the control of the captain. The employees left on board
had no authority whatsoever on the ship. They spent most of their time loitering on the ship.
The court made the following important points:
  It is trite law that natural possession is comprised of two essential elements; the one being
physical and the other being mental. There must firstly be the physical control or
occupation of the thing in question, and secondly, there must be the intention of holding
and exercising possession.
 SAB Lines claimed that while repairs were being effected, the vessel was nevertheless at
all times under the control of the captain and the crew who remained on board and were
employees of SAB Lines.
 It seems to me that the fact of the matter is that these two representatives did not in truth
retain any true physical control over any portion of the vessel. Accordingly, I cannot see
how their presence on board or the presence of one of them at any time on board on the
5th of December could constitute the basis of a possessory lien.

The court came to the conclusion that ‘leaving two workmen behind on a vessel in the harbour
who did not have any influence over whether the ship could leave the harbour or not and who
could not interfere with the management of the vessel, was insufficient to qualify as a
possessory lien’.44 The Court also rejected the argument that the workmen constituted a
‘symbol’ of possession stating that a party claiming a lien cannot substitute for real and actual
control, something in the nature of a symbol.

Land

Silberberg states: “once possession has been acquired, continuous physical contact, or in the
case of land, continuous occupation or use is not necessary for the retention of such
possession.45

Nienaber v Stuckey 1946 AD 1049 – The applicant, a lessee on a farm, had ploughed his land
in July and thereafter removed his implements from the land. From July until September
neither he nor his employees were on the land. In September when he returned to the land to
plant, he found the gates locked and was prevented from having access to the land. He
applied for a spoliation order, which was granted. It was argued on behalf of the respondent
that the applicant did not have sufficient physical control of the land. The court rejected that
argument on the basis that there was nothing requiring the physical presence of the applicant
on the land during those three months. From this case, it is clear that once physical control is
established, there is no need for continuous presence on the land.

It was held here that there was nothing that required the presence of the applicant or his
employees or any implements on the land between ploughing and planting; there was no
reason why his conduct should be held to have affected the continuance of his possession.

This approach was followed in the case of Estate van der Horst In Re: Estate Herold.

Estate van der Horst: In re Estate Herold 1978 1 SA 299 T – In the case of land continuous
occupation or use is not necessary for the retention of possession – normal farming activities
would, for example, justify that lands lay fallow at times in the case of seasonal crops. It was
recognised by this case that in the farming community, land is sometimes left to lie fallow.
However it is necessary for the possessor to be capable of resuming control over it at any time.
Detentio does not require continual physical occupation; a person has detentio even if he
leaves the property but is capable of assuming occupation at any time. The person in question
should manifest the power at his will to deal with the thing as he likes and exclude others.

Buildings and building sites

44
Silberberg, 277.
45
Ibid, 278.
Arguments often arise with builders, usually in the context of a builder’s lien. The degree of
physical control with regard to buildings can be satisfied by the mere possession of keys if the
building has reached a stage where it can be locked. Problems arise in relation to a partially
complete building (not yet lockable).

Scholtz v Faifer – The court had to decide what would constitute physical control of a partially
completed building. The court held that effective physical control is exercised where the builder
regularly visits the land for purposes of continuing building work. Temporary absence, for
example overnight/weekends/holidays will not destroy the physical control aspect.
 Physical control by a builder of the keys of a building which is in such an advanced stage
of completion that it can be locked up, would be equivalent to physical control of the
building.
 Where work is suspended for a considerable time the builder would have to take some
special steps such as placing a representative in charge of the work, or putting boarding
around it, or doing something to enforce his/her right to physical control [erecting a fence
around the site, placing a representative (guard)].
 If he/she chooses to leave the building derelict, then no matter what his/her intention may
be, the physical element is absent and possession is lost.
 In essence the person who wants to resume physical control over a thing has to be able to
do so without any interference from someone else or assistance from someone else. The
moment such assistance is needed, possession has been lost.

The Mental Element

It is impossible to give a single comprehensive definition of the mental element of possession

as the content depends on the particular legal consequences of possession which one has in
mind.
 The traditional view is that possession can only be acquired by exercising physical control
(the corpus, or physical element) with a particular state of mind (the animus, or mental
element).
 Physical control must be accompanied by a particular intention consisting of more than a
mere awareness of physical control.
 The person in physical control must have the mental capacity to form such an intention.

Marais v Engler Earthworks (Pty) Ltd 1998 2 SA 450 (E) – The applicant, who was an
unrehabilitated insolvent,46 instituted spoliation proceedings against the respondent who
objected to his locus standi to institute the proceedings. The court rejected the argument and
ruled that an insolvent retains the capacity to sue and be sued, and moreover has the capacity
to have the animus element.

The court stated:

 The applicant’s capacity to litigate is limited only to the extent provided for in the
Insolvency Act
 An insolvent’s disability is confined to the legal consequences arising from the fact that his
estate vests in his trustee who has exclusive authority to exercise all rights in respect of
such property. The insolvent nevertheless has a real reversionary interest in the estate.
 An insolvent has the physical and mental capacity to possess an object as he has an
interest in regaining them once rehabilitated. He therefore has the right to protect that
possession by means of the possessory remedies.
46
Insolvent means that a court of law has declared you as such. Once you are insolvent, you lose control of your
estate, which falls under control of a trustee. You only regain control over your property when you become
rehabilitated – you apply to court to be rehabilitated by showing that debts have been paid. The status of insolvency
limits your capacity – you cannot control your estate.
  Accordingly, the respondent’s objection to the applicant’s locus standi failed.

The intention to derive a benefit

This intention requires more than an awareness of physical control. The person who is
exercising physical possession must be capable or must have the capacity to form an intention
to acquire a benefit (Marais v Engler Earthworks).

S v Cameron: the capture of lobster; in terms of fishery legislation, one is not supposed to
capture lobster which is below 7mm. In this case, the accused captured lobster which was
undersized. He was caught by a Parks Board official just after pulling out his nets. The official
found that 4 lobsters were undersized. His defence was that he intended to first weigh them. He
was found guilty, and then appealed. The SCA found him not guilty because they said that the
relevant legislation required proof of intention to find someone guilty. In this instance, there was
no reason to disbelieve his story.

Spoliation can be committed in relation to movables, immovables and quasi-possession of an

incorporeal right. Note here that spoliation cannot be committed in respect of human beings.
Such a corporeal right can be a real right or a personal right that entitles the holder to some use
of a thing for example, servitude or the right to the supply of electricity or water.

Spoliation in relation to quasi possession

Bon Quelle Munisipaliteit – the mandament van spolie was granted for the interruption of the
flow of water under an alleged servitude. The respondents blocked the water. The court held
that it was not necessary to prove the existence of the servitude. All that was necessary was
proof that the applicant exercised such a right.

Tigon v Best Yet Investments – the appellant was a shareholder and its name appeared in
the register of shareholders. The applicant’s name was unilaterally removed from the register
and the applicant lodged an urgent application for its name to be immediately restored to the
register of members in respect of the shares it held. [If one is a shareholder in a company, your
name appears in a register. The presence of your name allows you to trade in those shares].
The court held that the respondents had to prove quasi-possession of the right in the sense that
they actually exercised that right and that the exercise of that right had been unlawfully
terminated. In granting the order, it was held that preventing registration of shares was done
without following the proper procedure.

SKETCHY: Xsinet v Telkom SA – The applicant was an internet service provider and had
acquired a telephone system and bandwidth system from Telkom SA. A dispute occurred over
monies allegedly owed by Xsinet to Telkom. The respondent disconnected the telephone and
bandwidth system. The applicant sought a spoliation order. The trial court granted the order but
the SCA reversed the decision. The SCA held that the court a quo erred in its finding that the
use of telecommunications systems constituted an incident of possession of the premises
occupied by Xsinet. The use of communications systems is not an incident of possession in the
same way as the use of water or electricity installations. The court held further that Xsinet was
not in possession of the telecommunication system installed on its premises on the basis that
disconnection was possible from Telkom’s premises. It further held that there was no evidence
that Xsinet was ever in possession of any of the mechanisms by which its equipment was
connected to the internet. Finally, the court held that there was a contractual dispute between
the parties and that the order sought by Xsinet was essentially to compel the specific
performance of a contractual or personal right. The mandament van spolie has never been
used to enforce personal or contractual rights.
If you are seeking a mandament van spolie in relation to an incorporeal right, you must prove
that you have possession of the corporeal thing.

Legal consequences of possession:

- It may lead to the acquisition of ownership through various methods
 Delivery under derivative acquisition (intention to transfer and intention to receive)
 Prescriptive acquisition (intention to become owner, and physical control)
- There is a presumption that a possessor of a movable is the owner of that movable (the
presumption is rebuttable)
- The difference between possessors in good faith and possessors in bad faith: the former
are entitled to fruits of the property in their possession which are separated prior to the
close of proceedings.
- Possession is necessary for the inception (creation) and continuance of the right of pledge
as well as lien.
- Possession is an element of a number of statutory crimes.
- A possessor is protected by the mandament van spolie.

Protection of possession
1. Mandament van spolie
 This remedy which seeks to restore possession that has been taken away unlawfully
 The purpose of this remedy is to restore the status quo
2. Possessory action
3. Prohibitory interdicts
 The remedies that seek to protect the possessor from disturbance in that possession
4. The delictual remedy aimed at compensating the possessor for patrimonial loss incurred
due to the unlawful actions of the defendant
5. The remedies which address the possessor who has made improvements on the
property of another. These remedies fall under “Compensation for Improvements”.

Remedy Circumstances Requirements Who can Relief Defences

use? available

Mandament Lost possession; Proof that Anyone who Restore status Challenge
van spolie respondent is applicant was can prove quo ante; no facta
spoliator; thing in peaceful and requirements damages probanda;
still in undisturbed allege lack of
respondent’s possession and locus standi;
possession; that respondent allege
requirements unlawfully excessive
can be satisfied deprived her of delay; allege
that restoration is
possession; no impossible
merits
considered

Possessory Possession lost; Prima facie Prove ius Recover Challenge

action circumstances proof that possidendi possession of facta
for mandament plaintiff has (entitlement to thing including probanda
van spolie do not entitlement to be in ejectment
apply be in possession) (subject to
possession (ius statutory
 possidendi); provisions
that defendant governing
was eviction) and
responsible for appropriate
removing damages if
possession thing no
from plaintiff or longer in
is currently in same state
control of the
thing

Prohibitory Possession Prima facie One who can Order to stop Challenge
interdict disturbed or right (temporary prove prima interference facta
threatened with interdict) or facie right and to prevent probanda
interference clear right (final (temporary further
interdict); harm interdict) or interference;
committed or clear right no claim for
apprehended; (final interdict) damages but
irreparable court has
damage; discretion to
interdict is only substitute
suitable remedy award of
damages for
final interdict if
would give
sufficient
protection

Delictual Claim for All delictual One who can Damages Challenge
action damages elements prove delictual award facta
because thing elements probanda
cannot be
recovered

1. Mandament van spolie

This is sometimes referred to as the spoliation remedy. The purpose of the remedy is to restore
possession to a possessor who has been unlawfully dispossessed. Spoliation refers to unlawful
deprivation of possession. In this context, unlawfully is given a wide meaning: force, threats,
fraud, deception; any dispossession without the consent of the possessor.
The spoliation remedy is a summary remedy usually issued upon urgent application aimed at
restoring control of property to the applicant from whom it was taken by unlawful self-help
without investigating the merits of the rights of the parties to the property. The reasoning is
well-founded in the Nino Bonino v de Lange case: no person is allowed to take the law into
his own hands by using self-help to settle a property dispute.

This remedy is derived from Roman law. The position under Roman law was that the merits of
the case were never investigated because the status quo had to be restored first. This is the
main difference between the mandament van spolie and other remedies for the protection of
possession. In other remedies, the merits of the case are considered.
No defence can be raised on the merits of the case (Meyer v Glendinning). For that reason, a
thief can theoretically institute the mandament van spolie. The basis of this reasoning is that the
law takes the view that the despoiled person must first be restored to possession before
anything else is considered.
 The mental element is complied with if the holding by the possessor is with the intention
of securing some benefit for him/herself. This intention is interpreted widely.

The mandament van spolie has three characteristics

- It provides temporary relief
- It is a robust/forceful remedy
- It is a speedy remedy

The applicant must allege and prove:

1. He was in peaceful and undisturbed possession of the property
2. He was unlawfully dispossessed by the defendant

It is a robust remedy:
Once the court is satisfied of these requirements, it will order a restoration of the status quo
ante omnia (at once). The rights of the parties are not considered at this stage. They are
reserved for the next suit. It can be said that the mandament van spolie is interim relief only. It
is preliminary to the main suit on the merits. By saying that it provides interim relief, it is a final
order only to the dispossession aspect. It does not address who has a right to the property. A
person who has been despoiled must firstly be restored to possession. This principle is almost
absolute. The result of this is that it sometimes operates harshly on the spoliator (“hard case”).

Elastocrete - the court expressed regret in granting the order because the applicant appeared
to be motivated by nothing more than a desire to embarrass the respondent as it was a matter
which was being resolved out of the court.

Rosenbuch v Rosenbuch – the marriage had come to an end and a divorce was taking place.
She had removed items such as linen, pots and cutlery. She claimed that he had assaulted her,
forcing her to move out of the house. She then took the items without his consent. The court
granted the order even though it found that the applicant (husband) was being harsh and mean-
spirited in seeking the return of household goods, removed by the wife from the matrimonial
home even though he did not need them as he was a wealthy man.

The court has no general or wide discretion to refuse the order where the applicant has proved
the requirements. The order will only be refused in very limited circumstances.

The third characteristic of this remedy is that it is speedy:

Since the merits of the case are not considered, the applicant who proves his case must be
restored to possession at once (ante omnia).
-The respondent is not allowed to make a counter-application.
-The defences to this application are limited, which reduces the possibility of disputes of fact.
- Further, the motion procedure is followed in this application, rather than the lengthy trial
procedure (the matter is decided on the basis of affidavits and other supporting documents and
the court will hear arguments based on those documents only – no witnesses are called in).

The applicant’s burden of proof

The applicant must allege and prove the two requirements, on a balance of probabilities
because of the finality of the order. A prima facie case is not sufficient.

(1) Peaceful and undisturbed possession:

Possession requires
1) effective physical control and
2) the intention to derive benefit from such possession.

Intention has been interpreted widely as is evidenced by the fact that protection of possession
has been granted to a wide range of persons, including lessees.

Nino Bonino v de Lange 1960 – this case involved the lease of a building which was operated
as a bar and restaurant. The lease agreement provided that, should the lessee use the building
for any other purpose, the lessor would repossess the building without notice or recourse to the
courts. The lessor alleged that the lessee had violated the lease by allowing gambling to take
place and locked out the lessee. The lessee applied for a spoliation order and the lessor relied
on the lease provision entitling him to cancel the lease. The Court said: It is a fundamental
principle that no man is allowed to take the law into his own hands; no one is permitted to
dispossess another forcibly or wrongly of the possession of the property, whether movable or
immovable. If he does so, the Court will summarily restore the status quo ante and will do that
as a preliminary step to any enquiry into the merits of the dispute.

Meyer v Glendinning 1939 CPD 84: the appellant was a trainer of horses. The respondent
took three horses to him to be trained, for a fee. After a few weeks, the respondent went to the
appellant’s stables and without notice, entered the stables and removed the horses. The trainer
applied for and obtained a spoliation order. It was held, on appeal, that the appellant was
entitled to a spoliation order. The court stated that Meyer held the horses entrusted to his
charge (had physical control of them) with the intention of securing/deriving some benefit for
himself and there was nothing to show that he had no such intention.

Mngadi v West Rand Administration Board 1981 2 SA 352 (T) – The appellant rented a
house from the Johannesburg City Council. The respondent evicted the appellant from the
house and took possession of it in terms of section 65(b) of the Housing Act 4 of 1966. It
obtained no court order, but repossessed the house through its own officials. Section 65(b) of
the Housing Act provides: “If the tenant of a dwelling constructed by a local authority fails to
pay rental, payable by him, on the due date, the local authority may –
(a) Take steps to recover the amount of the rental due by action in a competent court:
(b) After having given seven days’ notice by letter delivered either to the tenant personally or to
some adult inmate of the dwelling or by prepaid registered letter addressed to the tenant, at
the place where the dwelling is situated, by an officer authorised in writing by it, and without
having obtained any judgment or order of the court, enter upon and take possession of the
dwelling in respect of which the rental is owing.”

Quoting from Voet the court stated:

“The fundamental principle of the remedy is that no one is allowed to take the law into his own
hands. All that the spoliatus has to prove is possession of a kind which warrants the protection
accorded by the remedy and that he was unlawfully ousted”.

 As to the first requirement: the appellant proved her possession of the house. It is not
denied that she was the lessee of the house even while she was temporarily away.
Whether this caused her contract as lessee to expire or not, she remained in peaceful
possession for purposes of securing some benefit until ousted by the respondent.
 The second requirement she had to prove was that she had been unlawfully ousted:
(a) This section gives an extraordinary and drastic remedy to a local authority which, it is
common cause, respondent is. It virtually permits a local authority to take the law
into its own hands. It must therefore be strictly interpreted.
(b) Section 65 has not been shown to have been applicable and the drastic remedy
therein was not available to the respondent.
 (c) Thus, the appellant was unlawfully ousted from her possession. She has therefor
proved the two requisites and is entitled to a spoliation order.

The spoliator is ordered to restore the position before spoliation took place. This is the position
even if the spoliator is the owner of the property.

Fredericks and Others v Stellenbosch Divisional Council – the applicant had erected a
house using corrugated iron on municipal land and the council had then demolished his house.
The council did not give seven days’ notice, as required by law. Fredericks then applied for a
spoliation order, and the court ordered that the council should re-erect the house. The question
in this case which arose was dealt with obiter – if the council had destroyed the material in
demolishing the house, would they be ordered to replace the material. The court held yes. The
municipality was not only ordered to re-erect the structures, but ordered to pay costs as well.

Tswelopele Non-Profit Organisation and Others v City of Tswane Metropolitan

Municipality and Others – this case involved people who were squatting on municipal land.
They had erected their dwellings on municipal land, using whatever materials they could lay
their hands on. The municipality then destroyed these structures by burning them. Many of the
occupiers’ belongings were destroyed. The occupiers applied for a spoliation order. The court a
quo refused to grant the order on the basis that the materials used to construct the dwellings
had been destroyed. The order could not be granted but the Constitutional Court ruled that the
actions of the municipality violated their constitutional rights: the right to personal security,
privacy, dignity, violated their feelings and affronted their social standing. The court directed the
municipality to replace the materials that had been destroyed. They were ordered to erect
suitable dwellings, which could later be dismantled. People’s homes cannot be destroyed
without proper procedures being followed.

Kgosana v Otto – in this case, the applicants occupied privately owned land and erected
shacks on the land. The landowner immediately informed the local authorities and the shacks
were demolished. At each demolishing, the shacks were re-erected. This happened nine times.
Eventually the applicants applied for a spoliation order against the respondent. This order was
refused on the basis that the applicants were not in peaceful and undisturbed possession of the
land. Their possession did not clearly exist and was not sufficiently firm.

Mbangi and others v Dobsonville City Council – the facts are similar to the Kgosana case.
The applicants sought a spoliation order. The court said that they were not entitled to the order
because their possession was not sufficiently firm or established and the court used the term
“ensconced” [not yet firmly established]. The squatters in question were still in the process of
establishing their own possession.

Shoprite Checkers Pty (Ltd) v Pangbourne Pty (Ltd) – this case involved a dispute over
control of a car park outside a shopping complex. Shoprite were lessees in the complex. The
car park was mainly used by Shoprite customers. The owner of the complex then closed off the
park in order to carry out construction. Shoprite claimed spoliation on the basis that they had
been deprived of possession of the car park. The application was refused on the basis that
Shoprite did not have effective or sufficient physical control of the car park since they did not
have control of who had access to the car park.

De Beer v Zimbali Estate Management – the applicant (estate agent) used an access card in
order to gain access to a housing estate and the card was deactivated. She claimed a
spoliation order. The court held that she did not have an interest in the estate above that of an
intermittent visitor and could not establish sufficient/effective detention (physical control).

(2) There must be proof of unlawful spoliation:

Unlawfulness is given a wide meaning: it includes any dispossession without consent of
possessor.

Van Wyk v Kleynhaus – the appellant had used a road over the respondent’s property. The
respondent closed the road. The appellant sought a spoliation order over the appellant, which
the court granted. The court ordered the respondent to unlock the gates, which he had put up
and remove any obstructions which he had put on the road. In an application for a spoliation
order, damages cannot be claimed. If restoration is impossible, the order will be refused and
the affected person can then claim damages in delict.

Chopper Worx – this case involved the lease of a helicopter by the applicant from the
respondent. The respondent instructed a pilot, R, to take the helicopter to Cape Town on a test
flight. The respondent promised to return the helicopter thereafter. As instructed, R flew the
helicopter to CPT Airport but the respondent did not return it, instead he wrote a letter to the
applicant, terminating the lease. The applicant sought a spoliation order for its return. Two
defences were raised by the respondent: 1) there was consent to its removal and 2) it was
impossible to return it because it had been transferred to a bona fide third party for repairs. The
court said that consent had been obtained under false pretences (they did not intend to merely
take the chopper for a test flight). The court further said that the respondents were obliged to
pay for the repairs made by the third party so that the helicopter could be released.

Stocks Housing v Chief Executive Director, Department of Education and Culture

Services – it was held that any deprivation of possession without the consent of the possessor
amounts to spoliation. The applicant was contracted to build a school by the Department. More
or less a year later, the applicant received a letter from the respondent, terminating the contract
for alleged breach of contract and ordering the applicant to vacate the premises by 1 p.m. The
Department officials advised the applicant that anyone remaining on the premises after 1 p.m.
would be arrested. The applicant vacated under protest and applied for a spoliation order,
which was granted. The court rejected arguments by the respondent alleging breach of contract
and its right to terminate it and repossess the property.

Malan and Another v Green Valley Farm – the applicants used a gravel road going through
the respondent’s property to their property. The respondents decided to put up an electric fence
and an electric gate, which needed a remote control or a touch pad. There was also a
pedestrian gate, which could be used. When the electric gate was erected, the applicants
alleged spoliation. The respondents had tried to negotiate with them about the erection of the
electric gate. The court rejected the application, on the basis that there was no spoliation and
that the actions of the respondents in restricting access were justified because there were
security concerns in the area. The farm grew a particular nut, which baboons are partial to.

Restoration of the status quo

Joint possession
 Proof of exclusive possession is not required. Partners in business can possess things
jointly, as well as spouses, whether married in or out of community of property.

Possession, for the purposes of acquiring ownership requires a particular form of possession
(animus dominium) but if someone exercises possession as a lessee, a different kind of
intention is required. The intention element is reduced simply to the possessor having
intended to derive some benefit from that possession. That intention is interpreted widely.

Ross v Ross 1994 1 SA 865 (SE) – The wife left the matrimonial home taking with her certain
belongings consisting of household items and appliances. Most of these had been bought as
gifts for her by the husband and were mainly used by her. The Court held:
  The dispute concerns the question of animus.
 With regard to the husband’s intention, it will, in my view, require the presence of special
circumstances for a householder not to have the intention to exercise some control over the
objects he knows to be under his roof.
 In order to meet the animus requirement, the person would have to at least show that the
intention was there to derive some benefit from it.
 The court considered the nature of the things, the value, the use and purpose of each item.
 The court found that his interest was sufficient to meet the mental requirement.

There are anomalies in the application of the mandament van spolie between an employee and
an agent. The agent is protected while the employee is not even though both primarily exercise
control on behalf of the owner.

Du Randt v Du Randt 1995 1 SA 401 (O) – The first applicant was married to the respondent
in community of property. The applicants brought an application for a spoliation order which the
respondent had allegedly removed from their possession. Some of the movables had been
used in the business offices. The Court held:
 The first applicants’ animus was of decisive importance
 The probabilities favoured the respondents’ allegation that the applicant was an employee
of the business and not a partner.
 The fact that the applicant was married to the respondent in community of property did not,
by itself, constitute ‘an interest over and above the interest which she has as a servant’.
 Accordingly applicant had not proved the animus required for the possession of the goods.

Silberberg: Although she was physically in control of the property, she did not have the
necessary intention to be more than an employee and was consequently unsuccessful with the
mandament van spolie with regard to these specific objects.

The defences that can be raised against a spoliation order

Because the court does not examine the merits of the case, the defences are limited. Certain
defences are inapplicable, for example:
The defence that the spoliator has a ius possidendi, or was an owner
That the possession of the applicant was unlawful
That the spoliator believed in good faith that he was acting lawfully
The respondent cannot allege that there was a contractual provision which entitled him to
seize the property without recourse to the courts in the event of breach of contract

Facta probanda (denial of facts in issue)

Under this defence, the respondent can allege and prove that the applicant was not in
possession at the alleged spoliation, therefore, had no physical control, or intention to derive a
benefit. The respondent can also allege and prove that the deprivation of possession was: if
the applicant consented to possession being taken; if the dispossession was in pursuance of a
court order; if the dispossession amounted to what is referred to in law as counter-spoliation.

Impossibility of restoration

Under this defence there are three possibilities:

1. Where the spoliated thing has been destroyed, irreparably damaged or lost
This must be read in light of the Tswelopele case, where the court ordered that the materials
must be replaced.
2. Where possession of the property has been acquired by a bona fide third party
3. Lapse of time: as a general rule, a person against whom spoliation has been committed,
must act within a reasonable time. There is no fixed definition of “reasonable time” but as a
general rule, a spoliation order will not be granted after the lapse of one year.

Jivan v National Housing Commission – a delay of eight months was held not be
unreasonable (the order was refused, based on the facts)

Manga v Manga – in that case, the delay of five months was held to be reasonable. The wife
applied for a spoliation order against the husband and had on numerous occasions demanded
that the property be returned, but he had ignored her demands.

Even where the application is brought within a year, the court could still refuse to grant the
order. For example, if the applicant delayed in bringing the action and the property has been
acquired by a bona fide third party in the interim.

Counter spoliation:

No one can take the law into their own hands to recover possession unlawfully taken. There is
one exception: it applies where the recovery of possession takes place forthwith (instanter), in
the sense of it still being part of the spoliation. It is not clear how much time is allowed to lapse.
The dispossessed person acts immediately to recover possession that has been unlawfully
taken. The second act of spoliation must have been taken before the first act of spoliation has
been completed.

Mans v Loxton Municipality – the plaintiff’s sheep had trespassed onto municipal land and
the municipal employees then impounded the sheep. While they were being driven to the
municipal pound, the plaintiff had intercepted them and taken the sheep away and led them to a
camp which he had hired for keeping the sheep. He locked them there. The municipal
employees then went to the camp, unlocked the gates and took the sheep away. The plaintiff
then applied for a spoliation order. The municipality pleaded counter-spoliation. The defence
was rejected on the basis that the actions of the municipality constituted a new act of spoliation.

De Beer v Firs - the applicant took possession of a shop against the will of the owner and
installed extra safety locks on the doors. The respondent then hired his engineer to remove the
locks and replaced them with his own. The applicant sought a spoliation order against the
respondent, who pleaded counter-spoliation, which the court upheld. The measures taken to
counter must be reasonable.

Bosman v Tworeck –The respondent decided to pull down an entire gate, which the court held
to be excessive. Unlike the mandament van spolie, these other remedies take into account the
merits of the case.

2. Possessory action

This is an action based upon the merits of a stronger right to control of a corporeal thing, and
used to claim either the thing itself or its value (damages) from anyone with a weaker right. The
action may be for the return of the thing (movable) or ejectment of the defendant (immovable).
This remedy follows the action procedure. Unlike the spoliation remedy, the matter is decided
on the merits.

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

3. Prohibitory interdicts

The mandament van spolie is to recover lost possession. It is not available where there is a
disturbance or threat of disturbance. This is a judicial order that requires a person not to commit
a threatened wrong or to stop committing a wrong that has already started.
- It is obtained on an urgent basis.
- It is available to owners and possessors when their rights are being infringed or threated
- An interdict may be either final or pendent lite (pending a dispute)

The requirements for a final interdict:

1. The applicant must prove the right on a balance of probabilities
2. Whether harm is actually committed by the respondent or reasonably feared in that
irreparable damage will result if the interdict is not granted
3. No other remedy is available to protect the applicant

The requirements for a temporary interdict are similar:

The only difference is that the applicant need only establish a prima facie right, and not a clear
right. An interdict is instituted through application proceedings, based on affidavits only: oral
evidence is generally inadmissible. Having said that, the matter is decided on the merits.

It prohibits the respondent from committing further interference and should the respondent not
adhere to the court order, he will be in contempt of court. A temporary interdict orders the
respondent to stop interference immediately. When the court issues a temporary interdict, it
sets a date upon which parties must appear before the court (rule nisi) so that the court decides
whether or not the temporary interdict should become a final one.

4. Delictual action for damages

5. Extended enrichment action for unjustified enrichment
The nature and extent of relief sought will be: a claim for payment of compensation, which is the
sum calculated when the action is instituted, by which the defendant is enriched or the plaintiff
impoverished (whichever is the least/smaller). Necessary expenses can usually be claimed in
full; a claim for useful expenses is determined by the actual increase of the market value; while
luxurious expenses cannot be recovered at all (unless the owner accepts the improvements and
would have incurred the same useful and luxurious expenses himself).