Case Relevance

Section 1
Agri SA v Minister for Minerals and
Energy (2013)
Khan v Minister for Law and Order
(1991)
Ex Parte Geldenhuys (1926)
Lorentz v Melle (1978)
- Effect of constitutional Property Clause (s25) on property law
in SA – transformative.
- Expropriation and deprivation can be used for transformative
purposes.
- When interpreting s25 of Con, you must do so with due regard
to the gross inequality in relation to wealth and land
distribution.
- Obligation not to overemphasize private property rights at the
expense of the state’s social responsibilities.
- Expropriation = get compensation; deprivation = get no
compensation.
- In this case: Not expropriation; deprivation, because the state
didn't actually acquire the land
- The state can act as custodians for mining land if the owner
doesn't use the land for mining purposes (MPRDA)
- Use it or lose it principle; esp wrt to mineral rights.
Section 2
- Lays down rules for accession
- Owner of principal thing is owner of composite thing
- Tests for the principal part
o Matter of common sense, but use the test that creates the least
doubt
o Possible tests: Bulk test; value test; and character, form and
function test.
Section 3
- Lays down the 2-fold test for registration of real rights –
subtraction from dominium & intention to bind successors in
title.
- When contemplating subtraction from dominium, look at the
correlative obligation to the right, because a right made in
favour of a person could still be a real right (e.g. personal
servitude)
- If the correlative obligation of the right burdens the land, this
amounts to a subtraction from the dominium  real and
registrable.
- Personal rights can be registered ONLY if “intimately
connected” to the registerable real right. (see s63(1) of the
Deeds Registries Act – P Rights are registerable if ancillary or
otherwise complementary to the registerable real right).
- Registration of the right doesn’t change its nature (i.e.
registering a P right doesn’t make it real).
- Easy way to see if right is real and registerable: Does the
correlative obligation bind the person in a personal capacity
or in their capacity as owner? If binds in capacity as owner 
real and registerable
- Applies the 2-fold test set out in Geldenhuys but with different
results, because it said that the subtraction from the
dominium must burden the land in the physical sense. – i.e.
use and enjoyment must be curtailed in the physical sense.
(Note: this is not the precedent courts follow in terms of SfD)
- Registration of a personal right cannot convert it into a real
right.
- Onus is on the person alleging that a servitude exists to prove
its existence.
- Praedial servitude can only be claimed if it provides some sort
of permanent advantage to the dominant tenement.
Nel NO v Commissioner (1960)
Schwedhelm v Hauman (1947)
Bowring NO v Vrededorp Properties
(2007)
Meridian Bay Restaurant v Mitchell NO
(2011)
Zeeman v De Wet (2012)
Meyer v Glendinning (1939)
Wightman t/a JW Construction v
- The intention with which a right is created will have an
impact on what kind of right is ultimately created – the
intention must be to bind successors in title in order for a
right to be real and registerable.
- Registration of a personal right cannot convert it into a real
right.
- Question of whether a right sounding in money can be real
and registerable in its own right is deliberately left open
- Servitude can’t impose a positive obligation on the holder of
the servient tenement
- But in this case the holder of the servient tenement did have
to perform the positive obligation because it was a condition
of sale (i.e. bound by a personal obligation)
- Civiliter modo example
- Sets out conditions for the Doctrine of Notice to apply in terms
of unregistered servitudes (see notes for conditions)
- Requirements: Personal right that would give rise to real
right; subsequent acquirer has actual prior
knowledge/wilfully shut their eyes of potential RR at the time
of transfer
- Person bringing the DoN can claim directly from the
subsequent purchaser.
- How the DoN will operate depends on what is just and
equitable – Person bringing the DoN (the holder of a personal
right that has the potential to give rise to a real right) can
claim from the initial seller if it is just and equitable to do so –
in this case, claimed directly from the subsequent purchaser.
- Sets out conditions for the Doctrine of Notice to apply in terms
successive sales (see notes for conditions)
- Fraud is not a requirement to bring the DoN – just need actual
prior knowledge that someone had a personal right that had
the potential to give rise to a real right.
- Wilfully closing your eyes to the potential real right is also
sufficient to bring the DoN against you.
- Can claim directly from subsequent purchasers.
- No positive obligations can be imposed on the owner of the
servient tenement in the case of a servitude.
- The owner of the dominant tenement must exercise the
servitude in a reasonable manner – i.e. it must be exercised in
a way that is the least onerous to the owner of the servient
tenement (civiliter modo).
Section 4
- Sets out the conditions for the Mandament van spolie to apply
(see notes for the conditions)
- Requirements: possessor has bare/factual possession (ius
possessionis  animus = intention to benefit + corpus
(detentio) conscious physical possession  determined by
facts) and was in peaceful and undisturbed possession when
spoliated.
- Can be used even against the true owner.
- No one is allowed to take the law into their own hands
- Must have peaceful and undisturbed bare possession (not
entitlement to possession or legal possession)
- Fraud or violence are not essential
- Custodianship (detentio) is not sufficient – need to intend to
get some benefit from that possession  here, receiving
remuneration for possession provides animus possidendi
- Shows that the mandament can be used in the case of
Headfour (2008) immovable property.
- Holding keys to immovable property (+ having your movable
property on the immovable property) is sufficient to show
possession.
- Bare possession is established in terms of the context in which
it occurs.
- Continuous physical possession is not necessary – i.e.
temporary absence does not constitute abandonment.
- Sets out the requirements for the MvS to apply in the case of
immovable property.
Afzal v Kalim (2013) - MvS used in the case of immovable property – shows that you
can be spoliated of part of your house. If someone occupies a
part of your house (a room or a few rooms) without your
consent, the MvS may apply.
- MvS protects possession, not the right to possession.
- Sets out the requirements for the MvS to apply in the case of
immovable property.
- MvS is subject to legislation (here, PIE).
ATM Solutions (Pty) Ltd v Olkru - MvS’s application to incorporeals
Handelaars (2009) - Can’t use the MvS in contractual circumstances; i.e. can’t use
the MvS for use rights UNLESS the use right is incidental to
the possession of a corporeal – here, it was not the case and
the MvS failed.
- Main point: Can’t use the MvS to compel a specific contractual
performance (subject to the exception given above)
Ivanov v North West Gambling Board - MvS can apply even when possession is unlawful – no one can
(2012) take the law into their own hands.
- Purpose of a spoliation order is to prevent self-help
- If a search warrant is declared null and void, this works
retrospectively and any dispossession done pursuant to such
a warrant will be unlawful
V&A Waterfront Case concerning an interdict – can’t use an interdict if any other
measure would achieve the desired outcome.
Section 5
Gien v Gien (1979) - Owner has the most complete and extensive rights to his
property to the exclusion of the rights of others.
- Ownership is not limitless – the exercise of your ownership
entitlements cannot infringe on the ownership entitlements of
another.
- Where the unlimited right of one owner to use property
conflicts with the right of another owner to the free
enjoyment of his property, the owner’s rights of ownership
then extend only so far as there rests an obligation on his
neighbour to endure the exercise of that right. The extent of
the neighbour’s obligation is determined by considerations of
reasonableness and fairness
S 5 Continued: Neighbour Law
Laskey v Showzone (2007) -
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