Property Case Law Summaries Completed

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Property case law summaries completed
Law of Property (University of South Africa)
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Property Case Summaries

Module 1:
1) Growthpoint Properties Limited v South Africa Commercial Catering
and Allied Workers Union (SACCAWU) 2010 JDR 1015 (KZD)
Facts:
Growth Point properties obtained an interim interdict against the striking SACCAWU workers
who picketed at La Lucia Shopping Mall in Durban against DisChem which was a tenant in a
mall under the ownership of Growth Point Limited.
SACCAWU had secured the right to picket in terms of section 69(5) of the Labour Relation
Act No.66 of 1995 (LRA) from the Commission of Conciliation, Mediation and Arbitration
(CCMA).
Growth Point Properties employed the services of a registered hygienist who argued that the
ambient noise level was normally 65 decibels near DisChem, but when it increased by 10 to
15 decibels, it invoked widespread complaints from the community. When the noise
increased to between 15 and 20 decibels community reaction was stronger.
Mr Chester recorded that the noise at the pay station in the parking garage exceeded the
ambient level by almost 30 decibels. This exceeded the legal limit of 85 decibels set by the
regulation governing noise-induced hearing loss.
Judgement:
This supported the Growth Point allegation that the strikers committed a nuisance to its
tenants. The Kwazulu-Natal High Court granted an interdict preventing protesters from
chanting loudly or using any kind of instrument to make noise because tolerance levels for
conducting business were exceeded by unacceptably high noise levels.

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Module 2:
1) First National Bank of SA Ltd t/a Wesbank v Commissioner for the
South African Revenue Services and others 2002 (4) SA 768 (CC)
Facts
There are three parties: FNB, L and SARS
The case dealt with the constitutionality of S114 of the Customs and Excise Act. L is an importer of
goods and has to pay a customs duty to SARS. L bought a car and the directors use the car. The
purchase was finance by FNB in which a loan was given to L and there was a reservation of
ownership clause until the full amount was paid.
S114 of the Customs and Excise Acts provides that if a customs importer falls into arrears and cannot
pay SARS then sells will be able to sell all the movables of the debtor. L was unable to pay the SARS
and s114 comes into operation. Ls car was confiscated and SARS wants to sell the car even though
FNB is the lawful owner of the car. FNB has no dealings with SARS yet S114 allows SARS to sell the
car that belongs to FNB. FNB stated that s114 is unconstitutional and infringes upon FNBs ownership.
Legal Question
Is s114 constitutional?
Ratio
The starting point is always s25 of the Constitution. What does it say?
“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”
Is FNB a beneficiary of rights accorded in s25(1)? Juristic persons are entitled to certain rights in the
Bill of Rights (if it is a natural person state that instead)
FNB methodology on how to adjudicate constitutional property disputes
1. Whether that take away from the affected property in terms of s25?
2. Was there deprivation of property?
3. If yes, is deprivation consistent with s25(1) requirement for deprivation?
4. If no, is deprivation justifiable under s36(1)?
 If no= unconstitutional and end of enquiry
 If can justify unconstitutional deprivation then...
5. Does the deprivation amount to expropriation in terms of s25(2)?
6. If yes, does the expropriation meet the requirements of s25(2) & (3)
7. If it does not meet the requirements is the expropriation justified in terms of s36(1)?
Interpretation of S25
The court confirmed the purpose, which is to protect public property and serving the public interest.
FNB methodology
1. Whether that take away from the affected property in terms of s25?
 Ownership of movables and immovable’s are property for the purpose of the property clause.

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 The nature of the right looked at- ownership

Combined assessment
 Object of the right looked at- car
 Therefore we have property in terms of S25(1)
2. Was there deprivation of property?
 Deprivation is any interference with the use and enjoyment or expropriation of the property
 The property is not necessarily taken away but the right is usually limited.
 The court looked at the relationship between deprivation and expropriation and found that all
expropriation are simultaneously deprivations of property.
 on the facts of the case the court found that if the car was taken away in terms of s114, FNB
would be deprived of the car which limits and extinguishes all entitlements of ownership (this is
the most extreme form of deprivation. This goes further than regular deprivation.
3. Is the deprivation consistent with s25(1)?
 Look at the law of general application, which has a broad definition.
 Sources which can authorise deprivation
i. Legislation
ii. Common law
iii. Indigenous law
 The particular law in this case is the Customs and Excise Act must apply generally to all people
and not a particular group
 If not then it is unconstitutional unless it can be justified in terms of S36(1)
 Is the deprivation arbitrary?
i. Must the court use a proportionality or a rationality test?
ii. The court held that arbitrary has two meanings
a) Substantial arbitrariness or
b) Procedural arbitrariness (not dealt with in the case) in terms of s25(1) there must be
substantive reasons for the deprivation:
 The relationship between means employed namely the deprivation in question and
the ends sought to be achieved
 A complexity of relationships has to be considered.
 Relationship between the purpose of the deprivation and the nature of the property
as well as the extent of the deprivation in respect of such property If there is no
sufficient reason for the deprivation that it is arbitrary and unconstitutional.
iii. To determine sufficient reason there must be a nexus between three considerations:
a) The purpose of the deprivation- to ensure payment of the debt
b) The effect of the deprivation- extinguish ownership which would be fine IF L was the
owner but he was not.
c) The person affected by the deprivation- unrelated third person

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Therefore there is an insufficient nexus between arbitrariness and unconstitutional

4. Justifiable under s36(1)- the limitation clause
The court assumed s114 of the Act is justifiable and reasonable in an open and democratic society
based on human dignity, equality, and freedom.
Will deprivation that is arbitrary ever be justified? NO
S36(1) uses a fully proportionate test which is stricter then the substantive arbitrariness
Based on the facts it is not justifiable and s114 is no longer applicable.
Must also explain why it is not expropriation:
The authorising legislation in the position needs to set out the reason for the expropriation such as: ( if
it is missing the there is no expropriation)
 For public purpose;
 Compensation;
 Circumstances, procedures and conditions; and
 Statutory presumption.
2) Nhlabathi and others v Fick [2003] 2 All SA 323 (LCC)

Facts:
In Nhlabathi, a widow tried to bury her husband in a family graveyard (according to an
established custom), but the owner, Mr Fick, refused. Ms Nhlabathi went ahead with the
arrangements to bury her husband. Nonetheless, upon return to the farm she found that the
owner locked her out of the property. This prompted Ms Nhlabathi to apply for an interdict to
allow her to bury Mr Nhlabathi. This interdict was based on s 6(2)(dA) of ESTA that allows
burial of family members against the will and without permission from the landowner, if they
were occupiers of land at the time of death and if there was an established practice on the
farm. The amendment therefore added the right to bury a family member to the occupier's
tenure right. This right, the court highlighted, is not absolute, and must be balanced with the
rights of the owner, and is only enforceable if there is an established practice on the farm to
bury members. The owner argued that s 6(2)(dA) is unconstitutional because it does not
protect his property.
Judgment:
The court, following the First National Bank of SA Limited t/a Wesbank v Commissioner for
the South African Revenue Services; First National Bank of SA Limited t/a Wesbank v
Minister of Finance (CCT19/01) 2002 ZACC 5 methodology, ruled that s 6(2)(dA) is a
deprivation in terms of law of general application (ESTA). The court also found that it is not
arbitrary deprivation because the right has to be balanced against the right of the landowner,
in light of the fact that the section is enacted as part of the state's constitutional duties to

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provide security of tenure. On balancing the right the court found that there must be an
established practice on the part of the occupier before they can bury the family members,
and that such an intrusion is minor. The court then had to decide whether the burial right is
an expropriation. In Serole v Pienaar 2000 1 SA 328 (LCC) the court had stated that the right
to establish a grave could amount to a servitude, and when such a servitude is granted
without consent of the owner, it could amount to an expropriation. In Nhlabathi the court
assumed, without deciding the point, that it could be a de facto servitude, and therefore an
expropriation. The court then ruled "[t]here can be circumstances where the absence of a
right to compensation on expropriation is reasonable and justifiable, and in the public interest
(which includes the nation's commitment to land reform)". This was justifiable under s 36 of
the Constitution, which the court found to run cumulatively with the ss 25(2) and (3)
limitations. The court held that the interference with the landowner's property rights is
reasonable and justifiable as per s 36 because (a) the right does not constitute a major
intrusion on the landowner's property rights; (b) the right is subject to balancing with the
rights of the landowner, whose right can sometimes weigh more; (c) the right only exists
where there is a past practice of burials on the land, and that granting the right will provide
the occupiers with security of tenure in the land since it will enable them to comply with their
religious and cultural beliefs; and (d) it will enable the occupiers to comply with their cultural
and religious beliefs, since they need to be close to their ancestors. The court found that,
even if it amounts to expropriation of the property in order to use it for burial purposes, it
does not require compensation. This is because the intrusion to the owner's property,
weighed up against the gains for the occupants, is a minor intrusion. Alternatively, the
absence of compensation could be justified in terms of s 36.
3) Msiza v Director-General, Department of Rural Development and

Land Reform 2016 (5) SA 513 (LCC)
Facts:
In Msiza v Director-General, Department of Rural Development and Land Reform and
Others 2016 (5) SA 513 (LCC) the LCC having awarded Msiza a portion of the farm for
residential, cropping and grazing purposes, the issue was the amount of just and equitable
compensation to be paid for that portion. The parties, the Department of Rural Development
and Land Reform (the Department) and the owner of the farm, the Dee Cee Trust, agreed
that the market value would be just and equitable compensation. However, the Department
contended that the market value should be determined on the basis of use of the land,
namely, as agricultural land, the value of which was R 1,8 million, while the owner contended
that the market value of the property should be looked at in terms of its potential for
development as a township, which value was R 4,36 million.
Judgement:
The LCC rejected both contentions and held that the just and equitable compensation was
an amount that was adjusted downwards to R 1,5 million. No order as costs was made.
Ngcukaitobi AJ (Canca AJ concurring) held that the market value was not the basis for the
determination of compensation under s 25 of the Constitution where property or land had
been acquired by the state in a compulsory fashion, as was the case in the instant matter.
The point of departure for determination of compensation was justice and equity. Market

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value was simply one of the considerations to be borne in mind when a court assessed the
just and equitable compensation. Market value was, therefore, not a pre-eminent
consideration. The object was always to determine compensation which was just and
equitable, not to determine the market value of the property. In determining what was just
and equitable, a balance had to be struck between the interests of the private landowner and
the public interest. Therefore, compensation which was below the market value could be
compliant with the Constitution, if it qualified as just and equitable.
The development potential of the property, as a factor in the calculation of market value, was
far-fetched and speculative as there were no development plans in place but only a remote
hope. Following that approach, would distort the real value of the land and produce
outcomes, which were inconsistent with the purposes of compensation. That approach could
also create a perverse incentive for landowners to artificially raise the potential value of their
land if they knew that by the simple device of generating interest in the land, its market value
could be significantly altered. The purpose of s 25 of the Constitution was not to reward
property speculators but to serve public interest. Accordingly, it would be unfair to the
national fiscus to reward the landowner on the scale sought in the instant case, with no
discernible public benefit.
Module 3:
1) Department of Land Affairs, Popela Community and others v
Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC)
Facts
The community settled on the farm, which they lived and worked on. The community’s
ancestors were buried on this land and were living according to indigenous law. The land
was then given to a white farm and ownership was watered to a labour tenancy. This meant
that the people could still live and work on the farm but did not own the farm. A decade later,
the community was told that they had to leave the farm and the community wanted to claim
restitution.
Legal Questions
1. What rights were lost in 1969?
2. Was the community still a community when the claim was instituted?
3. Was the disposition of rights as a result of racial discrimination?
Ratio
The labour tenancy lasted up until 1969. They lost their labour tenancy to the farm and if
they got the farm back, they would get the labour tenancy back.
The requirements are set out in S2

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The court had to establish what was a community and whether the Popela community could
be defined as a community.
“Community” means any group of persons whose rights in the land are derived from
shared rules determining access to land held in common by such group, and includes part of
any such group.
The court stated that there must be a sufficient element of commonality and there must be
an established tribal hierarchy. The court finds that unfortunately when they lost the labour
tenancy they were NO longer a community. The moment indigenous law go to labour
tenancy they lost the right to operate the land without the consent of the owner. The Popela
community is not a community under the Act.
They then appeal on an individual basis in which they lost the labour tenancy. The court
found that they could claim on an individual basis.
The court had to interpret “as a result of” was racially discriminatory law or practices.
The court then applied the “but for” test and this occurs solely as a consequence of an act or
omission. In this case it is for social justice and has to interpreted in a different manner. The
court used a purposive approach in which the State and the Constitution want as many
cases of land reform to succeed. The court must look at the context of the dispossession.
The grid of discriminatory laws and practices

i. The historical background- there was a major shift with the Black Land Act
ii. Labour tenancy changed to wage labour and the owner claimed that he did not know
how he had to terminate the labour tenancy.
iii. 1967 proclamation- the owner did not know about the 1967 proclamation that
abolished labour tenancies.
The court held that the conduct by private actors which is supported by racial legislation that
these acts still amount to discrimination even if they did not know about it. There is a
consensual link between labour tenancy and discrimination. The causation link is met.
The court held that “as a consequence of” means “as a result of”.
The effect of these laws was that they were so embedded that people did not realise the
discrimination. Farmers were “agents” of the State.
The requirements in S2 has been satisfied. They may succeed in the reform and the court
issued a declaratory to arrive at an agreement if no agreement could be reached the parties
must go to Lands Claims Court.

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2) Nhlabathi and others v Fick [2003] 2 All SA 323 (LCC)

Facts:
In Nhlabathi, a widow tried to bury her husband in a family graveyard (according to an
established custom), but the owner, Mr Fick, refused. Ms Nhlabathi went ahead with the
arrangements to bury her husband. Nonetheless, upon return to the farm she found that the
owner locked her out of the property. This prompted Ms Nhlabathi to apply for an interdict to
allow her to bury Mr Nhlabathi. This interdict was based on s 6(2)(dA) of ESTA that allows
burial of family members against the will and without permission from the landowner, if they
were occupiers of land at the time of death and if there was an established practice on the
farm. The amendment therefore added the right to bury a family member to the occupier's
tenure right. This right, the court highlighted, is not absolute, and must be balanced with the
rights of the owner, and is only enforceable if there is an established practice on the farm to
bury members. The owner argued that s 6(2)(dA) is unconstitutional because it does not
protect his property.
Judgment:
The court, following the First National Bank of SA Limited t/a Wesbank v Commissioner for
the South African Revenue Services; First National Bank of SA Limited t/a Wesbank v
Minister of Finance (CCT19/01) 2002 ZACC 5 methodology, ruled that s 6(2)(dA) is a
deprivation in terms of law of general application (ESTA). The court also found that it is not

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arbitrary deprivation because the right has to be balanced against the right of the landowner,
in light of the fact that the section is enacted as part of the state's constitutional duties to
provide security of tenure. On balancing the right the court found that there must be an
established practice on the part of the occupier before they can bury the family members,
and that such an intrusion is minor. The court then had to decide whether the burial right is
an expropriation. In Serole v Pienaar 2000 1 SA 328 (LCC) the court had stated that the right
to establish a grave could amount to a servitude, and when such a servitude is granted
without consent of the owner, it could amount to an expropriation. In Nhlabathi the court
assumed, without deciding the point, that it could be a de facto servitude, and therefore an
expropriation. The court then ruled "[t]here can be circumstances where the absence of a
right to compensation on expropriation is reasonable and justifiable, and in the public interest
(which includes the nation's commitment to land reform)". This was justifiable under s 36 of
the Constitution, which the court found to run cumulatively with the ss 25(2) and (3)
limitations. The court held that the interference with the landowner's property rights is
reasonable and justifiable as per s 36 because (a) the right does not constitute a major
intrusion on the landowner's property rights; (b) the right is subject to balancing with the
rights of the landowner, whose right can sometimes weigh more; (c) the right only exists
where there is a past practice of burials on the land, and that granting the right will provide
the occupiers with security of tenure in the land since it will enable them to comply with their
religious and cultural beliefs; and (d) it will enable the occupiers to comply with their cultural
and religious beliefs, since they need to be close to their ancestors. The court found that,
even if it amounts to expropriation of the property in order to use it for burial purposes, it
does not require compensation. This is because the intrusion to the owner's property,
weighed up against the gains for the occupants, is a minor intrusion. Alternatively, the
absence of compensation could be justified in terms of s 36.
Module 4:
1) Khan v Minister of Law and Order 1991 (3) SA 439 (T)
Facts
A rebuilt vehicle was seize by police as being a stolen vehicle. The applicant alleges that the
rebuilt version became his through accession and that he is entitled to the recovery thereof.
Courts Findings
The court found that it is a general rule that where one movable is joined to another
movable, the owner of the principle thing is also the owner of the thing joined to it. The court
found that in answering the question of whether the rebuilt vehicle became the property of
the applicant, the answer could be determined by way of common sense. The court applied
the character, form and function test in terms of which it must be established what the
identity of the thing is. In doing so, the component that gives the thing its identity will be the
principle thing while the other component(s) will have acceded to the principle thing.

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Module 5:
1) Gien v Gien 1979 (2) SA 1113 (T)
Facts
Respondent set up an apparatus on his farm which made loud explosive noises at regular
intervals throughout the day and night in order to keep baboons away from his garden and
shop. The noise could be heard from the neighbouring farm and made the animals restless
and disturbed the sleep of the inhabitants of the farm. The respondent could have muffled
the sound and turned the device of at night however, the respondent held that he was
merely exercising his right to his property and acting in the interests of protecting his
property. The applicant sought an interdict to compel the respondent to stop the explosive
noise
Courts Finding
The court reiterated the fact that ownership is the most complete right a person may have in
respect of a thing. The premise is that the owner may do what he likes with and on his
property, however, this premise is flawed in so far as these ‘entitlements’ a owner has, may
only exist within the limits of the law. These limitations can arise from the objective law or
restrictions based on the rights of others.

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The court held that when determining when the rights of neighbours will conflict with other
rights, correlative obligations must be created between the two in terms of which each owner
must endure the normal exercise of his neighbours rights. In addition, each owner must also
exercise his rights in such a manner so as to not transgress the boundary between his rights
and those of his neighbour’s. The court accordingly found that the respondents conduct
infringed upon the rights of the applicant and the interim interdict was declared final.
2) Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)

Facts
The municipality sought to evict a group of unlawful occupiers from a piece of private owned
land. The occupiers were prepared to vacate the land on the condition that the municipality
would provide alternative accommodation to them. The Municipality sought to evict the
unlawful occupiers and in addition asked the court to rule that they had no obligation to
provide these occupiers with alternative accommodation.
Courts Findings
The court found that the constitution imposes an obligation on the court in terms of rights
concerning property in so far as as a the rules relating to the eviction of unlawful occupiers
must be interpreted in light of ss 25 and 26 of the Constitution. The court held that a balance
must be struck between the rights of owners and the duty to respect and uphold the human
dignity, rights an interests of those who, for historical or social reasons, do not own any
property or homes.
3) Victoria & Alfred Waterfront (Pty) Ltd and Another v Police

Commissioner, Western Cape, and Others (Legal Resources Centre
as Amicus Curiae) 2004 (4) SA 444 (C)

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Facts:
 The applicants applied for a permanent interdict prohibiting respondents from entering
and engaging in certain conduct on the premises.
 Respondents (being homeless), assaulted, harassed, interfered and threatened some of
the employees and visitors on the premises of applicant (mainly for food).
 The applicants, as private landowners, relied on their common law (absolute) right to
exclude non-owners from their premises, therefore exercising control over the use of
their property which is at the core of the entitlements of private ownership.
 Additionally, applicants claimed that ownership is protected against arbitrary deprivation
in terms of section 25 of the Constitution.
Legal Question:
Are applicants in casu entitled to a permanent interdict?
Judgement:
1. Permanent interdict was not granted but,
2. an order prohibiting respondents from behaving in certain specified ways on the
premises was.
Ratio Decidendi:
 The matter before the court was the applicants rights to property vs the right to freedom
of movement of the respondents.
 A property owner may claim the right to exclude non-owners from their premises, but
this right is not absolute.
 A property owner must exercise this right only in accordance with the law (statutory and
common law).
 Regard must be had to the nature of the property, and in casu applicant’s property was
used as a mall, making it a public space.
 As the premises is a public area, the owner’s right to restrict access becomes more
restricted and less absolute, placing more limitations on such a right.
 Therefore, a commercial property owner’s right is less absolute, especially considering
our racially divisive past.
 On this basis the permanent interdict was not granted but a specific interdict was given
preventing respondents from misbehaving on the applicant’s property.

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Module 7:
1) Gien v Gien 1979 (2) SA 1113 (T)
Facts
Respondent set up an apparatus on his farm which made loud explosive noises at regular
intervals throughout the day and night in order to keep baboons away from his garden and
shop. The noise could be heard from the neighboring farm and made the animals restless
and disturbed the sleep of the inhabitants of the farm. The respondent could have muffled
the sound and turned the device of at night however, the respondent held that he was
merely exercising his right to his property and acting in the interests of protecting his
property. The applicant sought an interdict to compel the applicant to stop the explosive
noise
Courts Finding
The court reiterated the fact that ownership is the most complete right a person may have in
respect of a thing. The premise is that the owner may do what he likes with and on his
property, however, this premise is flawed in so far as these ‘entitlements’ a owner has, may
only exist within the limits of the law. These limitations can arise from the objective law or
restrictions based on the rights of others.
The court held that when determining when the rights of neighbours will conflict with other
rights, correlative obligations must be created between the two in terms of which each owner
must endure the normal exercise of his neighbours rights. In addition, each owner must also
exercise his rights in such a manner so as to not transgress the boundary between his rights
and those of his neighbour’s. The court accordingly found that the respondents conduct
infringed upon the rights of the applicant and the interim interdict was declared final.
2) Laskey and another v Showzone CC and others 2007 (2) SA 48 (C)

Facts

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The applicants, who lived in an apartment in the CBD of Cape Town, sought an interdict from
the court against the respondent. The basis for the application was the nuisance caused by
the alleged excessive noise caused by music shows put on by the respondent. In addition
the respondent’s building was not sufficiently insulated so as to prevent the noise from
escaping the building.
Courts Finding
The court found that everyone is entitled to use their property for any purpose, provided that
the use of the property does not unreasonably impinge on a neighbours use of his property.
In determining what constitutes reasonable usage of property, the court stated that the
general character of the area in question, together with the social utility offered should be
considered. In addition the court further expounded factors which would render excessive
noise actionable, namely, the type of the noise, the degree of its persistence, the locality
involved and the times at which the noise is heard.
The court found that the applicants were not overly sensitive nor were they unrealistic in
expecting lower levels of noise in the CBD of Cape Town and they had also taken
reasonable steps such as closing their windows in an effort to lessen the noise. As such the
court held that an actionable nuisance had been proved as the respondent had failed to take
obvious and reasonable steps, such as insulating the building, to prevent the noise from
escaping.
3) Allaclas Investments (Pty) Ltd and another v Milnerton Golf Club and
others 2008 (3) SA 134 (SCA)
Facts
The applicants claim is founded on the fact that their houses have, on several occasions,
been hit by a high incidence of stray golf balls due to the bad design of one of the holes on
the golf course. One of the applicants went so far as to erect a net around his property,
however, this did not solve the problem. The respondent has planted trees which would
eventually solve the problem but the solution requires time before it will be effective. The
applicants want the respondent to take more drastic measures.
Legal Question
Whether the high incidence of stray golf balls hitting the applicants houses amounted to the
reasonable use of property by the golf club.
Courts Finding
The SCA found that the amount of golf balls being hit into the first appellant’s house was
unreasonable and excessive. The court further found that the high incidence of stray golf
balls posed a danger to the inhabitants and thus constituted a nuisance, even if it was the
applicant’s choice to live on a golf estate. The court found that the applicants were exposed
to an unreasonably high amount of intrusions from the golf course and that it did not amount
to the reasonable use of the respondent’s property because it the applicants ability to use
their property normally was affected.
4) Pappalardo v Hau 2010 (2) SA 451 (SCA)

Facts

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The respondent sought an interdict against the appellant in the form of a declaratory order to
the effect that the respondent was entitled to insert certain drainage pipes into a wall erected
by the appellant in order to prevent the flooding of a certain sector of the respondent’s
property. The High Court granted the declaratory order and the matter then went on appeal
to the SCA.
Legal Question
The question before the court was whether, in terms of the rights and obligations of
neighbours in urban environments, a lower lying neighbour was obliged to accept rain water
flowing onto his property from the higher lying neighbour
Courts Finding
The court held that the upper owner’s right in this regard only extends so far the ‘natural flow’
of water is concerned and that the respondent failed to prove what the amount of natural
flow was. The appeal was upheld and the decision of the court a quo was set aside with the
effect that the appellant was granted absolution from instance.
5) Malherbe v Ceres Municipality 1951 4 SA 510 (A)

Facts
The appellant was an owner of a building and the respondent a local authority responsible
for planting a number of trees in front of the appellants building. The claim is based upon the
fact that the oak tress constituted a nuisance on his property in so far as that the leaves from
the trees blocked the gutters of his building causing causing his walls to be damaged by
rainwater.
Courts Finding
The court found that the normal and reasonable use of property will not give rise to a claim
based on nuisance, even if it causes a certain degree of inconvenience, since a certain
degree of tolerance is expected from a neighbour. The court found that the planting of the
oak trees constituted reasonable use and as a result, the court held that a certain amount of
leaves will be blown into the applicant’s yard and that these leaves must be cleared away at
his own expense. The landowner may request the owner of the trees to remove the
overhanging or encroaching branches and only if he refuses, may he (the landowner)
remove them himself or compel the other to remove t by means of an interdict.
6) Growthpoint Properties Limited v South Africa Commercial Catering

and Allied Workers Union (SACCAWU) 2010 JDR 1015 (KZD)
Facts:
Growth Point properties obtained an interim interdict against the striking SACCAWU workers
who picketed at La Lucia Shopping Mall in Durban against DisChem which was a tenant in a
mall under the ownership of Growth Point Limited.
SACCAWU had secured the right to picket in terms of section 69(5) of the Labour Relation
Act No.66 of 1995 (LRA) from the Commission of Conciliation, Mediation and Arbitration
(CCMA).

lOMoARcPSD|8390748
Growth Point Properties employed the services of a registered hygienist who argued that the
ambient noise level was normally 65 decibels near DisChem, but when it increased by 10 to
15 decibels, it invoked widespread complaints from the community. When the noise
increased to between 15 and 20 decibels community reaction was stronger.
Mr Chester recorded that the noise at the pay station in the parking garage exceeded the
ambient level by almost 30 decibels. This exceeded the legal limit of 85 decibels set by the
regulation governing noise-induced hearing loss.
Judgement:
This supported the Growth Point allegation that the strikers committed a nuisance to its
tenants. The Kwazulu-Natal High Court granted an interdict preventing protesters from
chanting loudly or using any kind of instrument to make noise because tolerance levels for
conducting business were exceeded by unacceptably high noise levels.
Module 8:
1) Khan v Minister of Law and Order 1991 (3) SA 439 (T)
Facts
A rebuilt vehicle was seize by police as being a stolen vehicle. The applicant alleges that the
rebuilt version became his through accession and that he is entitled to the recovery thereof.
Courts Findings
The court found that it is a general rule that where one movable is joined to another
movable, the owner of the principle thing is also the owner of the thing joined to it. The court
found that in answering the question of whether the rebuilt vehicle became the property of
the applicant, the answer could be determined by way of common sense. The court applied
the character, form and function test in terms of which it must be established what the
identity of the thing is. In doing so, the component that gives the thing its identity will be the
principle thing while the other component(s) will have acceded to the principle thing.
2) Gore NO v Parvatas (Pty) Ltd 1992 (3) SA 363 (C)

lOMoARcPSD|8390748
Facts
The applicant sought a spoilation order against the respondent, who acts for a company
which leased land from the applicant, for the recovery of bulbs planted by the company. The
respondent lodged a counter application to prevent the applicant from removing the bulbs on
the basis that because the bulbs were planted on the land, it became the landowners
property.
Legal Question
Whether the bulbs became the landowner’s property through accession?
Ratio
The general rule is that everything growing on the soil becomes part of the land as soon as it
takes root and gets nourishment from the soil. However, in the present matter, the court
found that the applicant planted the bulbs in the soil with the intention that they were to be
removed therefrom. As such, the court held that the bulbs retained their quality as movables
at all times and did not become part of the soil and as such is not the property of the
landowner.
3) Standard-Vacuum Refining Co of SA (Pty) Ltd v Durban City Council

1961 (2) SA 669 (A)
Facts
The appellant owned and operated an oil refinery on land within the municipal territory of the
respondent. The respondent tool the value of tanks ,which were part of the refinery, into
consideration when assessing the value of the land for rating purposes. However, the
appellant argued that the tanks were not buildings and therefore not part of the land.
Legal Question
Whether the tanks were so attached to the land as to render it immovable and therefore part
of the land?
Court’s Finding
The court considered three elements in its decision, namely, the nature and purpose of the
attached thing, the manner and degree of the attached thing and the intention of the
annexor. In examining the matter the court found that the tanks never, at any stage, existed
independently from the land. The erection of the tanks were coincidental to their attachment
by their weight, to the land upon which they were erected.
Regarding the manner in which the tanks were attached to the land, evidence showed that
the tanks could not be moved without being cut up and doing so would cause them to lose
their identity as tanks
In terms of the intention of the annexor, the court found that the intention of the annexor at
the time of the attachment is important in arriving at a conclusion in this regard. The intention
of the annexor can be subjective (in terms of a contract/agreement) or it could be objective
(inferences drawn from the physical features). The subjective intention of the annexor was
most important, however, where evidence in this regard is lacking, a court may draw

lOMoARcPSD|8390748
inferences from the physical features. As such, the court found that the physical features of
the tanks leads to the inference that the attachment of the tanks was to be permanent and
did thus constitute immovable property.
4) Theatre Investments (Pty) Ltd and another v Butcher Brothers Ltd

1978 (3) SA 682 (A)
Facts
The respondent (lessor) applied for an interdict restraining the lessee from removing theatre
seats, an emergency lighting plant and a projection room dimmer board due to the fact that
according to the lease agreement concluded by the parties that upon the expiry of the lease,
the lessor will acquire ownership of all buildings and improvements on the property without
having to compensate the lessee. The interdict was granted by the court a quo and the
matter went on appeal.
Legal Question
Whether the three items of movable property have become part of the building?
Court’s Finding
The court followed the approach formulated in the Standard Vacuum case in so far as in
determining whether a movable, which is capable of acceding to and has been attached to
an immovable, becomes part of that immovable is to enquire whether the person who
attached the movable did so with the intention that it should remain permanently attached to
the immovable.
The court held that the sources which the annexor’s intention could be sought include, inter
alia, the ipse dixit (subjective will) of the annexor as to his intention, the nature of the
movable/immovable, the manner of the attachment and the cause for and circumstances
giving rise to the attachment. Where the annexor’s intention is not forthcoming, the court
must draw inferences which may legitimately be drawn from the other abovementioned
sources.
If the court, after consideration of all the evidence (direct or inferential), were to conclude
that the annexor intended permanent attachment, it would hold that the movable would
become part of the immovable. On the other hand, if the court found that the annexor had
not intended permanent attachment, the attachments would retain their quality of being
movable.
In the present matter, the court was constrained to inferential evidence as no evidence was
led by the person who made the annexations. Accordingly, the court held that on the
evidence before it, the manner in which the chairs were attached to the floor, the fact that
they have been designed for the specific theatre, as well the fact that they would be situated
on the property for 50 years (period of lease) raised the reasonable inference that the
annexor intended that they remain there permanently. As to the lighting plant and the
dimmer board, the court held that they were essential features of a theatre and the same
principles as above applied and it could thus be inferred that the annexor intended that they
remain there permanently. The appeal was dismissed accordingly.
5) Melcorp SA (Pty) Ltd v Joint Municipal Pension Fund (Transvaal)

1980 (2) SA 214 (W)

lOMoARcPSD|8390748
Facts
According to an agreement between the plaintiff and the previous owners of a building, lifts
installed by the plaintiff would remain movable and would not become fixtures and that the
plaintiff would retain the right to remove them until they had been paid for in full. The
previous owners fell in arrears with payments to the plaintiff. The defendant subsequently
purchased the building from the previous owners and the plaintiff now wishes to remove the
lifts.
Legal Question
Whether the ipse dixit of the annexor, to retain ownership of the lifts until they had been paid
for, would entitle the annexor of the lifts to remove them from the premises even if the lifts
were attached to the building permanently and formed part of it?
Courts Finding
In deciding whether the subjective will of the annexor should prevail, the court emphasized
that the weight attached to subjective intention of the annexor would differ on a case-to-case
basis and that in certain instances, it would be necessary to draw inferences from the
objective factors. The court in the matter before it, held that the fact that the subjective
intention of the annexor was expressed clearly from the beginning as well as the fact that the
condition was a decisive factor before the annexor was prepared to install the lifts, the
subjective intention must override the objective considerations. The court ruled in favour of
the plaintiff.
6) Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk 1996

(3) SA 273 (A)
Facts
The respondent (a wholesaler) sold goods to a retailer on the condition that the respondent
would retain ownership of the goods until they had been paid for in full. The retailer
subsequently sold and installed the goods, in the form of an irrigation system, on the farm of
the appellant. The appellant paid the retailer for the goods in full but the retailer failed to pay
the respondent. The respondent approached the court for an order to allow them to remove
the goods from the appellant’s farm. The court a quo granted the order.
Legal Question
Whether the respondent was entitled to remove the equipment from the appellants farm and
whether the attachment was permanent?
Court’s Finding
The court followed the approach in previous decisions in terms of which the intention with
which the attachment was made is decisive. The court further found that the intention of the
owner and not the annexor is decisive in this regard. As such, it is clear that the movables
did not become part of the appellants land because the intention of the respondent to retain
ownership until they have been paid for is indicative of this fact. The court a quo’s decision in
this regard was upheld. However, regarding whether the respondent is entitled to remove the
equipment, the court held that the respondent, as a wholesaler, created the impression that

lOMoARcPSD|8390748
the retailer was entitled to sell the goods and transfer ownership and as such, the appellant
as a bona fide or innocent purchaser, should not be prejudiced in this regard.
Module 9:
1) Allan & David (Pty) Ltd v Ingram NO 1989 (3) SA 333 (C )
Facts
Plaintiff allowed company B to commence work on 5 panel vans belonging to the plaintiff, in
order to convert them into mobile clinics for fund C. initially, B wanted to purchase the vans
on credit, but the plaintiff made it clear that the vans would be sold strictly for cash and that
the plaintiff would retain ownership of the vans until they had been paid for in full. The
plaintiff also retained the spare keys, petrol caps and service and guarantee books of the
vans. B was liquidated and the vans were sold and the proceeds therefrom were kept in an
interest bearing account under the control of the defendant, who is acting as liquidator for B.
The defendant contends that the van was sold to B on credit and that it therefore falls within
the insolvent estate or alternatively, if it was a cash sale, that the plaintiff had not complied
with s 36 of the insolvency act.

lOMoARcPSD|8390748
Legal Question
Whether it was a cash or a credit sale and whether the provisions of section 36 apply
Courts Finding
As a general rule, in a sale case, ownership does not pass to the buyer until the buyer has
paid the full purchase price even if delivery has taken place before payment. However, this
rule is not absolute and is a question of fact which depends on the circumstances to show,
by inference, that the parties intended ownership to pass or not.
In the present matter the court found that the plaintiff continued to treat the vans as its own
property which is further backed up by the fact that the plaintiff retained the spare keys,
petrol caps and service documents. As such, the court held that the transaction was a cash
sale and that the plaintiff retained ownership of the vans even if it was in the possession of
B.
Regarding section 36, in terms of which a seller could reclaim his property within 10 days
after delivery has taken place, the court found that section 36 was not applicable as the
plaintiff never parted with the property because B merely had detentio (limited control) of the
vans. As such the plaintiff was entitled to the proceeds and interest in the account.
2) Dreyer and another NNO v AXZS Industries (Pty) Ltd 2006 (5) SA
548 (SCA)
Facts
The respondent instituted vindicatory action against the appellants for the recovery of certain
equipment. The appellants were cited in their capacity as joint trustees of two trusts who
were said to be in possession of the equipment.
Courts Finding
As a general rule, a party who institutes the rei vindicatio is required to allege and prove
ownership of the thing. The plaintiff does not have to prove that the defendants possession
of the thing is unlawful. The onus then falls on the defendant to prove the right to retain
possession. The court then set out the requirements for the valid passing of ownership of a
movable thing, which are, actual or constructive delivery of the thing by the owner or a
person duly authorised to act on his behalf together with a so called real agreement
consisting of the intention of the transferor to transfer ownership and the intention on the part
of the transferee to accept ownership of that thing.
In applying these principles, the court a quo found that, in terms of the real agreement, it was
intended that the respondent should receive the transfer of all the items at the auction
including the equipment. However the appeal court disagreed with the trial court’s approach
insofar as it found that from the terms of the agreement (to the auction), the equipment was
to be excluded. The appeal was upheld.
3) Du Plessis v Prophitius and another 2010 (1) SA 49 (SCA)

Relevance?
The SCA reaffirmed that the abstract theory of ownership includes immovable property as
well. According to the abstract theory, The passing of ownership is affected by two
requirements, namely, Delivery in the forms of registraton together with a real agreement in

lOMoARcPSD|8390748
terms of which the transfer is coupled with the intention on the part of the transferor to
transfer ownership and the intention of the transferee to accept such ownership.
A trust owned immovable land in Kwa- Zulu Natal. The trust decided to sell the land. W
properties decided to make an offer to buy the land and paid the full purchase price. All that
was left to do was to register the land in the new owner’s name. However, before the
registration was completed Prophitus approached the trust to buy the land for more money
and the trust accepted. A few months later the land was registered in Prophitus name. W
properties sell land to Du Plessis BEFORE registration is completed, but now there are two
title deeds for the land and fraud has occurred.
Who is the owner of the land?
The court applied the abstract theory which applied in SA law. It does not require a valid
transfer of sale.
Transfer of ownership:
1. Delivery or registration
2. Real agreement
a. Animus transferendi
b. Animus accipendi
The Prophitus family met both requirements.
Relevant timeline:
1. January 2004- contract with W properties
2. October 2004- contract with the respondent
3. February 2005- registered in the respondents name
4. May 2005- registered in the appellants
There is a remedy for Du Plessis but they did not gain the ownership. Iusta causa traditionis
requirement is not met and the requirements for a valid contract must be met.
The SCA reaffirmed that the abstract theory of ownership includes immovable property as
well. According to the abstract theory, the passing of ownership is affected by two
requirements, namely, delivery in the forms of registration together with a real agreement in
terms of which the transfer is coupled with the intention on the part of the transferor to
transfer ownership and the intention of the transferee to accept such ownership.
4) Barclays Western Bank Ltd v Ernst 1988 (1) SA 243 (A )

Facts
A trader discounted a lease with the appellant in terms of whom the trader will cede, to the
appellant, all the trader’s rights in terms of the lease as well as the ownership of the goods. It
was further established that payment of the discounted price would constitute acceptance of
such offer. The lease was drawn up by the appellant and signed by the trader and the
lessee. The vehicle was handed over to the lessee who then handed it over to the

lOMoARcPSD|8390748
respondent who had it registered in his (the respondent) name. The appellant instituted
action for the recovery of the vehicle claiming that it had become owner through attornment.
The appeal was dismissed in the court a quo and now rests with the appeal court.
Court’s Finding
The court stated that to enable ownership to pass through attornment, the 3rd party who is to
hold the article on behalf of the intended new owner must be in control of the article or must
at least have the right to control it when the owner cedes his rights in respect thereof to the
intended new owner.
As such the court held that the trader was not in control of the property when the previous
owner ceded ownership to the new owner because the trader had already transferred control
of the vehicle to the respondent. The respondent did not agree to exercise control of the
vehicle on behalf of the new owner and as such was not a party to the tripartite agreement
necessary for attornment to take place.
Facts- there are 4 parties:

1. The trader MK
2. Barclays
3. VC
4. Ernst
MK owns the vehicle and wishes to transfer ownership to Barclays but it has already sold the
vehicle to VC, who is already in possession of the car. Attornment: MK, Barclays, and VC
and they conclude a tripartite agreement. Now VC controls the car on behalf of Barclays.
Timeline: May 1981
1. 19 May- concluded the tripartite agreement
2. 21 May- Barclays mail the cheque to MK
3. 26 May- the cheque arrives at MK
The cheque arrives a few days later due to the fact that it was transferred via mail.
VC receives the purchase price but stops paying the instalments and sells the car to Ernst.
Barclays wants to institute the rei vindicatio
Legal Question
Can Barclays institute the rei vindicatio against Ernst?
Is Barclays the owner? it will only be the owner of the thing if the rei vindicatio is successful
What were the valid requirements for a transfer? Were they satisfied?
Ratio Decidendi
Detentio/ right to detention. In control on day, which intends to transfer ownership and Tee
receives ownership
Day of animus elements: real agreement- control on day of intention; price payment is right
and receives possession only when purchase price is received.
This last requirement is not met because on the 26 th of May Ernst got the car and MK got the
money.

lOMoARcPSD|8390748
There was a change of intention VC no longer has the right to detention. It can therefore, be
concluded that Barclays did not become the owner. The requirements for attornment are not
satisfied. MK is still the owner of the car.
5) Southern Tankers (Pty) Ltd t/a Unilog v Pescana D’Oro Ltd (Velmar
Ltd Intervening) 2003 (4) SA 566 (C)
Facts
Fish belonging to P was stored in a cold storage belonging to ACS. The arrangements were
made by D who acted on behalf of P. While in storage, P sold the fish to K who subsequently
sold it to V. V argued that the fish had been controlled by D on P’s behalf and that
constructive delivery of the fish had taken place while D was in control of the fish
(attornment). In a bid to attach the fish to enforce payment of a debt against P, Unilog
(plaintiff) argued that ACS was the third party in control of the fish and that constructive
delivery had thus not taken place.
Legal Question
Who was the controller of the fish at the time the alleged constructive delivery took place and
whether the controller was a party to the tripartite agreement required for attornment.
Court’s finding
The court held that, from the moment the catch was placed in cold storage, D had not
exercised physical control of the catch as the physical control was exercised by A. In
addition, it was agreed that delivery of the fish would take place by written instructions from
the seller to ACS. Furthermore, no instruction or information was given to A with regards to
delivery and constructive delivery by way of attornment had thus not taken place. Pescana
retained ownership of the fish.
Facts- there are 6 parties
1. Pescana (P)
2. ACS
3. Kensa
4. Velmar
5. Unilog
6. D
Pescana is the fish company. Pescana hires D to find a place to store their fish and they find
the storage at ACS.
Pescana transfers the ownership of the fish to Kensa who transfers ownership to Velmar
Pescana owes money to Unilog and Unilog tries to attach fish to settle the debt therefore,
Southern Tankers trading as Unilog v Velmar
Legal Question
Who is the owner of the fish? Were the requirements of the valid transfers satisfied?
Ratio
The 2 requirements for attornment:
1. Mental concurrences of all 3 parties

lOMoARcPSD|8390748
2. Detention/ right to detention

First Q- who is the party controller? P only communicated with D. Is D third party controller?
ACS: no one can access fish without ACS as they have the physical control
Party in physical control- day-to-day access for purpose of attornment
Therefore, ACS is the third party controller
Second Q- consensus?
No one liaised with ACS and no consensus on the fact that ACS would control the fish.
Therefore, there was no tripartite agreement and P is still the owner and attornment did not
take place.
6) Nazier Kolia t/a Nazco Motors v First Rand Bank Limited t/a Wesbank
[2012] JOL 29208 (SCA)
Facts
Three parties were involved
1. Naizer
2. Supreme
3. First Rand Bank
Naizer sells the cars but does not register them to make it easier for the purchaser. Naizer
sells cars to Supreme under an express reservation clause- ownership will only pass when
the final instalment is paid. Supreme agrees to this and drives the car away. Supreme is also
in the business of selling cars and then sells the car to First Rand Bank. The cars are
registered in Supremes name. First Rand Bank pays Supreme. Supreme disappears and the
cheque bounces that was given to Naizer for the cars. Naizer wants to claim the car back
from First Rand Bank.
Naizer has to prove that he is the owner.
Ratio
When Kolia handed over the blank documents to Supreme they were then registered
Supremes name. Supreme transferred ownership to itself even though the full price was not
received. However, Kolia was still the common law owner of cars. Kolia gave blank forms
which gave tacit ius disponendi to sell the cars. Supreme could make the transfer to First
Rand Bank because it was Supreme that filled out the registration forms. The reservation of
ownership was limited to Supreme and Supreme no longer had the cars. The cause is only
enforceable against Surpreme and not First Rand Bank.

lOMoARcPSD|8390748
This decision is incorrect because the requirements for the transfer were not met. There was
no real intention to transfer the ownership and the full purchase price was not paid. You
cannot transfer ownership to yourself. The registration of cars does not transfer ownership.
Module 10:
1) Chetty v Naidoo 1974 (3) SA 13 (A)
Relevance?
The court set out the onus of proof in vindicatory actions
Courts findings
The court found that a characteristic of ownership is the exclusive possession of the thing
and that the owner may claim back the thing wherever it is found, from whoever holds it,
unless the holder is vested with some enforceable right against the owner.
As such, an owner who institutes the rei vindicatio need only allege and prove that he is the
owner of the thing and that the defendant is in possession of the thing. The onus then falls
on the defendant to allege and prove any right for him to continue holding the thing. It is
immaterial for the owner to allege that the person holds the property unlawfully but if he goes
even further and concedes that the respondent has a vested right in the thing or formerly
had such a right, the owner must allege and prove that such right has been terminated.
However, where the owner concedes a right and the defendant denies the right and relies
upon a different point as his defence, there is no onus on the owner to allege and prove the
termination of the conceded right.
The court held that the appellants claim could not succeed as it was based differently from
the right conceded by the plaintiff (lease) in that it was based on an alleged agreement of
sale, which was not sufficiently proved by the defendant.
2) Ndlovu v Ngcobo; Bekker and another v Jika 2003 (1) SA 113 (SCA)
Two cases involving eviction of a lessee and ex mortgagor were heard concurrently
Legal Question
Whether the court ha to apply the the principles of PIE to evict these persons.
Courts Finding

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The Court confirmed that PIE is rooted in s 26(3) of the constitution and that PIE does not
seek to confer rights upon unlawful occupiers but rather that it affords them procedural and
substantive protection in relation of evictions. It was found that, in light of the framework of
PIE, a court may only grant an eviction order if it is just and equitable to do so after all the
circumstances of the case have been considered.
In determining whether the definition of an unlawful occupier also refers to ex lessees and ex
mortgagors (people who were at first lawfully on the land but due to some or other reason,
their occupation was terminated), the court held that they are also protected by PIE because
in the present matters, both of them occupied the land without consent. The court further
found that PIE distinguishes between unlawful occupiers who have occupied the land for
less than 6 months (sec 4 (6)) and those who have occupied for more than 6 months (s 4
(7)). The former have less rights than the latter because a court is not obliged to consider
whether land has or can reasonable be made available for relocation.
The court held that the distinction was simple in so far as where the landlord applies for
eviction with due haste, sec 4(6) is applicable and where the landlord is a bit slower, section
4(7) will apply, Furthermore it was held that the period of occupation should be calculated
from the day the occupation became unlawful.
As to whether the provisions of PIE apply to commercial properties, the court found that the
preamble of PIE emphasises buildings and structures used for shelter and dwelling and
since juristic persons have no dwelling, their unlawful occupation does not fall within the
scope of PIE.
3) Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
4) City of Johannesburg Metropolitan Municipality v Blue Moonlight

Properties 39 (Pty) Ltd and another 2011 (4) SA 337 (SCA)
Facts
86 U.O occupied a building which they originally leased. However the building was sold to
Blue Moonlight who sought to evict the U.O. In the court a quo, the eviction order was
granted but the court refrained from setting a date for the eviction to take place.
Legal Question
Whether U.O who are being evicted by private persons (as opposed to the state) are entitled
to emergency accommodation
Courts Finding
The court reiterated that PIE does not seek to provide free housing for unlawful occupiers
but that it rather seeks to provide substantive and procedural mechanisms for eviction. In
determining whether to grant the eviction order, the court stated that a balance must be
struck between ss 25 and 26 of the constitution while also taking into account the context of
the case and the principles of Ubuntu. The court found section 4 (7) to be applicable. As to
whether the U.O were entitled to emergency accommodation, it was found that according to

lOMoARcPSD|8390748
the City of JHB policies, a distinction is made between U.O evicted by the state and those
evicted by private persons in that the state was not obliged to provide alternative
accommodation for those evicted by private persons. The constitutionality of this
differentiation was challenged and the court found that it as not justifiable in an open and
democratic society to distinguish between persons evicted by the state and those evicted by
private persons
As such, the court agreed that Blue Moonlight was entitled to the eviction order but that it
may only enforce the order once the appellant (city of jhb) has provided emergency
accommodation to the occupiers
Facts:
 8 adults and 5 children unlawfully occupying the property of Blue Moonlight Properties.
 Occupiers had agreement with previous owner, BM ended the lease agreement.
 Most of the occupiers do not have formal employment, their location is crucial to their
income and would not be able to afford transport costs if live somewhere else.
 Blue Moonlight followed eviction proceedings in the High Court under PIE.
 High Court and SCA ordered eviction and the SCA declared the City’s housing policy
unconstitutional to the extent that it excluded the occupiers from consideration for
temporary housing.
Judgment:
 Common cause that Blue Moonlight was the owner and that the occupiers’ occupation was
unlawful and that they had occupied premises for more than 6 months thus s 4 (7) applied.
 I.t.o s 4(7) the presence of alternative accommodation is very important.
 High Court and SCA held that Blue Moonlight had complied with the requirements of PIE and
was entitled to eviction.
 The question was whether BM (as with Modderklip) would be entitled to constitutional
damages in the event of not succeeding to evict the unlawful occupiers.
 Here, the SCA held that given the duration the unlawful occupiers had occupied the land and
considering all circumstances (children, old persons and women-headed household + area of
employment) means that the availability of alternative accommodation is essential for BM to
obtain the eviction order.
 In this regard the Municipality of Johannesburg said it will only grant alternative
accommodation to unlawful occupiers evicted by the city, it doesn’t have the resources to
provide for alt. accommodation for unlawful occupiers evicted by private persons.
 On appeal the court held that the state may not unfairly discriminate against unlawful
occupiers evicted by the city and those evited by private persons/parties, it MUST, if
necessary provide alt. accommodation to both types of occupiers
 Court found that Blue Moonlight was entitled to an eviction order. But the eviction order was
suspended until the state could provide alternative accommodation.
 This is now where the issue of constitutional damages enters into the fore because BM
argued it may take a long time for the state to provide alternative housing and they are thus
entitled to constitutional damages for the duration of this occupation.
 The court then held importantly that BM is not entitled to constitutional damages in this
case because they knew about the unlawful occupiers while they bought the land and thus
chose to buy the land. They thus had to be patient and endure the U.O for a reasonable time.

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 The court also held that it would be possible to claim constitutional damages only once the
occupation began to become ore indefinite.
5) City of Johannesburg Metropolitan Municipality v Blue Moonlight

Properties 39 (Pty) Ltd and another 2012 (2) SA 104 (CC) par 40
Paragraph 40 of Constitutional Court judgment NB
[40] It could reasonably be expected that when land is purchased for commercial
purposes the owner, who is aware of the presence of occupiers over a long time,
must consider the possibility of having to endure the occupation for some time. Of
course a property owner cannot be expected to provide free housing for the
homeless on its property for an indefinite period. But in certain circumstances an
owner may have to be somewhat patient, and accept that the right to occupation
may be temporarily restricted, as Blue Moonlight's situation in this case has already
illustrated. An owner's right to use and enjoy property at common law can be limited
in the process of the justice and equity enquiry mandated by PIE.
6) Modderfontein Squatters, Greater Benoni City Council v Modderklip

Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, amici
curiae); President of the Republic of South
Headnote : Kopnota
The Court was seized of both an application for leave to appeal and an appeal. They
arose out of distinct but related matters. The applicant a quo in each matter (the
respondent in the present proceedings) was owner of portion of a farm on which an
informal settlement of some 40 000 residents (known as the Modder East Squatters or
the Gabon informal settlement) had been established. In the first matter, the so-called
eviction application, the applicant had secured an eviction order against the Modder East
Squatters under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act
19 of 1998 (PIE). When the squatters refused to vacate, the applicant was compelled to
secure a writ of execution. However, the Sheriff insisted on a deposit of R1,8 million from
the applicant before she was prepared to execute the writ. The applicant was both
unwilling and unable to furnish such a deposit. The SAPS adopted the attitude that the
eviction was a civil matter and that it was therefore unable to assist. The applicant,
meanwhile, attempted to remedy the problem by laying charges of trespassing against
numerous of the squatters but to no avail. The applicant then launched the second
application, the so-called enforcement application. Relying on the provisions of the
Constitution of the Republic of South Africa Act 108 of 1996 - specifically, ss 7, 9, 25, 26,
41(1), 165(4) and 205 - it sought an order compelling the State to enforce the eviction
order. The applicant was successful in the eviction application. The Court found that the
State had failed to protect the applicant's property rights as entrenched in s 25(1) of the
Constitution, and granted a declaratory order and a mandamus (structural interdict). The
applicant was similarly successful in the enforcement application. The Court granted a
declaratory order as well as an order (1) that the Government furnish the Court with a
plan that provided for the protection of the applicant's right to its property; (2) that the
Government comply with its duties in terms of ss 25, 26 and 165(4) of the Constitution;
and (3) that the Government initiate a scheme for the provision of accommodation or
access to land to those squatters who qualified and for the eviction of those who did not.
The Court found that the squatters'
2004 (6) SA p42

lOMoARcPSD|8390748
refusal to obey the eviction order amounted to a breach of the applicant's right to its
property; that the State had failed to protect the applicant's right to its property
entrenched in s 25(1) of the Constitution; that the SAPS had failed in its duty under s
165(4) of the Constitution to investigate the applicant's complaints of trespass against
the squatters or to protect the applicant's property; and that the applicant had, in violation
of the equality provision in s 9(1) and (2) of the Constitution, been forced to bear
individually the State's burden of providing land to some 40 000 people.
Held, that it was not correct that the SAPS was unable to assist in evicting squatters: civil
contempt of court proceedings could be criminally prosecuted and, in addition, the Court
which granted the eviction order had not prohibited prosecution of the squatters on
charges of trespassing. (Paragraph [6] at 48G - H.)
Held, further, that the applicant's right to its property was enshrined in s 25(1) of the
Constitution. The Court a quo in the enforcement application had correctly found that the
squatters' refusal to obey the eviction order amounted to a breach of that right.
(Paragraph [21] at 53J - 54B.)
Copyright Juta & Company
Held, further, that the squatters, on the other hand, had a right of access to housing
under s 26(1) of the Constitution. The State had failed, however, to take any steps to
enable the squatters, who were in 'desperate need', to realise that right. There existed no
plan at either central, provincial or local government level to alleviate the squatters' crisis.
(Paragraph [22] at 54B/C - E.)
Held, further, that there was no evidence that the squatters were attempting to engage
in 'queue-jumping', that is to take occupation with the intention of gaining preference over
others. They had occupied the land simply because they had had nowhere else to go.
(Paragraph [25] at 55C - D/E.)
Held, further, that the Government had an obligation to ensure, at the very least, that
evictions were executed humanely. In the present circumstances, the order could not be
executed - humanely or otherwise - unless the State provided alternative land.
(Paragraph [26] at 55E - F.)
Held, further, as to the Court's finding that the SAPS had failed in its duty under s 165(4)
of the Constitution to investigate the complaints of trespass laid against the squatters,
that while it was true that the SAPS had failed to investigate and prosecute the
applicant's complaints of trespassing against the squatters, it had not in the
circumstances failed in its constitutional duties because its failure had been both
understandable and reasonable. (Paragraph [29] at 56F.)
Held, further, as to the Court's finding that the SAPS had failed to protect the applicant's
property, that although the eviction order authorised the Sheriff to request members of
the SAPS to assist her in effecting the eviction, the order had not placed a duty on the
SAPS to do so. (Paragraph [29] at 56D - E/F.)
Held, further, that the duty of Government to protect its citizens' rights included protecting
them from damaging acts by third parties. In the present matter the State had failed in
that duty in a material respect by failing to provide the squatters with alternative land
which would have enabled the applicant to enforce its eviction order. (Paragraphs [27]
and [30] at 55F - H and 57B - C.)
Held, further, that although there were circumstances in which the right of access to
adequate housing might conceivably be enforceable against an individual landowner, the
present was not such a case. (Paragraph [31] at 57E - F.)
Held, further, that the Court a quo in the enforcement application correctly found that, in
violation of ss 9(1) and (2), the applicant had not been treated
2004 (6) SA p43

lOMoARcPSD|8390748
equally because it had been forced, as an individual and without recompense, to bear
the State's burden of providing land to some 40 000 people. (Paragraph [31] at 57B - C.)
Held, further, that the declaratory order granted by the Court a quo in the eviction
application had been too broadly formulated, and that the structural interdict granted had
certain defects, of which one was that it seemed to justify queue-jumping. (Paragraphs
[39] and [40] at 60D and 60F/G - 61A.)
Held, further, that the dilemma was that the enforcement of applicant's rights would
impinge on those of the squatters. Moving or removing the squatters was no answer, and
they therefore had to stay where they were until other measures could be devised.
(Paragraph [41] at 61B - C.)
Held, further, that the Courts had a duty to mould an order providing effective relief to
Copyright Juta & Company
those aggrieved by a constitutional breach. The order had to effectively ensure that the
constitutional rights were protected and enforced, and to that end to fashion new
remedies. (Paragraph [42] at 61D - H.)
Held, further, that 'effective relief' would obviously differ from case to case. In the present
case the only appropriate relief was constitutional damages, ie damages due to the
breach of a constitutionally entrenched right. No other remedy was apparent. Ordering
the State to pay damages to the applicant would allow the occupiers to stay where they
were, compensate the applicant for its loss, and allow the State to gain by not having to
provide alternative land. The appropriate procedure thus appeared to be an order for an
enquiry into damages. (Paragraphs [43] and [44] at 61I - 62D and 62I.)
Held, accordingly, that the application for leave to appeal in the eviction case had to be
dismissed, and the appeal in the enforcement case be upheld in part. In particular, paras
1 - 5 of the order of the Court a quo had to be replaced by an order declaring: (a) that the
State's failure to provide land for occupation by the occupiers infringed the applicant's
rights entrenched in ss 7(2), 9(1) and (2), 25(1) of the Constitution and the squatters'
rights entrenched in s 26(1) of the Constitution; (b) that the applicant was entitled to
payment of damages by the Department of Agriculture and Land Affairs for the land
occupied by the squatters; (c) that the squatters were entitled to continue in occupation
until alternative land was made available to them by the State or the provincial or local
authority; (d) that the damages had to be calculated in terms of s 12(1) of the
Expropriation Act 63 of 1975; and (e) that the parties had to be granted leave to
approach the Court for directions in the event of their being unable to reach agreement
regarding the pleadings to be filed, discovery, inspection and other related procedural
matters related to the investigation and determination of the applicant's damages.
(Paragraphs [51] and [52] at 64H - 65F.)
The decision in Modder East Squatters v Modderklip Boerdery (Pty) Ltd 2001 (4) SA 385
(W) (the eviction case) confirmed. The decision in President van die Republiek van
Suid-Afrika en Andere v Modderklip Boerdery (Edms) Bpk 2003 (6) BCLR 638 (T) (the
enforcement case) confirmed in part and overruled in part.
7) Africa and others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre, amici curiae) 2004 (6) SA 40 (SCA)
Had a situation where a grp of 400 where again occupied a part of a farm, Modderklip. Muni
informed owner that unlawful occ where there and to initiate an eviction order within 6 month
period. Granted eviction order. But between the time it took to get the eviction order, the group
grew to 8 000 unlawful occupiers. Sheriff of court told land owner he wants a deposit of R1.5 mil
to effect the eviction. This was worth more than the value of the land. Land owner did not want

lOMoARcPSD|8390748
to pay – because doesn’t make sense. Went to police – they said civil not criminal matter. Then
wrote to Dept of Agriculture then even President – bcos has eviction order but can’t implement
it bcos cannot afford it and state refusing to help. Went to court again – in HC. By then group
grew to 40 000. Entire community, layout streets, build shops – and farm owner cannot do
anything. Second HC ruled state had infringed rights of owner by not assisting him, by not
vindicating his s25 rights. Damages for infringement of Constitutional right = Constitutional
damages. Appeal to SCA for correctness of finding.
Why prescribed? SCA held – its not the obligation of pvt owners to provide altv accom. State
must provide altv accom. State cannot expect pvt owners to carry this burden. It’s a state
obligation and duty. Court referred to s25(1) - protection of prop – which is being infringed due
to owner not being able to enforce eviction order bcos of high costs and state refuses to assist
him. Also s9(1) – unequal treatment before the law. Ito s26(1) - right to adequate housing - state
infringed unlawful occ rights by not providing altv accom. Also s7(2) of Cons – state organs must
vindicate and protect rights of citizens. State evicted occ from another piece of land, before they
started occupying this piece of land. SCA – upheld judgment – by awarding Cons damages to
farm owners for the fact that he has to accom these unlawful occ until state can find other
suitable altv accom.
It is possible to claim cons damages from the state – these damages are calculated ito the
compensation req for expropriatory compensation. In this process, state vindicates the rights of
the owner while rights of occ are also protected.
8) Wormald v Kambule 2006 (3) SA 562 (SCA) par 10

- This case was an appeal from the HC by the Appellants seeking an order to declare the
continuous occupation of the widow of deceased husband on the land they lived on to be
unlawful. The respondent and her late husband occupied the premises of the Third-Party, the
Appellants.
- The widow argued that since she had been married according to customary law to the deceased
and that the marriage created a life long right for her to use or occupy the land.
- The High Court at first applied PIE to the scenario and dismissed the Appellants application to
evict the widow.
- First appellant=Executor of deceased estate.
- Second Appellant=owner of the land in question.
- Third Appellant= surviving civil law spouse.
- The Appellants argued that no valid marriage between the respondent and the deceased and
that she was working for the deceased as a domestic worker.
- On appeal in the SCA it was held that the widow was not validly married to her late husband
according to customary practices and therefore she did not enjoy the right to be maintained by
husband`s deceased estate or the husband himself. The SCA mentioned that Customary-
- Law does not require that the marriage should have been registered or that it is not essential to
do so for the marriage to be valid. But in the above case the decision was reached that the
marriage did not exist because it was not registered according to the provisions in the Transkei
Marriage Act.
- The SCA concluded that she did not acquire a right in the life long use of the land and the late
husband`s intention was for life long use of the land.
- The SCA referred to the following section in PIE in its decision . “An 'unlawful occupier' is
defined in s 1 of PIE as:'(A) person who occupies land without the express or tacit consent of
the owner or person in charge, or without any other right in D law to occupy such land,

lOMoARcPSD|8390748
excluding a person who is an occupier in terms of the Extension of Security of Tenure Act,
1997, and excluding a person whose informal right to land, but for the provisions of this Act,
would be protected by the provisions of the Interim Protection of Informal Land Rights Act 31
of 1996.”
- The court therefore referred to the above section of PIE as well as the fact that there did not
exist a valid customary marriage to conclude that the decision reached in the court a quo was
not valid.
- The SCA therefore allowed the appeal and granted an order in favour of the Appellants and the
respondent had to vacate the property within 12 months.
9) Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd 1994 (3)
SA 188 (A)
Legal Question
Whether the defence of estoppel is applicable
Courts findings
The court set out the requirements for estoppel:
- The owner must make a misrepresentation that (a) the controller is the owner; or (b) has
authority from the owner to transfer ownership to an innocent 3rd party on the owner’s
behalf;
- The misrepresentation must have been made with fault (intentionally or negligently);
- The innocent third party must have relied upon the misrepresentation;
- The reliance must have been to the 3rd party’s detriment;
- The misrepresentation must have been sustainable (lawful).
Finding
The court further held that mere possession by the controller is insufficient to infer that the
controller is authorised to transfer ownership. The owner must give indicia that the controller
is the owner or authorised to alienate on behalf of the owner. In this regard, Q handed L the
documents relating to the vehicle and placed the vehicles on the ‘floor’ with other vehicles.
Regarding the consignment agreement, S knew that L was not the owner but as per the
agreement, the cheque would be in the name of Q but would eventually be cashed by L.
As such, the court held that S reliance on estoppel had to succeed as any reasonable
person would, in the present circumstances, have relied on the impression that l was
authorised or entitled to transfer ownership.
10) Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter 2004
(6) SA 491 (SCA)
The court confirms the requirements laid down in Quenty’s and elaborates further on the
fault requirement for the purposes of estoppel. It was held that for the purposes of estoppel,
a reasonableness test is used in terms of whether a reasonable person, in the position of the
owner would have acted differently. In addition, the court also found that the innocent third
party must also act reasonable insofar as whether a reasonable person in the position of the

lOMoARcPSD|8390748
third party would have also relied on the representation or whether he would have sought
clarity.
The court further reiterated that representation in cases of estoppel may take two forms:
 where an impression is create that the controller is the owner or
 that he is authorised to transfer ownership on behalf of the owner.
In the present matter, the court found that Concor was aware that P purchased the stones
from V. Concor even delivered some of the stones to P and on this basis, the court found
that Concor could have easily informed P of the reservation of ownership and its omission
constituted negligence and the defence of estoppel thus had to succeed. The consequences
of estoppel was that the owner retains ownership.
11) Clifford v Farinha 1988 (4) SA 315 (W)

The court found that the rei vindication, actio ad exhibendum as well as the Actio legis were
insufficient to establish liability because C was not the owner of the vehicle.
The court then turned to the Condictio Furtiva and had to examine whether F had fault. In
doing so, the court found that even though she went against his wishes she did not allow the
vehicle to be stolen. However, in close examination of the condictio, it was found that fault is
not a requirement as the condicitio is a form of vicarious liability and a thief in the sense of
the condicitio is a person who removes the thing without the permission of the the rightful
owner or holder. The removal of the vehicle was thus unlawful and the court found that the
condicito may be used to claim back the money even if C was not the owner.
Module 13:
1) Candid Electronics (Pty) Ltd v Merchandise Buying Syndicate (Pty)
Ltd 1992 (2) SA 459 (C)
2) Yeko v Qana 1973 4 SA 735 (A)
Facts
the appellant is the owner of a shop situated upon land, which is leased from a local
authority. The respondent applied to a commissioner’s court for an order authorising the
messenger of that court to take possession (control) of the keys of the shop, in order to
restore possession of the shop and certain movables to the respondent. The application was
based upon an alleged contract between the parties in terms of which the appellant was
supposed to have rented the shop to the respondent, and the allegation that the appellant
had in the mean time taken control of the shop through self-help. The appellant based his
defence upon the allegation that the respondent never rented the shop from him, and that
the respondent was present in the shop only to clean it as the appellants employee. The
commissioner’s court refused to grant the application because of the fact that the
respondent has no license to trade. In an appeal, this decision was granted to the
respondent, adding that he had to obtain the required permits and consent to trade. In a
further appeal, the appellant again relied on the contention that there was no agreement
between himself and the respondent.
The court sets out the 2 requirements for the mandament van spolie (MvS):
1. The party must exercise peaceful and undisturbed possession

lOMoARcPSD|8390748
The sub- requirements of the first requirement will now be looked at:
a. Peaceful:
This requirement means that it must be “for a period long enough, and in a suitable manner
enough to qualify any unlawful disturbance as a breach of the peace. The applicant must
prove that she/ he was in a better and stronger corporeal relationship with the property that
anybody else.
Apply to facts
b. Undisturbed:
The possession of the property was not inferred with during the period that the occupants
used the property.
Apply to facts
c. Possession:
i. Actual physical control (corpus) and
ii. Animus sibi habendi- the intention to hold property that belongs to someone else for your
own benefit
Apply to facts
State whether the first requirement was met if so, move onto the next requirement.
2. Unlawful spoliation which consists of:
The sub- requirements of the second requirement will be examined:

a. Unlawful:
Unlawful has a special meaning under the remedy of the MvS. The spoliation will be unlawful
if the possession is taken away from the respondent without their permission or the
respondent is not authorised by a court of law or exceeds the authorisation given by a court
of the law.
Apply to the facts
b. Spoliation:
This means that the respondent has either deprived the applicant of physical control of
possession or effectively destroyed the control. Partial deprivation of control can also
constitute spoliation. Although mere disturbances of the applicants control would generally
not be sufficient to constitute spoliation.
Apply to the facts
3) Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508
(A) (An English translation of the case is available under the “Module
13” tab on Blackboard.)

lOMoARcPSD|8390748
4) Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA)

5) FirstRand Ltd t/a Rand Merchant Bank and another v Scholtz NO and
others 2008 (2) SA 503 (SCA)
6) ATM Solutions (Pty) Ltd v Olkru Handelaars CC and another 2009 (4)
SA 337 (SCA)
7) City of Cape Town v Strumpher 2012 (4) SA 207 (SCA)
8) Tswelopele Non-Profit Organisation and 23 others v City of Tshwane
Metropolitan Municipality and others 2007 (6) SA 511 (SCA)
Facts
the decision is the outcome of an illegal eviction of some 100 unlawful occupiers from a
piece of land in a Pretoria suburb. During the eviction the building material of the shacks
inhabited by the occupiers were destroyed. The eviction took place without a court order and
in direct violation with S26(3) of the Constitution and PIE. The relevant authorities admitted
that their actions were unlawful and offered an unambiguous apology. The only question was
whether the court could order the authorities to rebuild the demolished shacks, seeing that it
has been decided earlier that the MvS was not available for that purpose.
Ratio Decidendi
The court decided that they were going to leave the MvS undeveloped because the remedy
they seek is not catered for in the MvS. The court created a new constitutional remedy that
allows to reclaim objects that were destroyed but it must be generic in nature and easily
replaceable. The requirements are unclear but the same requirements of the MvS are used
but in a less restrictive manner. Twane council was required to provide material that was
removable if they were again evicted at a later stage.
9) City of Tshwane Metropolitan Municipality v The Mamelodi Hostel

Residents Association 2011 JDR 1654 (SCA)
Module 15:
1) Lorentz v Melle and others 1978 (3) SA 1044 (T)
2) Cowley and another v Hahn 1987 (1) SA 440 (EC)
3) Schwedhelm v Hauman 1947 (1) SA 127 (E)
4) Resnekov v Cohen 2012 (1) SA 314 (WCC)
5) Janse van Rensburg and another v Koekemoer and others 2011 1 SA
118 (GSJ)
6) Kidson v Jimspeed Enterprises CC 2009 (5) SA 246 (GNP)
7) Van Rensburg v Coetzee 1979 (4) SA 655 (A) (An English translation
of the case is available on Blackboard under the “Module 15” tab.)
8) Linvestment CC v Hammersley and another 2008 (3) SA 283 (SCA)
9) Grant and another v Stonestreet and others 1968 (4) SA 1 (A)

lOMoARcPSD|8390748
10) Wahloo Sand BK en andere v Trustees, Hambly Parker Trust, en

andere 2002 (2) SA 776 (SCA) (Only Cloete AJA’s judgment)
Module 17:
1) Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A)
Facts
There are four parties:
i. AC
ii. BC
iii. Tywcross
iv. Vasco
AC headed by the director purchased the business and machines. However, the director of
AC had financial problems and could not pay BC instalments. The director approached
Twycross for help to pay the rest of the money to BC. This way eliminating the danger.
Twycross and AC conclude an agreement by paying the outstanding amount to Twycross.
Twycross then acquires ownership of the machines until AC can pay off the full amount.
Vasco wants to buy AC business and machines. AC is keen to sell and does so. The Director
of AC tells Vasco that he is the owner and Vasco pays the full amount. There are no two
parties left:
1. Vasco
2. Twycross
AC stops paying Tywcross and wants to vindicate the machines.

Legal Questions
 Who is the owner?
 Was there a valid real agreement?
Ratio
In SA, we have an abstract system of transfer and a real agreement is needed. Delivery is
needed for the transfer of ownership. The court found that when Tywcross paid the
outstanding amount to BC in ACs name ownership was transferred to AC.
What is the nature of the agreement between Tywcross and AC?
 Sale or
 Pledge
AC always retained control of the machines. The only way delivery could have taken place
was through constitutium possessium. The court looks at the intention of the parties and
found that Tywcross wanted security and not ownership. There was no intention to sell to

lOMoARcPSD|8390748
Tywcross. The court relies on the plus valet rule, in which the law attaches more weight to
the true intention of the parties’ then fraudulent formation. This is substance over form.
It can be seen that the true intentions of the parties was to provide real security. The
requirements for a pledge were not met because there was no delivery and it is impossible
to have a pledge through the constititum possessium.

lOMoARcPSD|8390748
2) Thienhaus NO v Metje & Ziegler Ltd 1965 (3) SA 25 (A)

3) Jaftha v Schoeman and others; Van Rooyen v Stolz and others 2005
(2) SA 140 (CC)
Facts
S66(1) of the MCA makes provision for attachment and sale in execution of property to
satisfy an unpaid debt. This procedure was used to levy execution against the homes of a
number of owners of low- cost housing, and their houses were attached to be sold in
execution. The attachment and execution procedure was used to satisfy relatively minor
debts (around R200) that were not related to immovable property (extraneous debts incurred
to buy food). The owners were poor people and their houses were provided to them by the
state in terms of a state housing programme. Sale in execution of the houses would have
resulted in eviction of the debtors and loss of their houses and they would not qualify for
state housing again. The creditor may approach the clerk of the court for a default judgment
for the sale of the home of the debtor.
Legal Question
Is S66(1)(a) of the MCA unconstitutional as it is an unjustifiable infringement of the right to
housing?
Ratio
The court looked at the purpose of S66(1)(a) of the MCA and found that
 It enables the creditor to gain the outstanding debt
 It is a legitimate purpose as it is in the interest of the economy to satisfy debt
Nevertheless, this does not mean any procedure is constitutional and justifiable. The courts
used the constitutional matrix of S26 in which one must have regard for the historical
background and keep in mind that the majority of the population is homeless and homes
should be protected.
If the creditor is successful, the debtor will be evicted. There needs to be a balancing of
interest between the creditors and debtors. One must remember that not all creditors are any
all rich and affluent and they need the money.
The court looked at a list of factors:
 Size of the debt- R200
 Other ways to pay back the money- give the debtor more time
 The debt was extraneous and there was no mortgage- the debt was unrelated to the
houses
These factors went against the execution

S66(1)(a) reads into judicial oversight as it is applicable to the Minister who said that it is
constitutional because the MCA also allows protection to such debtors in similar situations.
The clerk of the court cannot grant execution.
Execution is impossible and one needs to afford proper execution.
4) Gundwana v Steko Development and others 2011 (3) SA 608 (CC)

lOMoARcPSD|8390748
Facts
Ms G wanted a loan from the bank which was granted to her and she obtained a mortgage
over the land. In 2003 she ran into financial difficulties and was unable to pay back the load.
The bank wanted to acquire a summary judgment in terms of S31(5) of HCR. The bank
issued the summons and Ms G did not reply which entitled the bank to obtain a summary
judgment. Once the bank obtained the summary judgment they did not enforce the judgment
nor did they sell the house. Ms G still paid monthly. In 2007, Ms G could not pay anymore
and the house was sold in execution to Steko and they now wanted to evict Ms G. Ms G
challenged the constitutionality of HCR 31(5) and whether is complies with S26(1) of the
Constitution.
Legal Question
Is HCR 31(5) constitutional?
Ratio
The court discussed rule 31(5) again. The court looked at the Saunderson case and whether
it was similar to the Jaftha case. The court was not impressed with the Bank. The banks
argument was that this situation was different from Jaftha was rejected by the court and held
that constitutional protection still applies even when the home was willingly mortgaged. The
court held that one cannot complain about the effects of not paying but did not agree that the
house may be sold through summary judgment without judicial oversight and she did not
agree to waive her S26(1) rights and she did not agree that the bank would sell in execution.
They acted maliciously and in bad faith.
S31(5) is unconstitutional as it does not provide judicial oversight for a sale in execution. The
Sauderson decision was overturned and the matter must be heard by a judge even if the
application is unopposed. As a rule of practice, the summons must still inform the debtor of
his/ hers S26(1) rights.
The court held that “it must be accepted that execution in itself us not an odious thing. It is
part and parcel of natural economic life. It is only when there is disproportionality between
the means used in the execution process to exact payment of the judgment debt, compared
to other available means to attain the same purpose that alarm bells should start ringing. If
there is no other proportionate means to attain the same end, execution may not be
avoided”. Therefore, the Jaftha case applies here.
Module 18:
1) Bloemfontein Municipality v Jacksons Ltd 1929 AD 266
FACTS
Mr Smit bought furniture from Jacksons Ltd on hire purchase (credit agreement). The
furniture belongs to Jacksons and not the lessor. There is a reservation of ownership clause.
The contract of sale had his address. Mr Smit moved to a home owned by the Bloemfontein
Municipality and he did not tell Jacksons that he was moving nor did he tell the lessor about
the contract. After one year of living in his new home, Mr Smit fell in arrears with rents. And
the lessor went to court ito of the tacit hypothec.
LEGAL QUESTION
Does the hypothec cover/ apply to property that belongs to the Jacksons?
RATIO

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Requirements for testing the hypothec:

i. The movables must be brought onto the property with the knowledge and consent of
the owner of the movable. (express or tactic)
ii. The movables must be on the premises for an indefinite period of time
iii. It must be used by the tenant
iv. Lessor must be unaware that the goods belong to a third party
Requirement 1- ito practice it is normal that the seller like the Jacksons who sell furniture
state in the contract that the purchaser is required to keep the seller updated about where they
live so they can inform the lessor. There was no condition or clause in the contract and
Jacksons didn’t know the address for one year and did not attempt to find out. The court held
that this amounted to tactic consent to have the movables on the premises.
The court held that there is a duty on owners of movables to ensure potential landlords that
movables are sold on credit and he did not adhere to this. As there was tactic consent and
knowledge on the part of Jacksons the hypothec did vest and property could be sold to satisfy
the debt. True owners must take positive steps to safeguard their movables.
2) Singh v Santam Insurance Ltd 1997 (1) SA 291 (A) 32

FACTS
Four parties involved; Singh, M, Santam and H.
Singh owns a Mercedes and Mr M was driving Singhs car with Singh in the car. Mr M caused
an accident and the damage was caused in which Santam insurance will pay out for any car
accident in which Mr M is the driver. M gave the car to H (panel beater) to fix and Sandtam
must pay H. Santam paid H but then discovers that M did not pay his premiums. Santam
cancels the insurance policy and told him that Singh will get the car back from H. Santam
wants to enforce a lien (held by H) against Singh for unpaid premiums.
LEGAL QUESTION
Does Singh have a lien that can be enforced against Singh?
RATIO
The court confirmed that the burden of proof to prove an existing lien rests on the party that
avers it (the person who wants to rely on the lien).
The court looked at whether there was a lien:
 Two types of liens- debtor- creditor and enrichment
 Main characteristics of a creditor- debtor is that it can only be enforced between
contracting parties. There was a contract between H and Santam.
 H had a lien against Santam. Santam paid H and took possession and argued that H
has a lien against Singh
The court held that Santam does not have a lien as Santam was not in possession of the car
when the costs incurred. H was in possession and in control. Any person who wants to rely on

lOMoARcPSD|8390748
a lien must have actually incurred expenses. A debtor- creditor lien can only be enforced
between parties to a contract. There was no contract between Santam and Singh. The
possession must be lawful. There is uncertainty whether Santams possession was lawful as
there was no legal justification for acquiring the car.
The court focused on the issue of control. It was argued that H controlled the car on behalf of
Santam, which was rejected b y the court. The only way that Santam could of had control was
through attronment. H controlled the car on his own behalf and H had a debtor- creditor lien
against Santam. Santam cannot rely on a debtor- creditor lien.
The case also concerns itself with enrichment liens and the court held that Santam also cannot
rely on an enrichment lien because there was no sine causa. Santam did pay H at one point
but there was a legal reason for doing so (there was an insurance policy).
The court made an order that Santam cannot rely on either lien and they needed to return the
car in terms of the rei vindicatio.
3) ABSA Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers 1998
(1) SA 939 (C)
FACTS
There were four parties: ABSA, K, B & Stander
ABSA granted a loan to K to get buy a car and there was a reserved ownership clause. K
lends the car to B and B met into an accident. The car was taken to the panel beater (Stander)
to fix the damages Stander thought that B was the owner of the car. B disappeared and the
claim against B also disappears. K could then not pay back the loan money to ABSA. ABSA
then wants to reclaim the car from Stander. Stander incurred expenses to fix the car and wants
to be paid for useful and necessary expenses.
LEGAL QUESTION
Is Stander entitled to an enrichment lien?
RATIO
The court held that the purpose of an enrichment lien originates from Roman Law based on
equality. If you incur expenses without a contract with the person who benefited, you must be
able to reclaim expenses. The third requirements of “At the expense of” requirement is not
helpful when trying to distinguish between type 1 and 2 (what kind of contract). The court
should look at whether B really disappeared (should be able to rely on unjustified
enrichment) or become insolvent (can claim from the estate).
Is there unjustified enrichment? The answer must be based on policy consideration, not mere
rules.
The court held that B disappeared and the contractual claim Stander has against B is invalid
therefore there is no sine causa (no contractual claim). Stander could then rely on Lien of
unjustified enrichment ABSA needed to pay Stander for the repairs to the car based on the
law of insolvency. If B becomes insolvent Stander will not have a claim against ABSA (only
a debtor- creditor lien). There needs to satisfaction. Conconsus creditanum = equality of
creditors. The sine causa requirement depends on whether B disappeared or not. The court
rejects the Buzzard case but does not overrule the decision.

lOMoARcPSD|8390748
The court finds that Stander was successful and that his reliance on a lien of unjustified
enrichment. ABSA had to pay for necessary and useful expenses.
Module 19: NB
1) Ex parte Geldenhuys 1926 OPD 155
Facts:
In mutual will husband and wife left a piece of land to their children in udivided shares-co-
ownership.
1. Upon eldest child reaching majority, the surviving spouse was to divdde the land in equal
shares by drawing lots.
2. The child who drew the lot on whivh the house was situated had to compensate the others
by paying them a sum of money.
Registrar refused to register the conditions.
- Stated that they were personel rights and not real rights.
Legal question:
Did the condition to have subdivision at a specific time created a real/personal right?
(normally co-owners are free to subdivide the property at any time-this is a restriction on the
common law right to subdivide).
Is the right of the other children to claim to claim compensation from the one child a
real/personal right?
Ratio decidendi
2 stage process of Subtraction in dominium:
1. Look at the obligation created by the right.
2. What is the effect of the obligation?
a. If it creates an obligation on the land and any subsequent owners=real right.
i. Concerned with land.
ii. Accompanies land.
b. If it creates an obligation upon a specific person and not to subsequent owners=personal

right.
i. Concerns person.
ii. Accompanies person.

lOMoARcPSD|8390748
1st condition diminished their right to subdivide and was therefore an obligation on the land.
2nd condition was a burden upon 1 child only and was intended to restore the balance,
therefore a personal right.
Judgement:
1st condition was to be registered because it was a real right.
2nd condition was a personal right but was to be registered because it was so closely
connected with the 1st.
 This was an exception.
 Didn’t convert it into a real right.
Intention can’t override the principals of law, but is an important clue to whether a
real/personal right was created.
2) Lorentz v Melle and others 1978 (3) SA 1044 (T )

Facts
2 parties bought a farm as co-owners.They were to each receive their own share and be co-
owners in the remaining 3rd.They also agreed that should 1 establish a township on his land
the other would be entitled to ½ the profits from the stands that were sold (condition).The
condition were registered in a notorial bond and registered with the deed.1 party alleged that
the registration of the condition was a personal right and was registered by mistake.
Legal question
Whether the condition to pay the other a sum of money was a personal/real right?
Ratio decidendi
The condition was a subtraction from the dominium but it didn’t affect the right to use the
land (narrow interpretation). An obligation to pay someone a sum of money could never be a
real right.
Judgement
The condition was incorrectly registered.
3) Pearly Beach Trust v Registrar of Deeds 1990 (4) SA 614 (C )

Facts:
A condition in a deed of sale stated that a 3rd party was entitled to receive a sum of money
from the purchaser and his successors if mining rights were established on the land.
Registrar refused to register this condition because he said it was a personal right.
Legal question
Was the obligation created in the contract able to be registered?

lOMoARcPSD|8390748
Ratio decidendi:
The condition placed a burden on the owners’ right to use the land and enjoy its fruits.
Therefore it was an obligation on the land and not a specific person.
Therefore it was a real right
Judgement
The condition was to be registered.
4) Cape Explosive Works Ltd and another v Denel (Pty) Ltd and
others 2001 (3) SA 569 (SCA)
Module 20
1) Genna-Wae Properties v Medio-Tronics (Natal) (Pty) Ltd 1995 (2) SA
926 (A)
FACTS
Media- Tronics concluded a written lease agreement with a certain CC, the owner of
immovable property, to lease premises from the CC for 3 years. The CC sold the property to
GennaWae and Media- Tronics was informed of the change of ownership. Media- Tronics
then gave notice that it did not want to continue with the lease, and that it would vacate the
premises. Genna-Wae denied that the lessee had such a right of election upon a change in the
ownership of the lease premises. The court gave judgment in favour of Media- Tronics, and
Genna-Wae appealed.
RATIO
The huur gaat verkoop rule was explained as follows:
a) The alienation of leased immovable property does not being the lease to an end.
b) The purchaser of the land is substituted for the original lessor by operation of law.
c) The new owner acquires all the rights and all the obligations of the original lessor,
including the obligation to allow the lessee to continue the lease, provided that the
lessee pays the rent and observes all other obligations under the lease.
d) The lessee, in turn, is bound by the lease, and as long as the new lessor recognises the
lease the lessee cannot resile the contract.
The lessee does not have a choice of election whether or not to continue with a lease
agreement upon the change of ownership of the lease premises.

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Property case law summaries completed

Law of Property (University of South Africa)

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Property Case Summaries

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2. Was there deprivation of property?

3. If yes, is deprivation consistent with s25(1) requirement for deprivation?

4. If no, is deprivation justifiable under s36(1)?

 If no= unconstitutional and end of enquiry

 If can justify unconstitutional deprivation then...

5. Does the deprivation amount to expropriation in terms of s25(2)?

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 The nature of the right looked at- ownership

 Therefore we have property in terms of S25(1)

2. Was there deprivation of property?

3. Is the deprivation consistent with s25(1)?

 Look at the law of general application, which has a broad definition.

 Sources which can authorise deprivation

ii. Common law

iii. Indigenous law

 If not then it is unconstitutional unless it can be justified in terms of S36(1)

 Is the deprivation arbitrary?

i. Must the court use a proportionality or a rationality test?

ii. The court held that arbitrary has two meanings

 A complexity of relationships has to be considered.

a) The purpose of the deprivation- to ensure payment of the debt

c) The person affected by the deprivation- unrelated third person

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Therefore there is an insufficient nexus between arbitrariness and unconstitutional

 Circumstances, procedures and conditions; and

2) Nhlabathi and others v Fick [2003] 2 All SA 323 (LCC)

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3) Msiza v Director-General, Department of Rural Development and

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3. Was the disposition of rights as a result of racial discrimination?

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The grid of discriminatory laws and practices

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2) Nhlabathi and others v Fick [2003] 2 All SA 323 (LCC)

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2) Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)

3) Victoria & Alfred Waterfront (Pty) Ltd and Another v Police

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2) Laskey and another v Showzone CC and others 2007 (2) SA 48 (C)

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4) Pappalardo v Hau 2010 (2) SA 451 (SCA)

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5) Malherbe v Ceres Municipality 1951 4 SA 510 (A)

6) Growthpoint Properties Limited v South Africa Commercial Catering

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2) Gore NO v Parvatas (Pty) Ltd 1992 (3) SA 363 (C)

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3) Standard-Vacuum Refining Co of SA (Pty) Ltd v Durban City Council

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4) Theatre Investments (Pty) Ltd and another v Butcher Brothers Ltd

5) Melcorp SA (Pty) Ltd v Joint Municipal Pension Fund (Transvaal)

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6) Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk 1996

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