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