PVL3701 Revision Study Pack PDF

PROPERTY LAW
REVISION STUDY PACK
Abstract
THIS REVISION STUDY PACK CONTAINS TYPICAL EXAMINATION QUESTIONS AND ANSWERS
Joseph
hewilladd@outlook.com
0784683517
STUDY UNIT 1
INTRODUCTION TO PROPERTY LAW

THINGS AS LEGAL OBJECTS
1. Define
(a) law of things (6)
The law of things can be defined as a branch of private law which consists of a number of legal rules that
determine the nature, content, vesting, protection, transfer and termination of various real relationships
between a legal subject and a thing, as well as the rights and duties ensuing from these relationships.
(b) law (5)

That body of rules and norms which regulates and harmonises society by demarcating the rights and duties of
legal subjects.
(c) right (5)

Rights deal with the lawful relationships between legal subjects and the relationship between legal subjects
and the objects of their rights.
(d) legal subject (5)

A legal subject can be defined as any person (whether a natural or a legal person) capable of acting as a
subject in legal relationships and of acquiring rights and incurring duties in the process. Human beings (natural
persons) are the most common and best-known legal subjects, but legal persons such as the State,
universities, companies, close corporations, and so on, are also legal subjects, since they can act as legal
subjects in legal relationships and can therefore acquire rights and duties.
(e) legal object (2)

A legal object can be defined as every object with which a legal subject has a legally recognized relationship.
These legal objects may be divided into things, performances, immaterial property and personality property.
(f) thing (5)

we define a thing as an independent part of the corporeal world, which is external to humans and subject to
human control, as well as useful and valuable to humans.
(g) real remedy (5)

A real remedy can be defined as a legal process with its own purpose, for which certain requirements are
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“THE EXPERT IN ANYTHING WAS ONCE A BEGINNER”
set and which protects, maintains or restores a particular real relationship in a specific way. A real remedy,
therefore, finds application in lawful and unlawful real relationships.
(h) real right (5)
a real right can be defined as a lawful real relationship between a legal subject and a thing which confers direct
control over the thing on the legal subject, as well as the relationship between the legal subject and all other
legal subjects who must respect this relationship.
2 Distinguish between
(a) law of property and law of things (4)

In its broad sense property law can also be described as patrimonial law the law dealing with a person’s
patrimony (all his/her assets). Patrimonial law is divided into the law of things, the law of succession, the
law of obligations and intellectual property law.
Patrimonial law regulates all rights of which the objects are assets in a person’s estate. In this broad sense
everything that forms part of a person’s estate can be described as ‘‘property’’. Property therefore includes
a variety of assets, such as things (for example, land, a car, a computer and a mobile phone), personal
rights (creditor’s rights/claims) (for example, the right to one’s salary, the right to the proceeds of an
insurance policy or the right to claim the purchase price in terms of a contract of sale) and immaterial
property rights (for example, copyright and patent rights).
The law of things as a subdivision of patrimonial law falls under private law. The law of things deals with a
specific legal object, namely a thing.
(b) real right and entitlement (5)

a real right can be defined as a lawful real relationship between a legal subject and a thing which confers
direct control over the thing on the legal subject, as well as the relationship between the legal subject and
all other legal subjects who must respect this relationship.
A legal subject who acquires a real right from a lawful real relationship is usually entitled by the legal order
to perform certain acts in connection with the thing. The capacities conferred on the legal subject by virtue
of a right, in this case a real right, are called entitlements.
(c) legal object and thing (4)

A legal object can be defined as every object with which a legal subject has a legally recognised
relationship. These legal objects may be divided into things, performances, immaterial property
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and personality property. Each of these legal objects has its own characteristics which distinguish it from
other legal objects.
Generally, a thing is a legal object characterised by its material (corporeal) nature. For a complete picture
of a thing in a legal sense, we define a thing as an independent part of the corporeal world, which is
external to humans and subject to human control, as well as useful and valuable to humans.
(d) real relationship and real right (4)

A real relationship is the particular legal relationship between one or more legal subjects and a thing. This
relationship has certain implications for the legal order. Note, furthermore, that the concept ‘‘real relationship’’
is broader than the concept ‘‘real right’’, since real relationships include both real rights and certain unlawful
real relationships.
There are usually two sides to a real relationship (and therefore, if it is a lawful real relationship, to a real right),
namely
(i) the subject-object relationship between the particular legal subject and the particular thing involved in the
relationship
(ii) the subject-subject relationship between the particular legal subject and all other legal subjects
A real right is therefore always a dual relationship: the subject-object (thing) relationship and the subject-
subject relationship.
In certain cases, real relationships may take on distinctive characteristics, with the result
that the rights and duties ensuing from these relationships may vary.
3 Briefly mention the functions of the law of things. (6)

1 It strives to harmonise or regulate various competing ownership rights, especially between neighbouring
owners.
2 It strives to harmonise or regulate an owner’s rights in regard to his/her thing with the rights of other limited
real right holders to the same thing
3 It controls the acquisition, protection and extinction of things and real rights.
4 Name the sources of the current law of things in order of priority. (5)
(i) the Constitution of the Republic of South Africa, 1996
(ii) statute law
(iii) case law
(iv) common law (Roman-Dutch law)/indigenous (customary) law
3
It should be noted that, in a multicultural society such as South Africa, indigenous law rather than Roman-
Dutch law may be the subsidiary legal system in certain instances.
THINGS AS LEGAL OBJECTS
After you have studied this section, you should be able to answer the
following questions:
1 Rearrange the second column below so that the examples listed there
correspond to the things in the first column.
Things Examples
(a) Negotiable thing (i) Picasso painting
(b) Divisible thing (ii) Land
(c) Composite thing (iii) Free air
(d) Incorporeal thing (iv) Seashore
(e) Non-fungible thing (v) Wild animal
(f) Res communes omnium (vi) Brick
(g) Singular thing (vii) Creditor’s right
(h) Non-negotiable thing (viii) Roll of fabric
(i) Res publica (ix) Corpse
(j) Immovable thing (x) Radio (10)
2 Briefly distinguish between

(a) fungible and non-fungible things and explain the relevance of this distinction (7)
Things are fungible (replaceable) (res fungibiles) or non-fungible (irreplaceable) (res non fungibiles). This
distinction depends on whether they have individual characteristics (or value), or whether they belong to a
certain kind or genus.
This distinction is significant in various areas of law:

(i) In the law of obligations: The replaceability or otherwise of a specific thing is determined by agreement
between the parties, and may affect the consequence of the agreement. For example, if X buys th racehorse
‘‘Lightning’’ and the seller delivers the farm horse ‘‘Lazy Boy’’, the seller has not performed in terms of the
agreement. However, if X buys ‘‘a horse’’, the seller can deliver any horse.
(ii) Pledge: A fungible cannot, in principle, be given in pledge with the intention that it can be replaced by a
similar thing. It is a basic rule of the law of pledge that the pledgee may not use the pledged article (see SU 11
para 2.4.1).
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(iii) Transfer of ownership: In certain circumstances a fungible may change ownership by means of commixtio
(mixing of solids) or confusio (mingling of liquids) (see SU 4 para 4).
(iv) Replacement: It would seem that the courts are more inclined to authorise the repair and even the
replacement of a damaged or destroyed fungible thing in a spoliation order, in certain cases, than would be the
case with non-fungibles
(b) singular and composite things (5)

Things may be singular or composite, depending on whether the thing consists of a single piece or of a
composition of constituent parts. A horse, a stone or a brick are examples of singular things. A composite
thing is made up of constituent parts, or even of independent things that have been joined together to form
a new entity, for example, a car or a bicycle. Here the constituent parts lose their individuality and the
composite thing is regarded as one thing for the purpose of the law of things.
(c) consumable and non-consumable things (5)

Consumable things (res consumptibiles) are used up (consumed) (1) or their value is considerably diminished
by ordinary use, (1) for example, pencils, foodstuffs and cigarettes. Non-consumable things (res non
consumptibiles) are preserved (1) in spite of normal use, (1) for example, a motor car or a stove. A thing can
be non-consumable despite the fact that it is subject to normal wear and tear. (1)
(d) movables and immovables (4)

Another classification according to the nature of things is that of movable and immovable things. In
principle, immovable things consist of land and everything that is permanently attached to land, including
natural attachments like plants and artificial fixtures like buildings and structures that are permanently
attached to land. This distinction has significance in several fields of law.
(e) divisible and indivisible things (4)

A thing is divisible if it can be divided, without losing its essential characteristics, into smaller parts of which
the nature and function are essentially the same as those of the original thing. Examples are: a bag of
sugar, a roll of fabric, or a piece of land.
Indivisible things, such as a car or a painting, cannot be divided without destroying or changing the nature
of the thing.
(f) composite things and a collection of things (4)
A collection of things must be distinguished from composite things. Two forms of collections are relevant: In
the one we deal with a collection of similar principal things and in the other the collection consists of
different types of principal things. In both cases the collection is treated as a singular unit
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A composite thing usually consists of various constituent parts. In principle, we distinguish between three
kinds of constituent parts: The principal thing, the accessory thing and the auxiliary thing
3 Define
(a) principal thing (3)
The principal thing is the independent thing made up of various parts, with an independent existence as a
composite thing. It is not a constituent or supplementary part of another thing.
(b) accessory thing (4)
An accessory thing can have a separate existence apart from the composite thing, but has forfeited its
independent existence in that it has been physically joined to the principal thing, for example, a brick
cemented into a wall
(c) auxiliary thing (4)
An auxiliary thing can, like an accessory thing, have an independent existence apart from the composite
thing. However, it forfeits its independent existence without being physically joined to the principal thing.
The auxiliary thing is economically dependent on the principal thing
4 Give an example of each of the following:

(a) principal thing (1)
A car is an example of a principal thing in composite form. Land is always regarded as the principal thing,
not the buildings attached to it.
(b) accessory thing (1)

A brick cemented into a wall
(c) auxiliary thing (1)
A key is a good example of an auxiliary thing, since it loses its independent character in that its
economic value in terms of its purpose and use depends on the unity between the principal thing (the lock)
and the key. Without the lock, the key is not functional.
5 Give three reasons why it is important to distinguish between movable and immovable things. (6)
i) It affects the formalities and requirements for the transfer of ownership. Transfer of ownership of
movables is effected by delivery, and of immovables by registration in the deeds registry.
ii) The right to alienate or encumber the estate of a minor is affected as follows: Permission of the
High Court is required for the alienation or encumbrance of a minor’s immovable assets worth more
than R100 000-00.
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iii) In the execution of a judgment debt and in the case of insolvency, the debtor’s movable assets are
sold before the immovables, to secure payment of the judgment debt.
6 X and his wife, Y, to whom he is married in community of property, live in a new house on the farm
Waterford. X and Y are co-owners of the farm and their car, but the farm implements have been
purchased in terms of a credit transaction from C, the cooperative. C has reserved ownership of the
farm implements which are stored in a wooden shed on the farm. C therefore has personal rights
(creditor’s rights/claims) against X and Y for payment of the loan plus interest. S has a contract with
his parents (X and Y) for the purpose of grazing his livestock on their farm. S also grows bulbs in a
nursery on this farm. X sells peaches from the fruit trees on his farm to a factory and wool from the
sheep. Y, his wife, sells vegetables from her garden and dairy products at the farm stall on the farm.
Give an example from the above set of facts of the following types of things:
 movable thing (1)

 immovable thing (1)
 incorporeal thing (1)
 composite thing (1)
 principal thing (1)
 accessory thing (1)
 natural fruit (1)
 civil fruit (1)
Answer
 movable things: car, farm implements or livestock (1)
 immovable thing: farm (1)
 incorporeal thing: C’s personal right (creditor’s rights/claims) against X and Y for
payment of the loan or S’s personal right against his parents (X and Y) to graze his livestock on their
farm (1)
 composite thing: farm (1) (A farm is a composite thing because buildings that,
through attachment (accessio) are built on the farm), lost their independence, form part of the principal
thing.
 principal thing: farm (land) (1)
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 accessory thing: buildings or houses (1) (accessory things because they became
part of the principal thing (the land) by accession)
 natural fruit: peaches, vegetables, dairy products or wool (1)
 civil fruit: interest on the loan (1)
STUDY UNIT 2
REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S RIGHTS/ CLAIMS)
Briefly explain and criticise the different tests/theories which are applied to determine whether a
specific right is a real or a personal (creditor's) right. (12)
ANSWER:
The personalist theory place emphasis is on the person against whom (1) the right may be enforced. In terms
of this theory a real right operates absolutely (1), in the sense that it is enforceable against "the world at large".
Recognition of and compliance with such a right (for example, ownership) may be enforced against anyone (1).
Whatever my relationship with someone might be, that person will have to recognise my ownership of a certain
thing, and I can, in principle, claim my thing from anyone who is in control of it, for example, an owner can
claim his motorcar from a person who bought it form a thief.
A personal right (creditor's right or claim), on the other hand, has relative (1) operation. It can be enforced only
against the particular person (1) who has a duty to perform in terms of an obligation. For example, a contract
can be enforced against the other contracting party (the debtor) only, or, in a delict, damages can be claimed
only from the person who caused the damage (apart from certain exceptions).
Criticism: The fundamental criticism levelled against this theory is that it overemphasises the absolute
operation of real rights (1), which do not, in reality, always and necessarily operate absolutely. There are
cases, for example, where the owner of a thing is prevented by the operation of estoppel from enforcing his/her
right of ownership against another person. Estoppel operates if the owner has culpably created the impression
that a third person was the owner or had authorisation (acted as the representative of the owner) to alienate
the thing. It should be remembered that personal rights do not always (1) have only relative operation either. In
exceptional circumstances they operate absolutely and have to be respected by outsiders, such as in the case
of a service contract. It has been held that an outsider may not intentionally interfere in the relationship
between an employer and an employee.
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Another objection to the absoluteness of real rights in the personalist theory is that other rights (1), such as
personality rights (for example, rights to integrity or reputation) and immaterial property rights (for example,
patent rights and copyright), also operate absolutely. This argument also has little substance, since the theory
is used to distinguish between real and personal rights for a particular reason. It is valuable to demarcate the
boundary between the law of things and the law of obligations, but, in particular, to determine which rights may
be registered against land in terms of section 63(1) of the
Deeds Registries Act 47 of 1937.
The classical theory corresponds to the original Roman-law (1) distinction. It distinguishes between real and
personal rights with reference to the nature of the object (1) to which each right pertains. Real rights, according
to this theory, concern the relationship between a person and a thing (1). A real right confers direct control (1)
and the right of disposal (1) over a thing. Personal rights, on the other hand, concern the
relationship between persons (1). A personal right entitles the creditor only to claim performance from a
particular (1) person. The object of the right is therefore performance (1).
Criticism: Although some criticism can also be levelled at this distinction, in most instances this criterion will
help to determine whether one is dealing with a real right, or not. However, it is sometimes difficult to determine
exactly what is meant by a direct relationship (1) with a thing. Certain personal rights ultimately also have a
thing as their object, but they are not real rights, for example, personal rights to acquire a thing (iura in
personam ad rem acquirendam). We are dealing with such rights when, for example, X
buys a car from Y. In terms of the contract X has a right to the car, but this is only a personal right. Before
delivery X has a personal right to claim delivery of the car (ius in personam ad rem acquirendam). X acquires a
real right (ownership) only after delivery of the car to him/her.
(Maximum 12 marks)
Distinguish between real and personal rights under the following headings:
(a) object (2)

The object of a real right is a corporeal thing (leaving aside the exception of a pledge of claims); whereas
the object of a personal right is performance (to give something, to do something or not to do something).
(b) content (2)
The holder of a real right has a direct claim to and a right of disposal over a thing; whereas the holder of a
personal right is entitled to claim performance from a specific person
(c) remedies (2)
The holder of a real right can enforce his/her real right by means of a real action such as the rei vindicatio
of the owner, which can be instituted against anyone who is unlawfully in control of the thing; while the
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holder of a personal right enforces his/her right by means of a personal action such as the condictio furtiva
(the action of an owner against the thief to claim back the stolen object)
(d) origin (2)
Real rights have their origin in legal facts other than obligations, for example, delivery, accession
(accessio) and prescription, while personal rights come into existence through obligations, for example
in terms of a contract or a delict
(e) absoluteness (2)
Real rights are absolute in principle: the holder of the right can vindicate his/her thing (subject to certain
exceptions) from whomever is in control of the thing; while personal rights are relative in principle: the
holder can enforce his/her right only against the person who is obliged to perform in terms of an
obligation
(f) preference (2)
In the case of insolvency, a real right enjoys preference over other rights. Moreover, themaxim ‘‘first in
time is stronger in law’’ (prior in tempore est potior in jure) is applied in the case of two or more
competing real rights. Apart from a few exceptions, this principle does not apply to personal rights.
(g) publicity (2)
The creation, transfer or extinction of real rights requires some form of publicity. This takes the form of
delivery in the case of the transfer of ownership of movable things, and of registration in the case of
immovable property. The reason for this lies in the nature of real rights. Since these rights have to be
respected by the world at large, it is imperative that there should be some form of publicity informing
outsiders of the existence, transfer or extinction of the real right.
These distinctive characteristics serve only as guidelines in identifying real rights and personal rights, and
are not intended to serve as an exclusive means of classification.
1 Summarise Ex parte Geldenhuys (1926 OPD 155) briefly (in not more than 250 words). (10)
The case must be discussed under the following headings:
Facts (You can use the facts as simplified in the example.)

Q and R drafted a mutual will in which they provided that, on the death of one spouse, the surviving spouse,
their sons, and Ss, their grandson, would inherit the farm Pulang. They also provided that the farm should be
partitioned when Ss reached the age of majority and that the drawing of lots would determine who got which
portion of the farm. Furthermore, they provided that the heir who got the portion with the homestead on it
should pay a sum of money to the other heirs. The attorney assured them that the provisions with regard to the
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division of the farm and the payment of the sum of money after their death would be registered against the title
deed of the farm
Legal question
In a system where there is a closed category (numerus clausus) of real rights, characterisation of real rights is
unnecessary because the system determines which rights are real rights. In an open system (such as the
South African system) where the existing range of real rights can be extended, it becomes essential to
determine the basis on which new rights will be categorised.
Ratio decidendi
In Ex parte Geldenhuys (1926 OPD 155) the court formulated the subtraction from the dominium (ownership)
test as follows:
One has to look not so much to the right, but to the correlative obligation. If that obligation is a burden upon the
land, a subtraction from the dominium [ownership], 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
right in personam, and it cannot as a rule be registered.
Finding
In principle only real rights may be registered in the deeds registry. Section 63 of the Deeds Registries Act 47
of 1937 expressly provides that, excluding provisions in mortgage bonds, leases (including amendments,
sessions or cancellations thereof) and deeds of grant as contemplated in section 3(1)(c) of the Act, no
condition to a deed which purports to create a personal right on immovable property and no condition which
does not restrict the exercise of ownership on immovable property shall be capable of registration. The section,
however, authorises the registrar to accept such a condition for registration if, in his/her opinion, it is
complementary or ancillary to another registrable condition or right in the deed. Registration of such a
condition, however, does not convert the right it may contain to a real right
2 How is the subtraction from the dominium (ownership) test formulated in Ex parte Geldenhuys (1926
OPD 155)? (7)
Answer
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One has to look not so much to the right, (1) but to the correlative obligation (1). If that obligation is a burden
upon the land, (1) a subtraction from the dominium [ownership], (1) the corresponding right is real and
registrable; (1) if it is not such an obligation, but merely an obligation binding on some person or other, (1) the
corresponding right is a personal right, (1) or right in personam, and it cannot as a rule be registered.
3 Q and R drafted a will in which they provided that, on the death of one spouse, the surviving spouse,
their sons, and Ss, their grandson, would inherit the farm Pulang. They also provided that the farm
should be divided when Ss reached the age of majority and that the drawing of lots would determine
who got which portion of the farm. Furthermore, they provided that the heir who got the portion with
the homestead on it should pay a sum of money to the other heirs. Will it be possible to register the
provisions with regard to the division of the farm and the payment of the sum of money after their
death against the title deed of the farm? Advise them fully with reference to authority. (10)
test as follows:
personal right, or
4 M has a personal servitude of habitation (limited real right) over a homestead on X and Y’s farm. Is it
possible to register this right in the deeds registry? Briefly substantiate your answer. (5)
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This was decided in the Ex parte Geldenhuys case (1926)
5 In terms of a contract with his parents, X and Y, S has a personal right (creditor’s right/claim) to use
the farm for grazing purposes. Is it possible to register this right in the deeds registry? Briefly
substantiate your answer. (5)
test as follows:
personal right, or
6 Briefly distinguish between a real right and a personal right (creditor’s right/claim) and explain this
distinction with reference to an example of each right. (10)
Typical real rights and personal rights have the following distinguishing characteristics, respectively:
(i) Object
The object of a real right is a corporeal thing (leaving aside the exception of a pledge of claims); whereas the
object of a personal right is performance (to give something, to do something or not to do something).
(ii) Content
The holder of a real right has a direct claim to and a right of disposal over a thing; whereas the holder of a
personal right is entitled to claim performance from a specific person.
(iii) Remedies
The holder of a real right can enforce his/her real right by means of a real action such as the rei vindicatio of
the owner, which can be instituted against anyone who is unlawfully in control of the thing; while the holder of a
personal right enforces his/her right by means of a personal action such as the condictio furtiva (the action of
an owner against the thief to claim back the stolen object).
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(iv) Origin
Real rights have their origin in legal facts other than obligations, for example, delivery, accession (accessio)
and prescription; while personal rights come into existence through obligations, for example in terms of a
contract or a delict.
(v) Absoluteness
Real rights are absolute in principle: the holder of the right can vindicate his/her thing (subject to certain
exceptions) from whomever is in control of the thing; while personal rights are relative in principle: the
holder can enforce his/her right only against the person who is obliged to perform in
terms of an obligation.
(vi) Preference
In the case of insolvency, a real right enjoys preference over other rights. Moreover, the maxim ‘‘first in time is
stronger in law’’ (prior in tempore est potior in jure) is applied in the case of two or more competing real rights.
Apart from a few exceptions, this principle does not apply to personal rights.
(vii) Publicity
The creation, transfer or extinction of real rights requires some form of publicity. This
takes the form of delivery in the case of the transfer of ownership of movable things, and
of registration in the case of immovable property. The reason for this lies in the nature of
real rights. Since these rights have to be respected by the world at large, it is imperative
that there should be some form of publicity informing outsiders of the existence, transfer
or extinction of the real right
Briefly discuss the difference between ownership and limited real rights. (6)
The difference between ownership and limited real rights lies in the fact that ownership is a real right over
one’s own thing, (1) whereas limited real rights are real rights to another person’s thing. (1) Furthermore
ownership is the most comprehensive (1) real right a person can have to a thing, whereas limited real rights
are fundamentally limited (1) in scope. For example, in principle the owner of a piece of land can use it as
he/she wishes, (1) whereas the entitlements of a usufructuary (limited real right holder in terms of a
personal servitude) are clearly defined.
Study unit 3
OWNERSHIP DEFINITION OF AND LIMITATIONS ON OWNERSHIP
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Define ownership. (7)
Answer
Ownership is the most comprehensive (1) real right (1) a person can have withregard to a thing. (1. In principle,
a person can act upon and with his thing as he/she pleases. (1) This apparent freedom is restricted, (1)
however, by the law (1) and the rights of others. (1)
1 Distinguish between ownership and its entitlements. (3)

Ownership is often described as the most comprehensive real right a person can have to his/her thing. This
comprehensiveness refers not only to the fact that an owner can enforce his/her ownership against the world at
large; it also refers to the number of entitlements (or the extent of the entitlements) flowing from ownership.
Ownership can therefore be defined with reference to its inherent nature and its entitlements.
2 Name the entitlements of ownership. (7)

 use the thing
 control (possess) the thing
 consume or destroy the thing
 alienate the thing
 burden the thing
 vindicate the thing

3 Name and briefly describe with reference to examples the entitlements of ownership. (14)
The entitlements of ownership include the entitlement to:
 use the thing (eg, to drive your car)the fruits (eg, to charge rent for the use of your car)
 control (possess) the thing (eg, to hold your handbag)
 consume or destroy the thing (eg, to burn your book)
 alienate the thing (eg, to sell or donate your mobile phone to someone)
 burden the thing (eg, to grant a mortgage over your land)
 vindicate the thing (eg, to claim your car from a third person with the rei vindicatio)
LIMITATIONS ON OWNERSHIP
1 Name any two statutory limitations on ownership. (2)

 Firearms (Firearms Control Act 60 of 2000)
 Motor vehicles (the National Road Traffic Act 93 of 1996)
 Drugs (the Drugs and Drugs Trafficking Act 140 of 1992)
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2 Name the two categories of limitations imposed on ownership. (2)
 Law
 Rights of other legal subjects
3 Name the two classes of limitations imposed in terms of the law. (2)
 Statutory limitations
 Neighbour law
4 S decides to develop a part of his farm Highlands as a residential township but his attorney informs
him that this will not be possible. Under the Physical Planning Act 125 of 1991 it appears that a
regional development plan in terms of a physical planning scheme provides that the area is to be
utilised for agricultural purposes only.
5 S approaches you for legal advice. Fully advise S on his legal position. (5)
Answer
Although S has the most comprehensive real right to Highlands and, in principle, he can do as he pleases, (1)
his ownership is nevertheless restricted. (1) What we have here is a limitation on ownership in terms of the law
(1) and, more specifically, in terms of a statutory measure. (1) Therefore, S will not be able to develop a
township on Highlands. (1)
6 State the purpose of neighbour law. (2)

Where properties border on one another, the manner in which one of the owners uses his/her property may
considerably influence the other owners’’ enjoyment of their property. A conflict of ownership rights may
develop and the principles of neighbour law regulate these possible conflicts.
7 Briefly discuss the facts and decision in Malherbe v Ceres Municipality (1951 (4) SA 510 (A)). (10)
Facts
The appellant, Malherbe, approached the court for an interdict ordering the respondent, Ceres Municipality, to
prevent acorns and leaves of oak trees growing next to the streets of Ceres from falling onto his property. The
appellant claimed that the oak trees constituted a nuisance on his property in that the falling oak leaves
blocked the gutters of his building, thereby causing rainwater to damage the walls of the building. (1)
Legal question
To determine whether falling leaves, acorns and protruding branches of trees growing next to streets constitute
a nuisance. (1)
Ratio decidendi
General
16
The law expects a degree of tolerance (1) between neighbours in the exercise of their entitlements of
ownership.
Regarding leaves from trees next to the street
The planting of oak trees along the streets of towns and cities is considered to be compatible with the natural
and normal use (1) of streets in the Western Province. Oak trees are benign, as well as being ornamental and
shade giving. If their leaves are blown onto neighbouring premises by the wind, then the
owners of those premises must endure (1) them as a natural result of the normal use of the street by the
respondent.
Regarding leaves from overhanging branches
The appellant cannot complain about falling leaves and acorns from overhanging branches if he allows such
branches to protrude onto his property. If he chooses to allow the branches of trees to protrude onto his
property, he cannot expect his neighbour to clear the leaves from his property. (1) If the appellant wishes to
prevent leaves and acorns from overhanging branches from falling onto his property, he should request (1) the
respondent to remove the branches. If the respondent refuses (1) to remove the branches, the appellant may
either remove them himself or he may apply for an interdict either ordering the respondent to remove the
overhanging branches or forbidding him to let the branches protrude onto the appellant’s land.
Application of finding on relevant facts

The application for an interdict failed. (1) The falling leaves did not cause anyobvious damage to the
appellant’s building. The damage complained about could have been avoided by annually spending a small
amount of money on the cleaning of the gutters. (1) It is reasonable to expect the appellant to exercise a
degree of tolerance in this regard. With regard to the overhanging branches, the appellant failed because he
did not prove that he had requested the respondent to remove the branches, or that the respondent had
refused to remove the branches or had claimed thathe had a right to let the branches protrude onto the
appellant’s land. (1)
8 X and Y are seriously affected by baboons that destroy their maize plants. X installs an apparatus to
chase away the baboons on the boundary with his neighbour. The apparatus makes loud noises at
regular intervals during the day and the night. The neighbour writes to X and Y to complain about the
noise during the night, but X ignores the letter and refuses to speak to his neighbour on the telephone.
X and his neighbour are not on speaking terms because his neighbour seriously insulted him a few
years ago. The neighbor applies for an interdict ordering X and Y to stop the noise. X and Y rely on
their ownership of the farm. They argue that they are entitled to do as they please on their property.
Will this argument succeed? Substantiate your answer and refer to case law. (10)
17
Begin your answer with the definition of ownership in Gien v Gien. Follow this with a discussion of the court’s
approach to the question of reasonableness and reflect the court’s finding. Judge Spoelstra in Gien v Gien held
that ownership is the most comprehensive real right (1) a person can have with regard to a thing. In
principle, a person can act upon and deal with his thing as he/she pleases, (1) but this apparent freedom is
restricted, (1) by the law (1) and the rights of others. (1)
Here we are dealing with nuisance in the narrow sense (1) (infringement of a personality right caused by the
noise) and the remedy used here is the interdict. The rights of the two owners should be weighed against each
other. (1) Both neighbours should act reasonably. (1) This is an objective test. (1) One party must exercise his
ownership rights in a reasonable manner and the other party must endure this exercise in a reasonable
manner. (1) The applicant must prove all the requirements for an interdict. (1) (See the discussion below SU 6
para 2.2 and Setlogelo v Setlogelo (1914 AD 221 227).
The court found that the applicant was severely prejudiced without real gain for the respondent as a result of
the disturbing conduct. (1) The applicant consequently succeeded with his interdict against the
respondent. (1)
9 X and Y have a lucerne field on the only piece of fertile land with plenty of water. This lucerne field
borders their neighbour’s farm. The new neighbor has planted a row of pine trees along the boundary
between the two farms.
The trees have grown big and the branches hang over the lucerne field. The pine trees cast a lot of
shade and the pine needles fall onto the lucerne, killing large patches of it.
Do X and Y have any remedies? Fully discuss the legal position with reference to case law. (10)
ANSWER:
Malherbe v Ceres Municipality (1) (1951 (4) SA 510 (A)) deals with nuisance of trees and
leaves.
Facts
The appellant, Malherbe approached the court for an interdict ordering the respondent, Ceres Municipality, to
prevent acorns and leaves of oak trees growing alongside the streets of Ceres, from falling onto his property.
The appellant averred that the oak trees constituted a nuisance on his property in that the falling oak leaves
blocked the gutters of his building, thereby causing rainwater to damage the walls of the building. (1)
Legal question
To determine whether falling leaves and acorns and protruding branches of trees growing alongside streets
constitute a nuisance. (1)
18
Ratio decidendi
General
The law expects a degree of tolerance (1) between neighbours in the exercise of their entitlements of
ownership.
Regarding leaves from tree in the street
The planting of oak trees alongside the streets of towns and cities is considered to be compatible with the
natural and normal use (1) in the Western Province. Oak trees are benign, as well as being ornamental and
shade giving. If their leaves are blown onto neighbouring premises by the wind then the owners of those
premises must endure (1) them as a natural result of the normal use of the street by the respondent.
Regarding leaves from overhanging branches
The appellant cannot complain about falling leaves and acorns from overhanging branches, if he allows such
branches to protrude onto his property. If he chooses to allow the branches of trees to protrude onto his
property, he cannot expect his neighbour to clear the leaves from his property. (1) If the appellant wishes to
prevent leaves and acorns from overhanging branches from falling onto his property, he should request (1) the
respondent to remove the branches. If the respondent refuses (1) to remove the branches,
the appellant may either remove them himself or he may apply for an interdict either ordering the respondent to
remove the overhanging branches or forbidding him to let the branches protrude onto the appellant's land.
The application for an interdict failed. (1) The falling leaves did not cause any obvious damage to the
appellant's building. The damage complained about could have been avoided by annually spending a small
amount of money on the cleaning of the gutters. (1) It is reasonable to expect the appellant to exercise a
degree of tolerance in this regard. With regard to the overhanging branches the appellant failed because he did
not prove that he had requested the respondent to remove the branches, or that the respondent had refused to
remove the branches or had claimed that he had a right to let the branches
protrude onto the appellant's land. (1)
Application of finding on facts in this question
Due to the nature of pine needles shed by the pine trees it would not be possible to avoid
the damage by annually spending a small amount of money on the cleaning of the lucerne
field. (1) The shadow can also not be prevented in any other way than to remove the trees.
It must furthermore be borne in mind that the lucerne field was there before the neighbour
19
planted the pine trees.
Therefore, the neighbour acted unreasonably.

The court will balance the interest of the parties – the value and purpose of the Lucerne field for X and Y and
the value and purpose of the acorn trees for the neighbour, as well as the fact that the lucerne fields were there
before the pine trees were planted. (1)
10 X and Y are the owners of Waterford. Q and R are the owners of the neighbouring farm, Pulang. A
river runs through both farms. X and Y applied for an interdict prohibiting Q and R from continuing or
renewing the nuisance caused by slate which is washed down by the river from Pulang onto Waterford
during heavy rainstorms. At that time Z was the owner of Pulang. Z dumped the slate waste on the farm
near the river. X and Y apply for an interdict ordering Q and R to build a wall on their farm to prevent
the slate from washing onto X and Y’s land. In the alternative they claim damages from Q and R for the
loss they have suffered as a result of the slate washing onto their farm. Explain to X and Y with
reference to authority what their chances of success are. (10)
The question is based on Regal v African Superslate. (1) (1963 (1) SA 102 (A)
Legal question
The court had to decide whether an interdict (1) could be granted to prevent future damage (1) to the
neighbouring property or in the alternative whether X and Y could claim damages from Q and R where the
source of the nuisance was created by a previous owner (1) of the property.
Ratio decidendi
Regal v African Superslate dealt with nuisance in the broad sense, (1) namely damage to property. It has been
held by the court that the current owner of the farm cannot be held responsible for the damage caused by the
use of the property by a previous owner. (1) The court further held that neighbour law is based on the principle
of reasonableness. (1) If it was reasonably possible for the current owner to prevent the damage from
happening again in future, the failure to do so would amount to an unlawful act. (1)
In the case of such an unlawful act the neighbour would be entitled to one or both of the following remedies
against the current owner:
(i) an interdict (1) and/or
(ii) a delictual claim for damages. (1)
The court held that the current owner had acted reasonably and the application for an interdict did not succeed.
20
X and Y cannot hold Q and R liable for damage caused by Z’s use of the property. If it was reasonably possible
for Q and R to prevent the damage from happening again in future, the failure to do so would amount to an
unlawful act. (1) This would then entitle X and Y to an interdict and/or a delictual claim for damages against Q
and R. In Regal v African Superslate (question based on the facts in this judgment) the court held that the
current owner, in our question Q and R, had acted reasonably.
1 Indicate the effect on third parties of the distinction between limitations imposed in terms of personal
rights (creditors’’ rights) and limited real rights. Give examples to illustrate the different limitations.
(10)
Limited real rights eg’s

M has a personal servitude of habitation over a homestead on X and Y’s farm. M’s right of habitation (personal
servitude = limited real right) limits X and Y’s ownership until her death or until she
abandons her right. Before that time they cannot evict her from the homestead or interfere with her in any way.
If X and Y sell the farm to Z, M can still enforce her right against Z.
S has a right of way over Q and R’s farm, Pulang. Q and R’s ownership is limited by S’s right of way
(praedial servitude = limited real right).
S has obtained a loan from the bank for improvements that he wishes to make on his farm, Highlands. As
security for repayment of the loan he registers a mortgage bond in favour of the bank over the farm.
S’s ownership is limited by the bank’s right of mortgage (real security right = limited real right). During the
currency of the mortgage, as long as S’s principal debt to the bank has not been discharged S’s ownership is
restricted in the sense that he is not entitled to sell or burden the farm without the permission of the bank.
Furthermore, in terms of the mortgage the bank can apply to the court to declare the farm executable if S is
unable to repay the loan.
2 X and Y enter into a contract with S in terms of which S may graze 100 head of cattle on their farm.
After 6 months X and Y sell their farm to Z. Z refuses to allow S to graze his cattle on the farm. Advise
S fully. (5)
The operation of S’s personal right (creditor’s right) is not as limiting as the operation of M’s limited real right
over X and Y’s ownership. X and Y can, for example, prohibit S at any time from grazing his cattle on the farm.
S cannot force them to allow him to graze his cattle on the farm. His remedy would be based on breach of
contract in terms of which he could claim damages. If X and Y sell their farm to Z after a few months, S cannot
21
force Z to allow him to graze his cattle on the farm. Personal rights (creditor’s rights) do not operate against
third parties in principle
3 X and Y decide that M is too old to live in the homestead. She refuses to go to a retirement village
and relies on her right of habitation. X and Y decide to apply for an eviction order against her. They
approach you for legal advice. Advise them fully. (5)
M’s right of habitation determines that as long as she lives, or until she abandons her right, X and Y will not be
able to evict her or interfere with her right of habitation. (1) Her personal servitude (1) to live in the homestead
limits X and Y’s ownership of the homestead and because it is a limited real right to the house it is enforceable
against an eviction order.
4 X and Y own their farm, Waterford; X’s parents-in-law (Q and R) are owners of their farm Pulang and
S is the owner of Highlands. M has a right of habitation in respect of the homestead on Waterford. S
has a contract with X and Y in terms of which he can graze 100 head of cattle on the farm. S also
has the right to drive undisturbed over Q and R’s farm. A mortgage bond is registered over Highlands
in favour of the bank. Briefly mention the nature and extent of the limitations on the ownership of the
following persons:
(a) X and Y (10)

Limited real right: (1) M’s right of habitation determines that as long as she lives, or until she abandons her
right, X and Y will not be able to evict her or interfere with her right of habitation. (1) Her personal servitude (1)
to live in the homestead limits X and Y’s ownership of Waterford and because it is a limited real right to the
house it is enforceable against a new owner.
Personal right: (1) S’s personal right (creditor’s right) in terms of the contract (1) is not as strong as M’s right of
habitation (personal servitude = limited real right). (1) X and Y have entered into a contract with S in terms of
which they limit their ownership through agreement (1). In terms of this agreement S may graze 100 head of
cattle on the farm. In terms of the contract S has a creditor’s right which entitles him to use the farm for grazing
purposes for the period of the lease contract. If X and Y prevent S from entering the farm, they will be
breaching (1) the terms of their contract with S. Furthermore, if they sell the farm to Z, a third person, S cannot
rely on the contract to force Z to allow him to graze his cattle on the farm. (1) The contract creates a personal
right (creditor’s right) which is enforceable only against the other contracting party.
(b) Q and R (3)
22
Limited real right: (1) In terms of S’s limited real right, he (as the owner of Highlands) may drive over Q and R’s
farm Pulang without being disturbed (land servitude). (1) Therefore, Q and R cannot, for example, place an
obstruction in the road or prevent S from using the road just because they are angry with
him.
(c) S (4)
Limited real right: (1) The bank’s limited real right of mortgage (1) limits S’s ownership of Highlands. During the
currency of the mortgage (as long as S’s principal debt to the bank has not been paid), S’s ownership is
restricted in the sense that he is not entitled to sell or burden the farm without the permission
of the bank. (1) Furthermore, if S is unable to pay the loan (1) in terms of the mortgage, the bank may
approach the court to declare the farm executable.
Study unit 4
ORIGINAL ACQUISITION OF OWNERSHIP
What is the difference between original and derivative methods of acquisition of ownership? (5)
Original methods of acquiring ownership are used when there is no co-operation (1) from a predecessor
in title (this refers to the person who was owner of the thing before the new owner); in other words, where there
is no transfer (1) of ownership. This form of acquisition is also not limited (½) to things belonging to no-one (res
nullius): in cases of accession, prescription and expropriation the thing is actually owned by another, but no
transfer of ownership takes place.
Derivative methods of acquiring ownership occur with the co-operation (1) of a predecessor in title. The right
which the transferee obtains is derived from the former owner. (½) This implies that the predecessor in title
should himself/herself have been the owner and entitled to transfer ownership. (1) This principle is expressed
in the maxim: no-one can transfer more rights to another person than he has himself (nemo plus iuris in alium
transferre potest quam ipse haberet). (½) Furthermore, the right is transferred to the new owner with the
advantages and the disadvantages attached to that right. (½)
Define appropriation. (5)

Appropriation or occupation (occupatio) is defined as the unilateral taking of physical control of a thing which
does not belong to anyone (res nullius), but which is within the sphere of law (res in commercio) with the
intention of becoming its owner.
23
What are the requirements for a successful reliance on acquisition of ownership by means of
appropriation (occupatio)? (5)
1. Control
2. Thing which does not belong to anyone
3. Intention of becoming the owner
Name and discuss the requirements of appropriation (occupatio). (10)

1. Control
Physical control is essential for the acquisition of ownership by means of appropriation (occupatio). The
acquirer must obtain physical control with the necessary intention (that is, the intention of becoming the
owner).
The control need not be lawful. If, for example, a person has no right to hunt, either because he has no licence
to shoot certain animals or where certain wild animals are protected by legislation, he commits a crime if he
shoots such animals, but he nevertheless becomes the owner of the dead animals by means of appropriation
Where wild animals are wounded, but actual physical control is not taken, appropriation (occupatio) does not
take place. Therefore, if one person wounds a wild animal, but another person catches it or discovers the
carcass, the latter obtains ownership.
2. Thing which does not belong to anyone
Res nullius are things that belong to no one. All creatures that are wild by nature (animals, birds, fish and
insects) either in their natural state (before someone has taken control of them) or when they have reverted to
their former wild state (after having been controlled by a person) are regarded as res nullius. Wild animals
which have been tamed (domesticated) are an exception. These remain the property of the owner until they
lose the habit of returning, when they again become res nullius, and capable of being acquired by
appropriation.
Domestic animals (dogs, cats, parrots etc) or wild animals regulated by the Game Theft Act 105 of 1991 are
not res nullius and therefore cannot be acquired in ownership by means of appropriation.
Products of the sea (eg, seaweed, shells, stones, sand, fish and shellfish) are, in principle, open to acquisition
by appropriation. Abandoned things (res derelictae) are things which a former owner has abandoned with the
intention of ceasing to be their owner.
3. Intention of becoming owner
In Underwater Construction and Salvage Co (Pty) Ltd v Bell (1968 (4) SA 190 (C) 193E), Banks J stated that
‘‘... ownership is acquired as soon as there is a seizure with the intention of becoming owner’’. Although
theoretically there should be an intention to acquire ownership, other elements, particularly the element of
physical control, can be indications of such an intention.
24
Mills was attempting to remove a large condenser from the Antipolis, a shipwreck, abandoned by its
owners. He tied a rope with a buoy to a large condenser in the engine room. Together with its attached
pipes and contents, the condenser weighed about 63 tons. Reck and Hartmann started to cut sections
of the condenser loose to remove and sell them. Mills wished to stop them by means of a spoliation
remedy and had to prove that he was in undisturbed physical control of the thing. Would Mills succeed
in proving sufficient control for a successful reliance on the spoliation remedy? Refer to case law. (10)
This question is based on Reck v Mills. (1)

Legal question
To determine whether the first respondent was entitled to the spoliation remedy (1) mandament van spolie or
alternatively to an interdict. (1) The trial court granted the spoliation order. Reck appealed against this decision.
Ratio decidendi
(i) In common law ownership of a thing is terminated by means of abandonment (derelictio), when the owner
abandons his property with the intention of no longer being the owner. (1)
(ii) The spoliation remedy mandament van spolie is based on the principle that the person who has been
unlawfully deprived of his/her control must be reinstated in his/her original state of control before the merits of
the case can be investigated. (1) To succeed with this remedy, Mills (spoliatus) must prove that he had free
and undisturbed control (1) and that, against his wish, he was unlawfully deprived of such control by the
spoliator. (1) There must be clear proof of control in a physical sense.
(iii) To succeed with an interdict Mills had to show (a) that he had a clear right to the condenser, (1) (b) that he
had suffered damage or that he was threatened by irretrievable damage (1) and (c) that he had no other
effective (appropriate) remedy at his disposal. (1)
It was common cause between the parties that the shipwreck was a res derelicta and therefore a res nullius.
The case had to be decided on the requirements for spoliation. Even if the court accepted the evidence that
Mills had tied a buoy with a rope to the condenser, he failed to prove that he had exercised the required control
(1) over the condenser to justify the spoliation order.
The court also refused to grant a final interdict because Mills failed to show that he had a clear right to the
condenser, or that he had been prejudiced by the activities of Reck and Hartmann or that their conduct had
threatened to cause him harm or that there was no other appropriate remedy available to him. (1)
The appeal against the decision of the trial court was upheld. (1)
S and his friends go for a hunting weekend. S mortally wounds a kudu. The kudu manages to escape
into dense bush. S gives up the search for the kudu when darkness falls. On his way home from a
party, Z, one of the farm labourers, stumbles upon the wounded kudu. He fetches his friends and they
slaughter the animal and take the meat to their respective homes. Z is accused of theft of the kudu. The
25
state alleges that S was the owner of the kudu and that Z stole the kudu. To succeed the state will have
to prove that S was the owner.
Will the State succeed in proving this? Substantiate your answer with reference to case law.
No, the State will not succeed in proving that S was the owner.
S could only have become the owner by means of appropriation. (1) Appropriation or occupation is an original
method (1) of acquisition of ownership. It can be defined as the unilateral (1) taking of physical control (1) of a
thing which does not belong to anyone (1) (res nullius), but which is within the sphere of law (1) (res in
commercio) with the intention of becoming (1) its owner. The above set of facts is similar to those in R v
Mafohla. (1)
The element of the definition which causes problems for S’s reliance on acquisition of ownership by means of
appropriation is the element of control. Physical control is essential for the acquisition (1) of ownership by
means of appropriation. Where wild animals are wounded, but actual physical control is not taken,
appropriation does not take place. (1) Therefore, if one person wounds a wild animal but another person
catches it or discovers the carcass, the latter obtains ownership. (1)
Q and R, who are S’s grandparents, are lovers of game and they keep two impalas, a few kudus and a
giraffe in a camp of approximately 250 to 300 hectares in extent. The camp is enclosed by a fence 1.68
m high. Q and R purchased the animals at an auction from a well-known game farmer who marks all
his animals with the initials JR. Late one evening the game ranger leaves the gate open and the
animals escape. S and his friends go hunting on S’s farm the following evening. They shoot four of the
kudus. S’s grandparents, Q and R, are claiming the value of the animals from S and his friends
because they argue that the game was their property. Will Q and R succeed? Substantiate your
answer.
In order to answer this question you have to determine whether Q and R lost their ownership and S and his
friends acquired ownership of the kudu through appropriation or occupatio.
Appropriation or occupatio is an original method of acquisition (1) of ownership. It can be defined as the
unilateral taking (1) of physical control of a thing which does not belong to anyone (1), but which is within the
sphere of law (1) with the intention of becoming (1) its owner.
S and his friends took physical control of the kudus. The kudus were within the legal sphere and they (S and
his friends) intended to become owners of the kudus.
The question, however, is whether the four kudus were res nullius? (1)
Res nullius are things that belong to no one. (1) All creatures that are wild by nature (animals, birds, fish and
insects) either in their natural state (before someone has taken control of them) or when they have reverted to
26
their former wild state (after having been tamed (controlled) by a person) are regarded as res nullius. (1) An
exception occurs in the case of wild animals which have been tamed (domesticated). In this set of facts,
however, one must bear in mind that the kudus belonged to Q and R, who acquired them by means of a
derivative form (1) of acquisition of ownership, namely delivery. They derive their ownership from their
predecessor in title (1), the game farmer, who sold and delivered (1) them to Q and R at the auction.
They are identifiable and therefore they belong to Q and R, (1) who can claim them with the rei vindicatio if
they still exist or else claim their value.
Define:
(a) sowing and planting (4)
Sowing and planting can be defined as an original method of acquiring ownership in terms of which
growing things accede to land and become the property of the owner of the land. Accession takes place
as soon as the plants take root in the soil.
(b) accession (5)
Accession can be defined as an original method of acquiring ownership which takes place when an
accessory thing becomes merged with a principal thing, with the result that the two things form one
entity. The accessory thing loses its independence and becomes part of the principal thing. The owner
of the principal thing is the owner of the composite thing.
S plants potatoes on land he leases from Z. Before he can reap the crop, the term of his lease
expires and Z does not renew the lease. The lease agreement does not refer to the ownership of
the crop. Discuss the legal position of the parties involved. (8)
We are dealing with planting and sowing. (1) Sowing and planting can be defined as an original method
(1) of acquiring ownership in terms of which growing things accede to land and become the property of
the owner of the land. (1) Plants become part of the land as soon as they take root. (1) The basis of this
principle is that plants, in taking root, derive essential water and nourishment (1) from the soil. Where
there is a specific legal relationship (such as a lease contract) (1) between the parties, these principles
need not apply. Furthermore, special rules apply to plants which a lessee has planted during the
currency of a lease provided that the position was not regulated by an agreement. (1)
Plants which have been planted with the intention of removing them later or plants which are destined
to be removed (such as potatoes) do not become subject to the landowner’s ownership. (1) A case in
point here is Gore NO v Parvatas, which concerns the planting of bulbs. (1)
27
S starts a nursery on land he leases from his parents, X and Y. Along with other plants, he
plants flowering bulbs for a crop. Before he can reap the bulbs, his term of lease expires and his
parents do not renew the lease. They refuse to allow him to reap the bulbs, arguing that as
owners they are entitled to the crop. Advise S with reference to case law. (8)
See the answer above and note that plants which have been planted with the intention of removing
them later or plants which are destined to be removed do not become subject to the landowner’s
ownership (Gore NO v Parvatas 1992 (2) SA 363 (C) which concerns the planting of flowering bulbs).
1 Define building. (5)

Building can be defined as an original method of acquiring ownership in terms of which a movable thing
(accessory thing) becomes attached to land (principal thing) in such a manner that it loses its
independence and forms an entity with the land, thereby becoming part of the landowner’s land.
2 Name the criteria which are applied to determine whether a movable thing has become part of
an immovable thing, through building. (3)
(i) Nature and purpose of the attached thing
(ii) Manner and degree of attachment
(iii) Intention of the person annexing it or the intention of the owner of the movable
3 Discuss the role of intention in building. (10)

In the leading case of MacDonald Ltd v Radin NO and the Potchefstroom Dairies and Industries Co Ltd
the third criterion was described as the intention of the ‘‘person annexing it’’ and also as ‘‘the intention
with which it was annexed’’. The judge, however, then added that one can only look at the intention of
the owner of the movable. In this particular case the owner of the movables was also the annexor, but
he acted under the supervision of the non-owner, who had bought the movable things on credit and
was the holder of the land in terms of an instalment sale.
The court held that:
The importance of the first two factors is self-evident from the very nature of the inquiry.
But the importance of intention is for practical purposes greater still; for in many instances it is the
determining element.
A somewhat different approach was followed in Theatre Investments (Pty) Ltd v Butcher
Brothers Ltd (1978 (3) SA 682 (A)). In the Theatre Investments case the annexor was the owner of the
attached movables, but their lease made provision for acquisition of ownership of all attachments by the
lessor (owner of the land) on termination of the lease.
28
In the Theatre Investments case Van Winsen AJA remarked (at 688) that all the direct and inferential
evidence as to the intention would have to be considered together and that in the light of that evidence
it would have to be decided on a balance of probabilities whether the annexor intended a permanent
attachment.
In Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (Wp) Bpk (1996 (3) SA 273 (A)) the court
applied the three requirements as set out in the MacDonald case. Nienaber JA held that the third
requirement was decisive. Although he expressed unease about the correctness of the approach, he
applied the intention requirement as referring to the intention of the owner of the movable things that
were attached to the land. He held that in the specific circumstances of the case the subjective intention
of the owner of the movables attached thereto was decisive. The ownership of the attached
components therefore did not pass to the landowner by accession. The court stated that there is a
possibility that in other circumstances the subjective intention of the owner may not prevail.
4 S builds a house made of corrugated iron for the herdsmen. He screws the corrugated iron to
a concrete foundation on the farm of his parents, X and Y. Upon expiry of the contract of lease,
S wants to remove the house. X warns him that he cannot do that because this would amount to
theft. X and Y argue that they have become owners of the corrugated iron house by accession.
Will they succeed with this argument in court? Substantiate your answer with reference to case
law. (10)
Same as below – MacDonald v Radin Case
5 S, the lessee of a section of Waterford, decides to build a dairy and stables of this farm which
belongs to X and Y. S buys all the equipment to build the dairy from the cooperative, C. The
cooperative reserves ownership of the equipment until the final instalment has been paid. A
team of experts who work for C install the dairy under the supervision of S. They build the
stable with bricks on a concrete floor. They also install all the pipes and tanks for the proper
functioning of the dairy. Two years after S has started the dairy and before the cooperative has
been paid in full, S becomes insolvent and the trustee of his insolvent estate argues that all the
structures and equipment are movable assets which form part of the insolvent estate. X and Y
claim that they became co-owners by means of accession, and the cooperative claims that it is
the owner of the attachments.
Advise (with reference to case law):
(a) X and Y (10)
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X and Y can only claim ownership of the equipment if they became owners by means of accession in
the form of building. (1) The leading case here is MacDonald Ltd v Radin NO and the Potchefstroom
Dairies. The three standards applied by the courts to determine whether a movable thing is attached to
an immovable thing by means of accession in such a fashion that it subsequently becomes part of the
immovable thing, with the result that the right of ownership thereof subsequently vests in the owner of
the immovable thing, (1) will now briefly be discussed with reference to the following criteria:
(i) nature and purpose (½) of the attached thing (½)
(ii) manner and degree (½) of attachment (½)
(iii) intention of the person annexing it (or the intention with which the attachment was effected or the
intention of the owner of the movable) (1)
If the first two criteria are not decisive, the third one is the determining factor. (1) In the MacDonald
case the third criterion was described as the intention of the ‘‘person annexing it’’ and also as ‘‘the
intention with which it was annexed’’. The judge, however, subsequently stated that one can only look
at the intention of the owner of the movable. (1) In this particular case (and in the question) the owner
of the movables was also the annexor, although he acted under the supervision of the non-owner C,
who bought the movables on credit and who was also holder of the land in terms of an instalment sale.
(1) Therefore, X and Y cannot claim ownership of the equipment since it was C’s intention to retain
ownership until the last instalment had been paid and it was with this intention in mind that he attached
the equipment. (1)
(b) C, the cooperative (4)
Since the attachments remained movable, the cooperative remained the owner thereof. (1) If there had
been no insolvency entitling the trustee to ownership, the cooperative could have claimed the
movables. (1) Owing to the insolvency of S, the cooperative’s ownership changed to a tacit hypothec
against the insolvent estate. (1)
Furthermore, in Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (Wp) Bpk the court upheld the
defence of estoppel against the owner of the movables. (1)
(c) the trustee of the insolvent estate (3)
Since the attachments remained movable, the cooperative remained the owner. (1) However, since S
was insolvent, (1) the Insolvency Act automatically converted the cooperative’s ownership into a tacit
hypothec. (1)
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S leases a portion of X and Y’s farm for 30 years with an option to renew the lease for a further
30 years. He builds houses for his farm manager and workers on the farm. When S leased the
farm a dairy had already been erected on it. Next to the dairy he erected a house, a windmill and
a stand. From the windmill a pipe ran to the tank which stood upon a masonry structure from
which pipes led to the house and the tank. S also erected a cowshed and fences. This was done
to facilitate the smooth running of the dairy business. The dairy business ran successfully for
10 years but then S was declared insolvent and a trustee was appointed. Will the trustee
succeed in claiming the materials with which the house, the dairy, the windmill, the tank, the
cowshed and the fences were built? Substantiate your answer with reference to case law. (10)
Same as above – MacDonald v Radin case
Standard-Vacuum Refining Company operated an oil refinery on land belonging to it and

situated within the municipal area of the Durban City Council. The latter, when assessing the
appellant’s land for rating purposes, took into account the value of certain steel tanks which
were part of the refinery. These tanks were used for storing unfinished and finished products.
The valuators regarded the steel tanks as buildings on the land and therefore part of the
immovable property. Standard-Vacuum Refining Company objected to the valuation and argued
that the tanks were not buildings and therefore not part of the land. They regarded the tanks as
movable things.
Will Standard-Vacuum Company succeed in their objection to the valuation?
Substantiate your answer with reference to the relevant case.
The relevant case here is Standard-Vacuum Refining Co of SA (Pty) Ltd v Durban City Council. (1)
Legal question
Whether the tanks on Standard-Vacuum’s land were attached to the land in such a way as to render
them immovable. (1)
Ratio decidendi
The judge stated the following:
Indeed as I understand the above quoted authorities it would appear that in each case the object of the
enquiry is to ascertain whether the movable has been attached to the land or other immovable with the
intention that it should remain permanently attached thereto. In order to ascertain whether such is the
31
intention regard must be had to the following physical features viz. the nature of the movable, (1) the
method and degree of its attachment to the land or other immovable (1) and whether it can be readily
removed without injury to itself or to the land or immovable to which it is attached. (1) If the nature of
the movable is such that it is readily capable of acceding to the land or other immovable and is so
securely attached thereto that separation must of necessity involve substantial injury, (1) either to the
movable or to the land or immovable to which it is attached, then it must be inferred thatthe movable
was attached with the intention of permanency (1) and for that reason it must be held to have become
and be immovable. If, however, an examination of the physical features produces an equivocal result in
the sense that from an examination of such features, no inference can be drawn that the attachment
was made with an intention of permanency or otherwise, the intention of the annexor may be decisive.
(1)
The intention of the annexor has to be judged at the time of the attachment. To prove an intention to
attach permanently it is not necessary to show that the person attaching intended the attachment to
continue for all time.
Application of finding to relevant facts

By examining their physical features, (1) the court found that the tanks never enjoyed an independent
existence apart from the land. There was nothing in the nature of the tanks that rendered them
incapable of acceding to the land, which they did by their sheer weight and method of construction. (1)
Further, the tanks could not be detached without damage to themselves and the land. Even in the
absence of evidence as to the actual intention of the annexor, the above features would be sufficient to
justify an inference that the intention was to attach the tanks permanently. This inference, drawn from
the physical features, was confirmed by the subjective intention of the company as expressed by its
representative. (1)
8 The original lessors owned certain immovable property situated at the corner of Smith Street
and Albany Grove in Durban. A building (comprising a theatre, restaurant and other
accommodation) which is known as ‘‘The Playhouse’’ stands on this property. In terms of a
notarial lease agreement entered into on 6 December 1926, this property was leased to African
Theatres Ltd. The original lessors formed the company Butcher Brothers (Pty) Ltd and
transferred the immovable property to it in 1930. By a notarial agreement entered into on 11 May
1931 Butcher Brothers (Pty) Ltd and
African Theatres Ltd amended the terms of the original lease in certain respects.
The following terms of this lease are relevant:
1 The term of the lease was a period of 50 years from 1 January 1927 to 31 December 1976.
2 The lessee had the right to renew the lease for a further 49 years from 1
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January 1977 to 31 December 2025.
3 The lessee undertook to proceed with the erection of the theatre and other buildings on the
said immovable property to a value of not less than £55 000.
4 On termination of the lease or any renewal from any cause whatever all buildings and
improvements on the immovable property were to ‘‘revert to and ipso facto become the
absolute property of the lessors without their having to pay or being liable to the lessees for any
compensation in respect of the said buildings or improvements’’.
The original lessee duly erected the theatre and other buildings upon the immovable property
and such buildings were named ‘‘The Playhouse’’. The buildings were solidly constructed and
were elaborately finished and ornamented in a manner designed to give the appearance of an
early English theatre.
The buildings were large, comprising a theatre with 1762 seats on two levels, a foyer, gallery,
restaurant and other accommodation. The theatre building was equipped with all that was
necessary for its use as a theatre or cinema and restaurant complex and was commissioned for
these purposes. The building has been used for the said purposes ever since. Among the
equipment installed in the building when it was erected were theatre seats, fitted carpets,
lighting and cinema projection equipment, and air-conditioning equipment with the necessary
ancillary fittings and ducting. The lease was terminated and the lessee claimed that the theatre
seats, fitted carpets, lighting and cinema projection equipment, as well as the air-conditioning
equipment with the necessary ancillary fittings and ducting, remained movable and that as the
owner it was entitled to remove them from the theatre. Will Theatre Investments succeed in
claiming the above equipment from Butcher Brothers (the landlord)? Fully discuss with
reference to the relevant case. (12)
This question is based on the facts in Theatre Investments (Pty) Ltd v Butcher Brothers. (1)
Legal question
To determine whether Butcher Brothers acquired ownership of the equipment through attachment to
the land. (1)
Ratio decidendi
The court stated that a generally accepted test to be applied to determine whether a movable, which is
capable of acceding to an immovable and which has been annexed thereto, becomes part of that
immovable is to enquire whether the annexor of such a movable did so with the intention that it should
remain permanently annexed thereto. (1) Evidence as to the annexor’s intention can be sought from
numerous sources, including the annexor’s own evidence as to his intention, (1) the nature of the
movable and of the immovable, (1) the manner of annexation (1) and the cause for and circumstances
giving rise to such annexation. (1) The ipse dixit of the annexor as to his intention is not to be treated as
33
conclusive evidence (1) thereof but, should such evidence have been given, it must be weighed (1)
together with the inferences that can be derived from the other sources of evidence mentioned above in
order to determine what, in the view of the court, was in fact the annexor’s intention. In cases where no
evidence is forthcoming from the annexor, a court will be constrained to determine the issue upon such
inferences as may legitimately be drawn from the sources (1) mentioned above.
In applying the above criteria the court came to the conclusion that, having regard to the intended
duration of the original contract, (1) as well as to the period of its possible extension, to the fact that the
building was erected for the purpose of conducting a theatre in it and that the seats, the emergency
lighting and dimmer-board constitute equipment essential (1) to the effectuation of such a purpose, then
it is difficult to avoid the conclusion that such items of equipment when they were attached to the
building were intended to remain there indefinitely. (1)
9 Wm Spilhaus sold a number of loose components of an irrigation system to Pumps for Africa
with the explicit reservation of ownership until the purchase price had been paid in full. Before
the purchase price was paid, Pumps for Africa installed the irrigation system on the farm of
Konstanz Properties. The latter paid Pumps for Africa, but in turn it failed to pay Wm Spilhaus.
Wm Spilhaus claimed the pumps and the connections in the pump house. They rely on their
ownership of the pumps and connections. Discuss the court’s application of the intention
requirement. (5)
Theatre Investments case (case law) – read above & apply
34
Question 10 Page 112
Name the criteria which are applied in case law to determine whether a movable thing has lost
its independence and become part of an immovable thing by industrial accession. Distinguish
the different approaches followed with regard to these criteria in the following cases:
(a) MacDonald Ltd v Radin NO and the Potchefstroom Dairies and Industries Co Ltd (1915
AD 454) (5)
(b) Van Wezel v Van Wezel's Trustees (1924 AD 409) (5)
(c) Standard-Vacuum Refining Co of SA (Pty) Ltd v Durban City Council (1961 (2) SA 669
(A)) (5)
(d) Theatre Investments (Pty) Ltd v Butcher Brothers Ltd (1978 (3) SA 682 (A)) (5)
(e) Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (Wp) Bpk (1996 (3) SA 273
(A)) (5)
(a) In MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd (1915 AD 454) the court
pointed out that each case depends on its own facts. The court, however, stated three criteria that must be
applied to determine whether the movable has lost its independence and became part of the principal thing:
• the nature (½) and purpose (½) of the particular article,
• the degree (½) and manner (½) of its annexation, and

• the intention of the person annexing it or the intention of the owner of the movable (1)
The first two criteria can give an indication of permanency, but if they are inconclusive (1), one has to look at the
intention of the person annexing it (1).
(b) In Van Wezel v Van Wezel's Trustee (1924 AD 409) the owner of the movables was the annexor and not
the owner of the land (1). One has to look at the intention of the annexor and not merely the intention of the
owner of the movables. Before (1) the termination of the lease the lessee has the right to remove (1)
improvements, other than necessary improvements (1), which can be dismantled without damage (1) to the
property. The criteria as explained in MacDonald’s case were applied.
(c) In Standard-Vacuum Refining Co v Durban City Council 1961 (2) SA 669 (A) 678 the annexor was the
owner of the land and of the attached movables. It was said that the manner and degree of attachment relate to
35
the mode (1) in which the movable thing is attached to the immovable thing. As long as a sufficient linking exists,
it does not matter whether this has been brought about by the weight of the thing or by a physical attachment.
The attachment may be actually incorporated into the immovable thing or it may be so secure that separation
will cause substantial injury to either the immovable or the movable thing. The key words here are "substantial
injury" (1). If separation causes substantial injury, either to the movable or to the land or immovable to which it
is attached, then the movable was attached with the intention of permanency and have become part of the
immovable thing (1). If, it is not possible to determine whether there was an intention of permanancy, the intention
of the annexor may be decisive. (1)
In this case Van Winsen AJA distinguished between an objective (1) intention and a subjective (1) intention of
the annexor.
(d) Theatre Investments (Pty) Ltd v Butcher Brothers Ltd (1978 (3) SA 682 (A)) followed a somewhat different
approach. In this case the annexor was the owner of the attached movables, but its lease with the owner of the
land made provision for acquisition of ownership of all attachments by the lessor on termination of the lease. (1)
In the Theatre Investments case Van Winsen AJA remarked (at 688) that all the direct and inferential evidence
(1) as to the intention (1) would have to be considered together and that in the light of that evidence (1) it would
have to be decided on a balance of probabilities (1) whether the annexor intended a permanent attachment.
(e) In Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (Wp) Bpk (1996 (3) SA 273 (A)) the court applied
the three requirements as set out in the MacDonald case. (1) Nienaber JA held that the third requirement was
decisive. (1) Although he expressed uneasiness about the correctness (1) of the approach, he applied the
intention requirement as referring to the intention of the owner of the movable things (1) that were attached to
the land. He held that in the specific circumstances of the case the subjective intention (1) of the owner of the
movables attached was decisive.
Define mixing. (6)

Mixing can be defined as an original method of acquiring ownership in terms of which movable
things belonging to different persons are mixed together without the consent of the owners and in
such a way that the movables cannot be separated. The mixture becomes the joint property of the
former owners in proportion to the value of the things included in the mixture.
Distinguish between mixing of solids and mingling of fluids (5)

The mixing together of solid materials (for example, grain or feathers) is known as commixtio; the
mixing together of liquid materials (for example, oil or wine) is known as confusio.
36
Define manufacture. (4)
Specification/Manufacture can be defined as an original method of acquiring ownership in terms of
which ownership is acquired by the unauthorised production of a completely new thing, using a
thing belonging to another (eg, a person making wine from another person’s grapes or oil from
another person’s olives).
Define acquisition of fruits. (5)

Acquisition of fruits is an original method of acquiring ownership, which takes place when a person
who is entitled to separate or gather the fruits does so. Before separation, fruits are accessories of
the principal thing and therefore the property of the owner of the principal thing. Upon separation,
fruits become independent things which, as such, can form the objects of ownership and become
susceptible to acquisition of ownership.
Distinguish between different types of fruits. (3)

Various states or stages in which natural fruits exist are relevant in the determination of ownership
of such things, and the following distinction can be made:
(a) hanging fruits (fructus pendentes) – fruits in existence but still attached to the parent thing
(b) separated fruits (fructus separati) – fruits which have been separated from the principal thing by
a natural process, for example windblown or fallen fruits
(c) gathered fruits (fructus percepti) – fruits which have been separated and gathered or collected
Civil fruits, such as rent on immovables, interest on capital, profits from business or other ventures,
dividends on shares, are also included under fruits and the same principles apply here.
Define expropriation. (6)

Expropriation can be defined as an original method of acquiring ownership in terms of which the
State acquires ownership of a movable or immovable thing – without the consent of the owner
against payment of compensation. Section 25 of the Constitution of the Republic of South Africa,
1996, empowers the state to expropriate ‘‘property’’ for public purposes and against payment of
compensation.
Define prescription. (5)

Prescription can be defined as an original method of acquiring ownership in terms of which a
person who controls (possesses) a thing openly and as if he/she were the owner for an
uninterrupted period of thirty years becomes its owner. This is termed acquisitive prescription,
which is the means whereby real rights, in the form of ownership and servitudes, may be acquired
through the passage of time.
37
Distinguish between interruption and suspension of prescription (4)
In the case of interruption, the period of prescription which has already run is terminated and the
period of prescription must begin to run anew (de novo).
Suspension is the temporary suspension of a period of prescription. Here the period which has
already run does not lapse, but the course is suspended and can recommence at a later date.
Suspension of the prescription period takes place in favour of a number of persons whom the law
wants to protect by not allowing prescription to run against them.
Study unit 5
DERIVATIVE ACQUISITION OF OWNERSHIP
1 Name and briefly discuss the requirements for the passing of ownership. (7)
1 The thing to which the real right relates must be a thing in the legal sphere or in commerce (res in
commercio).
2 The parties should be capable to pass and acquire ownership.
3 The transferor must be the owner or be authorised by the owner.
4 The parties should have the intention to pass and receive ownership.
5 There should be a legal ground or iusta causa for the transfer of ownership.
6 Cash or credit required.
7 Method of transfer.
2 Distinguish between the causal and abstract systems of the passing of ownership. (5)
In the causal system the underlying agreement, which can take the form of a sale or a donation, is seen as the
reason (causa), and if, for example, the underlying agreement is invalid because a formal requirement of some
kind has not been complied with, no transfer can take place.
Where, on the other hand, the transfer of ownership is concerned with the intention of the parties to transfer
and receive ownership, regardless of whether such intention is supported by a valid underlying agreement, the
abstract system of the transfer of ownership is said to be applicable. In this case, it is of no consequence
whether the underlying agreement is valid or invalid. Apart from the physical handing over of the movable thing
or registration of the immovable thing respectively, all that is required is the intention of both parties to transfer
and receive ownership, in other words a real agreement. In the abstract system the real agreement is seen as
the reason (causa). Therefore as long as this real agreement is valid, ownership passes to the transferee.
38
The practical consequences of the abstract and causal systems differ in that in the abstract system ownership
is transferred if there is the serious intention to effect such transfer. If it subsequently appears that the
preceding obligationary agreement is defective in some way, the thing may only be reclaimed with a personal
action (condictio) from the person to whom it was transferred, and not from third parties.
This results in the thing which has already been transferred having to be returned, if it is still in the hands of the
transferee. According to the causal system, ownership does not pass without a valid reason (causa) (and here
the prior obligationary agreement is seen as the reason). This means that the owner retains ownership
and may claim the thing with a real action (namely the rei vindicatio) from the transferee or whoever possesses
it, thus also from third parties.
The abstract system of the transfer of ownership is applicable to the transfer of movable and immovable
property.
3 Explain the nature and relevance of the real agreement. (5)

Since we are dealing with an act of transfer which effects a shifting of assets from one person’s estate to that
of another, the law requires a reason (causa) for this transfer to have permanent effect. If there is no reason for
the transfer, the transferee is unjustifiably enriched at the expense of the transferor and the latter
can claim the thing back.
In the causal system the underlying agreement, which can take the form of a sale or a donation, is seen as the
reason (causa), and if, for example, the underlying agreement is invalid because a formal requirement of some
kind has not been complied with, no transfer can take place.
1 Describe or explain with reference to an example:

(a) delivery (5)
Ownership of movable things is transferred by means of delivery. Delivery consists of two elements: a
physical element (corpus) and a mental element (animus). Both elements must be present at the
transfer. The physical element can be fulfilled in different ways.
(b) constructive delivery (4)
All the cases in which there is not a physical or actual handing-over of the thing are grouped together
under the heading of constructive or fictitious delivery (traditio ficta). The transferee may be
1 placed in a position to exercise physical control (symbolic delivery, delivery with
the long hand (traditio longa manu) and bills of lading)
2 already in physical control by virtue of some other legal relationship (delivery with
the short hand (traditio brevi manu)
39
3 in a position where someone else exercises physical control on his/her behalf
(constitutum possessorium and attornment, as well as its extended form – cession of
ownership)
(c) delivery with the long hand (4)
The expression ‘‘longa manu’’ (with the long hand) indicates the basis of this means of
delivery. Here transfer of the thing is not possible because of its size or weight, for
example the thing might consist of a load of timber, stones in a quarry, livestock or heavy
machinery. In this case the thing to be transferred is pointed out to the transferee in the
presence of the thing. The transferee is placed in a position enabling him/her to exercise
physical control. It is not sufficient merely to point out the thing. The transferee must be
placed in a position to take control of the thing to the exclusion of others.
In March 1914, D signed a document declaring that he had sold a threshing machine to Van der Merwe
for £150, the receipt of which sum he acknowledged. Van der Merwe, after inspecting the machine, left
it with D on the understanding that D should keep it until asked for it again and should retain
any earnings for himself. In August 1915 D, being still in possession of the machine, sold it to
Groenewald and again received payment, the parties signing a document which contemplated an
immediate delivery of the machine. Groenewald then went with D to the latter’s farm where
Groenewald, after inspecting the machine, stated that it was now his threshing machine. Groenewald
further wrote to one W, who was in charge of the machine, asking him to thresh for Groenewald on the
same terms as he had done for D. Then Van der Merwe removed the machine from D’s farm and
Groenewald threatened to sue him unless D signed a promissory note ‘‘as security’’ for the re-delivery
of the machine. D signed a note which was never paid and Groenewald, who had meanwhile attempted
to obtain a charge (real security right) over certain maize crops belonging to D, sued Van der Merwe for
the recovery of the machine and payment of damages. Which form of delivery is relevant here? Will
Groenewald succeed with his rei vindicatio? Substantiate your answer with reference to case law.
One of the requirements for delivery with the long hand is that the transferee must be placed in the position
that he and he alone can deal with the thing. Van der Merwe did not fulfil this requirement, but Groenewald
did.
The expression ‘‘longa manu’’ (with the long hand) indicates the basis of this means of delivery. Here transfer
of the thing is not possible because of its size or weight, for example the thing might consist of a load of timber,
stones in a quarry, livestock or heavy machinery. In this case the thing to be transferred is pointed out to the
transferee in the presence of the thing. The transferee is placed in a position enabling him/her to exercise
physical control. It is not sufficient merely to point out the thing. The transferee must be
placed in a position to take control of the thing to the exclusion of others.
In Groenewald v Van der Merwe (1917 AD 233 239), Innes CJ described delivery with
40
the long hand as follows:
But physical prehension is not essential if the subject-matter is placed in presence of the would-be possessor
in such circumstances that he and he alone can deal with it at his pleasure. In that way the physical element is
sufficiently supplied; and if the mind of the transferee contemplates and desires so to deal with it, the transfer
of possession, that is the delivery is in law complete ... When this deposit of the subject matter in the presence
and
at the disposition of the new possessor takes the place of physical prehension, the delivery is said to be made
longa manu ... It is most appropriate to transactions where owing to the weight or bulk of the article concerned,
actual delivery is difficult.
A mining company erected an electrical substation and steel towers on its farm to convey electricity to
its mining operations. The installations and substation were erected in accordance with Eskom’s
specifications. Eskom supplied power to the mining company. Subsequently the mining company
ceased operations and Eskom no longer supplied it with power. In 1981 Rollomatic purchased certain
steel towers, which had previously been part of the electrical substation, from the mining company. In
terms of the sale contract Rollomatic was responsible for the removal of the steel towers and their
concrete foundations and for restoring the land to its original state. Deliveryof the steel towers to
Rollomatic would take place after the latter had made the necessary arrangements with an official of
the mining company, which still owned the farm. No such arrangements were ever made and
Rollomatic left the steel towers on the farm. The managing director of Rollomatic had, in his personal
capacity, hired the farm for grazing purposes, but the fenced-off area on which the substation andsteel
towers stood was expressly excluded from the lease. Eskom later decided to put the substation into
operation again and purchased a small portion of the farm upon which the substation and steel towers
stood from the mining company. It took transfer of that portion of the farm in January 1986. Eskom
again used the steel towers, which were still standing there, as an integral part of the new substation.
When Rollomatic sent its employees in May 1987 to remove the steel towers, they could not do so
because of the erection of the new substation. Rollomatic is claiming delivery of the steel towers to it
by means of the rei vindicatio. It claims that it has become the owner of the steel towers. Which form of
delivery is relevant here? Will Rollomatic succeed with its claim? Substantiate your answer with
reference to case law.
The case in question is Eskom v Rollomatic Engineering (Edms) Bpk. (1)
Legal question
To determine whether ownership of the steel towers was transferred to Rollomatic by means of delivery with
the long hand (traditio longa manu). (1)
Ratio decidendi
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It is not an essential requirement for delivery with the long hand that the transferee is placed in physical
control. (1) However, the thing must be pointed out to the transferee and he/she must be placed in such
circumstances that he/ she and he/she alone can deal with it at pleasure. (1) In this way the physical
element is sufficiently fulfilled. Obviously the parties must intend to transfer and receive ownership. (1) If both
these requirements have been fulfilled, delivery is considered complete in law. When the deposit of the subject
matter in the presence and at the disposition of the transferee takes the place of physical prehension, the
delivery is said to be made longa manu, and it constitutes one of the forms of fictitious, (1) as distinguished
from actual, delivery.
The court did not find it necessary to determine whether the towers were movable or not. (1) From the
evidence it was clear that Rollomatic never exercised control (1) either over the land (1) in question or over the
towers. (1) It therefore failed to show that one of the requirements for delivery with
the long hand had been met, namely that it must have been able to take physical control of the towers after
they had been pointed out to it. Rollomatic therefore failed to prove (1) that it had become the owner of the
steel towers and consequently it was not entitled to an order for delivery of the towers. (1)
There is a windmill on the farm of X and Y, which they no longer use. S purchases it from them. His
father takes him to the windmill and shows it to him. He says: ‘‘Here is the windmill. You must come
and dismantle it and take it away.’’ S undertakes to do this as soon as he has the time. For six months
S does not visit his parents or remove the windmill. Z approaches X and Y and offers to buy the
windmill. They sell it to him. Z removes the windmill and erects it on his farm. S claims delivery of the
windmill from Z with the rei vindicatio. What must S prove to succeed with the rei vindicatio? Will S
succeed in proving all the requirements for the rei vindicatio (refer to the way in which ownership was
acquired in this example)? Substantiate your answer with reference to case law. (15)
ANSWER:
S can only succeed with the rei vindicatio if he can prove that X and Y in fact transferred ownership
to him by means of traditio longa manu (1). Here transfer of the thing is not possible because of its
size or weight (1). In this case the article to be transferred is pointed out (½) to the transferee in the
presence (½) of the thing. The transferee is placed in a position enabling him/her to exercise physical
control. It is not sufficient merely to point out the thing. The transferee must be placed in a position to
take control (1) of the thing to the exclusion of others.
In Groenewald v Van der Merwe (1) (1917 AD 233 239), Innes CJ described delivery with the long hand as
follows:
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But physical prehension is not essential if the subject-matter is placed in presence of the would-
be possessor in such circumstances that he and he alone can deal with it at his pleasure (1). In
that way the physical element is sufficiently supplied; and if the mind of the transferee
contemplates and desires so to deal with it, the transfer of possession (1), -- that is the delivery
--- is in law complete. ... When this deposit of the subject matter in the presence and at the
disposition of the new possessor takes the place of physical prehension, the delivery is said to
be made longa manu ... It is most appropriate to transactions where owing to the weight or bulk
of the article concerned, actual delivery is difficult. (Our emphasis.)
In Eskom v Rollomatic Engineering (Pty) Ltd (1) (1992 (2) SA 725 (A)) the court confirmed this principle.
For S to acquire ownership by means of delivery with the long hand (traditio longa manu) he had to be in the
position that he and he alone (1) could deal with the thing at his pleasure (1) in order to comply with the
physical element of control (by, for example, placing someone at the windmill until he removes it, or
putting up a notice or, as in the case of Groenewald, by informing the workers that they would
henceforth be using the machinery for his account). S should also comply with the mental element of control
– the intention to receive ownership from X and Y (1).
S did not comply with the physical element of control and did therefore not acquire ownership through delivery
with the long hand (traditio longa manu). S will not succeed with the rei vindicatio
(1).
Describe or explain delivery with the short hand with reference to an example.
According to this so-called ‘‘short-handed’’ method, no transfer of physical control takes place, since the
transferee is already in control of the thing, although not as owner. For example, the transferee may be a buyer
in terms of an instalment sale and on payment of the last instalment, he/she acquires ownership by means of
delivery with the short hand. No transfer of control is necessary. It is therefore important that there should be a
clear indication of the intention requirement.
For the purchase of a motor vehicle, Infoplus had entered into a written instalment sale agreement with
a bank. The bank had then ceded (transferred) its rights to Wesbank. The latter became the owner of
the vehicle. The motorvehicle was delivered to Infoplus and registered in its name, but according to the
instalment sale agreement, ownership was to remain vested in the seller until receipt of the full amount
owed by Infoplus. Infoplus’s authorised representative, M, then agreed with G, a representative of S
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Motors, that the motor vehicle would be delivered to the premises of S Motors and that G would
attempt to find a purchaser for the motor vehicle at a stipulated price. If a purchaser was found, the
prospective purchaser was to be introduced to Infoplus, after which the purchaser would pay the full
purchase price to Infoplus, which would then pay S Motors its commission. The motor vehicle was
duly delivered to S Motors, but neither G nor anyone else acting for S Motors
introduced a purchaser to Infoplus.
When M returned from a trip abroad, he found that G had left the employ of S Motors and that the
motor vehicle was registered in the name of Scheelke. G had sold the motor vehicle to X, delivering it
together with a registration certificate reflecting that S Motors was the registered owner thereof, for
substantially less than the stipulated price, after which X had sold and delivered the vehicle to
Scheelke. Wesbank wanted to repossess the vehicle, but instead concluded an agreement with X in
terms of which X paid Wesbank the total amount outstanding under the instalment sale agreement,
thus allowing Scheelke to retain control of the motor vehicle. Infoplus wants to claim the vehicle from
Scheelke with the rei vindicatio. Discuss Infoplus’s chances of success fully with reference to case
law.
According to this so-called ‘‘short-handed’’ method, no transfer of physical control takes place, since the
transferee is already in control of the thing, although not as owner. For example, the transferee may be a buyer
in terms of an instalment sale and on payment of the last instalment, he/she acquires ownership by means of
delivery with the short hand. No transfer of control is necessary. It is therefore important that there should be a
clear indication of the intention requirement (Info Plus v Scheelke 1998 (3) SA 184
(SCA)). There should be some clear proof that the transferee holds on a new basis as owner (Marcus v
Stamper and Zoutendijk 1910 AD 58).
1 Define constitutum possessorium (5)

Constitutum possessorium is in a certain sense the very opposite of delivery with the short hand (traditio brevi
manu). Here the transferor retains physical control over the thing of which he/she has agreed to transfer
ownership to the transferee. It is only the intention towards the thing that undergoes a change.
2 Describe or explain constitutum possessorium with reference to an example (5)

For example, X buys a watch from a jeweller and leaves it with the jeweller for cleaning (ABSA Bank Ltd t/a
Bankfin v Jordashe Auto CC 2003 (1) SA 401 (SCA) 407J).
Since this form of transfer of ownership depends entirely upon the changed relationship between the parties, it
is obvious that there is ample opportunity for fraud. A debtor may mislead his creditors when they wish to
attach his/her goods by asserting that the goods under his/her control have been delivered to another person
by means of constitutum possessorium.
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3 In 1967 Z sold his dry-cleaning business, called Vasco Dry Cleaners, to X. It was a term of the
contract of sale that, in respect of the dry-cleaning machinery included in the sale, the passing of
ownership would be suspended until the purchase price had been paid in full. At the end of June 1972
the balance still owing to Z was R4650,00. X was in financial difficulties and, in order to avoid the
repossession of the machinery by Z, he sought and obtained financial assistance from Twycross, his
brother-in-law. X and Twycross accordingly entered into a written agreement on 28 June 1972 in terms
of which Twycross was to pay the balance still owed to Z. It was agreed that on such payment to Z, X’s
ownership of the machinery would pass to Twycross, who agreed to sell the machinery to X for a
purchase price of R4700,0, payable on or before 30 June 1973.
It was further agreed between X and Twycross that ownership of the machinery would not pass to X
until the purchase price had been paid in full to Twycross. They agreed that if the purchase price was
not paid, Twycross would be entitled to obtain the return and repossession of the machinery.
In November 1972 X sold the business, including the machinery to a new owner. In the deed of sale X
warranted that he was the owner of the machinery. The new owner of Vasco Dry Cleaners was not
aware of the contract between Twycross and X. X failed to pay Twycross the sum of R4700,00.
Twycross wishes to claim the machinery from the new owner. Fully discuss his chances of success
with reference to case law.
In order to succeed with the rei vindicatio, Twycross must prove that he is the owner of the machinery. (1) The
facts of the question are similar to the facts in Vasco Dry Cleaners v Twycross. (1)
The question here is whether Twycross became owner through constitutum possessorium from X to him. (1)
It has been held in the Vasco case that constitutum possessorium is the opposite of delivery with the short
hand (traditio brevi manu). In the case of constitutum possessorium the transferor retains physical control of
the thing to be transferred. Since this form of delivery creates the possibility of fraud, any assertion that
ownership of a movable has passed upon a mere change of mental attitude is carefully scrutinised by the
courts. (1)
It has further been held that the real object of the transaction between X and Twycross was not a sale to
Twycross which would have entitled him to become owner of the machinery on delivery, but rather that a
pledge should be created in his favour. (1) According to the facts, he never took physical
control of the machinery. (1) The transaction (sale) between X and Twycross was found to be a simulated
transaction, because it did not reflect the true intention of the parties. (1)
Furthermore, the court held that no pledge was created since constitutum possessorium does not constitute
delivery for purposes of creating a valid pledge, because the pledged thing remains with the pledgor. (1)
The only effective method of constituting a pledge is by an agreement and transfer of control by actual delivery
of the thing to be pledged to the pledgee.
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X and Twycross therefore disguised their agreement as a sale and re-sale. However, the court decided that the
true substance of the contract was one of pledge. Therefore, Twycross cannot claim the machinery back,
because he is not the owner of the machinery. (1)
S bought harvesting machinery from Z. He borrowed money from X and Y to pay for the machinery. Z
delivered the machinery to S, who used it on his farm. S then sold the machinery at the same price that
he paid for it to his parents and leased it back from them. S becomes insolvent and X and Y claim
the machinery from the insolvent estate with the rei vindicatio. They claim that they became owners in
terms of constitutum possessorium.
Will they succeed? Substantiate your answer with reference to case law. (10)
ANSWER:
In order to succeed with the rei vindicatio, Y and Y must prove that they are the owners of the machinery.(1) The
facts of the question are similar to the facts in Vasco Dry Cleaners v Twycross (1) (1979 (1) SA 603 (A)). The
question here is whether X and Y became owners through constitutum possessorium, because, as the facts
reflect, they never took physical control of the machinery.(1)
It has been held in the Vasco case that constitutum possessorium is the opposite of traditio brevi manu
(delivery with the short hand). In the case of constitutum possessorium the transferor retains physical control of
the thing to be transferred. Since this form of delivery creates the possibility of fraud, any assertion that
ownership of a movable has passed upon a mere change of mental attitude is carefully scrutinised by the
courts.(1)
It has further been held that the real object of the transaction between S and X and Y was not a sale to X and Y
which would have entitled them to become owners of the machinery on delivery, but rather that a pledge should
be created in their favour.(1) The transaction (sale) between S and X and Y was referred to as a simulated
transaction, because it did not reflect the true intention of the parties.(1)
Furthermore, the court held that no pledge was created since constitutum possessorium does not constitute
delivery for purposes of creating a valid pledge, because the pledged thing remains with the pledgor.(1) This
creates ample opportunity for fraud.
The only effective method of constituting a pledge is by an agreement and transfer of control by delivery of the
thing to be pledged to the pledgee.(1)
S and X and Y therefore clothed their agreement in the guise of a sale and re-sale. However, the court decided
that the true substance of the contract was one of pledge. Therefore X and Y cannot claim the machinery back,
because they are not the owners of the machinery.(1)
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Distinguish between delivery with the short hand and constitutum possessorium and illustrate the
difference between the two with reference to examples. (6)
ANSWER:
In the case of delivery with the short hand no transfer (1) of physical control takes place, because the transferee
is already in control (1) of the thing although not as owner of the thing.
For example if a transferee holds a thing as a lessee and thereafter purchases it; or if a transferee is a buyer in
terms of an instalment sale agreement he/she acquires ownership by means of delivery with the short hand on
payment of the last instalment. [1 mark for any example]
Constitutum possessorium takes place when the transferor retains (1) physical control over the thing in which
he/she has agreed to transfer ownership to the transferee. Only the intention (1) towards the thing undergoes a
change.
1 Define attornment. (5)

Attornment can be defined as a derivative method of transferring ownership where the transferor, the
transferee and a third party (who is in control of the thing and will continue to control it) agree that the third
party will control the thing on behalf of the transferee as owner.
2 Describe or explain attornment with reference to an example. (5)

Attornment applies where an owner of a thing wishes to transfer ownership in circumstances where he/she is
not in control of the thing, for example, in a discounting agreement. In a discounting agreement a car dealer
(seller) sells a motor vehicle to a purchaser in terms of a credit agreement (in other words, he/she reserves
ownership).
Thereafter he/she cedes (transfers) his personal rights in terms of the sales contract with the purchaser and his
reserved ownership in the motor vehicle to a bank (or other financial institution) that pays the full purchase
price to the dealer. The effect of the discounting agreement is that the motor vehicle is sold and delivered to
the bank. The transfer from the dealer to the bank takes place by way of attornment.
3 Mention and explain the two requirements for attornment. (4)

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There are two requirements for attornment to take place,
namely:
(i) A tripartite agreement between the transferor, the transferee and the third party holder in terms of which the
holder will continue to hold for the transferee and no longer for the transferor. All three parties therefore
consent to the transfer of ownership.
(ii) The holder should exercise physical control at the moment of transfer from the transferor to the transferee
4 S had an agreement with C, the cooperative, in terms of which he traded his old truck in as part
payment for a harvester that he was buying from C. The truck was at the premises of a panel beater,
who was repairing accident damage. S and C completed change of ownership documents for the truck
and C informed the panel beater that it (C) was the new owner of the truck. The panel beater never
declared himself willing to control the truck on behalf of the new owner. Z, a creditor of S’s, obtained
an execution order against S. When the sheriff tried to attach the truck while it was still with the panel
beater, the latter told the sheriff that C had informed him that C was the new owner of the truck. Z
disputes this.
Will Z succeed with his application for an attachment order? Substantiate your answer with reference
to case law. (10)
Z can only attach the truck if S still owns it. If K obtained ownership by way of attornment, Z will not be able to
attach the truck. K will only obtain ownership if the parties complied with all the requirements for attornment.
There is, however, no tripartite agreement between S, K and the panel beater.
You have to discuss the requirements fully with reference to Air-Kel (Edms) Bpk h/a Merkel Motors v
Bodenstein.
S leased a car from a car dealer. The dealer had a discount agreement with a bank. In terms of the
discount agreement the bank undertook to take a cession of the rights contained in the lease
agreement and transfer of the ownership when the dealer presented the bank with the discount
agreement. On 21 May 2002 the dealer handed the car to S, who immediately sold it and delivered it
to Z. The relevant lease agreement with S was submitted to the bank on 26 May 2002. The bank then
paid the discounting price to the dealer and claimed the car from Z. The bank claimed that it had
become the owner of the car by means of attornment.
Fully advise the parties on their legal position. Refer to relevant case law.
It is useful to draw a diagram of the facts when answering a problem-type question. This question is based on
the facts of Barclays Western Bank v Ernst. Guide page 147
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X and Y purchase their farm implements in terms of a credit agreement from the cooperative,K . K
reserves ownership until X and Y have paid the final instalments. X and Y pay a fairly high rate of
interest to the cooperative and Q. X and Y pay fairly high rate of interest to the cooperative and Q. Xs
father in law, understakes to pay the full amount to the cooperative. X and Y can then repay the money
to him in instalments. The cooperative tranfers ownership to Q. What form of transfer of ownership
applies here? Explain the operation of this form of delivery with reference to case law. 10
Study guide pg 148 question 7
ANSWER:
Attornment can be defined as a derivative method (1) of transferring ownership where the transferor, (½) the
transferee (½) and a third party (who is in control of the thing and will continue to control it), (1) agree (1) that
the third party will control (1) the thing on behalf of the transferee (1) as owner. There are two requirements for
attornment to take place, namely:
(i) A tripartite agreement (1) between the transferor, the transferee and the third party holder in
terms of which the holder will continue to hold for the transferee and no longer for the
transferor. (1) All three parties therefore consent to the transfer of ownership.
(ii) The holder should exercise physical control at the moment of transfer (1) from the transferor
to the transferee (Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein (1) 1980 (3) SA (917
(A) 922—924)).
In Caledon en Suid-Westelike Distrikte Eksekuteurskamer Bpk v Wentzel (1) (1972 (1) SA 270 (A)) the law
relating to attornment was altered and a method of transfer of ownership analogous to attornment was
recognized.(1) By this method the third-party holder makes a prior declaration of intention,(1) to the effect that
he/she will hold the thing on behalf of a future transferee to whom the owner may transfer ownership. This
declaration can take place at a stage when transfer to the transferee has not yet taken place and may,
possibly, never take place.(1) When transfer eventually takes place (by means of cession and notice to the
transferee), the third party holder may even no longer be in control of the thing. (1)
(Maximum 10 marks)
REGISTRATION
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X and Y donate that part of their farm which their son, S, is leasing from them to S. They obtain
permission to subdivide the farm and S erects a fence on the new boundary. He fetches X and Y and
they all drink a toast at the new gate. X says to S: “Son, I am glad that this piece of land is now your
property ! Did S become the owner of the land ? Substantiate your answer fully.
ANSWER:
S did not become owner of the property (1) because registration did not take place. Ownership of immovable
property (1) can only pass from X and Y to S if X and Y have the intention to transfer ownership to S (1) and if
S has the intention to receive ownership (1) (real agreement) and registration (1) of the property in S’s name
takes place.
STUDY UNIT 6
OWNERSHIP: PROTECTION AND TERMINATION
Define
DEFINITIONS:
Rei vindicatio:
Is a real action with which an owner can claim his thing from whoever is in control of it without the owner’s
permission or consent. It may be instituted in regards to movable or immovable things.
Estoppel:
Is a defence which can be raised against an owner’s rei vindicatio where the owner of a certain thing through
his conduct, culpably leads 3rd parties to believe that someone else is the owner of the thing or is authorised to
alienate the said thing, & the 3rd party, relying on the representation, obtains possession & in doing so acts to
his detriment.
Interdict:
Is a summary court order applied for an urgent basis. In an interdict the applicant may apply for an order
forcing a person to do something or to reframe from doing something. It’s a speedy remedy where rights have
been infringed or are about to be infringed.
Condictio furtiva:
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Is an action which can be instituted by the owner or a person with a lawful interest in claiming the thing or its
highest value since the theft from the thief or person who removed the thing with deceitful intent.
Actio ad exhibendum:
Is an action in terms of which the owner can claim the market value of the thing from a person who intentionally
destroyed or alienated the thing with mala fide intention.
Aquilian action:
(Delictual claim for damages).
Is an action with which the owner can claim back the market value of the thing at the time of alienation or
destruction from the former controller who mala fide alienated or destroyed the thing.
Mention the methods of termination of ownership (3)
1. Death of the owner

2. Destruction of the thing
3. Termination of the physical control & owner’s intention.
Q is the owner of a car. T a thief steals the car. T gives car to his son TT to use against whom can Q
institute the condictio furtiva? what are the requirements for remedy & what can Q claim (5)
Q can institute it against the thief & his heirs. (Thief still alive, so against him).
Requirements:
1. Only if his right or interest was retained from the date of the theft to the institution of the action
2. Against thief or heirs
3. Can’t be instituted together with rei vindicatio – in the alternative.
Q can claim the thing itself or the highest value of the thing since the theft.
X & Y are co-owners of waterval,they purchase farm implements from K the cooperative in terms of a
credit amount. K reserves ownership of implements. which consist of tractor, a plough, harvester,
spades, picks & shovels. T steals plough & gives it to his son TTto use. (5)
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(i) X & Ymake use of the actio ad exhibendum?
No, because X & Y isn’t the owners, because K reserved ownership & only he can use this remedy.
(ii) Against whom can it be instituted?
It can be instituted against the former controller who mala fide alienated or destroyed the thing.
(iii)What are the requirements for a succesful reliance on this remedy?
Requirements:
1. That the person intentionally alienated or destroyed the thing
2. That the person did it an a mala fide conduct
3. The owner obtained a loss.
X and Y are owners of Waterford. S, their son, leases a portion of the farm for grazing purposes. X
starts to plough on the section of their farm for grazing purposes. X starts to plough on the section of
their farm to which S is entitled in terms of the lease contract. S request X to stop the ploughing on the
farm. X refuses. What remedy can S use? Discuss this remedy with reference to its requirements
In principle an interdict is a summary court order applied for on an urgent basis to force a person to do
something (mandatory interdict) or to refrain from doing something (a prohibitory interdict). (1) It is a speedy
remedy used when rights have been infringed or are about to be infringed. (1) In this question the prohibitory
interdict is applicable because X is forced to stop or refrain from doing something.
The requirements for an interdict were set out in Setlogelo v Setlogelo. (1)
The requirements are :

a clear right (1) (please take note that the requirement is a clear right – not a real
right or ownership – Setlogelo illustrates the point);
actual or reasonably apprehended violation of a right; (1) and the absence of similar protection by any other
ordinary remedy. (1)
Name the requirements for an interdict (3)

Requirements:
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1. A clear right
2. Unlawful & continuing infringement of right
3. Reasonable expectation of unlawful infringement in future
4. There’s no other effective remedy
Q is the owner of the car. t a thief steals it.

(1)T gives the car to his son Tt to use.Can T institute the condictio furtiva against Tt? (5)
As owner Q can institute the action to claim the car. He can only claim from the thief. He can also institute
action against the heirs but here the thief isn’t dead yet. If he wishes to claim the car from Tt he will have to
institute the rei vindicatio.
(2) Because T is afraid of being caught by police he sets fire to the car & its completely destroyed. can
Q institute the actio ad exhibendum against T & what can he claim? (5)
Yes he can institute action against T. T destroyed the thing mala fide & on purpose. Q can claim the market
value of the thing at the time of the destruction.
Q must prove:
1. He’s the owner
2. Thief intentionally destroyed the thing
3. Thief acted mala fide
Hard to prove mala fide because T can say he didn’t have malicious intention, but that he was afraid of being
caught by the police.
Name the requirements for each of the following remedies:
rei vindicatio (3)
1. Owner must prove ownership of thing

2. Only an existing & identifiable thing can be reclaimed
3. The property must be in control of the defendant when action is instituted.
conditio furtiva (5)
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1. Ownership or interest in thing must have been retained from date of the theft until the date of the institution
of the action
2. Previous owner retains this remedy even if owner’s ownership is terminated as a result of the destruction of
the thing
3. Action can only be instituted against thief or his heirs (if the thing itself can no longer be claimed, claim will
be for highest value of thing since theft)
4. Action cannot be instituted with the rei vindicatio but only in the alternative.
S the son of X & Y leases a portion of his parents farm.When his fathers farm implements are stolen he
lends some of his equipment to his father X to use.They have an argument. X in his anger breaks s’s
equipment. Indicate which remedy is available to s & what the requirements for success are. (4)
Action for delictual damages (Actio legis Aquiliae).
Requirements:
1. Act is unlawful
2. Defendant acted intentionally/negligently
3. proprietary right in thing
4. patrimonial loss
5. Causal connection between the patrimonial loss & conduct of defendant.
S builds a house made of corrugated iron for the herdsmen. He bolts the corrugated iron to a cement
foundation on the farm of his parents (X & Y). After the term of the contract of leases has expired s
wants to remove the house. X& Y warn him that he can’t do that because this would amount to theft. X
& Y argue that they became owners of the corrugated iron house by accession. S removes the house.
Can X & Y claim the return of the building material with the rei vindicatio. Will they succeed?
substantiate fully. (8)
The requirements for rei vindicatio which the owner must use are:
3. The property must be in control of the defendant when action is instituted
X & Y could only have become owners of the building material by attachment.
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In relevant case law, MacDonald v Rabin, the court determined 3 criteria’s which determine if a movable thing
is attached to an immovable thing in such a way that it becomes part of the immovable thing, namely:
1. Nature & Purpose of the attached thing
2. Manner & Degree of attachment &
3. The Intention of the attacher.
The intention factor was relevant in 3 more cases, namely

1. Standard Vacuum,
2. Theatre Investments &
3. Konstanz Properties.
According to all 3 criteria it’s clear that the house didn’t become part of the land & therefore X & Y will not
succeed in getting back the material from S.
X owner of farm. X purchases tractor from C the cooperative i.t.o. a credit agreement. C reserves
ownership of tractor. T steals tractor & gives it to his son s to use. which remedy is available to x,
against whom can it be instituted & what are the requirements? (5)
X can institute the Condictio Furtiva.

Owner or person with lawful interest can institute this action, against the thief or his heirs.
Requirements:
1. Ownership or retention of lawful interest from the date of theft to the date of institution of action
2. Theft or removal with deceitful intention by Defendant.
3. That Defendant is an heir
S decides to build a dairy & stables on Waterval. He buys all the building material & equipment from
the cooperative. The cooperative reserves ownership of the material & equipment until last instalment
has been paid. S builds the dairy & the stables with brick & a cement floor. S installs all the pipes &
tanks for the milk. 2 yrs after he has started, but before the cooperative has been fully paid, S
becomes insolvent. Trustee of his insolvent estate argues that all the structures & equipment are
movable assets which form part of s’s estate. x & y claim that as co owners of waterval they became
owners of the structures & attachments through accession. cooperative alleges that it remained owner
of building materials & equipment. Advise:
(3)the cooperative (3):
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Since the attachment remained movable, co-operative remained owner thereof. But since S was insolvent
SEC84 of the Insolvency Act automatically converted ownership of the co-operative to a tacit hypothec. The
co-operative therefore automatically becomes a preferent secured creditor in the insolvent estate of S. In
Konstanze the court upheld the defence of estoppel against the owner of the movable.
Name the requirements for estoppel (4)
1. Representation
2. Fault
3. Detriment
4. Causal connection
 Quenty’s Motors Case
Name 6 ways in which ownership is terminated by operation of law (6)
1. Accession
2. Prescription
3. Attachment & sale in execution
4. Confiscation
5. Expropriation
6. Insolvency
S rents a car from car rental agency. in terms of the lease s is liable for all damages to car. S goes on
holiday & asks Z, his sister in law to park car in her garage while he is away. she agrees. one saturday
Z removes car & takes her daughter to doctor.Car stolen from parking lot. Car can’t be traced & car
rental agency claims car from S. since S is unable to return the car, he pays car rental agency &
claims the amount from Z. (8) Discuss the remedy applicable
This question requires an indication of the applicable remedy, the requirements for a
successful reliance on the remedy ( CONDITIO FURTIVA ) and whether S will succeed.
The leading case here is Clifford v Farinha (1988 (4) SA 315 (W)).
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To succeed with this action the applicant must prove:
ownership (1) or retention of a lawful interest (½) from the date of the theft to the
date of institution of the action; (½)
theft (1) or removal of the thing with deceitful intent; (1)
if the action is not instituted against the thief or deceitful remover, that the
defendant is the heir of the former. (1)
With regards to the question whether S will succeed you must refer to the case of Clifford
v Farinha. (1) The court in similar circumstances to the question extended the operation of
this action to a person with a lawful interest in the thing (S) and against the person (Z) who
removed the thing – in this case the car with a deceitful intention. (1) Therefore, S should
succeed with the action against Z. (1)
Name rei vindicatio requirements & 3 restrictions on its application (6)
Requirements:
3. The property must be in control of the defendant when action is instituted
Restrictions:
1. Sale in execution
2. Statutory limitations on eviction
3. Estoppel (FNB: Quenty’s Motors Case).
STUDY UNIT 7:
CO-OWNERSHIP
DEFINE / DISTINGUISH
Co-Ownership:
The situation where two or more persons own the same thing at the same time in undivided shares. Its vital to
note that is the abstract concept of ownership that’s divided, not the thing itself.
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Free Co-Ownership:
The co-ownership is the only relationship between the co-owners.
Bound Co-Ownership:
Exists where there is an underlying legal relationship between the co-owners which determines the basis of
their co-ownership, for e.g., marriage in com of property, a partnership or a voluntary association.
Mention the remedies for co-ownership (3)
1. Damages or division of profit

2. Interdict
3. Claim for subdivision
Discuss two of the remedies available to co-owner (8)
Damages or division of profit:

If a co-owner should exceed the reasonable use of the thing, in terms of his share by using the thing for a
purpose not previously used or intended or if the extent of his use should be larger than his share, the other
co-owners can claim damages or the division of profit resulting from the use from such a co-owner
Interdict:
A co-owner who exceeds his entitlements of use in terms of his share by using the property unreasonably, can,
by means of an interdict, be prohibited by the other co-owners from continuing this use – PRETORIUS N
NEFDT & GLASS.
Subdivision:
If the property is divisible any co-owner can at any time claim the subdivision of the property in accordance
with every co-owner’s share. It is a requirement that the co-owners must 1st attempt to divide the thing amongst
themselves in accordance with everyone’s share, but if such a division isn’t achieved the courts is asked by
means of the actio communi dividundo to make such a division.
Briefly discuss the steps that can be taken if co-owners cannot reach an amount on the subdivision of
the common property (5)
1. Court may be approached with the actio communi dividundo to make such a division.
2. If parties do approach court, it’s usually expected of co-owners to submit a proposed subdivision.
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3. If it’s, however, impossible for the co-owners to agree on the sub division of the property, court will order a
division.
4. If thing is indivisible or if it would be uneconomical or detrimental to physically divide property court may
order that thing be sold & proceeds thereof be divided among the co-owners in accordance with their
shares
5. Or court may order that 1 co-owner compensate another co-owner in accordance with his share after
property has been valued.
Mention 4 ways in which a co-owner can encumber his undivided share in common property (4)
1. Alienation or burdening
2. Use
3. Profit, income & fruits
4. Maintenance & expenses.
X and Y are co-onwers of a farm. They built a road on the farm, which they use to transport lime to the
market. Without X’s knowledge and approval Y gives permission to the neighbour, Z, to use the road
so that he can transport his lime to the market. X is unhappy about the heavy traffic on the road and
ask Y to revoke her permission to Z. X also asks Z to discontinue his activities. Neither Y nor Z takes
any notice of X. Discuss the remedies available to X. Refer to case law.
In this question you are asked to discuss the remedies available to X with reference to case law. The facts of
the question indicate that we are dealing with co-ownership and the applicable remedy is the interdict.
The facts of the question are similar to the facts in Pretorius v Nefdt and Glas. (1) In this case Pretorius, (X)
applied for an interdict, firstly to force Glas (Y) to revoke his permission to Nefdt (Z) and secondly to
discontinue his activities regarding the transport of lime. (½)
The court decided that the permission given by Glas (Y) to Nefdt (Z) was a clear infringement of Pretorius’s (X)
rights (1) and that the permission placed an intolerable burden on Pretorius (X). (1) The interdict against Glas
(Y) was successful. (1) X will probably be successful with an interdict to force Y to revoke his permission to Z.
(1)Should X revoke his permission to Z. Z can no longer use the road over the farm.
Secondly, Pretorius (X) wanted to prevent Glas (Y) from transporting Nefdt’s (Z) lime over the farm. The court
stated that there is no authority on which on can rely to decide that a co-owner’s use of the road is limited to
the purpose of the farm over which the road traverses. (1) Therefore, Pretorius (X) is not successful with this
application for a interdict. (1)
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Conclusively, X’s application for an interdict will probably not be successful either. (1)
STUDY UNINT 8
POSSESSION & HOLDERSHP
NATURE OF…
CASES:
1. R v Mafohla
2. Reck v Mills
3. Nienaber v Stuckey
4. Scholtz v Faifer
5. S v Brick
DEFINITIONS:
Possession:
Physical control with the intention of an owner.
Holdership:
Physical control with the intention to derive limited benefits.
Corpus:
Physical element.
Animus:
Mental element.
Bona fide Possessor:

(Unlawful)
A person who’s not recognized as the owner of the thing, because he doesn’t comply with the requirements for
establishing ownership, but who has the intention of an owner, on the incorrect assumption that he is in fact the
owner.
Mala fide Possessor:

(Unlawful)
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A person is aware of the fact that he isn’t legally recognized as the owner of a thing, since he doesn’t comply
with the requirements for ownership, but who nevertheless has the intention of an owner. E.g. a thief.
Animus ex re commodum acquirendi:

Intention to derive a limited benefit.
Lawful Holder:
A person who physically controls the thing with the owner’s permission or on another legal basis, in order to
derive some limited benefit from it.
Unlawful Holder:
A person who doesn’t regard or conduct himself as the owner & who recognizes & respects the owner’s
ownership to the thing, but whom physically controls it for the sake of the limited benefit he derives from it,
without the owner’s permission or other legal ground for his control.
Define: owner’s intention in possession (2)
An owner’s intention in possession is the mental element of possession which means that the person controls
the thing as if he were the owner, although in reality this is not so.
Distinguish between: unlawful holders in bad faith & unlawful possessors in bad faith (5)
Possession & holdership are both forms of control which are not ownership. The possessor doesn’t
acknowledge the ownership of someone else & exercises control as if he were the owner. The holder
acknowledges the ownership of someone else, but exercises control with the intention to obtain some or other
benefit.
Briefly discuss how both direct & indirect control can be exercised over a thing with reference to
relevant examples. (4)
Direct control is exercised immediately by the person who actually holds the thing. E.g., drive own car.
Indirect control is exercised by the person who holds through another person. E.g. Employee who uses
Employer’s car to make deliveries.
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Define: control (3)
Control of a corporeal thing consists of 2 things: a physical & mental element. Physical element is the way in
which the thing is actually held & mental element is the mental attitude with which it is held.
Distinguish between: bona fide & mala fide control (2)
Bona fide control: Refers to a person being unaware that control is unlawful.
Mala fide control: Refers to the knowledge that the control is unlawful.
Distinguish between: control & possession (2)
Control:
Control of a corporeal thing consists of 2 things: a physical & mental element. Physical element is the way in
which the thing is actually held & mental element is the mental attitude with which it is held.
Possession:
Physical control with the intention of an owner.
X & Y are co-owner of the farm “waterval”. They purchase certain farm implements from K the
cooperative i.t.o. a credit amount. K reserves ownership of things. Farm-implements consist of
plough, harvester, tractor, spades, hoes & picks. T steals plough. Harvester left with farm workers on
northern-eastern side of farm where it’s required in autumn when wheat is harvested. Z the neighbour
borrows tractor for month to use on his own farm. When she is finished she lends her rented trailer to
X & Y in return for loan of tractor.
Indicate with which intention do the following persons exercise control:
1. X & Y with respect to farm implements (1)
Intention to hold for own benefit.
2. X & Y with respect to trailer (1)
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3. T with respect to plough (1)
Intention of an owner.
4. Farm worker with respect to harvester (1)

Intention to control the thing on behalf of X & Y.
5. Z with respect to tractor (1)
Q accidently sinks a borehole on X’s farm & erects a windmill there, thinking that the windmill was on
his side of the boundary. How would you describe Q’s legal position in relation to the windmill? (5)
Accepting that windmill acceded to the land, Q is a bona fide unlawful possessor. Q’s possession is unlawful
since land isn’t his property. Q thinks it is his land & therefore has the intention of an owner. Q isn’t aware of
the fact that he is in unlawful possession & is therefore bona fide.
Distinguish between: possession in good & bad faith (4)
Possession in bad faith:

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

Is a person who isn’t recognized as the owner of the thing, because he doesn’t comply with the requirements
for establishing ownership, but who has the intention of the owner, on the incorrect presumption that he is in
fact the owner.
X & Yare co-owner of the farm “Waterval”. They purchase certain farm implements from K the
cooperative ito a credit amount. K reserves ownership of things. F-implements consist of plough,
harvester, tractor, spades, hoes & picks. T steals plough. Harvester left with farm workers on
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northern-eastern side of farm where it’s required in autumn when wheat is harvested. Z the neighbour
borrows tractor for month to use on his own farm. When she is finished she lends her rented trailer to
x & y in return for loan of tractor.
1. With ref to the harvester that has been left with farm workers, indicate how both direct & indirect
control can be exercised (3)
Direct control is exercised immediately by the person who actually holds the thing.
Because harvester is in control of the farm workers at the time they have direct control.
Indirect control is exercised by the person who holds through another person.
Because farm workers work for X & Y they have an indirect control over the harvester.
2. Describe T’s real relationship with the plough substantiate. (2)
T is the mala fide possessor of the plough.
Mala fide Possessor:

Is a person who’s aware of the fact that he is not legally recognized as the owner, since he doesn’t conform to
the requirements of ownership, but he nevertheless has the intention of an owner. E.g. thief.
Distinguish between: lawful holder, bona fide unlawful holder & mala fide unlawful holder & examples
of each (7)
Lawful Holder:
A person who physically controls the thing with the owner’s permission or on another legal basis, in order to
derive some limited benefit from it.
Unlawful Holder:
A person who doesn’t regard or conduct himself as the owner & who recognizes & respects the owner’s
ownership to the thing, but whom physically controls it for the sake of the limited benefit he derives from it,
without the owner’s permission or other legal ground for his control.
2 Classes:
1. Bona fide unlawful holder:
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A person who physically controls the thing but he is unaware of that fact, since he is under the incorrect
impression that he has the necessary permission or legal ground to control it.
2. Mala fide unlawful holder:

A person who knows that he doesn’t have the consent for controlling the thing, but he exercises physical
control over it for the sake of the limited benefit that he can derive from it – not with the intention of an owner.
S and his friend go for a hunting weekend. S mortally would a kudu. The kudu manages to escape into
a bush.S gives up the search when darkness falls. On his way home from a party Z, stumbles upon a
wounded kudu. He fetches his friends and they slaughter the animal and take the meat to their
respectives home. Z is accused of theft of the kudu. The state alleges that S was the owner of the kudu
and Z stole the kudu. To succeed, the state will have to prove that S was the owner. Will the state
succed in proving this? Substantiate your answer with reference to case law (10)
Answer:
The applicable case here is R v Mafohla (1958 (2) SA 373 (SR)).
The question asks of you to indicate whether the state will be able to prove that S was the owner of the kudu.
According to the decision in R v Mafohla (1) S would not be the owner of the kudu. (1) That is so because S
could not have become the owner of the kudu by means of appropriation. (1) Appropriation or occupation is an
original method of acquisition of ownership which can be defined as the unilateral taking of physical control (1)
of a thing which does not belong to anyone, (1) but which is within the sphere of law (1) with the intention of
becoming its
owner. (1) (Study Guide pg 92-93)
The element which causes a problem for purposes of this question is the control element. Physical control is
essential for the acquisition of ownership by means of appropriation. Where wild animals are wounded, but
actual physical control is not taken, appropriation does not take place. (1) The physical control element refers
to the physical or actual control exercised over the thing. The degree of actual contact required for physical
control to be established is usually greater in the case of movables such as the kudu. (1) The state will
therefore not succeed, because S never took control of the kudu. (Study guide pg 189)
STUDY UNIT 9:
POSSESSION & HOLDERSHIP
PROTECTION & TERMINATION
CASES:
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1. Setlogelo v Setlogelo
2. Nino Bonino v De Lange
3. Yeko Quana
4. Zulu v Minister of Works
5. Rikhotso v Northcliff
6. Ierse Trogg CC v Sulra Trading
DEFINE :
Declaratory Order:
Is a court order, issued upon application, in which a court sets out the rights & obligations of parties to a
dispute before an actual infringement takes place.
Interdict:
Is a summary court order, issued upon urgent application, by which a person is ordered to either do something,
stop doing something, in order to stop or prevent an infringement of property rights.
Spoliation Remedy:Is a summary remedy, issued on urgent application, aimed at restoring control of property
to the applicant from it was taken by unlawful self-help, without investigating the merits of the applicants
control.
Possessory Interdict:
It’s a regular action based on the merits of a stronger right to control of a corporeal thing & it’s used to claim
the thing itself or the value from anyone with a weaker right.
Condictio furtive:
Is a special delictual remedy used to recover the value of the thing, which was stolen or lost from the thief or
his heirs.
Extended Enrichment Action:

Is a remedy with which the plaintiff can recover compensation for unjustified enrichment from the owner of the
property, which was improved without legal cause by the plaintiff.
Constitutional protection rights in property:
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Derives from Sec 25 of the Constitution – this guarantee, protects property rights from unlawful interference
from the state.
Land Reform:
Is the process whereby a specific category of property rights, namely rights in land are restored, upgraded or
redistributed in order to rectify the imbalance in the current distribution of land rights.
Name requirements for: mandament van spolie (2) KNOW THE DEFINITION
1. Proof that the applicant was in peaceful & undisturbed control of the property.
2. Proof that the respondent took or destroyed that control by means of unlawful self-help or spoliation.
Name defences allowed against spoliation remedy (6)
1. Applicant didn’t have the requisite control

2. Respondent didn’t commit spoliation
3. Unreasonable delay in bringing the application
4. Impossibility of restoration
5. Counter-spoliation
6. Special plea based on spoliation
X & Y are owners of farm Waterval. Q & R, the parents in law of x are owners of their farm pulang. S
owner of farm highlands. M has right of habitation with respect to the farmhouse on waterval. S has a
lease with q & r i.t.o. which he can use a portion of their farm for grazing purposes. Q & R has right of
undisturbed use of a road over farm of s. (12)
BRIEFLY DISCUSS THE NATURE OF THE LIMITATION ON OWNERSHIP OF:
1. X & Y
X & Y (owners of Waterval). M has right of habitation with respect to the farm house on waterval. This right
constitutes a personal servitude which is a limited real right. The right of habitation limits X & Y’s ownership of
farm in that M can live in farmhouse as long as she lives.
2. Q & R
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Q & R (owners of Pulang). S has a creditor’s right in terms of the lease for grazing purposes on a portion of
Pulang. This creditor’s right limits the ownership of Q & R in respect of the portion that is being leased only.
The creditor’s right is based on the contract of lease between S & Q & R. In terms of the contract S may use
that portion of the land for grazing purposes.
3. S
S (owner of Highlands). R & Q has the right of undisturbed use of a road over Highlands. If this right was
granted to Q & R in their capacity as owners of Pulang the right will constitute a practical servitude (praedial
servitude – land). If the right was granted to them in their personal capacity the right will constitute a personal
servitude. All servitudes are limited real Rights.
B & C farm labourers of s, occupy & cultivate a part of the farm of s. S has an argument with them. He
removes their clothes & possessions & throws them away. He also demolishes their houses & burns
the building materials. B & Cinstitute the mandament van spolie against S. They claim the return of
their possessions & the rebuilding of their houses. S raises the defence that restoration is impossible
because he threw away their possessions & destroyedd the material that the buildings were made of.
Will S succeed in this defence? (8)
Impossibility is one of the admissible defences the respondent can raise against the applicants claim of
mandament van spolie. Impossibility is usually accepted where the property is either destroyed or damaged
beyond repair or transferred to an innocent 3rd party from whom it can’t be reclaimed.
There are decisions, which make it clear that the court can do more than just order restoration of control.
Where reparations or re-assembly are possible & still within the limits of reasonable repairs they should be incl.
in the restoration order.
However, in Ierse Trogg CC v Sultra Trading it was confirmed that the rebuilding of a wall that had been
demolished cud form part of spoliation order, even though some replacement materials might be required.
From what has been decided in the above decision, it would appear that the type & nature of the materials
destroyed play a role in the court’s approach to allow the defence or not. From the facts it appears that both
the clothing & building material was totally destroyed. If the decision in the case of Rikhotso v Northcliff is
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followed the S would succeed in his defence of impossibility, but the principle enunciated in Ierse Trogg CC v
Sultra Trading would state otherwise.
What are different methods of termination of possession & holdership? (6)
1. Death of the subject (possessor or holder)

2. Object destroyed or lost
3. Physical element terminated
4. Mental element terminated
5. Transfer of control
6. Loss through operation of law
Briefly discuss the purpose & requirements of the mandament van spolie (8)
Purpose:
The spoliation remedy is a summary remedy which is instituted urgently & which provides no more than temp
relief. It’s meant to protect Rights, it doesn’t require the court to investigate the presence of rights & it can’t
grant rights. All it does is restore the situation as it was b4 the unlawful spoliation took place, so that any
dispute can be solved properly by a court of law or by legal procedures.
Requirements:
B leases A part of the land of S where B erects a dwelling. B doesn’t pay the rent. S breaks down
dwelling, removes b’s possessions & clothing & throws them away.
1. Indicate whether b can claim the return of the possessions. (3)
B can rely on the Possessory Interdict.
It’s a regular action based on the merits of a stronger right to control of a corporeal thing & it’s used to claim
the thing itself or the value from anyone with a weaker right.
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B, must prove that he has a stronger right than S, he must proof that S is in possession of the property or
responsible for destroying it & if B wants to claim damages the normal requirements for delictual action for
damages must be satisfied.
2. S burns the material of the demolished dwelling. B claims restoration. S raises defence of
impossibility because material is destroyed. Will this defence succeed? (4)
Impossibility of restoration is a valid defence, S can raise against B’s claim of spoliation remedy. Impossibility
is usually accepted where the property is either destroyed or damaged beyond repair or transferred to an
innocent 3rd party from whom it can’t be reclaimed. If the decision in relevant case law Rikhotso is used then S
would succeed with his defence of impossibility.
3. Indicate whether s can raise the defence that since s is owner of the property s has the right to break
down & remove the possessions. (2)
No S can’t raise that defence since it adds up to unlawful self-help. He should protect his property rights by
legal means & procedures.
B & C farmworkers for S, occupy & cultivate a portion of highlands. S has an argument with them &
they refuse to work. S removes their furniture & clothing from the house. He breaks down their
houses. Thereafter he burns everything. B & C want restoration or their possessions immediately.
1. Advise b & c on the most appropriate remedy & what the requirements for successful reliance on
this remedy is. (3)
The most appropriate remedy is the Spoliation Remedy.
Requirements:
3. S raises the defence that it’s impossible to restore the furniture, the clothing & building materials, since they
had been destroyed. Will s succeed in this defence? (5)
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Impossibility of restoration is a valid defence, S can raise against B & C’s claim of spoliation remedy.
Impossibility is usually accepted where the property is either destroyed or damaged beyond repair or
transferred to an innocent 3rd party from whom it can’t be reclaimed. If the decision in relevant case law
Rikhotso is used then S would succeed with his defence of impossibility.
Z rents A billiard room in newtown from s. I.t.o. the lease amount, Z is not allowed to serve alcohol on
premises or keep it open after 12 at night. S & Z insert a term in the amount entitling S to take control
of premises if Z contravenes any of terms of lease. Z serves alchol to his friends & holds a party until
sunrise. Neighbours complaim by S. S removes locks from building & fits new one’s. He locks all
entrances to premises & effectively debars z from using or entering premises. Z applies for a
spoliation order. Briefly indicate the nature of this remedy, requirements & Z’s chances of success.
Refer to court cases. (5)
Purpose:
The spoliation remedy is a summary remedy which is instituted urgently & which provides no more than temp
relief. It’s meant to protect rights, it doesn’t require the court to investigate the presence of rights & it can’t grant
rights. All it does is restore the situation as it was b4 the unlawful spoliation took place, so that any dispute can
be solved properly by a court of law or by legal procedures.
Requirements:
In relevant case law Nino Bonino the same facts of this e.g. Apply. It was decided that no man is
allowed to take the law into his own hands & if the person does that the court will restore the situation
as it was before.
Z will succeed.
Apart from the spoliation remedy & the interdict, mention one other remedy that can be used to protect
possession & holdership. Indicate the aim, against whom it can be instituted & the requirements. (5)
Condictio Furtiva:
Aim:
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Is a special delictual remedy used to recover the value of the thing, which was stolen or lost from the thief or
his heirs.
Against Whom:
Thieves & heirs.
Requirements:
1. Proof of ownership or any other lawful interest, which isn’t automatically terminated when property is
stolen.
2. Proof that the thing was stolen by the defendant or that the defendant is an heir of the thief.
3. Proof that the thing was destroyed, lost or disposed of & isn’t recoverable.
A NUMBER OF DWELLINGS WERE ERECTED ON LAND BELONGING TO X, WITHOUT HIS CONSENT.

THE UNAUTHORISED DWELLINGS WERE DEMOLISHED BY X & THE MATERIALS WERE BURNT. Y
APPLIED FOR SPOLIATION ORDER RESTORING CONTROL OF HER DWELLING.
1. WHAT WOULD YOU HAVE TO PROVE TO SUCCEED IN THIS REMEDY? (3)
Requirements:
Will Ysucceed in these circumstances? Refer to case law (7)
In Fredericks Case it was held that restoration may be ordered where it can be affected with materials of a
similar nature to the materials which had been destroyed. In this case the spoliator destroyed materials on
purpose so that restoration would become impossible.
 YES
This approach was followed to a certain extent in Ierse Trogg CC v Sultra Trading where the court held that a
spoliation order can be granted where the property hasn’t been entirely destroyed. Court may order for
rebuilding of a wall & a degree of substitution of the building materials.
 YES
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But the court in Rikhotso Case emphasized the inherent nature of the spoliation remedy, that is, the fact that it
is aimed at restoration & refused such an order. Court argued that if materials were destroyed, restoration is
impossible & spoliation remedy isn’t applicable. In such circumstances a delictual claim for damages is
appropriate remedy.
 NO
So according to Fredericks & Ierse Trogg, Yes Y will succeed, but according to Rikhotso Y won’t succeed &
should rather rely on a delictual claim for damages.
Discuss the Aquilian action as an action for the protection of possession and holdership, under the
following headings:
(i) nature of the action (1)
(ii) who can claim? Motivate your answer. (3)
(iii) against whom action can be instituted? (2)
(iv) what can be claimed? (1)
Answer
(i) The aquilian action is a delictual action. (1)
(ii) Modern law recognises that other persons besides the owner may have a
patrimonial interest in the thing or in control of the thing, and therefore owners,
(1) lawful holders (1) and bona fide possessors (1) can institute this action.
(iii) A person who has culpably (1) and unlawfully (1) damaged the thing can institute
the action.
(iv) Damages can be claimed. (1)
STUDY UNIT 10
LIMITED REAL RIGHTS: INTRO, SERVITUDES & RESTRICTIVE CONDITIONS
Define:
Servitude:
Servitude is
1. A limited real right to the movable or immovable property of another
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2. Which grants the entitled person (holder of the servitude) certain specific entitlements – usually the
entitlements of use & enjoyment
3. And these entitlements limit the entitlements of the owner in respect of the thing in one way or another.
Praedial (Land) Servitudes:

This is
1. A limited real right
2. In the land of someone else (immovable property) – servient tenement
3. Which grants the holder of the servitude certain entitlements of use & enjoyment
4. In his capacity as owner of the dominant tenement
Personal Servitude:
This is
1. A limited real right
2. To movable or immovable property of someone else
3. Which grants entitlements (use & enjoyment rights) in respect of the thing
4. To the servitude holder in his personal capacity.
Restrictive Condition
A catergory of limitation on ownership which is are either registered against the title deed of property or not so
registered and imposed in terms of a statute or based on a contract and are in the interest of land use –
planning.
X and Y are co-owners of the farm Waterford and their car. The farm implements were purchased from
the cooperative C, in terms of a credit agreement. The cooperative reserved ownership of the farm
implements until the final instalments has been paid. X and Y owe the Land Bank R1000 000 and to
secure this debt the Land Bank has a mortgage over the farm .X mother M has a right of habitation
over the homestead where she lives at present. S has a servitude of way and drives over grandparents
farm ,Pulang ,every day to check on Waterford .Mention the the nature and type of real right that each
of the following persons have:
a) X and Y
b) C
c) L
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d) M
e) S
Answer:
(a) X and Y have co-ownership of the farm Waterford and of their car. Co-ownership
(1) is a real right (1) over their own (1) things.
(b) C has reserved ownership of the farm implements. Reservation of ownership (1)
is a real right (1) over their own (1) things.
(Please take note: Reservation of ownership is a specific form of ownership to

secure a debt. On insolvency it is converted in to a tacit hypothec – a specific
form of real security – see SU 11 under tacit mortgages pg 288.)
(c) L has a mortgage bond over X and Y’s farm. A mortgage bond (1) is a limited (1)
real right over another (1) person’s thing.
(Please take note: A mortgage bond is a real security right over another person’s
immovable thing – see SU 11 under express or conventional mortgages pg 275-
278.)
(d) M has a right of habitation over the old homestead. A right of habitation (1) is a
limited (½) real (½) right over another (1) person’s thing.
(Please take note: A right of habitation is a personal servitude over another

person’s thing. It is a limited real right and NOT a personal right – see SU 10 pg
241-246.)
(e) S has a right of way to drive over his grandparents’ (Q and R’s) farm, Pulang. A
right of way (1) is a limited (½) real (½) right over another (1) person’s thing.
(Please take note: A right of way can be a personal servitude if it is granted to a

person in his/her personal capacity or a land (praedial servitude) if it is granted in
the capacity as owner of the dominant tenement)
STUDY THE DIAGRAM ON PAGE 231 STUDY GUIDE
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How is the requirements of reasonableness applied in servitudes? (4)
The requirement of reasonableness means that the holder of a servitude must exercise his entitlements within
reasonable limits, while the owner must tolerate the exercise within reasonable limits. The criterion which is
applied is the same as in neighbor law, namely the conduct of a reasonable person. Balancing the interests of
the parties is always the criterion.
This means that the:

1. Owner can use his land as he normally would
2. Holder of the servitude exercises his rights within reasonable limits (Brink v Van Niekerk)
3.
Briefly name requirements for a way of necessity as set out in van rensburg (7)
1. Claim to way of necessity
2. The nature of the way of necessity
3. Determination of land over which way of necessity runs
4. Determination of route & width of way of necessity
5. Compensation (if permanent)
6. Registration (not required)
7. Court order
S HAS ENTERED INTO AN AMOUNT WITH Q & R I.T.O. WHICH THEY GRANT HIM THE right TO USE
THE ROAD OVER THEIR FARM. THIS AMOUNT IS IN WRITING BUT NOT REGISTERED. Q & R
SELLTHEIR FARM & NEW OWNER REFUSES TO LET S USE THE ROAD. DISCUSS THE POSITION OF
S WITH REFERENCE TO RELEVANT CASE LAW. (4)
In relevant case law Willoughby the difference between a registered & unregistered servitude agreement was
said to be, in the 1st case the entitlements are based on a limited real right & as a real burden they are
enforceable against the owner, his successors & 3rd parties. In the 2nd case they are based on creditor’s rights
& are only enforceable against the current owner in his personal capacity.
So S can only enforce the servitude against Q & R, & not against the new owner.
Name the requirement for: creation of a preadial (real) servitude (6)
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1. Can only be granted in respect of immovable property
2. There are always 2 pieces of land involved – a dominant tenement (holder of servitude) & servient
tenement (land owner).
3. Limited real right vests in the servitude holder in his capacity as owner of the dominant tenement (not
personal capacity). His successors are automatically entitled to the servitude.
4. When land is sold, the burden of the servient tenement is transferred to new owner.
5. Dominant & servient tenement must be located next to or near each other.
6. The entitlement of the servitude holder can never be such that the owner of the servient tenement is
compelled to perform a positive act. He only has to tolerate the holder of the servitude.
Distinguish between: main groups of servitudes (2)
1. Praedial (real) servitudes – right over land.

2. Personal servitudes – right against person
Mention the remedies which are available in case of non-compliance with restrictive conditions (3)
1. An interdict
2. A delictual claim for damages
Name characteristics of a personal servitude (7)
1. It accrues to the holder of the right in his personal capacity

2. It’s not transferrable
3. It’s a limited real right
4. It can be acquired over movable or immovable property
5. Holder of servitude may, usually, not consume the property but must return it after termination of
servitude with its essence intact
6. It can be granted orally in case of movable property & by registration of immovable property
7. Terminates on death of holder of servitude or on completion of term for which it was granted. In case of
a legal person, for a period of a100yrs or for the period agreed upon.
Q & R have an amount with s i.t.o. which they undertake to register servitude over their farm in favour
of highlands.
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1. Before the servitude can be registered, s dies & his wife now wish to use the road. Briefly advise
her. (2)
In principle, S’s wife isn’t entitled to rely on the praedial servitude for use of road, since servitude wasn’t
registered against the title deed of the servient tenement.
2. After servitude has been registered, s dies & his wife now wishes to use the road. Briefly advise her.
(2)
S’s wife is entitled to use the road, if she is the owner of the dominant tenement, since servitude was
registered in favor of dominant tenement & against the servient tenement.
3. Before servitude can be registered, s sells farm & new owner now wishes to use road. Advise him
(2)
In principle, the new owner isn’t entitled to use the road, since servitude wasn’t registered against the title deed
of servient tenement.
4. After servitude registered, s sells farm & new owner wishes to use road. Advise him (2)
New owner is entitled to use road, as owner of the dominant tenement, since servitude was registered in favor
of dominant tenement & against servient tenement.
M has a right of habitation over a homestead on X & Y’s farm. X & Y decided that m is too old to stay in
the homestead. She refuses to go to a retirement village. They decide to get an eviction order against
her & ask you to apply for the order. Advice X & Y fully (5)
X & Y’s ownership is limited by M’s right of habitation. M’s right is a limited real right called a personal
servitude. M’s right limits X & Y’s ownership until her death or she repudiates her right. Before that time they
can’t evict her from the homestead. Therefore, X & Y’s eviction order won’t succeed.
Name general characteristics of servitudes (5)
1. Holder of servitude gets a limited real right in property of another, which he can protect & enforce with a
real remedy.
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2. Servitude only grants entitlements of use & enjoyment to holder of servitude which must be respected &
tolerated by owner.
3. No person can get a servitude over his own property.
4. Holder of the servitude may not transfer servitude to another.
5. Entitlements must be exercised reasonably by the holder of the servitude.
Discuss the criterion of reasonableness in exercise of servitudes. Briefly refer to “brink v van niekerk”
(10)
According to Brink v Van Niekerk the criterion of reasonableness means the holder of servitude must exercise
the entitlements within reasonable bounds, while the owner must tolerate it within reasonable bounds. The
balancing of the interests of both is the criterion:
1. Owner is entitled to his land in the normal manner, provided it’s not in conflict with the entitlements of
the servitude older.
2. Servitude holder is entitled to exercise his entitlements within reasonable bounds; if there’s a conflict of
interests the servitude holder will have preference over that of the owner.
STUDY UNIT 11
REAL SECURITY EXPRESS FORMS: PLEDGE, SECURITY BY MEANS OF CLAIMS & MORTGAGES,
TACIT MORTGAGE (HYPOTHECS)
DEFINE:
Personal Security:
(Suretyship)
Implies a creditor, on the basis of performance due to him as a result of a creditors right against a debtor
(principal debt), also gets a creditors right against another person as security for the payment of the principal
debt.
Real Security:
(Pledge, Mortgage, etc.)
The creditor gets a limited real right in the property of the debtor or surety, as security for the payment of the
principal debt, by the debtor to the creditor until the payment of the principal debt.
Pledge:
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Corporeal or incorporeal property of the pledgor (debtor) is given to the creditor in a pledge a real security for
the payment of the principal debt, grants the pledgee (creditor) a limited real right to the property as security
until the principal debt has been paid in full.
Mortgage:
Mortgage is a requirement in respect of movable or immovable property of the m’or (debtor/surety) granting the
m’ee (creditor) a limited real right to the movable or immovable property as security until the principal debt has
been paid in full.
Tacit hypothec of the Lessor:

It’s a real security right created by operation of law to secure the landlords claim against the lessee for rent in
arrears – hypothec applies to movable of the lessee on the premises.
Tacit hypothec of the Credit Grantor:

Real security right with respect to movable & it secures the credit grantor’s claim for outstanding payments in
terms of the credit agreement, in cases where the credit receiver becomes insolvent b4 payment of the last
installment. (Sec 84 of the Insolvency Act).
Judicial Pledge:
Real security right, which secures a creditor’s claim against a debtor & is established by obtaining a writ of
execution against the debt & attaching the property.
Debtor-Creditor Lien:
It’s a lien which secures payment of a debt incurred in terms of a contract & is therefore a personal obligation
which can be enforced against the contractual debtor only.
Enrichment Lien:
Lien which secures payment of a debt incurred by way of unjustified enrichment & which is a real burden on
the property that can be enforced against anyone who happens to be the owner of the property.
Improvement Lien:
Secures payment of enrichment debts arising from useful expenses or improvements.
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Kustingbrief:
Is a mortgage in favour of the seller of the land as security of the unpaid balance of the unpaid purchase price
in favour of any other person or financial institution who advanced the balance of the purchase price to the
buyer – it’s registered with the transfer of the property to the buyer.
NAME THE CIRCUMSTANCES IN WHICH THE GOODS OF 3RD PARTIES ARE SUBJECT TO THE TACIT
HYPOTHEC OF A LESSOR AS SET OUT IN “BLOEMFONTEIN MUNICIPALITY v JACKSON LIMITED” (4)
1. Knowledge of the owner

2. Measure of permanence
3. Lessee’s own use & benefit
4. Landlord unaware that goods belong to 3rd parties
How was a right of retention formulated in buzzard electrical (3)
A right of retention is a right which permits the holder of a thing to retain it in order to compel payment & it is
therefore dependent on the existence of a principal debt.
Mention the main forms of security (2)
1. Personal
2. Real
X & Y are co-owners of farm & their car, but farm implements were purchased from cooperative K ito a
credit amount. K reserved ownership. X & Y owe l the land bank, R100000 & to secure this debt the
land bank holds a mortgage over farm. X’s mother m has a right of habitation over the old homestead
where she lives at present. S has a right of way & drives over his grandparents farm pulang every day
to check his cattle on waterfold. A mining company has mining rights over waterfold, pulang, &
highlands. Indicate the nature & type of right involved in each of the following situations:
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1. K in relation to the farm implements (2)
Real right – OWNERSHIP.
2. L in relation to x & y’s farm (2)
Limited real right – mortgage (real security)
Define: notarial bond as contemplated in security by means of movable property act (5)
Notarial Bond:
Is a bond registered over specified corporeal movable property of the m’or defined in such a way that it can be
recognised easily. On registration it grants the m’ee a limited real right.
Briefly explain the operation of the tacit hypothec of a credit grantor in the case of insolvency (6)
In term of the CREDIT AMOUNT ACT the credit grantor remains the owner of the movable property until the
credit receiver has paid the last installment of the purchase price. If the credit receiver becomes insolvent b4
payment of the last installment, OWNERSHIP of the movable passes to the trustee of the insolvent estate &
the credit grantor (who then loses OWNERSHIP) is safeguarded by a hypothec in terms of SEC 84 of the
INSOLVENCY ACT. The hypothec of the credit grantor is a real right which secures his claim against the
insolvent estate for the outstanding installment. The credit grantor who obtained possession of the property
can claim as a pledgee in terms of SEC 83 of the INSOLVENCY ACT.
X involved in accident. Car insured with santam. X takes car to z for repairs. After repairs completed &
paid for by santam, santam realises that the premiums had never been paid. Santam cancels insurance
contract & collects car from z. Santam refuses to give car to x. X claims car with rei vindicatio from
santam. Will x be successful? Ref with case law (8)
The facts of this question are based on those of Singh v Santam Insurance. In that case Santam contended
that it was entitled to retain possession of car under a lien, on basis of unjustified enrichment from the repairs.
Court had to decide whether or not there was an enrichment lien. To determine that, Court considered a
number of principles regarding the existence of a lien for unjustified enrichment.
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To succeed the insurer had to prove:
1. There was enrichment
2. The enrichment incurred while the insurer was still in control of the car
3. It obtained control lawfully
4. Attornment took place, if the insurer claims that a 3rd party exercised control over object on its behalf.
So yes X will succeed in his claim, because Santam didn’t obtain lawfully.
Define: covering bond (4)
Covering Bond:
Is a mortgage registered for an amount that will be lent or advanced to the mortgagor by the mortgagee or for
future debts in general. It serves as continuous covering security to the maximum amount mentioned in the
mortgage bond.
Define: salvage lien (4)
Salvage Lien:
A form of enrichment lien which secures payment of enrichment debts arising from necessary expenses or
improvements.
Distinguish between: limited real right & creditor’s right (personal right) (3)
Limited real right is a limited right to specified uses of property belonging to someone else.
Creditor’s right is a claim enforceable against a specific person. In principle it’s not registrable.
B an employee of x wishes to borrow R1000 from X. B offers his watch as security. X accepts watch &
makes B sign a document in which x & b agree that x may keep the watch if b doesn’t repay loan in full
within 3 months. Advise b as to validity of the amount that x may retain the watch. (5)
The agreement between B & X constitutes a PACTUM COMMISSORIUM which is unenforceable if it was the
intention of X & B that X would become owner of the watch on B’s failure to pay the debt. X & B may agree that
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X takes over the watch at an agreed amount. This agreement will however only be enforceable if the agreed
price is not less than the market value of the watch.
Define: judicial pledge (4)
Judicial Pledge:
Real security right, which secures a creditor’s claim against a debtor & is established by obtaining a writ of
execution against the debt & attaching the property.
Briefly compare: pledge & notarial bond (6)
Pledge:
Corporeal or incorporeal property of the pledgor (debtor) is given to the creditor in a pledge a real security for
the payment of the principal debt, grants the pledgee (creditor) a limited real right to the property as security
until the principal debt has been paid in full.
Notarial Bond:
NB is registered against movable property of the m’or (debtor) as security for the payment of the principal debt
to the m’ee (creditor) & after registration; this grants the m’ee a limited real right to the object of the security
without these objects being delivered to the m’ee.
DEFINE: IMPROVEMENT LIEN (2)
Name the 4 categories of real secuity (4)
1. Pledge (movable property)

2. Mortgage (immovable property)
3. Cession
4. Security granted by the operation of law in respect of property of the debtor to the creditor.
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Y TAKES A TRACTOR, WHICH HE PURCHASED ON CREDIT FROM K, THE COOPERATIVE, TO A
GARAGE FOR REPAIRS. Y GIVES ORDERS TO GARAGE TO REPLACE THE STEERING WHEEL
BECAUSE IT’S BROKEN. FURTHER, HE REQUESTS GARAGE TO INSTALL A CANOPY OVER
DRIVERS SEAT WHICH WILL KEEP OUT SUN & HE ASKS THAT TRACTOR BE PAINTED PINK
BECAUSE HE’S BORED WITH THE GREEN. Y STOPS PAYING INSTALLMENTS TO K, FAILS TO PAY
GARAGE FOR REPAIRS & DISSAPPEARS. K CLAIMS TRACTOR FROM GARAGE WITH REI
VINDICATIO. DISCUSS THE LEGAL POSITION OF THE GARAGE FULLY. (10)
According to facts given owner of tractor, K, the co-operative never contracted with the garage & tractor was
repaired & improved without his knowledge. In this situation garage has lost its normal contractual claim & lien
by the disappearance of the debtor, & they are now actually in a position of an enrichment creditor. Therefore
garage can rely on a claim for compensation, based on unjustified enrichment & backed up by an enrichment
lien.
Claim based on unjustified enrichment, isn’t limited to the © & can be enforced against anybody who was
enriched at the garage’s expense. This would include the owner of the property, because owner is usually
enriched when property is improved.
In normal contractual claim the debt is the amount stipulated in contract, but in an enrichment claim debt is
actual amount of enrichment at the time when action is instituted.
Enrichment will include necessary & useful expenses, but not luxurious expenses. Enrichment claim will be
limited to amount by which owner was enriched by repair of the steering wheel & installation of the canopy &
nothing else, so garage can’t claim anything from paint job from K.
If Court grants garage a lien to enforce their claim against the owner the lien will be limited to payment of this
amount not the full © price which was originally quoted to the disappearing Y.
Name different categories of mortgages (7)
1. Kustingbrief
2. Money lend & advanced
3. Covering bond
4. Surety bond
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5. Participation bond
6. Notarial bond
P sells his car to Z, but Z cannot pay the purchase price to P immediately. Q (z’s father) concludes a
contract of suretyship with P in terms of which Q undertakes to pay the amount due to P if Z should fail
to do so. A few days later, Z due to his negligence is involved in a collision with E. Z undertakes to pay
the costs for repairs to E’s car but cannot do so immediately. As security of costs for repairs, Z offers
his motorcycle to E as a pledge. Against this background answer following :
1. What are the different types of security applicable here? (2)
Personal security = Suretyship.

Real security = Pledge over motorcycle.
2. What is the nature of the right in each case? (2)
P S = the creditor also gets a creditors right to 3rd party.

R S = creditor gets a limited real right in the property of the debtor.
X’s CAR DAMAGED IN ACCIDENT. M INSURED CAR WITH S, AN INSURANCE CO, WHICH MUST
INDEMNIFY LOSS. S INSTRUCTS P A PANEL BEATER TO EFFECT REPAIRS. AFTER REPAIRS & PAID
FOR BY S, S REALISES THAT PREMIUMS HAD NEVER BEEN PAID BY M. S CANCELS INSURANCE
CONTRACT & COLLECTS CAR FROM P. S REFUSES TO GIVE CAR TO X. X CLAIMS CAR FROM S
WITH REI VINDICATIO. AGAINST BACKGROUND ASWR Q’s:
1. WILL X BE SUCCESSFUL? (3)
Yes because facts are relevant to Singh v Santam where Singh could succeed with her claim because
Santam didn’t obtain control over the car lawfully.
2. DISCUSS POSITION OF PANEL BEATER (5)
Any lien the panel beater might have had against X or M ended when S paid for the repairs because a lien
depends on the existence of a principle debt. The panel beater was in lawful control of the car.
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Name 6 ways in which a pledge can be distinguished (6)
1. It’s a limited real right

2. Over the debtor’s thing (property)
3. Delivered to
4. The creditor
5. As security for payment of the principal debt
6. Which debtor owes the creditor
STUDY UNIT 12
MINERAL RIGHTS, WATER RIGHTS ,LESSEES RIGHTS
Write short notes on the meaning of the word “mineral ‘

The Mineral and Petroleum Resources Development Act of 2002, declared the State custodian of all the
petroleum and mineral resources in South Africa, thereby bringing changes to the concept of mineral rights and
to the regulation of the right to prospect and to mine for minerals.
In terms of the Mineral and Petroleum Resources Development Act: a mineral is defined as:
Any substance whether solid, liquid or gas, occurring naturally in or on the earth or in or under water and which
was formed by or subjected to a geological process – including sand, stone, rock, gravel, clay, soil and any
mineral occurring in residue stockpiles or deposits.
Write short notes on the changes in the common law position with regard to mineral rights brought
about by the Mineral and Petroleum Resources Development Act 28 of 2002.
Under common law the owner of the land was also the owner of all the minerals in the land until the minerals
were extracted from the soil.The owner of the land, as owner of the minerals, was also the holder of mineral
rights in respect of the minerals in the land, except where the rights to certain or all minerals have been
reserved or transferred to another.
A mineral right entails the holder of the right to enter the land and prospect and mine for minerals.
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Mineral rights could be severed from the ownership of the land by issuing a separate title of rights to minerals
to another. Mineral rights could also be expropriated to the state. Mineral rights are a unique class of real rights
– sui generis
Mineral and Petroleum Resources Development Act:

S3 of the Act: vests all mineral and petroleum resources in the State, to be held by it as custodian for the
benefit of all South African people. Prospecting and mining rights must be applied for and these rights may
only be granted by the State. The exercise of these rights and exploitation, utilization of minerals are controlled
by the State.
STUDY THE DIAGRAM ON PAGE 301 AND 306 S.GUIDE
LESSEES RIGHTS
DEFINE Lease:
Lease is a use right, in the form of either a limited real right or a creditors right, in terms of
which the lessee is entitled to occupy & use the property of the lessor against payment.
Explain operation of “huur gaat voot koop” rule (6)
In the case of Genna-Wae Properties v Medio-tronics the huur gaat voor koop rule is explained:
1. The alienation of leased immovable property doesn’t bring the lease to an end
2. The purchaser of the land is substituted for the old lessor by operation of law.
3. The new owner acquires all the rights & all the obligations of the lessor, (include the obligation to allow the
lessee to continue the lease, provided that the lessee pays the rent & observe all other obligations under
the lease.
4. The lessee in turn, is bound by the lease & as long as the new lessor recognises the lease the lessee
cannot resile from the lease.
When will the huur gaat voor koop rule apply? (6)
Short term lease:

A short term lease creates creditor’s rights only, but traditionally it is said that the lessee acquires a real right
as soon as she occupies (takes possession of) the leased premises. Accordingly, the lessee is protected
against new owners of the property in 2 cases:
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1. The contract & all rights arising from it will be enforced against new owners who were aware of the contract
as if they were parties to the contract. This enforcement of the contract against non-parties is based upon
the doctrine of notice & it means that the lessee can keep the new owner to the lease contract as if it were
concluded between them.
2. The lessee is protected against all other new owners of the property, even if they are unaware of the lease,
on the basis of the rule that an existing lease overrides a new sale (huur gaat voor koop). It is often said
that this rule provides the lessee with a limited real right in the property, but it’s probably better to say that
the lessee has a specially protected creditor’s right, which is enforced against new owners of the property
as if they were parties to the contract lease agreement. Although the protection of the lessee is restricted to
lessees who are already in occupation, this approach seems questionable: the fact of physical control
cannot create a limited real right in immovable property – delivery or control only creates real rights with
respect to movables. Real rights with respect to immovable property are usually created by registration,
because of the cost involved & practical considerations short-term lease are not registered. The protection
which the lessee gets from the rule that an existing lease overrides a new sale means that she is able to
demand that the new owner honour the existing lease agreement on the same basis as before the sale, for
the rest of the original lease term. If the contract gave the lessee the option to extend the lease the new
owner would also be held to that.
Distinguish between: a registered long term lease & an unregistered long term lease (5)
Registered long-term lease creates limited real rights. They are enforced against any new owner of the
property as a real burden, whether the new purchaser was aware of the lease or not.
Unregistered long term lease are enforced against the new owner in 2 cases only, on the basis of the huur
gaat voor kop rule for the 1st 10yrs of its existence & on new owners with prior knowledge of the lease on the
basis of the doctrine of notice.
 Willoughby’s Case
STUDY UNIT 13
CONTISTITUTIONAL PROPERTY LAW
Sec 25: Property clause
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1. No one may be deprived of property except in terms of the law of general application & no one may
permit arbitrary deprivation of property.
2. Property must be expropriated in terms of the law of general application,
a. For public purposes or in the public interest
b. Subject to compensation, the amount of which & the time & the manner of payment, which is
agreed to by affected parties to the Court.
3. The amount of compensation & the time & manner of payment must be just & equitable, reflecting the
balance of the public interest & the interests of those affected, having regard to relevant factors
including :
a. Current use of property
b. History of acquisition & use of the property
c. Market value of the property
d. Extent of direct state investment
Distinguish between: Deprivation & expropriation in term of the constitution (6)
Deprivation restricts the owner’s use & enjoyment of property in the public interest without taking the property
away. No compensation is paid.
Expropriation takes the property away from the owner for public use. Compensation is paid for expropriation
only. Property may be expropriated only in terms of law of general application for a public purpose or in the
public interest and subject to payment of compsention, the amount of which and the time and manner of the
payment of which have either been agreed to by those affected or decided or approved by a court.
B & C live in the city & work for S. The farm highlands was taken from their parents in 1933 in terms of
racially based legislation & against compensation. Indicate which factors will be taken into
consideration in determining the amount of compensation payable in terms of the property clause in
the constitution (5)
1. Current use of the property.

2. History of acquisition & use of property.
3. Market value of the property.
4. Extent of state investment.
5. Purpose of the expropriation.
After S has successfully prevent the local authority from digging trenches on his farm & through the
dam wall, the local authority, because its angry at having lost the court case against s, expropriates a
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part of s’s farm & pays no compensation. Indicate whether this is in accordance with the property
clause of the constitution (5)
The act of the local authority goes against the property clause of the Constitution.
Sec 25(2) of the Constitution provides that the property may be expropriated only in terms of the law of general
application in cases where it serves a public purpose or in the interest of the public & that it must be
accompanied by payment of compensation.
When S decides to develop a portion of his farm, Highlands ,as residential township, his attorney
informs him that this is not possible. A regional development plan in terms of the Physical Planning
Act provides that the area is to be utilized for agricultural purposes only. Is such a provision
permissible in terms of section 25 of the Constitution. Substantiate your answer?
Answer:
Section 25(1) of the Constitution (the deprivation clause) (1) provides that “no one may
be deprived of property except in terms of a law of general application and no law may
permit arbitrary deprivation of property”. (1) The provision in the Physical Planning Act
125 of 1991 is in terms of town planning legislation, in other words, a law of general
application. (1) The conditions are restrictive because they determine that the law may
be used for agricultural purposes only. (1) Owners of these properties obtain ownership,
subject to this restriction, which can be seen as a deprivation in terms of section 25 of
the Constitution. (1) The provision is permissible.
STUDY UNIT 14
LAND REFORMS
Explain the difference between the 3 categories of land reform (6)
Redistribution of Land rights:

A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory
laws is entitled to either restitution of the property or equitable redress (Sec 25(7) of the Constitution).
Land Tenure Reform:

A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws
is entitled to either tenure which is legally secure or comparable redress (Sec 25(6) of the Constitution).
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Redistribution of Land:
The state may take reasonable legislative & other methods within its available resources to foster conditions
which enable citizens to gain access to land on an equitable basis. (Sec 25(5) of the Constitution).
S plans to start a nursery on this farm Highlands. He asks his brother, Z to manage the nursey and
agrees with Z that he may live on the farm .S decides that the fence of the nursey should be painted,
but S and Z disagree about the colour. S does not want Z to live on his farm anymore. Is Z an occupier
in the of the Extension of Security of Tenure Act 62 of 1997? Substantiate your answer.
Answer:
The Extension of Security of Tenure Act 62 of 1997 is applicable to “occupiers”. Occupiers are people who
occupy land legally. (1) In terms of the Act an occupier is a person who resides on land belonging to another
person, and who has consent or another right in law to do so, (1) but excluding a person using or intending to
use the land in question mainly for industrial mining, commercial or commercial farming purposes. (1)
According to the facts of the question S has asked Z to manage the nursery. Z therefore is an occupier,
because he has consent to reside on the land. The security of tenure of occupiers is promoted by regulating
the conditions andcircumstances under which the right of persons to reside on land may be terminated. An
occupier’s right of residence may be terminated on any lawful ground as long as the termination is just and
equitable having regard to certain factors. (1) The fact that S and Z had a difference of opinion does not
change this right of residence.
STUDY UNIT 15
ADDITIONAL FORMS OF STATUTORY LAND USE
Name the forms which a housing development scheme for retired persons can take (4)
1. Sectional Title Scheme

2. Share Block Scheme
3. Membership of a Club
4. Registered Long Term Lease
5. Not a Time Sharing Scheme
Briefly describe shareblock scheme (5)
Shareblock Scheme:
This Act regulates the operation of Shareblock Schemes & provides for related matters. Ito this legislation a
shareholder acquires a creditor’s right to use part of a building (flat, office or shop) or a piece of land acc to
92
their shareholding. The Shareblock CO can be the owner or lessee of the relevant building. The object of the
shareholder’s right is not an independent immovable object but is the right to use a specific part of the building
for a specific period.
Distinguish between a sectional title scheme & a share block scheme (6)
Sectional Title Scheme:

The division of buildings & the land on which they stand into sections & common law property & for the
acquisition of separate OWNERSHIP of the sections together with co-OWNERSHIP of common property which
together make up a unit.
Share Block Scheme:

A shareholder acquires a creditor’s right to use part of a building (flat, office or shop) or a piece of land acc to
their shareholding.
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PROPERTY LAW

REVISION STUDY PACK

INTRODUCTION TO PROPERTY LAW

(b) law (5)

(c) right (5)

(d) legal subject (5)

(e) legal object (2)

(f) thing (5)

(g) real remedy (5)

(h) real right (5)

(a) law of property and law of things (4)

(b) real right and entitlement (5)

(c) legal object and thing (4)

(d) real relationship and real right (4)

3 Briefly mention the functions of the law of things. (6)

THINGS AS LEGAL OBJECTS

2 Briefly distinguish between

This distinction is significant in various areas of law:

(b) singular and composite things (5)

(c) consumable and non-consumable things (5)

(d) movables and immovables (4)

(e) divisible and indivisible things (4)

(f) composite things and a collection of things (4)

4 Give an example of each of the following:

(b) accessory thing (1)

(c) auxiliary thing (1)

 movable thing (1)

REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S RIGHTS/ CLAIMS)

(a) object (2)

The case must be discussed under the following headings:

Facts (You can use the facts as simplified in the example.)

OWNERSHIP DEFINITION OF AND LIMITATIONS ON OWNERSHIP

1 Distinguish between ownership and its entitlements. (3)

2 Name the entitlements of ownership. (7)

1 Name any two statutory limitations on ownership. (2)

6 State the purpose of neighbour law. (2)

Application of finding on relevant facts

Application of finding on facts in this question

Therefore, the neighbour acted unreasonably.

Limited real rights eg’s

(a) X and Y (10)

(b) Q and R (3)

ORIGINAL ACQUISITION OF OWNERSHIP

Define appropriation. (5)

Name and discuss the requirements of appropriation (occupatio). (10)

This question is based on Reck v Mills. (1)

1 Define building. (5)

3 Discuss the role of intention in building. (10)

Same as below – MacDonald v Radin Case

(a) X and Y (10)

(b) C, the cooperative (4)

(c) the trustee of the insolvent estate (3)

Same as above – MacDonald v Radin case

Standard-Vacuum Refining Company operated an oil refinery on land belonging to it and

Application of finding to relevant facts

Theatre Investments case (case law) – read above & apply

(b) Van Wezel v Van Wezel's Trustees (1924 AD 409) (5)

• the nature (½) and purpose (½) of the particular article,

• the degree (½) and manner (½) of its annexation, and

Define mixing. (6)

Distinguish between mixing of solids and mingling of fluids (5)

Define acquisition of fruits. (5)