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 CONTENTS

Page

PART I INTRODUCTION 1
1. Division of study guide 2
2. Division of work 2

PART II EXAMPLE 3
PART III STUDY MANUAL 7

iii
 STUDY UNIT 1 INTRODUCTION TO PROPERTY LAW – THINGS
AS LEGAL OBJECTS 9
INTRODUCTION TO PROPERTY LAW 9
1 Introduction 10
2 Definitions 11
3 Function of law of things 15
4 Basis and sources of law of things 15

THINGS AS LEGAL OBJECTS 17

1 Definition 18
2 Classification of things 21

STUDY UNIT 2 REAL RIGHTS AND PERSONAL RIGHTS

(CREDITOR’S RIGHTS/CLAIMS) 29
1 Introduction 30
2 Theoretical distinction 32
3 Distinguishing characteristics 34
4 Subtraction form the dominium (ownership)-test 36
5 Categories of real rights 39

STUDY UNIT 3 OWNERSHIP DEFINITION OF AND LIMITATIONS

ON OWNERSHIP 41
1 Definition of ownership 42

LIMITATIONS ON OWNERSHIP 47
1 Introduction 48
2 Limitations imposed by law 49
3 Limitations imposed by rights of other legal subjects 57

STUDY UNIT 4 ORIGINAL ACQUISITION OF OWNERSHIP 61

1 Introduction 63
2 Appropriation (occupation – occupatio) 64
3 Accession (accessio) 68
4 Mixing of solids (commixtio) and mingling of fluids (confusio) 85
5 Manufacture specification (specificatio) 86
6 Acquisition of fruits 87
7 Treasure trove 88
8 Expropriation 89
9 Acquisitive prescription 89

STUDY UNIT 5 DERIVATIVE ACQUISITION OF OWNERSHIP 95

1 Introduction 96
2 Definition 96
3 Elements 96
4 Delivery (movables) 99
5 Registration (land) 114

iv
STUDY UNIT 6 OWNERSHIP
PROTECTION AND TERMINATION 117
PROTECTION OF OWNERSHIP 118
1 Introduction 118
2 Property law remedies 119
3 Delictual remedies 126
4 Summary of remedies 130

TERMINATION OF OWNERSHIP 132

1 Introduction 132
2 Death of owner 134
3 Destruction of thing 134
4 Termination of legal relationship 134

STUDY UNIT 7 CO-OWNERSHIP 135

1 Introduction 136
2 Definition 136
3 Rights and duties regarding thing 137
4 Division of thing 140
5 Remedies 141

STUDY UNIT 8 POSSESSION AND HOLDERSHIP 143

NATURE OF
1 Introduction 144
2 Possession – fact or right? 152
3 Ius possessionis and ius possidendi 152
4 Possession and presumption of ownership 152

STUDY UNIT 9 POSSESSION AND HOLDERSHIP

PROTECTION AND TERMINATION 159
1 Introduction 159
2 Remedies 159

TERMINATION OF POSSESSION AND HOLDERSHIP 172

STUDY UNIT 10 LIMITED REAL RIGHTS

INTRODUCTION, SERVITUDES, RESTRICTIVE
CONDITIONS 175
1 Introduction 176
SERVITUDES 179
1 Introduction 180
2 Definition 181
3 Establishment 182
4 Nature and classification 187
5 Land (praedial) servitudes 188
6 Personal servitudes 192
7 Termination of servitudes 197

v
 8 Relationship between servitude holder and owner of burdened 198
thing
9 Remedies 199
10 Public servitudes 199

RESTRICTIVE CONDITIONS 201

1 Introduction 201
2 Remedies 201

STUDY UNIT 11 REAL SECURITY RIGHTS 203

CONVENTIONAL MORTAGAGES
1 Introduction 204

PLEDGE, MORTGAGE SECURITY BY MEANS OF CLAIMS 206

1 Introduction 208
2 Pledge 208
3 Mortgage 214
4 Security by means of claims 223

TACIT MORTGAGES (HYPOTHECS) 229

1 Introduction 230
2 Tacit hypothecs 231
3 Liens (rights of retention) 235
4 Judicial pledge 240

STUDY UNIT 12 MINERAL RIGHTS

WATER RIGHTS
LESSEE’S (TENANT’S) RIGHTS 243
1 Introduction 244
2 Meaning of concept ‘‘mineral’’ 244
3 Mineral rights 245
WATER RIGHTS 249
1 Introduction 249
2 Water Act 54 of 1956 249
3 National Water Act 36 of 1998 250

LESSEE’S (TENANT’S) RIGHTS 253

1 Introduction 253
2 Applicable only to houses and land 254
3 Establishment of lessee’s (tenant’s) real right 254
4 Effect of lessee’s (tenant’s) real right 256

STUDY UNIT 13 CONSTITUTIONAL PROPERTY LAW 259

1 Introduction 260
2 Property clause 260

STUDY UNIT 14 LAND REFORM 267

1 Introduction 268
2 Redistribution of land 268

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3 Land tenure reform 270
4. Restitution of land rights 274

STUDY UNIT 15 ADDITIONAL FORMS OF STATUTORY LAND

USE AND REVISION 277
1 Introduction 278
2 Sectional Titles Act 95 of 1986 278
3 Share Blocks Control Act 59 of 1980 278
4 Property Time-sharing Control Act 75 of 1983 279
5 Housing Development Schemes for Retired Persons Act 65 of 279
1988

vii
 PART I

Introduction

CONTENTS
1. DIVISION OF STUDY GUIDE
2. DIVISION OF WORK

1
 1 DIVISION OF STUDY GUIDE
This study guide is divided into four (4) parts.

In Part I we supply general information regarding this module.

Part II contains a graphic illustration with an accompanying set of facts that serves as a
practical illustration of most of the legal relationships that you will encounter in this
module. This illustration serves as a basis for your study of this module on property law.
Keep it to hand when studying the different aspects of property law. We sometimes
repeat parts of this illustration in our discussion of certain topics.

Part III is the study manual which contains the actual study material for this module.

2 DIVISION OF WORK
Part III comprises your study manual, which contains the study material for this module.
The study manual is divided into 15 weeks (study units). Each study unit comprises one
or more topics. We begin our discussion of each topic with a list of the relevant cases for
that topic. Some of these cases are prescribed in the sense that you have to read them
yourself (Tutorial Letter 101 will indicate which cases are prescribed for a particular
year). Note that prescribed cases in this sense mean those that you are required to read
and summarise yourself. Other cases are discussed fully in the study manual and some
are mentioned only for reference purposes. The discussion of most topics begins with a
practical example, which is often based on the facts of court decisions – note that our
facts are based on the cases but are not necessarily identical to the facts in those cases.
We provide these examples to give you an idea of the factual situations to which the
legal principles that we are about to discuss relate. After you have studied a particular
topic, you should be able to answer the questions that follow it. Some of these
questions are based on the facts in the preceding examples. We sometimes provide
answers to the questions as an indication of how we expect such questions to be
answered. Now and then we identify the catch in the question. Apart from the multiple-
choice questions, (MCQs) most of your assignment and examination questions come
from these questions.

2
 PART II

Example

Students often find it difficult to apply the principles of property law in a practical
situation. To achieve one of the outcomes of this module you must be able to identify
unfamiliar concrete and abstract legal problems in real or simulated factual scenarios by
using evidence-based solutions and theory-driven arguments. You have to interpret and
analyse daily occurrences that relate to property law. For this reason, we provide the
following set of facts (followed by a diagram illustrating the facts) as an example to
illustrate certain legal relationships that you will be required to deal with in this module.
We also repeat sections of this diagram in the study manual to explain certain legal
principles that we are discussing. Refer back to this example if you are trying to
understand and visualise any specific principle of property law.

Cut out the diagram below and keep it handy.

The following aspects of property law, as they relate to this module, are illustrated by the
given set of facts:

X and Y
X and Y are married in community of property and are, therefore, bound co-owners (a
real right) of Waterford (an immovable thing). They are also co-owners of their car (a
movable thing).

Q and R
Q and R have free co-ownership (a real right) of the farm Pulang (an immovable thing)
because they purchased it jointly before their marriage out of community of property. Q
and R are the in-laws of X.

S
S, the son of X and Y, has ownership (real right) of the farm Highlands (immovable
thing); a right of way (personal or praedial servitude, therefore, a limited real right) over
Q and R’s (his grandparents’’) farm Pulang restricting their ownership. S also has a
personal right against his parents in terms of a contract. This entitles him to use
Waterford for grazing purposes.

3
 M
M, X’s mother, has a personal servitude of habitation (limited real right) over the
homestead on Waterford (immovable thing) in which she lives. She therefore has a
limited real right to stay in the homestead for as long as she lives or until she relinquishes
her right. Her real right therefore limits the co-ownership of X and Y.

L
The Land Bank has a mortgage bond (limited real right) over the farm Waterford, which
provides the bank with real security that X and Y will repay their loan of R500 000-00.

C
Because C, the cooperative, has reserved ownership of the farm implements (movable
things) on X and Y’s farm, X and Y will become co-owners only upon payment of the
last instalment to C. The cooperative therefore has ownership (real right) of the farm
implements (movable things). The cooperative also has a personal right (creditor’s right/
claim) in terms of a credit agreement against X and Y for payment of the instalments.

D, E, F and G
Depending on their legal relationship with Q and R, D, E, F and G have certain rights
against Q and R.

V and W
Depending on their legal relationship with S, V and W have certain rights against him.

J, N, O and P
These persons are members of a neighbouring farming community adjacent to
Highlands.

H
H is a mining company that wishes to acquire prospecting and mining rights to the
minerals on these three farms.

Z
We use Z to denote a third party whose legal position is determined, in each situation,
by the particular circumstances. For example: Q is the owner of a car. T, a thief, steals
the car, changes the engine and registration numbers and sells the car to Z.

T is a thief whose legal position regarding a stolen thing is also discussed.

The above set of facts (studied with the aid of the following diagram) should give you an
impression of some of the legal relationships from everyday life with which you will be
confronted in property law. You must keep on returning to this example whenever the
different issues which are set out below are discussed or when other legal relationships
are discussed.

4
5
PART III

Study manual

7
S T U DY UN I T

1
INTRODUCTION TO
PROPERTY LAW

INTRODUCTION TO PROPERTY LAW

CONTENTS
1 Introduction
2 Definitions
2.1 Legal subject
2.2 Legal object
2.2.1 Thing
2.3 Law, right, real relationships, real rights and entitlements
2.3.1 Law and right
2.3.2 Real relationships and real rights
2.3.2.1 Entitlements
2.4 Remedies
3 Function of law of things
4 Basis and sources of law of things

9
 In this section we deal with the meaning of the subject property law, the place of
property law in the legal system and various definitions which are necessary for a
clear understanding of property law. We refer to the functions of property law, as
well as its sources. We also distinguish between property law and the law of
things. We concentrate on the latter in this module, but also discuss the
relevance of the concept ‘‘property’’ for the Constitution of the Republic of South
Africa, 1996 (see SU 13).

1 INTRODUCTION
Although this module is termed the law of ‘‘property’’, it actually deals with the law of
‘‘things’’ in a narrow sense. In its broad sense property law can also be described as
patrimonial law – the law dealing with a person’s patrimony (all his/her assets).
Patrimonial law is divided into the law of things, the law of succession, the law of
obligations and intellectual property law.

Patrimonial law regulates all rights of which the objects are assets in a person’s estate. In
this broad sense everything that forms part of a person’s estate can be described as
‘‘property’’. Property therefore includes a variety of assets, such as things (for example,
land, a car, a computer and a mobile phone), personal rights (creditor’s rights/claims) (for
example, the right to one’s salary, the right to the proceeds of an insurance policy or the
right to claim the purchase price in terms of a contract of sale) and immaterial property
rights (for example, copyright and patent rights).

The law of things as a subdivision of patrimonial law falls under private law. The law of
things deals with a specific legal object, namely a thing. To refresh your memory on the
position of the law of things in the bigger legal picture, take a close look at the following
diagram:

DIAGRAM 1: Position of law of things in legal system

Law of country

Substantive law Adjective law

Private Public Law of Law of

law law procedure evidence

Patrimonial Law of Law of husband and Law of

law persons wife/parent and child personality

Law of things/ Law of Law of Industrial

property succession obligations property law

10
 To sum up: in a broad sense the word ‘‘property’’ in the law of property refers to
everything that forms part of a person’s estate. In a narrow sense and for the purposes of
this module, property law refers to the law of things, which is the system of legal rules
that regulates legal relationships between legal subjects in regard to a particular legal
object, namely a thing.

Definition of law of Therefore, the law of things can be defined as a branch of private law which consists of
things a number of legal rules that determine the nature, content, vesting, protection,
transfer and termination of various real relationships between a legal subject and a
thing, as well as the rights and duties ensuing from these relationships.

2 DEFINITIONS
In the law of persons you have already encountered some of the definitions discussed
below. We repeat these definitions here to refresh your memory and because a clear
understanding of these definitions is indispensable for a study of the law of things

2.1 Legal subject

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

2.2 Legal object

A legal object can be defined as every object with which a legal subject has a legally
Definition recognised relationship (see para 2.3.2 below). These legal objects may be divided into
things, performances, immaterial property and personality property. Each of these
Types legal objects has its own characteristics which distinguish it from other legal objects. The
rights and duties established by legal subjects in legal relationships pertain to one or
more of the various kinds of legal object. The law of things is concerned primarily with
rights to things, although other rights may be discussed as well. In the law of things the
distinction between things and performances (as legal objects) is very important since it
determines the equally important distinction between real rights and personal rights
(creditor’s rights/claims). In the law of things we are therefore concerned primarily with
a specific legal object, a thing, and the legal relationships pertaining to it.

2.2.1 Thing
Generally, a thing is a legal object characterised by its material (corporeal) nature. For a
Definition complete picture of a thing in a legal sense, we define a thing as an independent part of
the corporeal world, which is external to humans and subject to human control, as
well as useful and valuable to humans. In the next section we discuss these
characteristics in more detail.

11
 2.3 Law, right, real relationships, real rights and entitlements

2.3.1 Law and right

Definition We have already referred to the ‘‘law’’ above without defining it, since we assume that
you know the meaning of the term. To refresh your memory we define the law as: that
body of rules and norms which regulates and harmonises society by demarcating the
rights and duties of legal subjects. One must furthermore distinguish between ‘‘the
law’’ and ‘‘a right’’. Rights deal with the lawful relationships between legal subjects and
the relationship between legal subjects and the objects of their rights.

2.3.2 Real relationships and real rights

A legal relationship is a relationship to which the law attaches consequences. Where the
object of a legal relationship between legal subjects is a thing, we refer to a real
Definition relationship. A real relationship is the particular legal relationship between one or
more legal subjects and a thing. This relationship has certain implications for the legal
order. Note, furthermore, that the concept ‘‘real relationship’’ is broader than the
concept ‘‘real right’’, since real relationships include both real rights and certain unlawful
real relationships.

There are usually two sides to a real relationship (and therefore, if it is a lawful real
relationship, to a real right), namely

(i) the subject-object relationship between the particular legal subject and the
particular thing involved in the relationship
(ii) the subject-subject relationship between the particular legal subject and all other
legal subjects

A real right is therefore always a dual relationship: the subject-object (thing) relationship
and the subject-subject relationship.

In certain cases, real relationships may take on distinctive characteristics, with the result
that the rights and duties ensuing from these relationships may vary. We therefore
distinguish between different kinds of real relationships on the basis of the ensuing rights
and duties. In principle, a legal subject may acquire rights from a real relationship only if it
is lawful, that is, if it complies with the legal rules. A legal subject will not acquire any
rights from unlawful real relationships, although the relationship as such may still have
consequences for the law of things (as would be the case with the real relationship
between a thief and the thing he/she has stolen – see SU 9 below on possession and
holdership).

Important real The nature, content and consequences of a particular real relationship in a specific
relationships situation may be influenced by the attitude of the legal subjects concerned, by the nature
of the thing, as well as by a variety of surrounding circumstances. The most important
real relationships are usually divided into three categories:

(i) ownership, which is always a lawful real relationship and therefore a real right (see
SU 3)
(ii) possession (physical control of a thing with the intention of an owner (animo

12
 domini)), which is always unlawful and is therefore only a real relationship, not a real
right (see SU 8)
(iii) holdership (physical control of a thing with the intention to derive a benefit), which
may be lawful or unlawful. When it is lawful it could give rise to a real right (see SU
11 and 10)

Make sure that you understand this distinction.

DIAGRAM 2: Real relationships

Three most impotant categories of real relationships

6
6

Ownership (SU 3–7) Possession Holdership (SU 8–9)

– Always lawful – thus real right – Always unlawful – Can be lawful or unlawful
Acquistion (SU 4–5) – thus a mere real
– Never the intention of an owner,
relationship
6
6

but intention to derive a benefit

original method derivative method
– always intention of an lawful holder could have a real right
Entitlements (SU 3) owner eg pledgee or usufructruary; another
use; fruits; control; consume or destroy; example of a lawful holder is a lessee
alienate; burden; vindicate bona fide possessor in terms of a valid lease agreement
thinks he is the
owner but isn’t unlawful holder has a mere real
Limitations on ownership (SU 3) relationship
6
6

mala fide possessor can be bona fide

law rights (SU 2)
knows he is not the eg lessee who thinks the
statutory and neighbour (i) limited real rights owner but holds lease agreement is valid but
over another thing as if he is the it isn’t
person’s thing owner, eg thief
6

can be mala fide

6

(SU 10) (SU 11) eg lessee who knows the

– servitudes – pledge lease agreement has expired
– restrictive conditions – security by means of claims but stays on
– mortgage
– tacit mortgages: tacit hypthec of landlord
or credit grantor, liens, judicial pledge
Other real relationships
(ii) personal rights mineral rights (SU 12)
water rights (SU 12)
Remedies (SU 6) lessee’s rights (SU 12)
6
6

real delictual

Termination (SU 6)
death of owner, destruction of thing
termination of legal relationship free co-ownership, eg brother buying a farm together
6

bound co-ownership eg marriage in community of

property
6

Co-Ownership (SU 7)

13
 Possession and holdership can be subdivided, in turn, into the various real relationships,
which may be lawful or unlawful, in good faith (bona fide) or bad faith (mala fide). The
establishment, nature, content, protection and termination of each of these relationships
are governed by the rules of the law of things (see SU 8).

The right which has its origin in a lawful real relationship is known as a real right. Only
lawful real relationships, namely ownership and lawful holdership, confer real rights.
Possession and unlawful holdership, on the other hand, are unlawful real relationships,
which do not confer any real rights, although the law attaches certain consequences to
such relationships.

Definition of real right Therefore a real right can be defined as a lawful real relationship between a legal
subject and a thing which confers direct control over the thing on the legal subject, as
well as the relationship between the legal subject and all other legal subjects who must
respect this relationship.

The object of a lawful relationship thus determines the nature of that right. Apart from
real rights, we also recognise personal rights (creditor’s rights/claims), immaterial
property rights and personality rights. This module deals almost exclusively with real
rights, but we also refer to personal rights (the distinction between the two is very
important in property law and we discuss this aspect in SU 2 below). The difference
between the four classes of rights is illustrated by the following diagram:

DIAGRAM 3: Categories of rights

OBJECT RIGHT EXAMPLE

Thing Real right Ownership
Performance Personal right Right to purchase price
Personality Personality right Right to good name
Immaterial property Immaterial property right Copyright

2.3.2.1 Entitlements
A legal subject who acquires a real right from a lawful real relationship is usually entitled
by the legal order to perform certain acts in connection with the thing.

For example:
& an owner may sell the thing (see SU 3),
& a servitude holder may use the thing (see SU 10) and
& a pledgee may hold the thing as security (see SU 11)

The capacities conferred on the legal subject by virtue of a right, in this case a real right,
are called entitlements. The term ’’entitlement’’, therefore, refers to the content of a
right. The entitlements of a real right determine which acts a legal subject is entitled to
perform in regard to a thing.

In the case of the real right of ownership, the most important entitlements are the legal
subject’s entitlements to:
& control,
& use and enjoyment,

14
 & burden (encumber with limited real rights such as servitudes or real security rights,
see SU 10),
& enjoy the fruits,
& consume,
& alienate (sell and deliver) and
& vindicate (claim from whoever is unlawfully in control, see SU 6) the thing.

The various legal rules governing the establishment and exercise of these entitlements all
form part of the law of things (see SU 3 par 1.4).

2.4 Remedies
When the law recognises a particular real relationship or a particular real right,
Definition enforcement takes place by means of a specific real remedy. A real remedy can be
defined as a legal process with its own purpose, for which certain requirements are
set and which protects, maintains or restores a particular real relationship in a
specific way.

A real remedy, therefore, finds application in lawful and unlawful real relationships.
Various remedies are used in the law of things to fulfil different functions.
& In the case of real rights, remedies serve to maintain, protect or restore the real
rights concerned (see SU 6), but
& there are also remedies governing the legal consequences of unlawful real
relationships, for example, the spoliation remedy (see SU 9 on the protection of
possession and holdership).

3 FUNCTION OF LAW OF THINGS

The function of the law of things can be summarised as follows:

1 It strives to harmonise or regulate various competing ownership rights,

especially between neighbouring owners (see SU 3).
2 It strives to harmonise or regulate an owner’s rights in regard to his/her thing
with the rights of other limited real right holders to the same thing (see SU 10
and 11).
3 It controls the acquisition (see SU 4 and 5), protection and extinction (see SU 6)
of things and real rights.

4 BASIS AND SOURCES OF LAW OF THINGS

It is generally accepted that the modern law of things in South Africa and the concept of
ownership, in particular, are derived directly from Roman law and still bear many
similarities to it. This view should be approached with circumspection, since the socio-
economic and cultural environment in which a particular legal system functions exerts an
important influence on the nature, content and application of legal principles and
institutions in that system. The classical Roman law of the first three centuries AD
developed and was applied in an environment that differed radically from the modern
Western, and particularly the African, environment. It would therefore be misleading to
assume that specific legal principles in the two systems should be exactly the same. It is
true, historically, that the modern law of things is the end product of a long and complex

15
 development which had its origin in classical Roman law. However, it is equally true that
this legal system underwent drastic changes in the more than twenty centuries of its
existence. Therefore, many characteristics of the modern law of things are the products
of our time and of the circumstances to which it applies.

The sources of the modern law of things are therefore to be found not only in the
historic writings of Romanists since the classical Roman period and the works of the
Roman-Dutch writers, but also in statute law (legislation) and in case law (precedents
created by court decisions). Since its adoption the Constitution of the Republic of South
Africa, 1996, has played a major role in the development of the law in general and, in
particular, in the development of the law of things. Furthermore, customary law greatly
influences various aspects of the law. The sources of the modern law of things can,
therefore, be summarised as follows in order of priority:

Sources (i) the Constitution of the Republic of South Africa, 1996

(ii) statute law
(iii) case law
(iv) common law (Roman-Dutch law)/indigenous (customary) law

It should be noted that, in a multicultural society such as South Africa, indigenous law
rather than Roman-Dutch law may be the subsidiary legal system in certain instances.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After having studied this study unit, you should be able to answer the
following questions:

1 Distinguish between
(a) law of property and law of things (4)
(b) real right and entitlement (5)
(c) legal object and thing (4)
(d) real relationship and real right (4)

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

3 Name the sources of the current law of things in order of priority. (5)

16
THINGS AS LEGAL OBJECTS

CONTENTS
1 Definition
1.1 Elements of definition
1.1.1 Corporeality
1.1.2 External to humans
1.1.3 Independence
1.1.4 Subject to human control
1.1.5 Useful and valuable to humans
2 Classification of things
2.1 Criteria for classification
2.1.1 Relation to humans
2.1.1.1 Negotiability
2.1.2 Inherent nature
2.1.2.1 Singular and composite things
2.1.2.2 Movable and immovable things
2.1.2.3 Fungible and non-fungible things
2.1.2.4 Consumable and non-consumable things
2.1.2.5 Divisible and indivisible things

17
 _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example
X and his wife, Y, to whom he is married in community of property, live in a new house on
the farm Waterford. X and Y are co-owners of the farm and their car, but the farm
implements have been purchased in terms of a credit transaction from C, the cooperative.
C has reserved ownership of the farm implements, which are stored in sheds on the farm.
C therefore has personal rights (creditor’s rights/claims) against X and Y for payment of the
loan plus interest. S has a contract with his parents (X and Y) for the purpose of grazing his
livestock on their farm. S also grows bulbs in a nursery on this farm. X sells peaches from
the fruit trees on his farm to a factory. He also sells wool from the sheep that he runs on
the farm. Y, his wife, sells the vegetables from her garden and dairy products at the farm
stall on the farm.

1 DEFINITION
Definition In the above section we distinguished between a legal object and a thing. A thing may be
defined as a legal object which is an independent part of the corporeal world, is
external to humans, subject to human control and is useful and valuable to humans.
These are therefore the characteristics of a thing or the elements of the definition of a
thing. In the following section we discuss each of these elements separately.

1.1 Elements of definition

1.1.1 Corporeality
It is generally accepted that the law of things is confined to things that form part of the
corporeal world and are therefore perceptible by means of the senses – for example,
land, a car, a brick or a horse. Two specific problems are created by this requirement:

Problems (i) There is a Roman-Dutch law tradition according to which certain real rights are
defined in such a way that the object of the right need not be a corporeal thing, but
may be another right, which is then described as an incorporeal thing. Although
this tradition is undesirable, logically and systematically speaking, it is well
established and works in practice. We can, however, deal with the institutions
where an incorporeal thing is the object of a right as exceptions. The most
important exception is a pledge of claims (see National Bank of SA Ltd v Cohen’s
Trustee 1911 AD 235 and Millman NO v Twiggs 1995 (3) SA 674 (A) – see the
discussion below in SU 11). In principle, however, we shall confine the concept of
a thing to a corporeal thing.
(ii) Technological developments have given rise to such questions as whether a natural
process such as electrical or atomic energy can or should be regarded as a thing.
Such a question may arise in various contexts, and would determine, for example,
whether something like electricity can be stolen and whether an electricity supply,
internet service or telephone service may be subject to spoliation (Telkom SA Ltd v
Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) – see SU 9 on the protection of possession
and holdership).

18
1.1.2 External to humans
It is accepted in modern law on the basis of religious and ethical considerations
underlying the legal system that the human body and parts thereof cannot be regarded
as legal objects. An object can therefore qualify as a thing only if it is not part of the
human body. In future this issue may give rise to considerable debate owing to the
advancement of medical technology and the shortage of human body parts for
transplants.

A distinction should be drawn between human tissue (parts) which can easily be
separated from the body and replenishes itself, for example, hair, blood, semen and ova,
on the one hand, and body parts which can be separated, but where separation may be
harmful, for example, kidneys and lungs. The first category is significant at present
because of its implications for the provision of human procreation cells in the growing
industry made possible by artificial procreation. In the second category we are dealing
with the need for human body parts for organ transplant purposes. In both these
categories we have objects belonging to a living person in mind. The question,
therefore, is whether the law should allow people to deal with parts of their bodies.
Dealings with and in these objects are regulated by the National Health Act 61 of 2003.

Objects deriving from the human body which can no longer be related to the person
concerned because he/she is brain dead also pose a problem. Here two issues should
be distinguished: the one is whether the person gave his/her consent to such an organ
donation before his/her death and the other is whether payment can be levied by their
relatives. Although corpses or parts of corpses may be regarded as things, they fall
outside the legal sphere (extra commercium) and are therefore not subject to private
ownership (see para 2.1.1.1 below).

1.1.3 Independence
The independence of a thing denotes that it can function as a legal object for the
purposes of the law of things only if it has its own, individual existence and can be
recognised as a demarcated, distinct entity. The requirement that a thing must be
capable of existing independently is the result of the Roman-Dutch view that two
persons cannot simultaneously be the owners of different aspects of the same thing. This
poses certain problems:

(i) In most cases, independent individual things (for example, a pen or a book) do not
create any problems, but composite things (like a car or a bicycle) are made up of
several parts, and this can lead to problems. It is therefore necessary to distinguish
between principal things, accessory things and auxiliary things in order to apply the
principle of independence, so as to obviate the problems surrounding the
ownership of composite things (see para 2.1.2.1 below).
(ii) With certain kinds of things, the requirement of an independent existence gives rise
to specific problems, because some things (for example, water, sand or gases) are
not naturally delimited into recognisable units, but are only collected into
independent units by human intervention (for example, by collecting the water,
sand or gas in a container, such as a bottle, a paper bag or a cylinder, respectively).
Only with such human intervention can seawater or fresh air be said to be an
independent thing.
(iii) In certain cases, the characteristic of independence or individuality has been

19
 adapted by new developments in the law of things. One example is that of
ownership in sectional title units. The sectional title owner establishes a right of
ownership in a unit which comprises a section of a building and a share in the
communal parts of the building and the land on which the building stands (co-
ownership – see section 1 of the Sectional Titles Act 95 of 1986). Thus the concept
‘‘thing’’ has been adapted statutorily to accommodate the independence principle.
The sectional title unit can therefore be regarded as an independent thing (on the
basis of its statutory definition – see SU 15 par 2).

The same considerations are relevant in the demarcation of pieces of land on which
individual owners establish their rights of ownership: the earth is not a thing as such, and
land may be subject to real rights only when separate pieces of land have been surveyed
and demarcated into separate units (see the Land Survey Act 8 of 1997).

1.1.4 Subject to human control

Objects can be significant for the law of things only if they have the potential to be legally
controlled by humans. It would be absurd, at this stage, for any person or group of
persons to claim control over the planet Mars, for example, and therefore it cannot be
considered a thing. Nor is it possible to control objects, such as air or seawater, which
have not been divided into individual, controllable units by human intervention. Only
when it is really possible for humans to bring a certain object under their control in such
a way that a legal relationship may be said to exist between the legal subject and the
object can the object be regarded as a thing.

1.1.5 Useful and valuable to humans

The law is only concerned with real relationships when these have legal consequences.
This is the case only when a thing is useful or valuable to a legal subject. The legal
relationship between a home owner and a grain of sand in his/her garden has no legal
consequences, in principle, and the grain of sand would not be considered a thing. A
heap or load of sand, on the other hand, could have value, and would therefore be
regarded as a thing. Value need not denote economic or market value with a price
attached to it, but simply that the legal subject wants his/her relationship with the thing to
be maintained by the law against interference by other legal subjects.
Whether the law would regard a specific thing as being of value to humans would
depend largely on the circumstances and would be determined objectively. The legal
maxim de minimis non curat lex (the law does not concern itself with trivialities) is an
important consideration here. An old family photograph, for example, may have
sentimental value, which would be sufficient for it to qualify as a thing.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

Before you continue with the next section, answer the following
questions:

1 Name the characteristics of a thing. (5)

2 Briefly discuss the characteristics of a thing. (15)
3 Briefly distinguish between property and things. (5)

20
 Answer
Everything that forms part of a person’s estate (½) can be described as
‘‘property’’. Property therefore includes a variety of assets, (½) such as things
(½) (for example, a car, a computer and a mobile phone), personal rights
(creditor’s rights/claims) (½) (for example, the right to one’s salary, the right to
the proceeds of an insurance policy or the right to claim the purchase price in
terms of a contract of sale) and immaterial property rights (½) (for example,
copyright and patent rights). A thing is a specific asset (legal object) in a person’s
estate, ie it is an independent part (½) of the corporeal world (½) which is
external to humans, (½) subject to human control (½) and is useful and
valuable to humans. (½)
Remark
This answer can be adapted to answer question 2(a) in section 4 above (Basis
and sources of the law of things), which deals with the distinction between the
law of property and the law of things. A mark of (10) could also be awarded
for this question, in which case all the marks would be (1) instead of (½).

2 CLASSIFICATION OF THINGS
2.1 Criteria for classification
The practically infinite number of objects which may be defined as things can be divided
into different categories that are significant for various aspects of the law of things. We
classify things in various ways, according to different criteria. All things may be classified
according to either of two major criteria, namely:

Major criteria (i) their relation to humans

(ii) the inherent nature of the thing concerned

2.1.1 Relation to humans

When things are classified according to this criterion, the nature of the thing is not
considered, but only the function or purpose of the thing in various legal processes and
transactions. Here we distinguish between negotiable and non-negotiable things:

2.1.1.1 Negotiability
Not negotiable The negotiability of a thing can influence its function radically, and classification of things
according to this criterion is therefore important. In principle, all things are negotiable
(res in commercio = things which are in the legal sphere or in commerce or trade). The
following things are excluded from commerce (res extra commercium) and are therefore
not negotiable:

(i) Res communes omnium: things that do not fall under private legal control, but
that are available to be used by all legal subjects, for example, free air and things
that are really only susceptible of human control by communal use.
(ii) Res publicae: things that belong to the state but that are used for the general
benefit and use of the public, for example, national parks, the seashore, et cetera.
(iii) Other res extra commercium: things that are not freely negotiable for another
reason, for example, body parts or a corpse. For religious and/or ethical reasons a
corpse and parts of a corpse are not regarded as things.

21
 The Roman law category of things belonging to the gods (res divini iuris) is no longer
recognised in modern law, but the question has been raised whether land on which
family graves are situated should not be regarded as being outside commerce.

Negotiable things (res in commercio) may be either someone’s property (res alicuius) or
no-one’s property (res nullius). In the latter instance anyone can claim ownership of them
by means of appropriation (see SU 4 para 2.2.2). We therefore distinguish between:

(i) res alicuius: things belonging to an owner and forming part of his/her estate
(ii) res nullius: things that are susceptible of ownership, but that belong to no one at a
particular stage, for example, wild animals or fish (see SU 4 para 2.2.2) or a thing
that has been thrown away by its owner who no longer intends to be the owner
(res derelictae).

2.1.2 Inherent nature

When this criterion is used to categorise things, things are classified not according to their
relation to man, but according to their inherent characteristics or qualities. Various
classifications are possible on this basis.

2.1.2.1 Singular and composite things

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

Distinction A collection of things must be distinguished from composite things. Two forms of
collections are relevant: In the one we deal with a collection of similar principal things
and in the other the collection consists of different types of principal things. In both cases
the collection is treated as a singular unit. Here we distinguish between the following:

(i) A collection of similar things, for example, a flock of sheep, a swarm of bees or
the stock of a shop may be treated as a unit by the law, and that unit is then a
composite thing for the purposes of the law, although the members or parts of the
collection do not lose their individuality. It is important to remember that such a
collection is only regarded as a unit for certain purposes. The owner owns both the
flock or swarm or stock and the individual sheep or bees or items in the stock.
(ii) A collection of dissimilar things, such as corporeal and incorporeal things or things
and rights, for example, an entire estate. Such a collection would be treated by the
law as a legal unit, but then only for specific purposes. This would be the case in
insolvency law and in the law of succession where the insolvent estate and the
deceased estate, respectively, are regarded as independent entities.

A composite thing usually consists of various constituent parts. In principle, we

distinguish between three kinds of constituent parts:

(i) The principal thing is the independent thing made up of various parts, with an
independent existence as a composite thing. It is not a constituent or
supplementary part of another thing. A car is an example of a principal thing in

22
 composite form. Land is always regarded as the principal thing, not the buildings
attached to it (see SU 4 para 3.4.2).
(ii) An accessory thing can have a separate existence apart from the composite thing,
but has forfeited its independent existence in that it has been physically joined to
the principal thing, for example, a brick cemented into a wall (see SU 4 para 3.4.2).
(iii) An auxiliary thing can, like an accessory thing, have an independent existence apart
from the composite thing. However, it forfeits its independent existence without
being physically joined to the principal thing. The auxiliary thing is economically
dependent on the principal thing (Senekal v Roodt 1983 (2) SA 602 (T)). A key is a
good example of an auxiliary thing, since it loses its independent character in that its
economic value in terms of its purpose and use depends on the unity between the
principal thing (the lock) and the key. Without the lock, the key is not functional.

Fruits
Fruits form a separate class of things, for example apples on the tree (natural fruits) or the
interest on investments (civil fruits). As long as a fruit is attached to a principal thing, it is
accessory to the principal thing. However, at various stages and for various reasons, it
has to be distinguished from the principal thing to which it relates (see, eg, usufruct SU
10 para 6.2.1).

Fruits denote the income or yield regularly produced by the principal thing, while the
principal thing itself is preserved. In principle, fruits are accessory things and as such
constitute part of the principal thing, but with this difference: fruits are intended to be
separated from the principal thing so as to have an independent existence. We
distinguish between:

natural fruits (fructus naturales), for example, wool, fruit or milk, and

civil fruits (fructus civiles) or non-organic yield, for example, interest on capital or rent
payments.

In the case of natural fruit further distinctions can be made between:

hanging fruits (fructus pendentes),

separated fruits (fructus separati) and

gathered fruit (fructus percepti).

The rights to these fruits will vary according to the relevant legal relationship involved.

2.1.2.2 Movable and immovable things

Another classification according to the nature of things is that of movable and immovable
things. In principle, immovable things consist of land and everything that is permanently
attached to land, including natural attachments like plants and artificial fixtures like
buildings and structures that are permanently attached to land. Movable things are things
that can be moved from one place to another without being damaged or losing their
identity, for example a choir, a car, a shirt and money. Movable things are things that can
be moved form one place to another without being damaged or losing their identity, for
example a chair, a car, a shirt and money. This distinction has significance in several fields
of law:

23
 (i) It affects the formalities and requirements for the transfer of ownership.
Transfer of ownership of movables is effected by delivery, and of immovables by
registration in the deeds registry (see SU 5 para 5).
(ii) Several statutes distinguish between movable and immovable things: for example,
the Deeds Registries Act 47 of 1937 and the Alienation of Land Act 68 of 1981.
(iii) Private international law distinguishes between movable and immovable things in
that the law of the owner’s domicile (lex loci domicilii) applies in the case of
movables, whereas the law of the immovable thing’s location governs immovables
(lex loci rei sitae) (Southern Tankers (Pty) Ltd t/a Unilog v Pescana D’’Oro Ltd 2003 (4)
SA 566 (C) 570E).
(iv) The right to alienate or encumber the estate of a minor is affected as follows:
Permission of the High Court is required for the alienation or encumbrance of a
minor’s immovable assets worth more than R100 000-00.
(v) In the execution of a judgment debt and in the case of insolvency, the debtor’s
movable assets are sold before the immovables, to secure payment of the
judgment debt.
(vi) In criminal law theft can be committed only in respect of movables, while arson
can only be committed in relation to immovables.
(vii) Real security is effected by means of a pledge in the case of movables (see SU 11
para 2) and by means of a mortgage (see SU 11 paras 4.3.2 and 4.3.3) in the case
of immovable things.

2.1.2.3 Fungible and non-fungible things

Things are fungible (replaceable) (res fungibiles) or non-fungible (irreplaceable) (res non
fungibiles). This distinction depends on whether they have individual characteristics (or
value), or whether they belong to a certain kind or genus. The individual character of a
kilogram of sugar or a litre of water is negligible, and they can therefore be replaced by a
kilogram of the same kind of sugar or by another litre of water. However, an original
Picasso painting cannot simply be replaced by an original Smith painting.

Significance of This distinction is significant in various areas of law:

distinction

(i) In the law of obligations: The replaceability or otherwise of a specific thing is

determined by agreement between the parties, and may affect the consequences
of the agreement. For example, if X buys the racehorse ‘‘Lightning’’ and the seller
delivers the farm horse ‘‘Lazy Boy’’, the seller has not performed in terms of the
agreement. However, if X buys ‘‘a horse’’, the seller can deliver any horse.
(ii) Pledge: A fungible cannot, in principle, be given in pledge with the intention that it
can be replaced by a similar thing. It is a basic rule of the law of pledge that the
pledgee may not use the pledged article (see SU 11 para 2.4.1).
(iii) Transfer of ownership: In certain circumstances a fungible may change ownership
by means of commixtio (mixing of solids) or confusio (mingling of liquids) (see SU 4
para 4).
(iv) Replacement: It would seem that the courts are more inclined to authorise the
repair and even the replacement of a damaged or destroyed fungible thing in a
spoliation order, in certain cases, than would be the case with non-fungibles (see
SU 9 para 2.3.3).

24
2.1.2.4 Consumable and non-consumable things
Consumable things (res consumptibiles) are used up (consumed) or their value is
considerably diminished by ordinary use, for example, pencils, foodstuffs and cigarettes.
Non-consumable things (res non consumptibiles) are preserved in spite of normal use, for
example, a motor car or a stove. A thing can be non-consumable despite the fact that it
is subject to normal wear and tear.

This distinction has significance in more than one instance:

(i) Loan, lease and usufruct: With reference to consumable things, the borrower’s,
lessee’s or usufructuary’s duty to maintain is really a duty to replace.
(ii) Ownership: A person who uses a consumable thing becomes the owner by
means of consumption.
(iii) Money is regarded as consumable.

2.1.2.5 Divisible and indivisible things

A thing is divisible if it can be divided, without losing its essential characteristics, into
smaller parts of which the nature and function are essentially the same as those of the
original thing. Examples are: a bag of sugar, a roll of fabric, or a piece of land. Indivisible
things, such as a car or a painting, cannot be divided without destroying or changing the
nature of the thing.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After you have studied this section, you should be able to answer the
following questions:

1 Rearrange the second column below so that the examples listed there
correspond to the things in the first column.

Things Examples
(a) Negotiable thing (i) Picasso painting
(b) Divisible thing (ii) Land
(c) Composite thing (iii) Free air
(d) Incorporeal thing (iv) Seashore
(e) Non-fungible thing (v) Wild animal
(f) Res communes omnium (vi) Brick
(g) Singular thing (vii) Creditor’s right
(h) Non-negotiable thing (viii) Roll of fabric
(i) Res publica (ix) Corpse
(j) Immovable thing (x) Radio (10)

2 Briefly distinguish between

(a) fungible and non-fungible things and explain the relevance of this
distinction (7)
(b) singular and composite things (5)
(c) consumable and non-consumable things (5)

25
 Answer
Consumable things (res consumptibiles) are used up (consumed) (1) or their
value is considerably diminished by ordinary use, (1) for example, pencils,
foodstuffs and cigarettes. Non-consumable things (res non consumptibiles) are
preserved (1) in spite of normal use, (1) for example, a motor car or a stove. A
thing can be non-consumable despite the fact that it is subject to normal wear
and tear. (1)

(d) movables and immovables (4)

(e) divisible and indivisible things (4)
(f) composite things and a collection of things (4)

3 Give an example of each of the following:

(a) principal thing (1)
(b) accessory thing (1)
(c) auxiliary thing (1)

4 Give three reasons why it is important to distinguish between

movable and immovable things. (6)
5 X and his wife, Y, to whom he is married in community of property, live in a
new house on the farm Waterford. X and Y are co-owners of the farm and
their car, but the farm implements have been purchased in terms of a credit
transaction from C, the cooperative. C has reserved ownership of the farm
implements which are stored in a wooden shed on the farm. C therefore has
personal rights (creditor’s rights/claims) against X and Y for payment of the loan
plus interest. S has a contract with his parents (X and Y) for the purpose of
grazing his livestock on their farm. S also grows bulbs in a nursery on this farm.
X sells peaches from the fruit trees on his farm to a factory and wool from the
sheep. Y, his wife, sells vegetables from her garden and dairy products at the
farm stall on the farm.

Give an example from the above set of facts of the following types of things:

movable thing (1)

immovable thing (1)
incorporeal thing (1)
composite thing (1)
principal thing (1)
accessory thing (1)
natural fruit (1)
civil fruit (1)

Answer
movable things: car, farm implements or livestock (1)
immovable thing: farm (1)

26
incorporeal thing: C’s personal right (creditor’s rights/claims) against X and Y
for payment of the loan or S’s personal right against his parents (X and Y) to
graze his livestock on their farm (1)
composite thing: farm (1) (A farm is a composite thing because buildings that,
through attachment (accessio) are built on the farm), lost their independance,
form part of the principal thing.
principal thing: farm (land) (1)
accessory thing: buildings or houses (1) (accessory things because they
became part of the principal thing (the land) by accession)
natural fruit: peaches, vegetables, dairy products or wool (1)
civil fruit: interest on the loan (1)

27
S T U DY UN I T

2
REAL RIGHTS AND
PERSONAL RIGHTS
(CREDITOR’S RIGHTS/
CLAIMS)

CONTENTS
1 Introduction
2 Theoretical distinction
2.1 Personalist theory
2.1.1 Content
2.1.2 Criticism
2.2 Classical theory
2.2.1 Content
2.2.2 Criticism
3 Distinguishing characteristics
4 Subtraction form the dominium (ownership)-test
5 Categories of real rights

29
 In this section we discuss the difference between real and personal rights with
reference to the different theories on this issue, as well as the approach in case
law. We indicate why this distinction is important for the law of things.

1 INTRODUCTION

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example1
In terms of a contract with X and Y, S has a personal right (creditor’s right/claim) to use
the farm for grazing purposes.

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 2
On driving home one night from town S is involved in an accident. Z, the other driver, did
not stop at the robot and collided with S’s car, thereby causing considerable damage to the
car. Z caused the accident, but is a penniless student with no assets. His father, H, owns a
mining company and is very rich.

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 3
M has a personal servitude (limited real right) of habitation over a homestead on X and Y’s
farm.

In any legal system with a strong Roman-Dutch element the distinction between real
rights and personal rights (creditor’s rights/claims) forms the basis for the division of
patrimonial law into the law of things and the law of obligations (see the diagram above
in study unit 1). Besides having systematic value, this theoretical distinction has practical
significance, since different legal consequences ensue from the different rights.

Although the term ‘‘personal rights’’ is generally employed and accepted in South African
legal literature, it has been criticised. Some authors prefer the term ‘‘creditor’s right’’, but
the term ‘‘claim’’ can also be used to denote the right to performance which a creditor
has against his/her debtor in terms of an obligation. In this study manual we use these
terms interchangeably.

A personal right originates from an obligation, which in turn arises from a contract, a
delict or various other causes, such as unjust enrichment or unauthorised management
of another’s affairs (negotiorum gestio). An obligation is an abstract legal tie between two
specific legal subjects in terms of which the one party, the creditor, has a right to a
particular performance against the other, the debtor, and the latter a corresponding duty
to render such performance.

30
DIAGRAM 4: Personal rights in terms of lease contract (example 1)

A B

X and Y S
(creditors) (creditor)

Personal right

! !
S X and Y
(debtor) (debtors)

Obligation A: X and Y (creditors) have a personal right against S (debtor) for payment
of the rental amount. On the other hand, S has the right to occupy the leased premises.

Obligation B: S (creditor) has a personal right against X and Y (debtors) to use the farm
for grazing purposes. The other side of S’s right entails that X and Y has the duty to
make the farm available for grazing.

DIAGRAM 5: Personal right in terms of delict (example 2)

S
(victim = creditor)

Personal right

!
Z
(wrongdoer = debtor)

The characterisation of real rights is furthermore not merely an academic or theoretical

exercise. Since the introduction of section 63(1) of the Deeds Registries Act 47 of 1937,
which provides that personal rights may not be registered over land, this distinction has
become fundamental in the law of things. As an exception, section 63(1) allows for the
registration of a personal right where such a right is ancillary or complementary to the
registrable real right (see the discussion of Ex parte Geldenhuys below).

The distinction between real rights and personal rights has its origin in Roman procedural
law, with its division of remedies into real actions (actiones in rem) and personal actions

31
 (actiones in personam). Roman law stressed the procedure and therefore the action
rather than the right realised by means of the action was considered to be of cardinal
importance. A real action focused directly on the thing concerned and could be
instituted against anyone who was in control of the thing. A personal action, on the other
hand, was always directed against a particular person or persons, who were bound to
the plaintiff (in terms of an obligation) to perform (in example 1 above S can claim the
use of the farm for grazing purposes from X and Y only and in example 2 S can claim the
damage to his car from Z only).

With the passing of the centuries, the emphasis shifted from procedural law to
substantive law, and the distinction between real actions and personal actions became a
distinction between real rights and personal rights. We indicated above that the law of
things deals, inter alia, with real rights. Roman law specifically categorised actions into
real and personal actions. Roman-Dutch law mentioned specific categories of real rights.
These were exclusive and it was not possible to create new real rights – this is a so-
called closed system (numerus clausus) of real rights. In time, with the creation and
development of other rights such as mineral rights, it became necessary to recognise
new types of real rights. For various reasons, including systematic reasons, a clear
distinction had to be drawn between real rights and personal rights (creditor’s rights or
claims). Several theories were subsequently developed in an effort to identify the exact
nature of a real right. None of these theories succeeded in providing a conclusive test to
separate real and personal rights into watertight compartments. At most, these tests can
be used as guidelines in an attempt to distinguish between the two.

2 THEORETICAL DISTINCTION
Two important theories that have gained acceptance over many years are:

(i) the personalist theory

(ii) the classical theory

2.1 Personalist theory

2.1.1 Content
This theory is called the personalist theory because emphasis is placed on the person
against whom the right may be enforced. In terms of this theory a real right operates
absolutely, in the sense that it is enforceable against ‘‘the world at large’’. Recognition of
and compliance with such a right (for example, ownership) may be enforced against
anyone. Whatever my relationship with someone might be, that person will have to
recognise my ownership of a certain thing, and I can, in principle, claim my thing from
anyone who is in control of it, for example, an owner can claim his car from a person
who bought it from a thief (see SU 6 para 2.1.1).

A personal right (creditor’s right or claim), on the other hand, has relative operation. It
can be enforced only against the particular person who is obliged to perform. For
example, S in example 1 above can claim use of the farm from X and Y, the other
contracting parties (the debtors) only. In a delict, damages can be claimed only from the
person who caused the damage apart from certain exceptions – therefore S can claim
the damage caused to his car from Z only, not from his father (see example 2 above).

32
2.1.2 Criticism
The fundamental criticism levelled against this theory is that it overemphasises the
absolute operation of real rights, and in reality such rights do not always and necessarily
operate absolutely. There are cases, for example, where the owner of a thing is
prevented by the operation of estoppel from enforcing his/her right of ownership against
another person. Estoppel is a defence which operates against the rei vindicatio of an
owner if he/she has culpably created the impression that a third person was the owner
or had authorisation to alienate the thing (see SU 6 para 2.1.3.3).

Furthermore, personal rights do not always have only relative operation. In exceptional
circumstances they operate absolutely and have to be respected by outsiders, such as in
the case of a service contract. It has been held that an outsider may not intentionally
interfere in the relationship between an employer and an employee.

The above criticism is valid to a certain extent, but it overemphasises the exceptions in
each of the categories of rights. Generally, the theory is valuable in determining the
nature of rights in this context.

Another objection to the absoluteness of real rights in personalist theory is that other
rights, such as personality rights (eg, rights to physical integrity or reputation) and
immaterial property rights (for example, patent rights and copyright) also operate
absolutely. This argument also has little substance, since this theory is used to distinguish
between real and personal rights for a particular reason. It is valuable in demarcating the
boundary between the law of things and the law of obligations, but, in particular, in
determining which rights may be registered against land in terms of section 63(1) of the
Deeds Registries Act 47 of 1937.

2.2 Classical theory

2.2.1 Content
This theory is known as the classical theory because it corresponds to the original
Roman law distinction. It distinguishes between real and personal rights with reference
to the nature of the object to which each right pertains. Real rights, according to this
theory, concern the relationship between a person and a thing. A real right confers direct
control and the right of disposal over a thing. Personal rights, on the other hand, concern
the relationship between persons. A personal right entitles the creditor to claim
performance from a particular person only. The object of the right is therefore
performance.

2.2.2 Criticism
Although this distinction is open to criticism, we think that in most instances this criterion
will help to determine whether one is dealing with a real right. However, it is sometimes
difficult to determine exactly what is meant by a ‘‘direct relationship with a thing’’.
Certain personal rights ultimately also have a thing as their object, but they are not real
rights. An example would be personal rights to acquire a thing (iura in personam ad rem
acquirendam). Such rights are in question when, for example, X buys a car from Y. In
terms of the contract X has a right to the car, but this is merely a personal right. Before

33
 delivery X has a personal right to claim delivery of the car (ius in personam ad rem
acquirendam). X acquires the real right (ownership) only after delivery of the car to him/
her.

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Activity

Before you start with the next section, answer the following question:

1 Briefly explain and criticise the different tests/theories which are applied
to determine whether a specific right is a real or a personal (creditor’s)
right. (12)

3 DISTINGUISHING CHARACTERISTICS
Although the theories referred to above are open to criticism, and neither of them can
serve as an all-inclusive absolute basis for distinguishing between real and personal rights
(they may even be said to overlap), each theory contains important elements which are
indicative of the inherent characteristics of real rights and personal rights. The
development of the law cannot be put into a straitjacket. The law very often evolves
according to considerations of efficacy to meet the needs of the community it serves.

Some jurists, such as Meijers (the father of the modern Dutch civil code), propagated the
view that one should identify the typical features of each type of right. This is a useful
method, but some of the so-called typical features are really descriptions of the
consequences of the particular right after it has been classified as a particular type. Typical
(or prototype) real rights and personal rights have the following distinguishing
characteristics, respectively:

(i) Object
The object of a real right is a corporeal thing (leaving aside the exception of a pledge of
claims); whereas the object of a personal right is performance (to give something, to do
something or not to do something) (see SU 3 para 3 on the limitations on ownership).

(ii) Content
The holder of a real right has a direct claim to and a right of disposal over a thing;
whereas the holder of a personal right is entitled to claim performance from a specific
person (see SU 3 para 3 on the limitations of ownership).

(iii) Remedies
The holder of a real right can enforce his/her real right by means of a real action such as
the rei vindicatio of the owner, which can be instituted against anyone who is unlawfully
in control of the thing; while the holder of a personal right enforces his/her right by
means of a personal action such as the condictio furtiva (the action of a person with a
lawful interest in the stolen thing or an owner against the thief to claim back the stolen
object) (see SU 6 on the protection of ownership).

34
(iv) Origin
Real rights have their origin in legal facts other than obligations, for example, delivery of
movable things (SU 5 para 4) and registration of land (SU 5 par 5), accession (accessio)
(SU 4 para 3) and prescription (SU 4 para 9); while personal rights come into existence
through obligations, for example in terms of a contract (see example 1) or a delict (see
example 2).

(v) Absoluteness
Real rights are absolute in principle: the holder of the right can vindicate his/her thing
(subject to certain exceptions) from whomever is in control of the thing (SU 6 para 2.1
on the protection of ownership); while personal rights are relative in principle: the
holder can enforce his/her right only against the person who is obliged to perform in
terms of an obligation (contract – see example 1 above – or delict – see example 2
above).

(vi) Preference
In the case of insolvency, a real right enjoys preference over other rights. Moreover, the
maxim ‘‘first in time is stronger in law’’ (prior in tempore est potior in jure) is applied in the
case of two or more competing real rights. Apart from a few exceptions, this principle
does not apply to personal rights (see SU 11 on real security).

(vii) Publicity
The creation, transfer or extinction of real rights requires some form of publicity. This
takes the form of delivery in the case of the transfer of ownership of movable things, and
of registration in the case of immovable property. The reason for this lies in the nature of
real rights. Since these rights have to be respected by the world at large, it is imperative
that there should be some form of publicity informing outsiders of the existence, transfer
or extinction of the real right (see SU 5 para 4 on delivery, para 5 on registration and
also SU 11 on real security).

These distinctive characteristics serve only as guidelines in identifying real rights and
personal rights, and are not intended to serve as an exclusive means of classification.

In Study Unit 1 we define a real right as a lawful relationship between a legal subject and
a thing which confers direct control over the thing on the legal subject, as well as the
relationship between the legal subject and all other legal subjects who must respect this
relationship (see also SU 1 para 2.3.2). After you have read the above explanation, this
definition of a real right should make more sense to you.

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Activity
Before you start with the next section, answer the following question:

1 Distinguish between real and personal rights under the following

headings
(a) object (2)
(b) content (2)
(c) remedies (2)
(d) origin (2)

35
 (e) absoluteness (2)
(f) preference (2)
(g) publicity (2)

4 SUBTRACTION FROM DOMINIUM (OWNERSHIP)-TEST

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example
Q and R drafted a mutual will in which they provided that, on the death of one spouse, the
surviving spouse, their sons, and Ss, their grandson, would inherit the farm Pulang. They
also provided that the farm should be partitioned when Ss reached the age of majority and
that the drawing of lots would determine who got which portion of the farm. Furthermore,
they provided that the heir who got the portion with the homestead on it should pay a
sum of money to the other heirs. The attorney assured them that the provisions with
regard to the division of the farm and the payment of the sum of money after their death
would be registered against the title deed of the farm.

[Based on the facts of Ex parte Geldenhuys 1926 OPD 155]

In a system where there is a closed category (numerus clausus) of real rights,

characterisation of real rights is unnecessary because the system determines which rights
are real rights. In an open system (such as the South African system) where the existing
range of real rights can be extended, it becomes essential to determine the basis on
which new rights will be categorised. The existing categories of real rights or real rights
recognised by Roman-Dutch law are ownership, servitudes, real security rights, quitrent
and leasehold. On occasion, notably when mineral rights were developed in South
Africa, the law has been confronted with new types of rights which have had to be
classified as either real or personal.

Apart from the theories referred to above, the courts have also formulated a test to
determine whether one is dealing with a real or a personal right in a particular set of
facts. In Ex parte Geldenhuys (1926 OPD 155) the court formulated the subtraction from
the dominium (ownership) test as follows:
One has to look not so much to the right, but to the correlative obligation. If that obligation
is a burden upon the land, a subtraction from the dominium [ownership], the
corresponding right is real and registrable; if it is not such an obligation, but merely an
obligation binding on some person or other, the corresponding right is a personal right, or
right in personam, and it cannot as a rule be registered.

The facts of this case are simplified in the example above. In applying the above test the
court came to the conclusion that the provisions that the farm must be divided when S
reaches the age of majority and that the drawing of lots will determine who gets which
portion of the farm place a burden on the land itself (in that the time and manner of
division restrict the ordinary rights of co-owners to divide the common property when
and in a manner on which they agree). These provisions were regarded as conditions

36
aimed at creating real rights and could therefore be registered. The provision that the
heir who gets the portion with the homestead on it must pay a sum of money to the
other heir was regarded as creating a personal right since it was only an obligation on a
specific person to pay a sum of money and a claim for payment of a sum of money is, as
a rule, not regarded as a real right. Bear in mind that this condition placed an obligation
on that person in his/her personal capacity and not as owner of the land. However, the
court held that, since the latter was so closely related to the real right, it could be
registered as an exception.

Although this test is not without value, one could criticise it on the following grounds:

(i) It is not possible to identify the most important real right, ownership (dominium), by
means of the ‘‘subtraction from the dominium (ownership) test’’. How can one
define ownership by having recourse to this test, if the test requires that the right
concerned should limit ownership? The test can therefore be applied only if
ownership has already been determined and identified by means of other criteria,
in other words, the test can be used only to identify limited real rights to another
person’s property (iura in re aliena).
(ii) Personal rights can also impose restrictions on ownership.

The criticism in (i) can be countered with the argument that the test was not developed
to determine the real right of ownership, which is clear and has been resolved. The test
is an aid to determine which rights qualify as limited real rights to land which can be
registered.

The criticism in (ii) is also largely without substance. It is true that personal rights limit the
exercise of an owner’s ownership. Such a limitation is, however, not comparable to
restrictions imposed by limited real rights. Note that a personal right which limits the
exercise of an owner’s ownership still has as its object performance by the specific
owner. This performance cannot be exacted from the owner’s successors in title. In
example 1 (above), where S has a contractual right (personal right) to use the farm for
grazing purposes, this right can be enforced against X and Y only. If they sell the farm to
Z, a third party, Z is not bound by the contract and therefore S cannot enforce his
personal right against Z.

A limited real right, on the other hand, has as its object the thing itself. The right and the
accompanying duty remain connected with the thing concerned, regardless of who the
owner of the thing is. In example 3 above M has a personal servitude (a servitude being
a limited real right see – SU 10) of habitation over a homestead on X and Y’s farm. If
they sell the farm to Z, a third party, Z is bound to respect M’s limited real right because
M has a right to the thing itself. He therefore cannot eject M from the homestead or in
any other way interfere with her exercise of the right (see further the discussion below in
SU 3 para 3.1 dealing with limitations on ownership; Willoughby’s Consolidated Co v Ltd v
Copthall Stores Ltd 1913 AD 267 and SU 10).

The South African courts realised that the subtraction from the dominium (ownership)
test cannot be applied without qualification. Accordingly, the parties are required to have
envisaged that the accompanying obligation would be binding not only on the present
owner, but also on his/her successors in title as well. In other words, the parties must
have intended to create a real right. It is clear that the courts do not apply the subtraction
from the dominium (ownership) test without considering the additional requirements as

37
 well. You should bear in mind that it is not always easy to apply the subtraction from the
dominium (ownership) test to a specific set of facts and that the distinction between real
and personal rights is one of the most problematic areas of the law of things. The
Supreme Court of Appeal has confirmed this test in Cape Explosive Works Ltd v Denel
(Pty) Ltd (2001 (3) SA 569 (SCA)).
In principle only real rights may be registered in the deeds registry. Section 63 of the
Deeds Registries Act 47 of 1937 expressly provides that, excluding provisions in
mortgage bonds, leases (including amendments, sessions or cancellations thereof) and
deeds of grant as contemplated in section 3(1)(c) of the Act, no condition to a deed
which purports to create a personal right on immovable property and no condition
which does not restrict the exercise of ownership on immovable property shall be
capable of registration. The section, however, authorises the registrar to accept such a
condition for registration if, in his/her opinion, it is complementary or ancillary to another
registrable condition or right in the deed. Registration of such a condition, however,
does not convert the right it may contain to a real right (see Ex parte Geldenhuys 1926
OPD 155, which prompted the present wording of s 63).

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Activity

Before you continue with the next section, answer the following
questions:

1 Summarise Ex parte Geldenhuys (1926 OPD 155) briefly (in not more
than 250 words). (10)
Remark
The case must be discussed under the following headings:
Facts (You can use the facts as simplified in the example.)
Legal question
Ratio decidendi
Finding

2 How is the subtraction from the dominium (ownership) test formulated in

Ex parte Geldenhuys (1926 OPD 155)? (7)
Answer
One has to look not so much to the right, (1) but to the correlative obligation
(1). If that obligation is a burden upon the land, (1) a subtraction from the
dominium [ownership], (1) the corresponding right is real and registrable; (1) if it
is not such an obligation, but merely an obligation binding on some person or
other, (1) the corresponding right is a personal right, (1) or right in personam, and
it cannot as a rule be registered.
Remark
We repeat the test here to indicate to you how the marks are allocated for
this answer.

3 M has a personal servitude of habitation (limited real right) over a home-

stead on X and Y’s farm. Is it possible to register this right in the deeds
registry? Briefly substantiate your answer. (5)

38
 Remark
We discuss servitudes (limited real rights) in study unit 10.
4 In terms of a contract with his parents, X and Y, S has a personal right
(creditor’s right/claim) to use the farm for grazing purposes. Is it possible
to register this right in the deeds registry? Briefly substantiate your answer. (5)

5 CATEGORIES OF REAL RIGHTS

Having established what real rights are, we must draw a further distinction between
ownership, which is a real right to one’s own thing (ius in re propria), and limited real
rights, which are real rights to someone else’s thing (iura in re aliena). Ownership is in
principle the most comprehensive real right to a person’s own thing, whereas limited
real rights to someone else’s thing are in principle limited in scope (see SU 3 and 10).
For example, in principle, the owner of a piece of land can use his own land as he/she
wishes, whereas the entitlements of a usufructuary (holder of the personal servitude of
usufruct limited real right) exercised over the land of another are clearly defined and
limited from the outset.

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Activity
After you have studied this section, you should be able to answer the
following question:

1 Briefly discuss the difference between ownership and limited real

rights. (6)

Answer
The difference between ownership and limited real rights lies in the fact that
ownership is a real right over one’s own thing, (1) whereas limited real rights
are real rights to another person’s thing. (1) Furthermore ownership is the
most comprehensive (1) real right a person can have to a thing, whereas
limited real rights are fundamentally limited (1) in scope. For example, in
principle the owner of a piece of land can use it as he/she wishes, (1) whereas
the entitlements of a usufructuary (limited real right holder in terms of a
personal servitude) are clearly defined. (1)

39
S T U DY UN I T

3
OWNERSHIP DEFINITION
OF AND LIMITATIONS ON
OWNERSHIP

DEFINITION OF OWNERSHIP
CONTENTS
1 Definition of ownership
1.1 Introduction
1.2 Inviolability
1.3 Inherent nature
1.4 Entitlements
1.4.1 Use and enjoy
1.4.2 Fruits
1.4.3 Control
1.4.4 Consume or destroy
1.4.5 Alienate
1.4.6 Burden
1.4.7 Vindicate

41
 In this section we discuss the definition of ownership and the entitlements of
ownership.

1 DEFINITION OF OWNERSHIP

1.1 Introduction
This study unit contains a detailed discussion of the concept of ownership. As a student
of property law you should be able to define ownership and to name and describe the
entitlements of ownership. The concept ‘‘ownership’’ has developed over centuries and
may have a different content in different societies or political and economic systems. It is
therefore not a static concept, but one that is continuously being adapted to suit the
needs of the society in which it operates.

Definition Ownership can be defined as the most comprehensive real right that a person can
have with regards to his/her thing. In principle, a person can act upon and with his/her
thing as he/she pleases. This apparent freedom is restricted, however by the law and
the rights of others.

Although, in principle, ownership is the most comprehensive real right a person can
have to his/her thing, it is not unlimited. The limitations on ownership may change from
time to time and from community to community. The law may limit ownership for
various reasons, for example to protect the environment, to benefit specific
communities or the community as a whole, to regulate urbanisation, to harmonise
conflicting interests of individual owners among themselves or with other members of
society. Therefore the society in which ownership functions will determine the nature
and content of ownership.

In discussing real rights we distinguish between ownership, which is a right to one’s own
thing (ius in re propria), and various limited real rights, which are rights to another
person’s things (iura in re aliena).

Ownership can be defined with reference to its inviolability, its inherent nature or its
entitlements.

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Activity

After you have studied this section, answer the following question:

1 Define ownership. (7)

Answer
Ownership is the most comprehensive (1) real right (1) a person can have with
regard to a thing. (1) In principle, a person can act upon and with his/her thing as
he/she pleases. (1) This apparent freedom is restricted, (1) however, by the law
(1) and the rights of others. (1)

42
1.2 Inviolability
‘‘Inviolability’’ of ownership refers to the principle that a person cannot lose his/her
ownership without his/her consent, with its corollary that a person cannot pass a better
title than he/she has. The latter principle is expressed in the Roman law maxim: nemo
plus iuris in alium transferre potest quam ipse haberet (no one may transfer more rights to
another person than he has himself). For example: If X sells and delivers Y’s thing to Z, Z
does not become the owner of the thing. Although the contract of sale is valid, Y can
claim the thing from Z with the rei vindicatio (real action – see SU 6 para 2.1). Z can
have recourse against X in terms of the contract of sale.

1.3 Inherent nature

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Example1
In terms of the Physical Planning Act 125 of 1991 and the Development Facilitation Act 67
of 1995, the three farms in our example are situated in an area which, in terms of the
regional development plan for that area, may be used for agricultural purposes only.

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Example 2
X and Y are seriously affected by baboons that destroy their maize plants. X installs an
apparatus to chase away the baboons on the boundary with his neighbour. The apparatus
makes loud noises at regular intervals during the day and the night. The neighbour writes
to X and Y to complain about the noise during the night, but X ignores the letter and
refuses to speak to his neighbour on the telephone. X and his neighbour are not on
speaking terms because his neighbour seriously insulted him a few years ago.

[Based on the facts in Gien v Gien 1979 (2) SA 1113 (T)]

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

In Gien v Gien (1979 (2) SA 1113 (T)) the court defined ownership with reference to its
inherent nature as the most comprehensive real right a person can have to a thing. The
point of departure is that a person can do with his/her thing as that person pleases. This
apparent freedom is restricted, however, by the law and the rights of others.
Consequently, no owner ever has an unlimited right to exercise his/her entitlements in
absolute freedom in his/her own discretion.

These limitations on ownership are fully discussed later in this study unit.

43
 _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 3
X and Y are owners of their farm Waterford. X and Y’s ownership of Waterford is limited
by M’s right of habitation (personal servitude = limited real right). M exercises her
servitude personally.

M’s right of habitation (personal servitude – see SU 10 para 6.2) determines that as long as
she lives X and Y will not be able to evict her or interfere with her right of habitation. Her
limited real right of servitude to live in the homestead limits X and Y’s ownership of
Waterford.

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Example 4
Q and R are owners of their farm Pulang. Their ownership of Pulang is limited by S’s right
to drive over the farm (servitude = limited real right). S is entitled to this servitude in his
capacity as owner of Highlands (a land servitude).

In terms of his limited real right, S in his capacity as owner of Highlands may drive over Q
and R’s farm Pulang without disturbance (land servitude – see SU 10 para 5). Therefore, Q
and R cannot, for example, place an obstruction in the road or prevent S from using the
road just because they are angry with him.

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Example 5
S is the owner of his farm Highlands. S obtained a loan from the bank for improvements
that he wishes to make on Highlands. As security for repayment of this loan he registers a
mortgage bond over the farm in favour of the bank. S’s ownership of the farm is limited by
the bank’s right of mortgage (real security right = limited real right).

The bank’s right of mortgage (real security right = limited real right) limits S’s ownership of
his farm Highlands. During the currency of the mortgage (as long as S’s principal debt to
the bank has not been paid) S’s ownership is restricted in the sense that he is not entitled to
sell or burden the farm without the permission of the bank. Furthermore, in terms of the
mortgage the bank may request the court to declare the farm executable, if S is unable to
repay the loan.

– Personal rights (creditor’s rights) are less limiting than limited real rights.

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 6
X and Y are owners of their farm Waterford. Their ownership of Waterford is also limited
by S’s personal right (creditor’s right), which arises from a contract in terms of which S may
graze 100 head of cattle on the farm.

S’s personal right (creditor’s right) in terms of the contract is not as strong as M’s right of
habitation in example 3 above (personal servitude = limited real right). X and Y have
entered into a contract with S in terms of which they are limiting their ownership by
agreement. In terms of this agreement S may graze 100 head of cattle on their farm. In
terms of the contract S has a personal right (creditor’s right) which entitles him to graze the

44
cattle on the farm for the period determined in the contract. If X and Y prevent S from
entering the farm, they will be in breach of the terms of the contract. Furthermore, if they
sell the farm to Z, a third person, S cannot rely on the contract to force Z to allow him to
graze the cattle on the farm. On the other hand, if X and Y sell the farm the ownership of
the new owner of the farm will still be limited by M’s right of habitation.

1.4 Entitlements
A legal subject who acquires a real right from a real relationship is usually entitled by the
legal order to perform certain acts in connection with the thing, for example, he/she may
use or sell the thing. The capacities conferred on the legal subject by virtue of a right, in
this case the real right of ownership, are called entitlements. Entitlements therefore
emanate from rights, on the basis of which a legal subject may perform certain acts in
regard to the thing. Note that in some textbooks the term ‘‘powers’’ is used to describe
the content of ownership. However, from a theoretical point of view it is better to refer
to ‘‘entitlements’’ in describing the content of a right such as ownership.

The entitlements of ownership include the entitlement to

use and enjoy the thing (eg, to drive your car)
enjoy the fruits (eg, to charge rent for the use of your car)
control (possess) the thing (eg, to hold your handbag)
consume or destroy the thing (eg, to burn your book)
alienate the thing (eg, to sell or donate your mobile phone to someone)
burden the thing (eg, to grant a mortgage over your land)
vindicate the thing (eg, to claim your car from a third person with the rei vindicatio)

1.4.1 Use and enjoy

An owner’s entitlement to use and enjoy the thing is generally the most important
entitlement of ownership. People acquire ownership of things because they wish to use
and enjoy them. By making use of the entitlement to burden the thing, an owner
voluntarily limits the entitlement of use, for example by granting a right of habitation. In
this case the servitude holder has the use and enjoyment of the thing and the owner no
longer has the use (see the position of M in example 1 above).

1.4.2 Fruits
An owner is also entitled to the natural and civil fruits of the thing (see SU 1 par 2.1.2.1).

1.4.3 Control
An owner has the entitlement to physically control the thing. By making use of his/her
entitlement to burden an owner may, for example, pledge a thing. The owner then
transfers control of the thing to the pledgee and therefore the owner no longer has
control (see SU 11 para 2).

45
 1.4.4 Consume or destroy
An owner is entitled to consume or destroy the thing. An issue which is becoming more
and more controversial is whether an owner can actually destroy the thing. Here the
question arises whether the State can, for example, deny an owner the possibility of
destroying a thing that is scarce or valuable to the community as a whole. Think of
cultural objects or valuable artworks. The answer to this question will be determined by
the way in which society views the object in question and sees its role in determining the
nature of ownership.

1.4.5 Alienate
An owner is entitled to alienate the thing by means of a sale or donation and transfer of
ownership. Ownership of the thing passes to the buyer or the donee only upon transfer
of ownership. In the case of movables this takes place by means of delivery (see SU 5
para 4) and in the case of immovables (see SU 5 para 5), by means of registration.
Ownership can only be transferred to a third person by the owner or by someone who
has been authorised to do so. This is in accordance with the inviolability principle of
ownership (see para 1.2 above), which derives from the Roman law maxim: nemo plus
iuris in alium transferre potest quam ipse haberet. Therefore, where a non-owner sells the
thing, the sale is valid but the seller cannot transfer ownership.

1.4.6 Burden
An owner is entitled to burden the thing by granting other people limited real rights to
the thing. Such limited real rights will limit or burden the ownership (see examples 3, 4
and 5 above). In such a case the owner’s ownership is limited or burdened in that some
of the entitlements are frozen for as long as the pledge or mortgage is in existence (see
SU 11).

1.4.7 Vindicate
Because of the inviolability of ownership, an owner is entitled to claim his/her thing from
anyone who is unlawfully in control of the thing, simply by proving ownership. The
defendant must then raise and prove a valid defence. This common-law principle seems
to be undergoing a change in regard to immovable property in the South African courts
(see SU 6 para 2.1.3.1 on the protection of ownership).

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After you have studied this section you should be able to answer the
following questions:

1 Distinguish between ownership and its entitlements. (3)

2 Name the entitlements of ownership. (7)
3 Name and briefly describe with reference to examples the entitlements
of ownership. (14)

46
LIMITATIONS ON OWNERSHIP

CONTENTS
1 Introduction
2 Limitations imposed by law
2.1 Statutory limitations
2.2 Neighbour law
2.2.1 Nuisance
2.2.2 Lateral and surface support
2.2.3 Encroachments
2.2.4 Surface water
2.2.5 Party walls and fences
2.2.6 Elimination of dangers
3 Limitations imposed by rights of other legal subjects
3.1 Limited real rights
3.2 Personal rights (creditor’s rights/claims)

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 In the previous section we discussed and briefly summarised the limitations on
ownership. We have seen that the limitations on ownership are divided into two
broad categories: limitations imposed by the law and limitations imposed by the
rights of other legal subjects. In this section we discuss the limitations on
ownership more fully.

1 INTRODUCTION
As we indicated above, ownership is, in principle, the most comprehensive real right a
person can have to a thing. This extensive right is, however, subject to limitations. On
the one hand it is limited by law and on the other it is limited by the rights of other legal
subjects. Ownership is limited as follows:

Law 1 Limitations imposed by law

These limitations can be subdivided into:
(i) Statutory limitations (example 1 under para 1.3 above – S’s ownership is
limited by legislation).
(ii) Limitations imposed in terms of neighbour law principles (example 2 under
para 1.3 above – X and Y’s ownership is limited by the rights of their
neighbours).

Rights of others 2 Limitations imposed by the rights of other legal subjects (examples 3, 4, 5 and 6
above)
These limitations can be subdivided into:
(i) Limitations imposed by the limited real rights of third parties. See example 3
above – X and Y’s ownership is limited by M’s right of habitation (personal
servitude = limited real right) and example 5 above – during the currency of
the mortgage and as long as S’s principal debt to the bank has not been
discharged – S’s ownership is restricted in the sense that he is not entitled to
sell or burden the farm without the permission of the bank. Furthermore, in
terms of the mortgage the bank may approach the court to declare the farm
executable, if S is unable to repay the loan.
(ii) Limitations imposed by the personal rights (creditor’s rights) of third parties.
See example 6 above X and Y entered into a contract in terms of which S can
graze 100 head of cattle on their farm. Their ownership is, therefore, limited
by a personal right created by an agreement.

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 DIAGRAM 6: Limitations on ownership

LIMITATIONS ON
OWNERSHIP

LAW RIGHTS OF OTHER

LEGAL SUBJECTS

Statutory Neighbour law Limited real Personal rights

limitations principles rights (creditor’s rights)

2 LIMITATIONS IMPOSED BY LAW

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Example
In terms of the Physical Planning Act 125 of 1991 and the Development Facilitation Act 67
of 1995, the three farms in our example are situated in an area which, in terms of the
regional development plan for that area, may be used for agricultural purposes only.

2.1 Statutory limitations

A distinction can be drawn here between statutory limitations on movable things and
immovable things. There is such a long list of these limitations that it is almost impossible
to discuss them. For interest’s sake we refer you to the following examples of
limitations:

(a) Limitations in terms of the Constitution – section 25 and 26 of the Constitution

(see SU 13–14).
Movables (b) Limitations on the use of movable things:
firearms (Firearms Control Act 60 of 2000)
motor vehicles (the National Road Traffic Act 93 of 1996)
drugs (the Drugs and Drugs Trafficking Act 140 of 1992)
Immovables (c) Limitations on immovable things:
land (the Subdivision of Agricultural Land Act 70 of 1970 and Spatial Planning and
land Use Management Act 16 of 2013)

2.2 Neighbour law

In Study Unit 1 we indicated that it is the function of the law of things to regulate and
harmonise conflicting ownership rights. One of the ways of achieving this is to restrict

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 ownership in the interests of neighbours. Where properties border on one another, the
manner in which one of the owners uses his/her property may considerably influence
the other owners’ enjoyment of their property. A conflict of ownership rights may
develop and the principles of neighbour law regulate these possible conflicts. The
following instances of the application of neighbour law can be distinguished:

1 Nuisance
2 Lateral and surface support
3 Encroachments
4 Surface water
5 Party walls and fences
6 Elimination of dangers

2.2.1 Nuisance

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Example1
X and Y are seriously affected by the baboons that destroy their maize plants. X installs an
apparatus to chase away the baboons on the boundary with his neighbour. The apparatus
makes loud noises at regular intervals during the day and the night. The neighbour writes
to X and Y to complain about the noise during the night, but X ignores the letter and
refuses to speak to his neighbour on the telephone. X and his neighbour are not on
speaking terms because his neighbour seriously insulted him a few years ago.

[Based on the facts in Gien v Gien 1979 (2) SA 1113 (T).]

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Example 2
M approached the court for an interdict ordering the Ceres Municipality to prevent acorns
and the leaves of oak trees growing next to the streets of Ceres from falling onto his
property. M avers that the oak trees constitute a nuisance on his property in that the falling
oak leaves have blocked the gutters of his building, thereby causing rainwater to damage
the walls of the building.

[Based on the facts in Malherbe v Ceres Municipality 1951 (4) SA 510 (A).]
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Example 3
X and Y are the owners of Waterford. Q and R are the owners of the neighbouring farm,
Pulang. A river runs through both farms. X and Y applied for an interdict prohibiting Q and
R from continuing or renewing the nuisance caused by slate which is washed down by the
river from Pulang onto Waterford during heavy rainstorms. They also claim damages from
Q and R for the damage they have suffered as a result of a previous flood. At that time Z
was the owner of Pulang. Z dumped the slate waste on the farm near the river.

[Based on the facts in Regal v African Superslate 1963 (1) SA 102 (A).]

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Neighbour law deals with the limitations placed on owners in the exercise of their
entitlements as owners, in the interests of neighbours. Interests must be balanced against
one another and the criterion by which this balancing of interests takes place is that of
reasonableness. Neighbours are expected to behave reasonably towards one another
(Malherbe v Ceres Municipality 1951 (4) SA 510 (A)). An owner must therefore exercise
his/her entitlements as owner reasonably and the neighbour must endure such exercise
in a reasonable way. A certain degree of tolerance is expected of neighbours in the
exercise of their entitlements as owners. The standard to be applied was formulated in
Prinsloo v Shaw (1938 AD 570 590):

The standard to be taken must not be that of the perverse or finicking or overscrupulous
person, but of the normal man of sound and liberal tastes and habits.

In neighbour law situations we distinguish between nuisance in a narrow sense and

nuisance in a broad sense. In the narrow sense nuisance occurs where a neighbour’s
right of personality or entitlement of use is infringed by, for example, noise or smell
(Prinsloo v Shaw 1938 AD 570; De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA
188 (D)). This infringement does not necessarily result in damage, but rather in a
personality infringement. The remedies are a prohibitory interdict and/or a claim for
delictual compensation.

Nuisance in the broad sense results in damage to property and the remedies are a
prohibitory interdict and/or a claim for delictual damages (Malherbe v Ceres Municipality
1951 (4) SA 510 (A); Regal v African Superslate 1963 (1) SA 102 (A)).

Regal v African Superslate (1963 (1) SA 102 (A)) dealt with nuisance in the broad sense
(see example 3). The court had to decide whether an interdict can be awarded to
prevent future damage to the neighbouring property where the source of the nuisance
was created by a previous owner of the property. It has been held by the court that the
current owner of the farm cannot be held responsible for damage caused by the use of
the property by a previous owner. The court further held that neighbour law is based on
the principle of reasonableness. If it was reasonably possible for the current owner to
prevent the damage from happening again in future, the failure to do so would amount
to an unlawful act. This would entitle the neighbour to an interdict and/or a delictual
claim for damages. The court held that the current owner had acted reasonably.

You will notice that the remedies in neighbour law are both property-law remedies and
delictual remedies: the requirements for an interdict are discussed below (see SU 6 para
2.2) as well as the requirements for a claim for delictual damages (see SU 6 para 3).
Neighbour law is discussed fully in the module on the law of delict.

2.2.2 Lateral and surface support

Every owner of a piece of land is entitled to support from his/her neighbour’s land. This
means that an owner cannot make excavations on his/her land which result in his/her
neighbour’s land subsiding. Should this occur, the owner who made the excavations is
liable for the damage caused to the neighbour’s land, even in the absence of fault, since
this is a form of strict liability (ie liability without fault). This principle, however, applies
only where the land is still in its natural state (Gijzen v Verrinder 1965 (1) SA 806 (D) and

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 Foentjies v Beukes 1977 (4) SA 964 (C)). Once the natural state has been changed by, for
example, building on it, this rule no longer applies. Today in most cities and towns
extensive building regulations regulate the position.

2.2.3 Encroachments
Where owners encroach on their neighbour’s land, the rules regarding encroachments
come into operation. A distinction is drawn between buildings and trees (the latter are
subdivided in branches and roots).

2.2.3.1 Buildings
The owner of the land on which an encroachment has taken place can use one of the
following remedies:

(i) The owner can claim removal of the encroachment. The owner cannot,
however, remove the encroachment because he/she cannot take the law into his/
her own hands. Removal cannot be claimed if he/she stood by and, with full
knowledge of the facts, did not insist on removal. The courts have a discretion in
deciding whether to order removal or payment of compensation. The court can
also order transfer of the piece of land encroached upon to the encroacher
(Trustees of the Brian Lackey Trust v Annandale [2003] 4 All SA 528 (C) – in which
situation (iii) below will apply).
(ii) The owner can claim ejectment from his/her land against payment of
compensation for the enhancement of his/her property. On the grounds of equity
and convenience the courts can also order transfer of the land encroached upon
against payment of compensation.
(iii) The owner can claim that the encroacher should take transfer of the land
encroached upon and pay compensation (Lombard v Fischer [2003] 1 All SA 689
(O); Trustees of the Brian Lackey Trust v Annandale [2003] 4 All SA 528 (C). This
compensation is determined with reference to:
& all costs of the transfer (including the costs of a survey and diagrams)
& the value of the land
& solatium (compensation for personality infringement) for the trespass and
involuntary deprivation of land

2.2.3.2 Trees

2.2.3.2.1 Branches
If trees are planted so close to the boundary that the branches encroach upon the
neighbour’s land, the neighbour can request the owner of the trees to remove the
branches. If the owner refuses, the neighbour can approach the court for an order
compelling the owner to do so or the neighbour can do it him/herself. The neighbour
may not keep the branches, however, unless the owner consents or fails to remove
them within a reasonable time after demand (Malherbe v Ceres Municipality 1951 (4) SA
510 (A); Vogel v Crewe 2003 (4) SA 477 (T)).

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2.2.3.2.2 Roots
In principle the principles outlined above should apply to roots. There is clear authority
for the principle that the neighbour may remove the roots encroaching on his/her land,
but little authority on the question whether he/she may compel the owner of the plants
to do so. In Bingham v City Council of Johannesburg (1934 WLD 180), the roots of trees
destroyed the neighbour’s flower garden. It was held that the owner of the trees had to
remove the trees since they had caused a nuisance. The owner had to remove the
nuisance itself, not merely the encroachment. In Smith v Basson (1979 (1) SA 559 (W)),
where roots and plants intruded five metres into the neighbour’s land, the court held
that the neighbour could remove the roots and plants. The court left the question open
whether the neighbour could claim damages from the owner or could compel him to
remove the encroachments.

2.2.4 Surface water

Every owner of land has to receive the natural flow of water from adjoining land. The
upper owner may not, however, interfere with the natural flow of water in a manner
prejudicial to the lower owner. In a rural tenement the lower owner can institute the
actio aquae pluviae arcendae, by means of which he/she can claim removal of any works
causing such interference, as well as damages for damage sustained after litis contestatio
(close of pleadings).

In an urban tenement the water should be diverted to the nearest street and only if that
is not possible can it be diverted onto the lower tenement provided all reasonable
precautions have been taken to avoid damage to the lower tenement (Williams v Harris
1998 (3) SA 970 (SCA)). In Papalardo v Hau (2010 (2) SA 451 (SCA)) the court held that
the owner of the lower tenement must allow the natural flow of water from the higher
tenement onto his tenement. Owners of urban tenements can institute the actio
negatoria de stillicidio vel flumine, in terms of which the lower owner denies that he/she is
liable to receive drippings or a stream of water from the upper tenement.

In Redelinghuis v Bazzoni (1976 (1) SA 110 (T) 117B), the court laid down the following
criteria to determine whether one is dealing with a rural or an urban tenement:

(i) the size of the land concerned

(ii) the extent of the building development in the catchment and drainage area
(iii) the identifiability of the original topographical qualities of the land

In applying these principles the court came to the conclusion that a stand in Arcadia, an
old suburb of Pretoria, was still rural land and the owner of the lower tenement could
rely on the actio aquae pluviae arcendae.

2.2.5 Party walls and fences

A party wall is a wall built on the boundary between two pieces of land in such a manner
that it stands partly on the land of one owner and partly on the neighbouring owner’s
land. It is irrelevant who erected the wall. Each owner is the owner of that part of the
wall which is on his/her property and has a servitude of lateral support over the part of
the wall which is on the other side.

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 A party wall may not be demolished without the consent of the other owner, subject,
however, to the exception that a wooden fence may be demolished and replaced by a
brick wall. Both owners are liable for the maintenance of the wall, unless one of the
owners has abandoned his part of the wall in favour of his/her neighbour. Both owners
should refrain from doing anything which could affect the stability of the wall. Each
owner is entitled to beautify his/her section of the wall or to extend his/her section of the
wall.

2.2.6 Elimination of dangers

Liability for the creation of danger is dealt with extensively in the law of delict. However,
it is important to note here that an owner has a duty to remove or eliminate dangerous
situations on his property, for example, the storing of poisonous substances, keeping of
vicious dogs, etc.

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Activity

After you have studied this section you can attempt the following
questions:

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

2 Name the two categories of limitations imposed on ownership. (2)
3 Name the two classes of limitations imposed in terms of the law. (2)
4 S decides to develop a part of his farm Highlands as a residential township
but his attorney informs him that this will not be possible. Under the Physical
Planning Act 125 of 1991 it appears that a regional development plan in
terms of a physical planning scheme provides that the area is to be utilised
for agricultural purposes only.
S approaches you for legal advice. Fully advise S on his legal position. (5)

Answer
Although S has the most comprehensive real right to Highlands and, in
principle, he can do as he pleases, (1) his ownership is nevertheless
restricted. (1) What we have here is a limitation on ownership in terms of
the law (1) and, more specifically, in terms of a statutory measure. (1)
Therefore, S will not be able to develop a township on Highlands. (1)

5 State the purpose of neighbour law. (2)

6 Briefly discuss the facts and decision in Malherbe v Ceres Municipality (1951
(4) SA 510 (A)). (10)

Answer
Facts
The appellant, Malherbe, approached the court for an interdict ordering the
respondent, Ceres Municipality, to prevent acorns and leaves of oak trees
growing next to the streets of Ceres from falling onto his property. The
appellant claimed that the oak trees constituted a nuisance on his property in
that the falling oak leaves blocked the gutters of his building, thereby causing
rainwater to damage the walls of the building. (1)

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 Legal question
To determine whether falling leaves, acorns and protruding branches of trees
growing next to streets constitute a nuisance. (1)
Ratio decidendi
General
The law expects a degree of tolerance (1) between neighbours in the exercise
of their entitlements of ownership.
Regarding leaves from trees next to the street
The planting of oak trees along the streets of towns and cities is considered to
be compatible with the natural and normal use (1) of streets in the Western
Province. Oak trees are benign, as well as being ornamental and shade giving.
If their leaves are blown onto neighbouring premises by the wind, then the
owners of those premises must endure (1) them as a natural result of the
normal use of the street by the respondent.
Regarding leaves from overhanging branches
The appellant cannot complain about falling leaves and acorns from
overhanging branches if he allows such branches to protrude onto his
property. If he chooses to allow the branches of trees to protrude onto his
property, he cannot expect his neighbour to clear the leaves from his property.
(1) If the appellant wishes to prevent leaves and acorns from overhanging
branches from falling onto his property, he should request (1) the respondent
to remove the branches. If the respondent refuses (1) to remove the
branches, the appellant may either remove them himself or he may apply for
an interdict either ordering the respondent to remove the overhanging
branches or forbidding him to let the branches protrude onto the appellant’s
land.
Application of finding on relevant facts
The application for an interdict failed. (1) The falling leaves did not cause any
obvious damage to the appellant’s building. The damage complained about
could have been avoided by annually spending a small amount of money on
the cleaning of the gutters. (1) It is reasonable to expect the appellant to
exercise a degree of tolerance in this regard.
With regard to the overhanging branches, the appellant failed because he did
not prove that he had requested the respondent to remove the branches, or
that the respondent had refused to remove the branches or had claimed that
he had a right to let the branches protrude onto the appellant’s land. (1)

7 X and Y are seriously affected by baboons that destroy their maize plants. X
installs an apparatus to chase away the baboons on the boundary with his
neighbour. The apparatus makes loud noises at regular intervals during the
day and the night. The neighbour writes to X and Y to complain about the
noise during the night, but X ignores the letter and refuses to speak to his
neighbour on the telephone. X and his neighbour are not on speaking terms
because his neighbour seriously insulted him a few years ago. The neighbour
applies for an interdict ordering X and Y to stop the noise. X and Y rely on

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 their ownership of the farm. They argue that they are entitled to do as they
please on their property. Will this argument succeed? Substantiate your an-
swer and refer to case law. (10)
Remark
You could begin your answer with the definition of ownership in Gien v Gien.
Follow this with a discussion of the court’s approach to the question of
reasonableness and reflect the court’s finding.
Judge Spoelstra in Gien v Gien held that ownership is the most
comprehensive real right (1) a person can have with regard to a thing. In
principle, a person can act upon and deal with his thing as he/she pleases, (1)
but this apparent freedom is restricted, (1) by the law (1) and the rights of
others. (1)
Here we are dealing with nuisance in the narrow sense (1) (infringement of a
personality right caused by the noise) and the remedy used here is the
interdict. The rights of the two owners should be weighed against each other.
(1) Both neighbours should act reasonably. (1) This is an objective test. (1)
One party must exercise his ownership rights in a reasonable manner and the
other party must endure this exercise in a reasonable manner. (1) The
applicant must prove all the requirements for an interdict. (1) (See the
discussion below SU 6 para 2.2 and Setlogelo v Setlogelo (1914 AD 221 227).
The court found that the applicant was severely prejudiced without real gain
for the respondent as a result of the disturbing conduct. (1)
The applicant consequently succeeded with his interdict against the
respondent. (1)

8 X and Y have a lucerne field on the only piece of fertile land with plenty of
water. This lucerne field borders their neighbour’s farm. The new neighbour
has planted a row of pine trees along the boundary between the two farms.
The trees have grown big and the branches hang over the lucerne field. The
pine trees cast a lot of shade and the pine needles fall onto the lucerne,
killing large patches of it.
Do X and Y have any remedies? Fully discuss the legal position with
reference to case law. (10)

Remark
In answering this question, follow the guidelines for question 10 above.
Concentrate on the reasonableness of the neighbour’s actions in planting
harmful trees on the boundary next to the lucerne field.

9 X and Y are the owners of Waterford. Q and R are the owners of the
neighbouring farm, Pulang. A river runs through both farms. X and Y applied
for an interdict prohibiting Q and R from continuing or renewing the
nuisance caused by slate which is washed down by the river from Pulang
onto Waterford during heavy rainstorms. At that time Z was the owner of
Pulang. Z dumped the slate waste on the farm near the river. X and Y apply
for an interdict ordering Q and R to build a wall on their farm to prevent the
slate from washing onto X and Y’s land. In the alternative they claim
damages from Q and R for the loss they have suffered as a result of the slate
washing onto their farm. Explain to X and Y with reference to authority what
their chances of success are.

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 Answer
The question is based on Regal v African Superslate. (1) (1963 (1) SA 102 (A)

Legal question

The court had to decide whether an interdict (1) could be granted to prevent
future damage (1) to the neighbouring property or in the alternative whether
X and Y could claim damages from Q and R where the source of the
nuisance was created by a previous owner (1) of the property.

Ratio decidendi

Regal v African Superslate dealt with nuisance in the broad sense, (1) namely
damage to property. It has been held by the court that the current owner of
the farm cannot be held responsible for the damage caused by the use of the
property by a previous owner. (1) The court further held that neighbour law
is based on the principle of reasonableness. (1) If it was reasonably possible
for the current owner to prevent the damage from happening again in future,
the failure to do so would amount to an unlawful act. (1)

In the case of such an unlawful act the neighbour would be entitled to one or
both of the following remedies against the current owner:

(i) an interdict (1) and/or

(ii) a delictual claim for damages. (1)

The court held that the current owner had acted reasonably and the
application for an interdict did not succeed. (1)

Application of finding on relevant facts

X and Y cannot hold Q and R liable for damage caused by Z’s use of the
property. If it was reasonably possible for Q and R to prevent the damage
from happening again in future, the failure to do so would amount to an
unlawful act. (1) This would then entitle X and Y to an interdict and/or a
delictual claim for damages against Q and R. In Regal v African Superslate
(question based on the facts in this judgment) the court held that the current
owner, in our question Q and R, had acted reasonably.

3 LIMITATIONS IMPOSED BY RIGHTS OF OTHER LEGAL

SUBJECTS
3.1 Limited real rights

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Example1
M has a personal servitude of habitation over a homestead on X and Y’s farm.

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 _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 2
S has a right of way over Q and R’s farm, Pulang.

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Example 3
S has obtained a loan from the bank for improvements that he wishes to make on his farm,
Highlands. As security for repayment of the loan he registers a mortgage bond in favour of
the bank over the farm.

Regarding example 1 above, you should note that M’s right of habitation (personal
servitude = limited real right) limits X and Y’s ownership until her death or until she
abandons her right. Before that time they cannot evict her from the homestead or
interfere with her in any way. If X and Y sell the farm to Z, M can still enforce her right
against Z. (The nature and content of servitudes are discussed in SU 10.)

Regarding example 2, note that Q and R’s ownership is limited by S’s right of way
(praedial servitude = limited real right; the nature and content of servitudes are
discussed in SU 10).

Regarding example 3, it should be borne in mind that S’s ownership is limited by the
bank’s right of mortgage (real security right = limited real right). During the currency of
the mortgage, as long as S’s principal debt to the bank has not been discharged S’s
ownership is restricted in the sense that he is not entitled to sell or burden the farm
without the permission of the bank. Furthermore, in terms of the mortgage the bank can
apply to the court to declare the farm executable if S is unable to repay the loan. (The
nature and content of real security rights are discussed in SU 11.)

3.2 Personal rights (creditor’s rights/claims)

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Example
S has a contract with X and Y in terms of which he may graze 100 head of cattle on their
farm Waterford.

As far as the example above is concerned, you should note that the operation of S’s
personal right (creditor’s right) is not as limiting as the operation of M’s limited real right
over X and Y’s ownership. X and Y can, for example, prohibit S at any time from grazing
his cattle on the farm. S cannot force them to allow him to graze his cattle on the farm.
His remedy would be based on breach of contract in terms of which he could claim
damages and/or specific performance. If X and Y sell their farm to Z after a few months,

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S cannot force Z to allow him to graze his cattle on the farm. Personal rights (creditor’s
rights) do not operate against third parties in principle (as in M’s position above, see SU
2 para 2).

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Activity
After you have studied this section, you should be able to answer the
following questions:

1 Indicate the effect on third parties of the distinction between

limitations imposed in terms of personal rights (creditors’’ rights) and limited
real rights. Give examples to illustrate the different limitations. (10)
2 X and Y enter into a contract with S in terms of which S may graze 100 head
of cattle on their farm. After 6 months X and Y sell their farm to Z. Z refuses
to allow S to graze his cattle on the farm. Advise S fully. (5)
3 X and Y decide that M is too old to live in the homestead. She refuses to go
to a retirement village and relies on her right of habitation. X and Y decide to
apply for an eviction order against her. They approach you for legal advice.
Advise them fully. (5)
4 X and Y own their farm, Waterford; X’s parents-in-law (Q and R) are
owners of their farm Pulang and S is the owner of Highlands. M has a right of
habitation in respect of the homestead on Waterford. S has a contract with X
and Y in terms of which he can graze 100 head of cattle on the farm. S also
has a registered right of way to drive undisturbed over Q and R’s farm. A
mortgage bond is registered over Highlands in favour of the bank. Briefly
mention the nature and extent of the limitations on the ownership of the
following persons:

(a) X and Y (10)

Answer
Limited real right: (1) M’s right of habitation determines that as long as she lives,
or until she abandons her right, X and Y will not be able to evict her or
interfere with her right of habitation. (1) Her personal servitude (1) to live in
the homestead limits X and Y’s ownership of Waterford and because it is a
limited real right to the house it is enforceable against a new owner.

Personal right: (1) S’s personal right (creditor’s right) in terms of the contract (1)
is not as strong as M’s right of habitation (personal servitude = limited real
right). (1) X and Y have entered into a contract with S in terms of which they
limit their ownership through agreement (1). In terms of this agreement S may
graze 100 head of cattle on the farm. In terms of the contract S has a creditor’s
right which entitles him to use the farm for grazing purposes for the period of
the lease contract. If X and Y prevent S from entering the farm, they will be
breaching (1) the terms of their contract with S. Furthermore, if they sell the
farm to Z, a third person, S cannot rely on the contract to force Z to allow him
to graze his cattle on the farm. (1) The contract creates a personal right
(creditor’s right) which is enforceable only against the other contracting party.
(1)

(b) Q and R (3)

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 Answer
Limited real right: (1) In terms of S’s limited real right, he (as the owner of
Highlands) may drive over Q and R’s farm Pulang without being disturbed (land
servitude). (1) Therefore, Q and R cannot, for example, place an obstruction in
the road or prevent S from using the road just because they are angry with
him. (1)

(c) S (4)
Answer
Limited real right: (1) The bank’s limited real right of mortgage (1) limits S’s
ownership of Highlands. During the currency of the mortgage (as long as S’s
principal debt to the bank has not been paid), S’s ownership is restricted in the
sense that he is not entitled to sell or burden the farm without the permission
of the bank. (1) Furthermore, if S is unable to pay the loan (1) in terms of the
mortgage, the bank may approach the court to declare the farm executable.

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S T U DY UN I T

4
ORIGINAL ACQUISITION
OF OWNERSHIP

CONTENTS
1 Introduction
1.1 Outline of original methods of acquisition of ownership
2 Appropriation (occupation – occupatio)
2.1 Definition
2.2 Elements
2.2.1 Control
2.2.2 Thing which does not belong to anyone
2.2.3 Thing within sphere of law
2.2.4 Intention of becoming owner
3 Accession (accessio)
3.1 Definition
3.2 Introduction
3.3 Accession of immovables to immovables
3.3.1 Invisible accretion (alluvio)
3.3.1.1 Definition
3.3.1.2 Elements
3.3.2 Visible accretion (avulsio)
3.3.2.1 Definition
3.3.2.2 Elements
3.3.3 Island arising in riverbed (insula nata in flumine)
3.3.3.1 Definition
3.3.3.2 Elements
3.3.4 Dry riverbed (alveus derelictus)
3.4 Accession of movables to immovables
3.4.1 Sowing and planting (satio et plantatio)
3.4.1.1 Definition

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 3.4.1.2 Elements
3.4.2 Building (inaedificatio)
3.4.2.1 Definition
3.4.2.2 Introduction
3.4.2.3 Elements
3.5 Accession of movables to movables
3.5.1 Definition
3.5.2 Elements
3.5.3 Examples
3.5.3.1 Painting
3.5.3.2 Weaving
3.5.3.3 Writing
4 Mixing of solids (commixtio) and mingling of fluids (confusio)
4.1 Definition
4.2 Elements
5 Manufacture and specification (specificatio)
5.1 Definition
5.2 Elements
6 Acquisition of fruits
6.1 Definition
6.2 Elements
7 Treasure trove
7.1 Introduction
7.2 Definition
7.3 Elements
8 Expropriation
8.1 Definition
9 Acquisitive prescription
9.1 Definition
9.2 Introduction
9.3 Requirements
9.4 Elements

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 In this study unit we discuss the meaning of and methods of original acquisition of
ownership. In the next study unit we deal with derivative acquisition of ownership.
Eight original methods of acquisition of ownership are discussed, namely
appropriation, accession, mixing of solids or mingling of fluids, manufacture,
acquisition of fruits; treasure trove, expropriation and prescription.

1 INTRODUCTION
It is customary to distinguish between original and derivative methods of acquiring
ownership. Original methods of acquiring ownership are used when there is no
cooperation from a predecessor in title (this refers to the person who was owner of the
thing before the new owner); in other words, where there is no transfer of ownership.
This form of acquisition is not limited to things belonging to no one (res nullius): in cases
of accession, prescription and expropriation the thing is actually owned by another, but
no transfer of ownership takes place. Acquisition takes place regardless of the fact that
the thing has been held by another.
Derivative methods of acquiring ownership occur with the cooperation of a
predecessor in title. The right which the transferee obtains is derived from the
former owner. This implies that the predecessor in title should himself/herself have been
the owner and have been entitled to transfer ownership. This principle is expressed in
the maxim: no-one can transfer more rights to another person than he has himself
(nemo plus iuris in alium transferre potest quam ipse haberet). Furthermore, the right is
transferred to the new owner with the advantages and disadvantages attached to that
right.

1.1 Outline of original methods of acquisition of ownership

1 APPROPRIATION
2 ACCESSION
Immovables to immovables
Invisible accretion
Visible accretion
Islands arising in a river
Dry riverbed
Movables to immovables
Sowing and planting
Building
Movables to movables
Painting
Weaving
Writing

3 MIXING OF SOLIDS/MINGLING OF FLUIDS

4 MANUFACTURING
5 ACQUISITION OF FRUITS
6 TREASURE TROVE
7 EXPROPRIATION
8 PRESCRIPTION

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 ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

Make sure that you can answer the following question:

1 What is the difference between original and derivative methods

of acquisition of ownership? (5)

2 APPROPRIATION (OCCUPATION – OCCUPATIO)

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example1
S and his friends go for a hunting weekend. S mortally wounds a kudu. The kudu manages
to escape into dense bush. S gives up the search for the kudu when darkness falls. On his
way home from a party, Z, one of the farm labourers, stumbles upon the wounded kudu.
He fetches his friends and they slaughter the animal and take the meat to their respective
homes. Z is accused of the theft of the kudu.

[Based on the facts in R v Mafohla 1958 (2) SA 373 (SR).]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 2
Mills was attempting to remove a large condenser from the Antipolis, a shipwreck,
abandoned by its owners. He tied a rope with a buoy to a large condenser in the engine
room. The condenser weighed about 63 tons, together with its attached pipes and
contents. Reck and Hartmann started to cut sections of the condenser loose to remove
and sell them. Mills wished to stop them with a spoliation remedy and had to prove that
he was in undisturbed physical control of the thing.

[The facts in Reck v Mills 1990 (1) SA 751 (A).]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 3
Q and R, who are S’s grandparents, are lovers of game and they keep two impalas, a
few kudus and a giraffe in a camp approximately 250 to 300 hectares in extent. The
camp is enclosed by a fence 1,68 m high. Q and R purchased the animals at an auction
from a well-known game farmer who marks all his animals with the initials JR. Late one
evening the game ranger left the gate open and the animals escaped. S and his friends
went hunting on S’s farm the following evening. They shot four of the kudus. S’s
grandparents, Q and R, are claiming the value of the animals from S and his friends
because they argue that the kudus were their property.

[Based on the facts of Lamont v Heyns 1938 TPD 22.]

2.1 Definition
Appropriation or occupation (occupatio) is defined as the unilateral taking of physical
control of a thing which does not belong to anyone (res nullius), but which is within the
sphere of law (res in commercio) with the intention of becoming its owner (see SU 1
para 2.1.1.1 which deals with the criteria for the classification of things).

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2.2 Elements
2.2.1 Control
Physical control is essential for the acquisition of ownership by means of appropriation
(occupatio). The acquirer must obtain physical control with the necessary intention (that
is, the intention of becoming the owner).

One should note that the control need not be lawful. If, for example, a person has no
right to hunt, either because he has no licence to shoot certain animals or where certain
wild animals are protected by legislation, he commits a crime if he shoots such animals,
but he nevertheless becomes the owner of the dead animals by means of appropriation.

Where wild animals are wounded, but actual physical control is not taken, appropriation
(occupatio) does not take place. Therefore, if one person wounds a wild animal, but
another person catches it or discovers the carcass, the latter obtains ownership (R v
Mafohla 1958 (2) SA 373 (SR) 374C).

2.2.2 Thing which does not belong to anyone

Res nullius are things that belong to no one. All creatures that are wild by nature (animals,
birds, fish and insects) either in their natural state (before someone has taken control of
them) or when they have reverted to their former wild state (after having been
controlled by a person) are regarded as res nullius. Wild animals which have been tamed
(domesticated) are an exception. These remain the property of the owner until they
lose the habit of returning, when they again become res nullius, and capable of being
acquired by appropriation.

Domestic animals (dogs, cats, parrots etc) or wild animals regulated by the Game Theft
Act 105 of 1991 are not res nullius and therefore cannot be acquired in ownership by
means of appropriation. To determine whether this Act is applicable the following
definition must be considered. ‘‘Game’’ is defined as follows in the Act: ‘‘game means all
game kept or held for commercial or hunting purposes, and includes the meat, skin,
carcass or any portion of the carcass of that game’’.

Products of the sea (eg, seaweed, shells, stones, sand, fish and shellfish) are, in principle,
open to acquisition by appropriation. Abandoned things (res derelictae) are things which
a former owner has abandoned with the intention of ceasing to be their owner. Such
things are then res nullius and may become the property of any person taking control of
them (Reck v Mills 1990 (1) SA 751 (A)). A lost thing (res deperditae) is not a res nullius,
but remains the property of the owner as long as it is his/her intention to retain
ownership.

2.2.3 Thing within sphere of law

Only things that belong to nobody can be acquired in terms of appropriation. Therefore,
ownership over body parts of a human being or of a corps for example, can never be
acquired in this way. (See SU 1 par 2.1.1.1.)

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 2.2.4 Intention of becoming owner
In Underwater Construction and Salvage Co (Pty) Ltd v Bell (1968 (4) SA 190 (C) 193E),
Banks J stated that ‘‘... ownership is acquired as soon as there is a seizure with the
intention of becoming owner’’. Although theoretically there should be an intention to
acquire ownership, other elements, particularly the element of physical control, can be
indications of such an intention.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

Before you continue, attempt to answer the following questions:

1 What are the requirements for a successful reliance on acquisition of (5)

ownership by means of appropriation (occupatio)?
2 Mills was attempting to remove a large condenser from the Antipolis, a
shipwreck, abandoned by its owners. He tied a rope with a buoy to a large
condenser in the engine room. Together with its attached pipes and
contents, the condenser weighed about 63 tons. Reck and Hartmann started
to cut sections of the condenser loose to remove and sell them. Mills wished
to stop them by means of a spoliation remedy and had to prove that he was
in undisturbed physical control of the thing. Would Mills succeed in proving
sufficient control for a successful reliance on the spoliation remedy? Refer to
case law. (10)
Answer
This question is based on Reck v Mills. (1)

Legal question
To determine whether the first respondent was entitled to the spoliation
remedy (1) mandament van spolie or alternatively to an interdict. (1) The trial
court granted the spoliation order. Reck appealed against this decision.
Ratio decidendi
(i) In common law ownership of a thing is terminated by means of
abandonment (derelictio), when the owner abandons his property with
the intention of no longer being the owner. (1)
(ii) The spoliation remedy mandament van spolie is based on the principle
that the person who has been unlawfully deprived of his/her control must
be reinstated in his/her original state of control before the merits of the
case can be investigated. (1) To succeed with this remedy, Mills (spoliatus)
must prove that he had free and undisturbed control (1) and that, against
his wish, he was unlawfully deprived of such control by the spoliator. (1)
There must be clear proof of control in a physical sense. (See SU 9 par
2.3 for a discussion of the spoliation remedy.)
(iii) To succeed with an interdict Mills had to show (a) that he had a clear right
to the condenser, (1) (b) that he had suffered damage or that he was
threatened by irretrievable damage (1) and (c) that he had no other
effective (appropriate) remedy at his disposal. (1) (See SU 6 par 2.2 and
SU 9 par 2.2 for a discussion of the interdict.)

66
 Application of finding on relevant facts
It was common cause between the parties that the shipwreck was a res
derelicta and therefore a res nullius. The case had to be decided on the
requirements for spoliation. Even if the court accepted the evidence that Mills
had tied a buoy with a rope to the condenser, he failed to prove that he had
exercised the required control (1) over the condenser to justify the spoliation
order.
The court also refused to grant a final interdict because Mills failed to show
that he had a clear right to the condenser, or that he had been prejudiced by
the activities of Reck and Hartmann or that their conduct had threatened to
cause him harm or that there was no other appropriate remedy available to
him. (1)
The appeal against the decision of the trial court was upheld. (1)

3 S and his friends go for a hunting weekend. S mortally wounds a kudu. The
kudu manages to escape into dense bush. S gives up the search for the kudu
when darkness falls. On his way home from a party, Z, one of the farm
labourers, stumbles upon the wounded kudu. He fetches his friends and
they slaughter the animal and take the meat to their respective homes. Z is
accused of theft of the kudu. The state alleges that S was the owner of the
kudu and that Z stole the kudu. To succeed the state will have to prove that
S was the owner. Will the State succeed in proving this? Substantiate your
answer with reference to case law. (10)
Answer
No, the State will not succeed in proving that S was the owner. (1) S could
only have become the owner by means of appropriation. (1) Appropriation
or occupation is an original method (1) of acquisition of ownership. It can be
defined as the unilateral (1) taking of physical control (1) of a thing which does
not belong to anyone (1) (res nullius), but which is within the sphere of law (1)
(res in commercio) with the intention of becoming (1) its owner. The above set
of facts is similar to those in R v Mafohla. (1) The element of the definition
which causes problems for S’s reliance on acquisition of ownership by means
of appropriation is the element of control. Physical control is essential for the
acquisition (1) of ownership by means of appropriation. Where wild animals
are wounded, but actual physical control is not taken, appropriation does not
take place. (1) Therefore, if one person wounds a wild animal but another
person catches it or discovers the carcass, the latter obtains ownership. (1)

4 Q and R, who are S’s grandparents, are lovers of game and they keep two
impalas, a few kudus and a giraffe in a camp of approximately 250 to 300
hectares in extent. The camp is enclosed by a fence 1.68 m high. Q and R
purchased the animals at an auction from a well-known game farmer who
marks all his animals with the initials JR. Late one evening the game ranger
leaves the gate open and the animals escape. S and his friends go hunting on
S’s farm the following evening. They shoot four of the kudus. S’s
grandparents, Q and R, are claiming the value of the animals from S and
his friends because they argue that the game was their property. Will Q and R
succeed? Substantiate your answer. (10)

67
 Answer
In order to answer this question you have to determine whether Q and R lost
their ownership and S and his friends acquired ownership of the kudu through
appropriation or occupatio.

Appropriation or occupatio is an original method of acquisition (1) of

ownership. It can be defined as the unilateral taking (1) of physical control of a
thing which does not belong to anyone (1), but which is within the sphere of
law (1) with the intention of becoming (1) its owner.

S and his friends took physical control of the kudus. The kudus were within
the legal sphere and they (S and his friends) intended to become owners of
the kudus.

The question, however, is whether the four kudus were res nullius? (1)

Res nullius are things that belong to no one. (1) All creatures that are wild by
nature (animals, birds, fish and insects) either in their natural state (before
someone has taken control of them) or when they have reverted to their
former wild state (after having been tamed (controlled) by a person) are
regarded as res nullius. (1) An exception occurs in the case of wild animals
which have been tamed (domesticated). In this set of facts, however, one
must bear in mind that the kudus belonged to Q and R, who acquired them
by means of a derivative form (1) of acquisition of ownership, namely delivery.
They derive their ownership from their predecessor in title (1), the game
farmer, who sold and delivered (1) them to Q and R at the auction. They are
identifiable and therefore they belong to Q and R, (1) who can claim them
with the rei vindicatio if they still exist or else claim their value.

3 ACCESSION (ACCESSIO)

3.1 Definition
Accession can be defined as an original method of acquiring ownership which takes
place when an accessory thing becomes merged with a principal thing, with the result
that the two things form one entity. The accessory thing loses its independence and
becomes part of the principal thing. The owner of the principal thing is the owner of
the composite thing.

3.2 Introduction
It is often stated that the owner of the principal thing automatically becomes the owner
of the accessory attached thing, without necessarily even being aware of the joining of
the accessory thing to the principal thing. It is, however, incorrect to explain accession in
this manner. In reality the movable accessory thing loses its independence and becomes
part of the principal thing. The owner of the accessory thing therefore loses his/her
ownership. In this union the accessory thing stands in a subordinate relationship to the
principal thing, in that it loses its independence, while the principal thing retains its
independence.

68
It is often difficult to determine which of the prior independent things is the principal and
which is the accessory thing. There is no general principle according to which a
distinction can be made. In some cases one considers which object has the greater
weight, in others which has the higher value. Traditionally, a decorative thing was seen as
being the accessory thing, but if this test is inconclusive one should consider the weight,
size and use of the thing to determine which is the principal thing. Bear in mind that land
is always the principal thing.

Strictly speaking, accession is not a mode of acquisition of ownership, but a process

whereby the accessory item ceases to exist as an independent thing and the principal
thing is increased or expanded by the attachment. Accession is nevertheless treated as
an original mode of acquisition of ownership, since the acquisition of ownership occurs,
regardless of the co-operation of the former owner.

Accession takes a variety of forms, which were traditionally classified as natural, industrial
(through human activity) or mixed. However, we prefer to classify the various forms in
terms of the movable-immovable distinction.

3.3 Accession of immovables to immovables

(PARAGRAPH 3.3 DOES NOT HAVE TO BE STUDIED FOR
EXAMINATION PURPOSES)

In discussing the various forms under this section, the following important issue must be
borne in mind: A distinction is drawn between situations where the boundary of the land
is a natural boundary which is formed by a water line of a river or the sea (ager non
limitatus) and those where the land has an artificially fixed boundary (ager limitatus), even
though it is next to water.

3.3.1 Invisible accretion (alluvio)

3.3.1.1 Definition
Invisible accretion (alluvio) can be defined as the gradual and imperceptible addition of
land to land through the natural action of water where the natural boundary of the
property is a river or the sea.

3.3.1.2 Elements

(i) Gradual and imperceptible addition

This element is emphasised to distinguish this mode of acquisition from visible accretion
(avulsio).

(ii) Through the natural action of water

Invisible accretion (alluvio) usually takes place where silt is washed down gradually as a
result of the flow of water.

69
 (iii) Property bounded by a river or the sea
Invisible accretion (alluvio) can only take place where the natural boundary of the
property is a river or the sea. Invisible accretion (alluvio) to land bordering a river is more
common than alluvio to land adjoining the sea. Therefore invisible accretion (alluvio) is
only possible in the case of an ager non limitatus.

3.3.2 Visible accretion (avulsio)

3.3.2.1 Definition
Visible accretion (avulsio) can be defined as an original method of acquiring ownership
which takes place when the extent of land is increased by the sudden addition of land
which has by violent natural causes been dislodged elsewhere.

3.3.2.2 Elements

(i) Sudden addition of land

This refers to a sudden substantial increase in the land. If it takes place gradually, we are
dealing with alluvio.

(ii) Violent natural causes

A feature which is central to this mode of acquisition of ownership is the violent, yet
natural, dislodgement of land through heavy floods or landslides.

(iii) Dislodged elsewhere

This element indicates that land is dislodged from one owner’s land to become attached
to another’s land. This could be caused by floods or landslides.

The test to determine whether the accessory piece of land has become so annexed that
avulsio is said to be complete is whether plants have taken root. The other rules
governing alluvio are also applicable here.

3.3.3 Island arising in riverbed (insula nata in flumine)

3.3.3.1 Definition
Insula nata in flumine can be defined as an original method of acquiring ownership where
an island is formed in a river by the natural action of water in such a way that the island is
divided proportionately and acquired by the riparian owners.

3.3.3.2 Elements

(i) An island which is formed

This occurrence is similar to that of alluvio, and similar principles are applicable.

70
(ii) Acquisition by riparian owners
When an island arises in a river and the farms situated alongside the public river are agri
non limitati, so that the public river forms the natural boundary of the farms, then the
island is divided proportionately among the riparian owners of the farms. This is so
because the boundary of the farm in the case of ager non limitatus is presumed to extend
to the middle of the public river (Van Niekerk and Union Government (Minister of Lands) v
Carter 1917 AD 359 373–374).

Where, on the other hand, there are agri limitati situated along a public river, that is
farms which have artificial boundaries, the island which arises in the public river can be
regarded as a res nullius and it becomes the property of the first occupier. Some authors
argue that such an island belongs to the state.

(iii) Proportionate division

In principle the boundary of the land of a riparian owner (in the case of an ager non
limitatus) stretches to the middle of a river (Van Niekerk and Union Government (Minister
of Lands) v Carter 1917 AD 359 373–374). Rights in a newly formed island are acquired
by riparian owners on the basis of the proximity of the island to the land on either side of
the river. Where the island has been formed in the middle of the river, it is divided by the
line running down the middle of the river so that the owners on both sides will each be
entitled to half. If the island is closer to one bank, it will be divided in proportion to the
distance from the middle of the river.

3.3.4 Dry riverbed (alveus derelictus)

In Roman and Roman-Dutch law the concept of accessio was applied to a dry riverbed
which had changed its course.

3.4 Accession of movables to immovables

In the case of accession of movables to land you must bear in mind that land is always
the principal thing. Therefore, the movable thing accedes to the land.

3.4.1 Sowing and planting (satio et plantatio)

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example1
S plants potatoes on land that he leases from Z. Before he can reap the crop, the term of
his lease expires and Z does not renew the lease. The lease contract does not refer to
ownership of the crop.

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 2
S starts a nursery on land that he leases from Z. The plants he puts in include a crop of
flowering bulbs. Before he can reap the flowering bulbs, his term of lease expires and Z
does not renew the lease. The lease contract does not refer to ownership of the crop.

[Based on the facts in Gore NO v Parvatas 1992 (3) SA 363 (C).]

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 3.4.1.1 Definition
Sowing and planting can be defined as an original method of acquiring ownership in
terms of which growing things accede to land and become the property of the owner
of the land. Accession takes place as soon as the plants take root in the soil.

3.4.1.2 Elements

(i) Growing things accede to the land

In Roman and Roman-Dutch law the principle was that everything planted on land
became part of the land (omne quod implantatur solo cedit). The basis of this principle is
that plants, in taking root, derive water and essential nourishment from the soil (Secretary
of Lands v Jerome 1922 AD 103 105).

(ii) Become the property of the owner of the land

Where S’s plant is planted on X and Y’s land, it becomes X and Y’s property as soon as
it takes root. If the plant is removed from the land at a later stage, it remains X and Y’s
property. The reason that is advanced for the acquisition of ownership of the plants by
the landowner is the fact that the plants obtained their nourishment from the soil. It is
possible, however, that in certain circumstances, for example, on the grounds of unjust
enrichment, S may claim compensation from X and Y.

Where there is a specific legal relationship (such as a lease contract) between the parties,
these principles need not apply. In such a case the parties may determine the legal
position by agreement. Furthermore, special rules apply to plants which a lessee has
planted during the currency of a lease. Plants which have been planted with the intention
of removing them later or plants which are destined to be removed do not become
subject to the landowner’s ownership (Gore NO v Parvatas 1992 (2) SA 363 (C) which
deals with the planting of flowering bulbs).

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

Before you continue, attempt to answer the following questions:

1 S plants potatoes on land he leases from Z. Before he can reap the crop, the
term of his lease expires and Z does not renew the lease. The lease
agreement does not refer to the ownership of the crop. Discuss the legal
position of the parties involved. (8)
Answer
We are dealing with sowing and planting. (1) Sowing and planting can be
defined as an original method (1) of acquiring ownership in terms of which
growing things accede to land and become the property of the owner of the
land. (1) Plants become part of the land as soon as they take root. (1) The
basis of this principle is that plants, in taking root, derive essential water and
nourishment (1) from the soil. Where there is a specific legal relationship
(such as a lease contract) (1) between the parties, these principles need not

72
 apply. Furthermore, special rules apply to plants which a lessee has planted
during the currency of a lease provided that the position was not regulated by
an agreement. (1)
Plants which have been planted with the intention of removing them later or
plants which are destined to be removed (such as potatoes) do not become
subject to the landowner’s ownership. (1) A case in point here is Gore NO v
Parvatas, which concerns the planting of bulbs. (1)

2 S starts a nursery on land he leases from his parents, X and Y. Along with
other plants, he plants flowering bulbs for a crop. Before he can reap the
bulbs, his term of lease expires and his parents do not renew the lease. They
refuse to allow him to reap the bulbs, arguing that as owners they are
entitled to the crop. Advise S with reference to case law.
(8)
Remark
See the answer above and note that plants which have been planted with the
intention of removing them later or plants which are destined to be removed
do not become subject to the landowner’s ownership (Gore NO v Parvatas
1992 (2) SA 363 (C) which concerns the planting of flowering bulbs).

3.4.2 Building (inaedificatio)

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example1
S builds a house made of corrugated iron for his herdsmen. He screws the corrugated iron
to a concrete foundation on the farm of his parents, X and Y. After the lease has expired, S
wants to remove the house. X warns him that he cannot do that because this would
amount to theft. X and Y argue that they have become the owners of the corrugated iron
house by accession.
_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 2
S, who purchased Waterford in terms of an instalment sale agreement, decides to build a
dairy and stables on this farm which still belongs to X and Y. S buys all the equipment to
build the dairy from the cooperative, C. The cooperative reserves ownership of the
equipment until the final instalment has been paid. A team of experts working for C installs
the dairy under the supervision of S. They build the stable from bricks, on a concrete floor.
They also install all the pipes and tanks for the proper functioning of the dairy. Two years
after S has started the dairy and before the cooperative has been paid in full, S becomes
insolvent and the trustee of his insolvent estate argues that all the structures and equipment
are movable assets which form part of the insolvent estate. X and Y claim that as co-
owners of the land they became owners of the structures by means of accession, and the
cooperative claims that it remained the owner.

[Based on the facts in MacDonald Ltd v Radin NO and the Potchefstroom Dairies and
Industries Co Ltd 1915 AD 454.]

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 _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 3
S leases a portion of X and Y’s farm for 30 years with an option to renew the lease for a
further 30 years. He builds houses on the farm for his farm manager and workers. When S
leased the farm a dairy had already been erected on it. Next to the dairy he erected a
house, a windmill and a stand. From the windmill a pipe ran to the tank which stood upon
a masonry structure from which pipes led to the house and the tank. S also erected a
cowshed and fences. This was done to facilitate the smooth running of the dairy business.
The dairy business ran successfully for 10 years but then S was declared insolvent and a
trustee was appointed.

[Based on the facts in Van Wezel v Van Wezel’s Trustee 1924 AD 409.]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 4
Standard-Vacuum Refining Company operated an oil refinery on its land situated within the
municipal area of the Durban City Council. The latter, when assessing the appellant’s land
for rating purposes, took into account the value of certain steel tanks which were part of
the refinery. These tanks were used for storing unfinished and finished products. The
valuators regarded the steel tanks as buildings on the land and therefore part of the
immovable property. Standard-Vacuum Refining Company objected to the valuation and
argued that the tanks were not buildings and therefore not part of the land. They regarded
the tanks as movable things.

[The facts in Standard-Vacuum Refining Co of SA (Pty) Ltd v Durban City Council 1961 (2) SA
669 (A).]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 5
The original lessors owned certain immovable property situated at the corner of Smith
Street and Albany Grove in Durban. A building (comprising a theatre, restaurant and other
accommodation) and known as The Playhouse stands on this property. By notarial
agreement of lease entered into on 6 December 1926 this property was leased to African
Theatres Ltd. The original lessors formed the company Butcher Brothers (Pty) Ltd and
transferred the immovable property to the company in 1930. By a notarial agreement
entered into on 11 May 1931 Butcher Brothers (Pty) Ltd and African Theatres Ltd
amended the terms of the original lease in certain respects. The following terms of this
lease are relevant:

1 The lease was for a period of 50 years from 1 January 1927 to 31 December 1976.
2 The lessee had the right to renew the lease for a further 49 years from 1 January
1977 to 31 December 2025.
3 The lessee undertook to proceed with the erection of the theatre and other
buildings on the said immovable property to a value of not less than £55 000.
4 On termination of the lease or any renewal from any cause whatever all buildings
and improvements on the immovable property were to ‘‘revert to and ipso facto
become the absolute property of the lessors without their having to pay or being

74
 liable to the lessees for any compensation in respect of the said buildings or
improvements’’.

The original lessee duly erected the theatre and other buildings upon the immovable
property and such buildings were named ‘‘The Playhouse’’. The buildings were solidly
constructed and were elaborately finished and ornamented in a manner designed to give
the appearance of an early English theatre.

The building was large, comprising a theatre with seating on two levels (1762 seats), a
foyer, gallery, restaurant and other accommodation. The building was properly equipped
for use as a theatre or cinema and restaurant complex and was commissioned for these
purposes. The building has been used for the said purposes ever since. Among the
equipment installed in the building when it was erected were theatre seats, fitted carpets,
lighting and cinema projection equipment, and air-conditioning equipment with the
necessary ancillary fittings and ducting. The lease was terminated and the lessee claimed
that the theatre seats, fitted carpets, lighting and cinema projection equipment, as well as
air-conditioning equipment with the necessary ancillary fittings and ducting, remained
movable and that as their owner it was entitled to remove them from the theatre.

[The facts in Theatre Investments (Pty) Ltd v Butcher Brothers Ltd 1978 (3) SA 682 (A).]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 6
Wm Spilhaus sold a number of loose components of an irrigation system to Pumps for
Africa with the explicit reservation of ownership, until the purchase price was fully paid.
Before the purchase price was paid, Pumps for Africa installed the irrigation system on a
farm belonging to Konstanz Properties. Konstanz Properties paid Pumps for Africa, but the
latter failed to pay Wm Spilhaus. Wm Spilhaus claimed the pumps and the connections in
the pump house. It argued that it retained ownership and that the pumps and connections
were movable things.

[The facts in Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (Wp) Bpk 1996 (3) SA 273
(A).]

3.4.2.1 Definition
Building can be defined as an original method of acquiring ownership in terms of which
a movable thing (accessory thing) becomes attached to land (principal thing) in such a
manner that it loses its independence and forms an entity with the land, thereby
becoming part of the landowner’s land.

3.4.2.2 Introduction
The relevance and importance of this method of acquisition of ownership is evidenced
by the considerable number of appeal court decisions (see the case law quoted above,
for example MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd
1915 AD 454; Newcastle Collieries Co Ltd v Borough of Newcastle 1916 AD 561; Van
Wezel v Van Wezel’s Trustee 1924 AD 409; Pettersen v Sorvaag 1955 (3) SA 624 (A);

75
 Standard-Vacuum Refining Co v Durban City Council 1961 (2) SA 669 (A); Trust Bank van
Afrika v Western Bank 1978 (4) SA 281(A); Theatre Investments (Pty) Ltd v Butcher
Brothers Ltd 1978 (3) SA 682 (A); Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie
(Wp) Bpk 1996 (3) SA 273 (A) and Concor Holdings (Pty) Ltd t/a Concor Technicrete v
Potgieter 2004 (6) SA 491 (SCA)) on the matter, as well as by academic discussion of the
problems involved.

3.4.2.3 Elements
(i) Movables become attached to immovables
The first appeal court decision on the question whether a movable has become
permanently attached to an immovable was MacDonald Ltd v Radin and the
Potchefstroom Dairies and Industries Co Ltd (1915 AD 454) where Innes CJ stated:
The question whether an article, originally movable, has become immovable through
annexation by human agency to realty is often one of some nicety. As was pointed out in
Olivier v Haarhof (T.S., 1906, p. 497) each case must depend on its own facts; but the
elements to be considered are the nature of the particular article, the degree and manner
of its annexation and the intention of the person annexing it.

The court has laid down three tests here. These have been applied in a number of
cases. However, these tests have not always been applied in the same way and it is
important to identify the differences which have become apparent.

Criteria The three criteria applied by the courts to determine whether a movable thing is
attached to an immovable thing by means of accession in such a fashion that it
subsequently becomes part of the immovable thing will now be discussed briefly under
the following headings:

(a) Nature and purpose of the attached thing

(b) Manner and degree of attachment
(c) Intention of the person annexing it or the intention of the owner of the movable

(a) Nature and purpose of attached thing

The nature of the thing must be such that it can indeed be attached permanently to the
immovable thing. The purpose of the attached thing must be to benefit the immovable
thing indefinitely. Good examples of this are bricks, concrete and windows which, owing
to their nature and purpose, are suited to form a permanent combination with the land
or a building.

(b) Manner and degree of attachment

The manner and degree of the attachment relate to the mode in which the movable
thing is attached to the immovable thing. As long as a sufficient linking exists, it does not
matter whether this has been brought about by the weight of the thing (Standard-
Vacuum Refining Co v Durban City Council 1961 (2) SA 669 (A) 678, where an
investigation of the weight of the tanks would have been sufficient) or by a physical
attachment. The attachment may be actually incorporated into the immovable thing or it
may be so secure that separation will cause substantial injury to either the immovable or
the movable thing. The key words here are ‘‘substantial injury’’.

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Usually, two tests are applied to determine whether the manner and degree of
attachment are such as to constitute a sufficient linking with the immovable thing:
1 The manner in which the thing may be detached. If the attached thing can be
removed without substantial damage to the attached thing or to the immovable
thing, the attached thing does not constitute part of the immovable thing
(MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd 1915
AD 454). This is a question of fact, and only ordinary methods and techniques (and
not ‘‘miracles of engineering’’) are taken into consideration.
2 The state of the attached thing after attachment. If the attached thing does not exist
independently and is incorporated into the immovable thing, losing its own identity,
the degree and manner of attachment are regarded as sufficient.

In most instances, these two tests are combined.

(c) Intention of the person annexing it (annexor) or the intention of the owner of the
movable
The content and importance of this criterion have changed since the early decisions. A
number of extracts from cases will indicate the trend followed in determining the
relevance and application of the intention element as the criterion. Obviously the
intention is determined as it was at the time of the attachment.

In the leading case of MacDonald Ltd v Radin NO and the Potchefstroom Dairies and
Industries Co Ltd (1915 AD 454 466-467) the third criterion was described as the
intention of the ‘‘person annexing it’’ and also as ‘‘the intention with which it was
annexed’’. The judge, however, then added that one can only look at the intention of
the owner of the movable. In this particular case the owner of the movables was also
the annexor, but he acted under the supervision of the non-owner, who had bought the
movable things on credit and was the holder of the land in terms of an instalment sale.
The court held that:
The importance of the first two factors is self-evident from the very nature of the inquiry.
But the importance of intention is for practical purposes greater still; for in many instances it
is the determining element.

The next decision to come up with guidelines on the issue was Standard-Vacuum Refining
Co v Durban City Council (1961 (2) SA 669 (A) 678). In this case the annexor was the
owner of the land and of the attached movables. Van Winsen AJA distinguished between
an objective intention and a subjective intention in the following statement:
Indeed as I understand the above quoted authorities it would appear that in each case the
object of the enquiry is to ascertain whether the movable has been attached to the land or
other immovable with the intention that it should remain permanently attached thereto. In
order to ascertain whether such is the intention regard must be had to the following
physical features viz. the nature of the movable, the method and degree of its attachment
to the land or other immovable and whether it can be readily removed without injury to
itself or to the land or immovable to which it is attached. If the nature of the movable is
such that it is readily capable of acceding to the land or other immovable and is so securely
attached thereto that separation must of necessity involve substantial injury, either to the
movable or to the land or immovable to which it is attached, then it must be inferred that
the movable was attached with the intention of permanency and for that reason it must be
held to have become and be immovable. If, however, an examination of the physical
features produces an equivocal result in the sense that from an examination of such

77
 features, no inference can be drawn that the attachment was made with an intention of
permanency or otherwise, the intention of the annexor may be decisive.

A different approach was followed in Theatre Investments (Pty) Ltd v Butcher Brothers Ltd
(1978 (3) SA 682 (A)). In the Theatre Investments case the annexor was the owner of the
attached movables, but their lease made provision for acquisition of ownership of all
attachments by the lessor (owner of the land) on termination of the lease.

In the Theatre Investments case Van Winsen AJA remarked (at 688) that all the direct and
inferential evidence as to the intention would have to be considered together and that in
the light of that evidence it would have to be decided on a balance of probabilities
whether the annexor intended a permanent attachment.

In Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (Wp) Bpk (1996 (3) SA 273 (A)) the
court applied the three requirements as set out in the MacDonald case. Nienaber JA
held that the third requirement was decisive. Although he expressed unease about the
correctness of the approach, he applied the intention requirement as referring to the
intention of the owner of the movable things that were attached to the land. He held
that in the specific circumstances of the case the subjective intention of the owner of the
movables attached thereto was decisive. The ownership of the attached components
therefore did not pass to the landowner by accession. The court stated that there is a
possibility that in other circumstances the subjective intention of the owner may not
prevail.

Each of these cases reflects a different view on the intention criterion. Try to determine
the content and importance of the intention element. On this latter point the question
may well be asked whether it is at all meaningful to consider the intention of the owner
of the attached thing. Is the question whether a movable thing has become attached to
an immovable thing not principally a factual question which has to be answered with
reference to the physical features only? (This would be an objective approach.)
Furthermore, one should never lose sight of the fact that we are dealing here with an
original method of acquiring ownership where the intention of the owner of the
movable thing should play no role at all.

(ii) Becoming property of owner of land

The landowner becomes the owner of the increased principal thing, since the principle
is that the accessory thing (as the lesser thing) is drawn to the principal thing. What is the
position of the owner of the attached accessory thing? Here, the following cases can be
distinguished:

(1) Lessee
Before the termination of the lease the lessee has the right (ius tollendi) to remove
improvements (other than necessary improvements) which can be dismantled without
damage to the property (Van Wezel v Van Wezel’s Trustee 1924 AD 409).

(2) Bona fide attacher

In Roman and Roman-Dutch law the owner’s ownership of the attached materials
revived once the building had been demolished and he/she could then claim the
materials back from the owner of the land by means of the rei vindicatio. This is clearly

78
insufficient protection, and therefore the owner of the materials should be treated as a
bona fide possessor or holder (whose legal position will be discussed fully below in SU 9
para 2.7 on the protection of possession and holdership).

(3) Mala fide attacher

The mala fide attacher loses his/her ownership of the materials and cannot claim them
from the owner after demolition, the reason being that he/she is deemed to have
voluntarily parted with them. He/she can, however, possibly claim on the ground of
unjust enrichment, as if he/she were in the position of a mala fide possessor.

(4) Estoppel
In Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (Wp) Bpk (1996 (3) SA 273 (A)), the
court held that the owner of the movables may be estopped from relying on his/her
ownership despite the fact that the movables remained movable in terms of the above
criteria. (For a discussion of the operation of estoppel, see SU 6 para 2.1.3.3 on the
protection of ownership.) For an application of estoppel in circumstances where the
accessory things remained movable, see Concor Holdings (Pty) Ltd t/a Concor Technicrete
v Potgieter (2004 (6) SA 491 (SCA)).

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

Before you continue, attempt to answer the following questions:

1 Name the criteria which are applied to determine whether a movable (3)
thing has become part of an immovable thing, through building.
2 S builds a house made of corrugated iron for the herdsmen. He screws the (10)
corrugated iron to a concrete foundation on the farm of his parents, X and Y.
Upon expiry of the contract of lease, S wants to remove the house. X warns
him that he cannot do that because this would amount to theft. X and Y
argue that they have become owners of the corrugated iron house by
accession. Will they succeed with this argument in court? Substantiate your
answer with reference to case law.
3 S, the purchaser of Waterford in terms of an instalment sale agreement,
decides to build a dairy and stables on this farm which still belongs to X and
Y. S buys all the equipment to build the dairy from the cooperative, C. The
cooperative reserves ownership of the equipment until the final instalment
has been paid. A team of experts who work for C install the dairy under the
supervision of S. They build the stable with bricks on a concrete floor. They
also install all the pipes and tanks for the proper functioning of the dairy. Two
years after S has started the dairy and before the cooperative has been paid
in full, S becomes insolvent and the trustee of his insolvent estate argues that
all the structures and equipment are movable assets which form part of the
insolvent estate. X and Y claim that they became co-owners by means of
accession, and the cooperative claims that it is the owner of the attachments.
Advise (with reference to case law):
(a) X and Y (10)
(b) C, the cooperative (4)
(c) the trustee of the insolvent estate (3)

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 Answer
(a) X and Y can only claim ownership of the equipment if they became
owners by means of accession in the form of building. (1) The leading
case here is MacDonald Ltd v Radin NO and the Potchefstroom Dairies.
(1) The three standards applied by the courts to determine whether a
movable thing is attached to an immovable thing by means of accession
in such a fashion that it subsequently becomes part of the immovable
thing, with the result that the right of ownership thereof subsequently
vests in the owner of the immovable thing, (1) will now briefly be
discussed with reference to the following criteria:
(i) nature and purpose (½) of the attached thing (½)
(ii) manner and degree (½) of attachment (½)
(iii) intention of the person annexing it (or the intention with which
the attachment was effected or the intention of the owner of the
movable) (1)

If the first two criteria are not decisive, the third one is the determining
factor. (1) In the MacDonald case the third criterion was described as
the intention of the ‘‘person annexing it’’ and also as ‘‘the intention
with which it was annexed’’. The judge, however, subsequently stated
that one can only look at the intention of the owner of the movable.
(1) In this particular case (and in the question) the owner of the
movables was also the annexor, although he acted under the
supervision of the non-owner C, who bought the movables on credit
and who was also holder of the land in terms of an instalment sale. (1)
Therefore, X and Y cannot claim ownership of the equipment since it
was C’s intention to retain ownership until the last instalment had
been paid and it was with this intention in mind that he attached the
equipment. (1)
(b) Since the attachments remained movable, the cooperative remained
the owner thereof. (1) If there had been no insolvency entitling the
trustee to ownership, the cooperative could have claimed the
movables. (1) Owing to the insolvency of S, the cooperative’s
ownership changed to a tacit hypothec against the insolvent estate. (1)
Furthermore, in Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie
(Wp) Bpk the court upheld the defence of estoppel against the owner
of the movables. (1)
(c) Since the attachments remained movable, the cooperative remained
the owner. (1) However, since S was insolvent, (1) the Insolvency Act
automatically converted the cooperative’s ownership into a tacit
hypothec. (1)
Remark
For a discussion of the operation of the tacit hypothec of the credit grantor
(cooperative), see SU 11 para 2.2 under Tacit Mortgages (Hypothecs).

80
4 Standard-Vacuum Refining Company operated an oil refinery on land
belonging to it and situated within the municipal area of the Durban City
Council. The latter, when assessing the appellant’s land for rating purposes,
took into account the value of certain steel tanks which were part of the
refinery. These tanks were used for storing unfinished and finished products.
The valuators regarded the steel tanks as buildings on the land and therefore
part of the immovable property. Standard-Vacuum Refining Company
objected to the valuation and argued that the tanks were not buildings and
therefore not part of the land. They regarded the tanks as movable things.
Will Standard-Vacuum Company succeed in their objection to the valuation?
Substantiate your answer with reference to the relevant case. (12)

Answer
The relevant case here is Standard-Vacuum Refining Co of SA (Pty) Ltd v
Durban City Council. (1)

Legal question
Whether the tanks on Standard-Vacuum’s land were attached to the land in
such a way as to render them immovable. (1)
Ratio decidendi
The judge stated the following:
Indeed as I understand the above quoted authorities it would appear
that in each case the object of the enquiry is to ascertain whether the
movable has been attached to the land or other immovable with the
intention that it should remain permanently attached thereto. In order to
ascertain whether such is the intention regard must be had to the
following physical features viz. the nature of the movable, (1) the
method and degree of its attachment to the land or other immovable (1)
and whether it can be readily removed without injury to itself or to the
land or immovable to which it is attached. (1) If the nature of the
movable is such that it is readily capable of acceding to the land or other
immovable and is so securely attached thereto that separation must of
necessity involve substantial injury, (1) either to the movable or to the
land or immovable to which it is attached, then it must be inferred that
the movable was attached with the intention of permanency (1) and
for that reason it must be held to have become and be immovable. If,
however, an examination of the physical features produces an equivocal
result in the sense that from an examination of such features, no
inference can be drawn that the attachment was made with an intention
of permanency or otherwise, the intention of the annexor may be
decisive. (1)

The intention of the annexor has to be judged at the time of the attachment
(1). To prove an intention to attach permanently it is not necessary to show
that the person attaching intended the attachment to continue for all time. (1)
Application of finding to relevant facts
By examining their physical features, (1) the court found that the tanks never
enjoyed an independent existence apart from the land. There was nothing in
the nature of the tanks that rendered them incapable of acceding to the land,

81
 which they did by their sheer weight and method of construction. (1)
Further, the tanks could not be detached without damage to themselves and
the land. Even in the absence of evidence as to the actual intention of the
annexor, the above features would be sufficient to justify an inference that the
intention was to attach the tanks permanently. This inference, drawn from
the physical features, was confirmed by the subjective intention of the
company as expressed by its representative. (1)
5 The original lessors owned certain immovable property situated at the
corner of Smith Street and Albany Grove in Durban. A building (comprising a
theatre, restaurant and other accommodation) which is known as ‘‘The
Playhouse’’ stands on this property. In terms of a notarial lease agreement
entered into on 6 December 1926, this property was leased to African
Theatres Ltd. The original lessors formed the company Butcher Brothers
(Pty) Ltd and transferred the immovable property to it in 1930. By a notarial
agreement entered into on 11 May 1931 Butcher Brothers (Pty) Ltd and
African Theatres Ltd amended the terms of the original lease in certain
respects. The following terms of this lease are relevant:
1 The term of the lease was a period of 50 years from 1 January 1927 to
31 December 1976.
2 The lessee had the right to renew the lease for a further 49 years from 1
January 1977 to 31 December 2025.
3 The lessee undertook to proceed with the erection of the theatre and
other buildings on the said immovable property to a value of not less
than £55 000.
4 On termination of the lease or any renewal from any cause whatever all
buildings and improvements on the immovable property were to ‘‘revert
to and ipso facto become the absolute property of the lessors without
their having to pay or being liable to the lessees for any compensation in
respect of the said buildings or improvements’’.
The original lessee duly erected the theatre and other buildings upon the
immovable property and such buildings were named ‘‘The Playhouse’’. The
buildings were solidly constructed and were elaborately finished and
ornamented in a manner designed to give the appearance of an early
English theatre.
The buildings were large, comprising a theatre with 1762 seats on two
levels, a foyer, gallery, restaurant and other accommodation. The theatre
building was equipped with all that was necessary for its use as a theatre or
cinema and restaurant complex and was commissioned for these purposes.
The building has been used for the said purposes ever since. Among the
equipment installed in the building when it was erected were theatre seats,
fitted carpets, lighting and cinema projection equipment, and air-
conditioning equipment with the necessary ancillary fittings and ducting.
The lease was terminated and the lessee claimed that the theatre seats,
fitted carpets, lighting and cinema projection equipment, as well as the air-
conditioning equipment with the necessary ancillary fittings and ducting,
remained movable and that as the owner it was entitled to remove them
from the theatre. Will Theatre Investments succeed in claiming the above
equipment from Butcher Brothers (the landlord)? Fully discuss with
reference to the relevant case. (12)

82
 This question is based on the facts in Theatre Investments (Pty) Ltd v Butcher
Brothers. (1)
Legal question
To determine whether Butcher Brothers acquired ownership of the
equipment through attachment to the land. (1)
Ratio decidendi
The court stated that a generally accepted test to be applied to determine
whether a movable, which is capable of acceding to an immovable and which
has been annexed thereto, becomes part of that immovable is to enquire
whether the annexor of such a movable did so with the intention that it should
remain permanently annexed thereto. (1) Evidence as to the annexor’s
intention can be sought from numerous sources, including the annexor’s own
evidence as to his intention, (1) the nature of the movable and of the
immovable, (1) the manner of annexation (1) and the cause for and
circumstances giving rise to such annexation. (1) The ipse dixit of the annexor
as to his intention is not to be treated as conclusive evidence (1) thereof but,
should such evidence have been given, it must be weighed (1) together with
the inferences that can be derived from the other sources of evidence
mentioned above in order to determine what, in the view of the court, was in
fact the annexor’s intention. In cases where no evidence is forthcoming from
the annexor, a court will be constrained to determine the issue upon such
inferences as may legitimately be drawn from the sources (1) mentioned
above.

Application of finding to relevant facts

In applying the above criteria the court came to the conclusion that, having
regard to the intended duration of the original contract, (1) as well as to the
period of its possible extension, to the fact that the building was erected for
the purpose of conducting a theatre in it and that the seats, the emergency
lighting and dimmer-board constitute equipment essential (1) to the
effectuation of such a purpose, then it is difficult to avoid the conclusion that
such items of equipment when they were attached to the building were
intended to remain there indefinitely. (1)
6 Wm Spilhaus sold a number of loose components of an irrigation system to
Pumps for Africa with the explicit reservation of ownership until the purchase
price had been paid in full. Before the purchase price was paid, Pumps for
Africa installed the irrigation system on the farm of Konstanz Properties. The
latter paid Pumps for Africa, but in turn it failed to pay Wm Spilhaus. Wm
Spilhaus claimed the pumps and the connections in the pump house. They
rely on their ownership of the pumps and connections. Discuss the court’s
application of the intention requirement. (5)

83
 3.5 Accession of movables to movables

3.5.1 Definition
Accession of movables to movables can be defined as an original method of acquiring
ownership in terms of which an accessory movable becomes attached to a principal
movable in such a way that a single entity is formed and the ownership of the principal
thing extends over the accessory thing which has lost its independence.

3.5.2 Elements

(i) Accessory movable combines with principal movable

The essential criteria for accession in this case are the following:

(a) The accessory thing and the principal thing should be clearly distinguishable.
(b) The combination should be difficult to separate.
(c) It should not amount to manufacture (specification – para 5 below).

(ii) Formation of single entity

The question of the extent to which the annexure must be final or irreversible is
relevant. The examples traditionally given are those of soldering, where dislodgement is
possible with no accession taking place and welding, where the annexure is irreversible,
and accession takes place.

In cases where it is difficult to determine which is the principal thing and which is the
accessory thing, the tests mentioned under paragraph 3.2 above are also relevant.

3.5.3 Examples

3.5.3.1 Painting
Where X paints on Y’s canvas, X becomes the owner of the painting, provided the
painting is worth more than the canvas.

3.5.3.2 Weaving
Where very valuable thread (eg gold) belonging to X is woven into a cloth belonging to
Y, Y becomes the owner of the thread, but under certain circumstances X can claim
compensation.

3.5.3.3 Writing
Where X writes on Y’s parchment with gold ink, the Romans held that Y was the owner
of the document. In Roman-Dutch law, when paper had become more readily available,
it was held that the author becomes the owner of the paper with the writing on it
(document).

84
Bear in mind that, although the person loses ownership of the paper, he/she is not
without a remedy. He/she can institute a claim for his/her losses from the new owner.
This claim is based on unjustified enrichment (see the module on unjust enrichment and
estoppel).

4 MIXING OF SOLIDS (COMMIXTIO) AND MINGLING OF

FLUIDS (CONFUSIO)
4.1 Definition
Mixing and mingling can be defined as an original method of acquiring ownership in
terms of which movable things belonging to different persons are mixed together
without the consent of the owners and in such a way that the movables cannot be
separated. The mixture becomes the joint property of the former owners in proportion
to the value of the things included in the mixture. The mixing together of solid materials
(for example, grain or feathers) is known as commixtio; the mixing together of liquid
materials (for example, oil or wine) is known as confusio.

4.2 Elements

(i) Things are mixed together

Mixing or mingling takes place only where separation of the mixture is impossible or
where it can only be separated with great difficulty. Where separation is possible each
owner retains his/her ownership and can rely on the rei vindicatio to reclaim that portion
of the mixture which, in the discretion of the court, is in proportion to the value of that
owner’s contribution (Andrews v Rosenbaum & Co 1908 EDC 419). Where things are
mixed, but each thing retains its character (for example, where sheep or cattle are
herded together) mixing does not take place and each owner can claim his/her sheep or
cattle with the rei vindicatio.

Mixing should be clearly distinguished from both accession and manufacturing

(specificatio). In accession an accessory thing is attached to a principal thing and in
manufacturing a completely new thing is formed through human intervention.

(ii) Belonging to different owners

This element is self-explanatory. Where the movables that are mixed belong to one
owner, acquisition of ownership is not in issue.

(iii) Without the consent of owners

Mixing must take place without the consent of the respective owners. If the owners have
agreed that their movable things may be mixed together, they become joint owners of
the mixture in proportion to their contributions or as determined by their agreement. In
this case mixing does not take place, but the agreement between the parties creates the
co-ownership relationship.

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Activity
After you have studied this section, answer the following question:

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

5 MANUFACTURE SPECIFICATION (SPECIFICATIO)

5.1 Definition
Manufacture/specification can be defined as an original method of acquiring ownership
in terms of which ownership is acquired by the unauthorised production of a
completely new thing, using a thing belonging to another (eg, a person making wine
from another person’s grapes or oil from another person’s olives).

5.2 Elements
(i) Unauthorised production
The production of the new thing must not be authorised by the owner of the material.
Differences of opinion exist as to whether specification is possible either where the
producer was under the impression that the original thing or the materials he/she used
belonged to him/her, or where he/she knew that they belonged to another. The
acceptable view seems to be that this mode of acquisition of ownership can apply only if
the manufacturer was under the impression that the materials belonged to him/her, and
he/she produced the thing to benefit himself/herself.

If the manufacturer was bona fide under the impression that the materials which he/she
used belonged to him/her or if he/she knew that they belonged to someone else, the
owner of the material can institute an enrichment action for the value of the material or a
claim for damages in terms of the actio legis Aquiliae (see SU 6 para 3.3).

(ii) Completely new object

Here a completely new product is manufactured, for example wine from grapes, olive
oil from olives, clothes from wool, a ship from wood. By the conjunction of one
person’s material and the manufacturer’s labour a new thing is formed. Restoration to its
former constituent parts should not be possible. In certain examples it may appear prima
facie that the requirement of a new thing has been complied with, for example articles
manufactured from metals (eg a gold goblet). These can, however, be restored to their
original form, and ownership vests in the owner of the material.

(iii) Acquisition of ownership of thing belonging to another

Where a manufacturer (specificator) makes a new thing, the former owner loses his/her
ownership and the manufacturer becomes the owner of the new thing. He/ she is,
however, bound on the grounds of unjust enrichment to compensate the owner of the
material for its value.

Where, however, the new thing can be reduced to the form of the material from which
it was made, the owner of the material is the owner of the new thing. For example, if X

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makes a silver cup from Y’s silver, then Y is the owner of the cup. If, however, X was
bona fide when she made the cup, she is entitled to receive compensation for her
labour.

6 ACQUISITION OF FRUITS
6.1 Definition
Acquisition of fruits is an original method of acquiring ownership, which takes place when
a person who is entitled to separate or gather the fruits does so. Before separation, fruits
are accessories of the principal thing and therefore the property of the owner of the
principal thing. Upon separation, fruits become independent things which, as such, can
form the objects of ownership and become susceptible to acquisition of ownership.

6.2 Elements

(i) Fruits
Fruits are, firstly, the so-called natural fruits, that are the natural products of a thing, such
as milk, wool, or the increase of stock. Various states or stages in which natural fruits
exist are relevant in the determination of ownership of such things, and the following
distinction can be made:

(a) hanging fruits (fructus pendentes) – fruits in existence but still attached to the parent
thing
(b) separated fruits (fructus separati) – fruits which have been separated from the
principal thing by a natural process, for example windblown or fallen fruits
(c) gathered fruits (fructus percepti) – fruits which have been separated and gathered
or collected

Civil fruits, such as rent on immovables, interest on capital, profits from business or
other ventures, dividends on shares, are also included under fruits and the same
principles apply here.

(ii) Separation
Fruits are not independent things until they have been separated. They then form part of
the property of the owner of the fruit-bearing thing. By means of separation (separatio)
they become independent things, which as such form objects of ownership. The
separation may be manipulated by human intervention, as in the case of the picking of
fruit. It can also take place without human action, as in the case of the birth of farm
animals, or where fruit is blown from trees by the wind.

(iii) Acquisition of ownership

After separation, but before the fruits have been gathered, the owner of the principal
thing remains the owner of the fruits. There are, however, exceptions to this rule. The
following persons acquire ownership of the fruits, not at the time of separation, but once
they have been gathered:

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 (a) bona fide possessors (In the event of litigation, however, his/her right is suspended
from the time of litis contestatio.)
(b) lessees
(c) usufructuaries

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Activity

After you have studied this section, answer the following question

1 Distinguish between different types of fruits. (3)

7 TREASURE TROVE
(PARAGRAPH 7 DOES NOT HAVE TO BE STUDIED FOR
EXAMINATION PURPOSES)

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Example
While S is busy levelling the ground with his grader to plant crops on the land which he
leases from Z, S digs up an old chest containing gold coins and diamond jewellery.

7.1 Introduction
Although treasure-finding is sometimes regarded as a form of appropriation (occupatio),
this is wrong. The treasure is not necessarily a res nullius and, furthermore, the owner of
the land becomes the owner of half or the whole of the treasure through operation of
law. He/she is not required to take physical control.

7.2 Definition
Treasure trove can be defined as an original method of acquiring ownership in terms of
which hidden treasure, that is, valuable movable corporeal things hidden for so long that
it is impossible to determine ownership, is acquired either by the landowner or by him/
her and the accidental finder together. Treasure trove can be said to occur when the
finder takes control.

7.3 Elements

(i) Valuable, movable corporeal things

This may include any valuable things such as coins or jewels.

(ii) Hidden
The act of finding a thing worthy of the description ‘‘treasure’’ presupposes difficulty in
finding the thing.

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(iii) Ownership must be impossible to determine
If it is possible to determine who the owner of the treasure is, ownership of the treasure
cannot be established in terms of treasure trove.

(iv) Acquired accidentally

Every owner may search for treasure on his/her own land and if he/she finds any, that
person acquires ownership of it. But one may not search for treasure on another
person’s land without that person’s permission. If, however, S chances to find treasure
on Z’s land without having searched for it (see the example above), S, as the finder,
becomes the owner of half of the treasure while Z, as the owner of the land, becomes
the owner of the other half of the treasure. But if the finder has deliberately searched for
treasure on someone else’s land without obtaining his permission, the owner of the land
becomes the owner of the treasure. There is nothing to prevent an owner of land from
giving someone else permission to search for treasure on his land and, if any is found,
from keeping it all or an agreed portion of it.

8 EXPROPRIATION
8.1 Definition
Expropriation can be defined as an original method of acquiring ownership in terms of
which the State acquires ownership of a movable or immovable thing – without the
consent of the owner against payment of compensation. Section 25 of the
Constitution of the Republic of South Africa, 1996, empowers the state to expropriate
‘‘property’’ for public purposes and against payment of compensation (see discussion of
this section in SU 13 para 2.3).

9 ACQUISITIVE PRESCRIPTION
(FOR EXAMINATION PURPOSES YOU ONLY HAVE TO BE ABLE TO
DESCRIBE ACQUISITIVE PRESCRIPTION AS AN ORIGINAL METHOD OF
ACQUISITION OF OWNERSHIP AND BE ABLE TO DISTINGUISH BETWEEN
INTERRUPTION AND SUSPENSION.)

9.1 Definition
Acquisitive prescription can be defined as an original method of acquiring ownership in
terms of which a person who controls (possesses) a thing openly and as if he/she were
the owner for an uninterrupted period of thirty years becomes its owner. This is
termed acquisitive prescription, which is the means whereby real rights, in the form of
ownership and servitudes, may be acquired through the passage of time.

9.2 Introduction
Acquisitive prescription should be contrasted with extinctive prescription. Extinctive
prescription is a process whereby both real and personal rights become unenforceable,
again through lapse of time and provided that certain requirements are satisfied.

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 Acquisitive and extinctive prescription have this in common: a condition acknowledged
in law results from a condition that actually exists. In cases where a bearer of rights
neglects to exercise his/her rights and those rights are duly exercised by another, the law
should recognise the new condition, provided that some protection of the former
bearer of rights is guaranteed. [Extinctive prescription is discussed in the module on
contract law.]

At present the legal position regarding acquisitive prescription is regulated mainly by

legislation. However, some common-law sources do remain relevant and legislation is
not the sole source of the law. The applicable statutes are the following:

1 Prescription Act 18 of 1943

2 Prescription Act 68 of 1969

Up to 1970 prescription was regulated by the Prescription Act 18 of 1943. The

Prescription Act 68 of 1969 applies only to the period of prescription completed after
the commencement date of the Act on 1 December 1970. Therefore, prescription
completed before 1 December 1970 will be regulated by the 1943 Act, as will that part
of the prescription period occurring before 1 December 1970 which was not yet
completed by that date. The period remaining after 1 December 1970 will be governed
by the 1969 Act, as will any prescriptions commencing after 1 December 1970.

For this reason both Acts should be examined.

9.3 Requirements
Section 2(1) of the Prescription Act 18 of 1943 provides that:
Acquisitive prescription is the acquisition of ownership by the possession of another
person’s movable or immovable property ... continuously for thirty years, nec vi, nec clam,
nec precario.

Section 1 of the Prescription Act 68 of 1969 reads as follows:

[A] person shall by prescription become the owner of a thing which he has possessed
openly and as if he were the owner thereof for an uninterrupted period of thirty years or
for a period which together with any periods for which such thing was so possessed by his
predecessors in title, constitutes an uninterrupted period of thirty years.

9.4 Elements

(i) Possession
Possession involves two elements – the physical (corpus) and the mental (animus)
elements. Physical control, dependent upon the circumstances and the objective
assessment of whether the inference of occupation or control may be drawn, together
with the intention of an owner (animus domini), is required (see SU 8 para 1).

The test which is applied is whether a reasonable person would infer from the
circumstances that he/she held the property ‘‘as if he/she were the owner’’. Such an
inference can be supported by the exercise of certain ownership entitlements and the
typical conduct of an owner.

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(ii) Openly
This requirement in the 1969 Act corresponds with the requirements of not by force
(nec vi), not secretly (openly nec clam), not on sufferance (nec precario), as stated in the
1943 Prescription Act.

The nec vi qualification gives rise to problems. It is to be doubted whether a person who
can retain his/her possession only by means of force ever had sufficient control over the
thing. In addition, this requirement makes sense only where short prescription periods
are concerned, since the owner might, within the brief period of time, possibly be
unable to take action against a person withholding his/her thing from him/her by violent
means. Where there is a long prescription period (ie 30 years), it is unlikely that the
owner would not be able to enforce his/her rights regarding his/her thing by availing
himself/herself of legal remedies. This requirement was rightly omitted in the new Act.

In terms of the nec clam qualification, the possessor must exercise open and visible acts
of possession in respect of the thing. This corresponds with the ‘‘openly as if owner’’
requirement in the 1969 Act. In addition to being peaceful and open, the 1943 Act
required that possession should be nec precario (not on sufferance). This terminology
caused difficulties.

In Malan v Nabygelegen Estates (1946 AD 562 573–574) it was held that nec precario
‘‘does not mean without permission or with consent in the wide sense but not by virtue
of a precarious consent’’, or in other words ‘‘not by virtue of a revocable permission’’ or
‘‘not on sufferance’’. Watermeyer, CJ continued as follows:
[I]t should be pointed out that the mere occupation of property nec vi, nec clam, nec
precario for a period of thirty years does not necessarily vest in the occupier a prescriptive
title to the ownership of that property. In order to create a prescriptive title, such
occupation must be user adverse to the true owner ...

This ‘‘adverse user’’ is not mentioned in the 1943 Act, and some authors have
interpreted it as an additional requirement. However, it would seem that ‘‘adverse user’’
and ‘‘nec precario’’ refer to the same requirement.

The interpretation of these three concepts has been problematic. It can be argued that
the nec precario and nec clam requirements are adequately covered by the requirement
of possession. The acquirer must possess animo domini (with the intention of an owner).
In view of this argument, there is no practical distinction between the old and new
prescription Acts.

(iii) As if he/she were the owner

This requirement refers to the animus domini of the possessor, as borne out in his/her
external conduct.

(iv) For an uninterrupted period of thirty years

(a) Period of predecessors in title added

In common law, a possessor who claims that he/she has become the owner of a thing
through prescription is entitled to calculate the periods of possession of his/her

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 predecessors in title together with his own in order to comply with the requirement of a
period of thirty years. This was known as an adding of time periods (coniunctio
temporum) (Stephenson v Lamsley 1948 (4) SA 794 (W)).

Example For example, X has possessed a thing for 10 years, but Y, from whom X obtained it,
possessed it for 20 years. X may then add his period of possession to Y’s and claim that
he has become the owner of the thing by prescription. Section 1 of the new Act
confirms the common law position.

(b) Absolute continuity not required

In Morkels Transport v Melrose Foods (1972 (2) SA 464 (W) 467–468) it was held that it is
not necessary that every part of the land be occupied or used, nor that possession be
absolutely continuous.

In practice all that is required is possession of a sufficient degree to justify the conclusion
that the exercise of a right of ownership was continuous. The onus would then be on
the defendant to establish non-continuity in the sense required.

(c) Disturbance of continuity

Continuity of possession may be disturbed by interruption or suspension.

A INTERRUPTION
In the case of interruption, the period of prescription which has already run is terminated
and the period of prescription must begin to run anew (de novo). Interruption can occur
in two forms:
(i) natural interruption
(ii) judicial interruption

(i) Natural interruption

At common law, natural interruption occurred when the acquirer lost possession of the
thing. He/she could have lost possession by relinquishing it voluntarily; it could have
been forcibly taken from him/her, either by the owner or by an outsider; he/she could
have been prevented from further exercising control over the thing by an act of God or
vis maior (eg, wartime conditions). Be that as it may, for interruption actual loss of
possession is required. Mere protest on the part of the owner is not sufficient.

The 1943 Act did not alter this legal position in any way. In the 1969 Act, however, the
legislator introduced a change regarding natural interruption.

Section 2 of the 1969 Prescription Act provides that:

The running of prescription shall not be interrupted by involuntary loss of possession if
possession is regained at any time by means of legal proceedings instituted within six
months after such loss for the purpose of regaining possession, or if possession is lawfully
regained in any other way within one year after loss.

Examples of cases where section 2 is applicable are those in which possession is

regained

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 1 within six months by means of a spoliation order (see discussion of the spoliation
remedy in SU 9 para 2.3)
2 within twelve months if the thing is returned to him/her by the thief or the police,
or
3 if wartime conditions interrupted his/her possession and such conditions improve
to such an extent that he/she can regain possession of the thing

In these situations prescription continues to run. Prescription can only be interrupted,

and therefore terminated
1 through voluntary loss of possession
2 if the possessor waits too long before taking legal steps to regain his/her possession
3 if the situation involving an act of God prevents the possessor from regaining
possession within twelve months

(ii) Judicial (civil) interruption

At common law, prescription is interrupted by the serving of any process. Process
includes any document by means of which legal proceedings are commenced, for
example a petition, summons, notice of motion, order nisi, et cetera. The process must
clearly set out the claim to ownership and who the owner of the thing is; a mere claim
for rent or compensation due to unlawful possession is insufficient.

Section 4 of the 1969 Prescription Act provides:

(1) The running of prescription shall ... be interrupted by the service on the possessor ... of
any process whereby any person claims ownership in that thing.
(2) Any interruption in terms of subsection (1) shall lapse, and the running of prescription
shall not be deemed to have been interrupted if the person claiming ownership ...
does not successfully prosecute his claim ... to final judgement (or) if he ... abandons
the judgement or the judgement is set aside.
(3) If the running of prescription is interrupted as contemplated in subsection (1), a new
period of prescription shall commence to run, if at all, only on the day on which final
judgement is given.

The mere service of process does not permanently interrupt the course of prescription.
Interruption occurs only if the person who lays claim to ownership succeeds in carrying
his/her claim to the final judgment. The serving of process has the effect of temporarily
interrupting the course of prescription, but if the plaintiff abandons his/her claim, or if
judgment (or even absolution from the instance) is given against him/her, the temporary
interruption lapses with retrospective effect. Conversely, if the plaintiff carries his/her
action through successfully to final judgment, prescription is interrupted and has to start
running anew (de novo).

B SUSPENSION
Suspension is the temporary suspension of a period of prescription. Here the period
which has already run does not lapse, but the course is suspended and can
recommence at a later date. Suspension of the prescription period takes place in favour
of a number of persons whom the law wants to protect by not allowing prescription to
run against them. They may be incompetent to enforce their rights, or other reasons

93
 may prevent them from enforcing their rights. The underlying reason for suspension is
the fact that these persons cannot assert their rights. This principle is formulated as
follows: prescription does not run against persons who cannot institute action (contra
non valentem agere non currit praescriptio).

These categories of persons are:

(i) minors
(ii) insane persons
(iii) married women with retention of the husband’s marital power (although the
marital power was completely abolished in section 29 of the General Law Fourth
Amendment Act 132 of 1993, this should not be interpreted to the detriment of
women against whom prescription was running during the period when they were
still subject to the marital power of their husbands)
(iv) persons absent from the country because of war, or those who are employed by
the state
(v) fideicommissaries – in the case where a fiduciarius has alienated fideicommissary
goods without the power to alienate, until such time as the fideicommissary goods
are distributed.

The 1943 Act does not provide for the protection of a disadvantaged owner from
acquisitive prescription running against him/her. Consequently the common law is
applicable to any period of prescription that ran before 30 November 1970.

The 1969 Act differs from the previous Act, and provides in section 3 that where an
‘‘impediment’’ (see categories of persons who are unable to enforce their rights) exists
and the period of prescription would, but for the provisions of this subsection, be
completed before or on, or within three years after, the day on which the relevant
impediment ... has ceased to exist, the period of prescription will not be completed
before the expiration of a period of three years after the day (on which the impediment
ceased to exist).

The practical effect is that the running of prescription is not suspended during the
existence of the impediment (for example, minority), but the completion of prescription
is merely postponed for three years after the impediment has disappeared. This
postponement occurs only if prescription would have been completed before, on or
within three years after the impediment has ceased to exist. In other words, an
impediment which falls away more than three years prior to the expiry of the thirty-year
term of prescription in no way affects the completion (or course) of prescription.

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Activity
After you have studied this section, you should be able to answer the
following question:

1 Distinguish between interruption and suspension of prescription (4)

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S T U DY UN I T

5
DERIVATIVE ACQUISITION
OF OWNERSHIP

CONTENTS
1 Introduction
2 Definition
3 Elements
4 Delivery (movables)
4.1 Actual delivery (traditio vera)
4.2 Constructive or fictitious delivery (traditio ficta)
A Transferee is placed in position to exercise physical control

4.2.1 Symbolic delivery (clavium traditio)

4.2.2 Delivery with long hand (traditio longa manu)
4.2.3 Bills of lading
B Transferee is already in physical control by virtue of some other legal
relationship

4.2.4 Delivery with short hand (traditio brevi manu)

C Someone else exercises physical control on behalf of transferee

4.2.5 Constitutum possessorium

4.2.6 Attornment
5 Registration (land)
5.1 Introduction
5.2 Transfer procedure
5.3 System of transfer of ownership
5.4 Positive and negative systems of registration

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 This study unit deals with derivative methods of acquisition of ownership. The
requirements for transfer of ownership are also discussed. Ownership of movable
things is transferred by means of delivery. In this study unit we discuss actual
delivery (traditio vera) as well as constructive or fictitious delivery (traditio ficta).
The forms of constructive delivery that are discussed are symbolic delivery
(clavium traditio), delivery with the long hand (traditio longa manu), bills of
lading, delivery with the short hand (traditio brevi manu), constitutum
possessorium and attornment. Ownership of immovable things is transferred
by means of registration.

1 INTRODUCTION
In this study unit the derivative methods of acquisition of ownership are discussed. You
should study the requirements for the transfer of ownership thoroughly. Transfer of
movable things takes place by means of delivery. You should be able to distinguish the
different forms of delivery from each other. Take note that the transfer of immovable
property (land) takes place by means of registration in the deeds registry.

2 DEFINITION
Derivative methods of acquiring ownership occur with the cooperation of a predecessor
in title. The right which the transferee obtains is derived from the transferor (former
owner – predecessor-in-title). This implies that the predecessor in title should him/
herself have been the owner and therefore entitled to transfer ownership. This principle
is expressed in the maxim: nemo plus iuris in alium transferre potest quam ipse haberet
(no-one may transfer more rights to another person than he himself has). Furthermore,
the right is transferred to the new owner with the advantages and the disadvantages
attached to that right (eg, where a land servitude exists in favour of the land that is to be
transferred or where the land that is to be transferred is subject to a servitude). A
derivative method of acquiring ownership can be defined as one by which ownership is
acquired from a predecessor-in-title by means of delivery (in the case of movable things)
or registration (in the case of immovable things) (see SU 4 para 5.1 above).

3 ELEMENTS

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Example
Y sells a chicken to Z. They agree that Y will deliver the chicken to Z at her home the
following day. The next day Y takes the chicken to Z’s home and gives the chicken to her.

The following key elements can be distinguished in all forms of derivative acquisition of
ownership:

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1 The thing to which the real right relates must be a thing in the legal sphere or in
commerce (res in commercio).
This requirement is self-explanatory (see SU 1 para 2.1.1.1).

2 The parties should be capable to pass and acquire ownership.

This requirement requires that the parties should be legally capable of transferring
and receiving ownership. Examples of persons who are not legally capable of
transferring and receiving ownership are: insane persons, insolvent persons,
minors and prodigals.

3 The transferor must be the owner or be authorised by the owner.

This requirement refers to the inviolability of ownership (see SU 3 para 3.1.2
above). The foundation of this requirement lies in the principle that no one can
transfer more rights to another than he himself has (nemo plus iuris in alium
transferre potest quam ipse haberet). This means that the transferor will have to be
the owner in order to effect transfer of ownership, unless he/she is capable of
transferring on some other account, for example because he/she is the authorised
agent of the owner (ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC 2003 (1) SA 401
(SCA) 407J).
Please note that it is a peculiarity of the contract of sale that a seller is not required
to be the owner of the object of the sale or to transfer ownership. A non-owner
could therefore sell and deliver another person’s property to the buyer. The sale is
valid in such a situation, but naturally the buyer will not become the owner
because of the inviolability of ownership; the rule that no one can transfer more
rights than he himself has (nemo plus iuris in alium transferre potest quam ipse
haberet) applies.

4 The parties should have the intention to pass and receive ownership.
The two elements in the transfer of ownership are the intention to transfer
ownership and delivery (or registration). Delivery consists of the physical handing
over of the thing (physical element) and the intention to transfer and receive
ownership (the mental element). The physical handing over is insufficient and must
be accompanied by the intention to transfer and receive ownership (Concor
Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A) 933B-I; Info
Plus v Scheelke 1998 (3) SA 184 (SCA) and ABSA Bank Ltd t/a Bankfin v Jordashe
Auto CC 2003 (1) SA 401 (SCA) 407J).
In Commissioner of Customs and Excise v Randles, Brothers and Hudson Ltd (1941
AD 369 397), Watermeyer JA stressed this requirement:
Ownership of movable property does not in our law pass by the making of a
contract. It passes when delivery of possession is given accompanied by an
intention on the part of the transferor to transfer ownership and on the part
of the transferee to receive it.

It is necessary to distinguish between the contract (obligationary agreement) in

terms of which ownership must be delivered (eg, a contract of sale or a donation)
and the transfer (delivery) itself. These are two separate legal acts, although they
are not always separated in time. The contract of sale creates an obligation (duty)

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 to deliver the object of sale, but ownership only passes on delivery (see the
example above). Delivery consists of two elements: a physical (physical handing
over or registration of the movable and immovable thing respectively) and a
mental element. This intention to transfer and receive ownership is referred to as
the real agreement (Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein 1980 (3) SA
917(A) 922F).

5 There should be a legal ground or iusta causa for the transfer of ownership.
Since we are dealing with an act of transfer which effects a shifting of assets from
one person’s estate to that of another, the law requires a reason (causa) for this
transfer to have permanent effect. If there is no reason for the transfer, the
transferee is unjustifiably enriched at the expense of the transferor and the latter
can claim the thing back.
Where a legal system makes the transfer of a real right dependent on a valid
underlying contract, in other words where there is a link between the validity of
the reason for the transfer and its effectiveness, it is said to adhere to the causal
system of the transfer of ownership. This system therefore presupposes a valid
underlying agreement (the agreement creating obligations, eg a sale or donation),
without which transfer of ownership cannot take place.
In the causal system the underlying agreement, which can take the form of a sale
or a donation, is seen as the reason (causa), and if, for example, the underlying
agreement is invalid because a formal requirement of some kind has not been
complied with, no transfer can take place.
Where, on the other hand, the transfer of ownership is concerned with the
intention of the parties to transfer and receive ownership, regardless of whether
such intention is supported by a valid underlying agreement, the abstract system of
the transfer of ownership is said to be applicable. In this case, it is of no
consequence whether the underlying agreement is valid or invalid. Apart from the
physical handing over of the movable thing or registration of the immovable thing
respectively, all that is required is the intention of both parties to transfer and
receive ownership, in other words a real agreement. In the abstract system the
real agreement is seen as the reason (causa). Therefore as long as this real
agreement is valid, ownership passes to the transferee.
The practical consequences of the abstract and causal systems differ in that in the
abstract system ownership is transferred if there is the serious intention to effect
such transfer. If it subsequently appears that the preceding obligationary agreement
is defective in some way, the thing may only be reclaimed with a personal action
(condictio) from the person to whom it was transferred, and not from third parties.
This results in the thing which has already been transferred having to be returned, if
it is still in the hands of the transferee. According to the causal system, ownership
does not pass without a valid reason (causa) (and here the prior obligationary
agreement is seen as the reason). This means that the owner retains ownership
and may claim the thing with a real action (namely the rei vindicatio) from the
transferee or whoever possesses it, thus also from third parties.
In South Africa the abstract system of the transfer of ownership is applicable to the
transfer of movable (Commissioner of Customs and Excise v Randles, Brothers and
Hudson 1941 AD 369 398–399; Trust Bank van Suid-Afrika v Western Bank 1978

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 (4) SA 281 (A)) and immovable property (Legator Mckenna Inc v Shea 2010 (1) SA
35 (SCA)).

6 Cash or credit required.

In a cash sale ownership does not pass until the cash price has been paid. In a
credit sale the question whether ownership passes depends on the transferor’s
intention, that is whether he/she intended to transfer ownership in a particular
case. If the transferor intended ownership to pass (notwithstanding the fact that the
purchase price was not paid in full), ownership will pass from the transferor to the
transferee on transfer of control of the thing. If the transferor did not intend
ownership to pass, but instead reserved ownership until the last payment had
been made, ownership would only pass on payment of the last instalment, and not
on transfer of control of the thing.

7 Method of transfer.
Since we are dealing with the transfer of a real right (which has to be respected by
all third parties), the publicity requirement must be fulfilled (see SU 2 par 3). The
transfer of ownership must therefore take a form that will inform third parties of
the change in ownership. Ownership of movable things is transferred by means of
delivery (traditio) and ownership of immovable things by means of registration.

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Activity

Before you continue, attempt to answer the following questions:

1 Name and briefly discuss the requirements for the passing of

ownership. (7)
2 Explain the nature and relevance of the real agreement. (5)

4 DELIVERY (MOVABLES)
Two elements Ownership of movable things is transferred by means of delivery. Delivery consists of
two elements: a physical element (corpus) and a mental element (animus). Both
elements must be present at the time of transfer. The physical element can be fulfilled in
different ways. We usually distinguish between actual delivery (traditio vera) and
constructive or fictitious delivery (traditio ficta).

4.1 Actual delivery (traditio vera)

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Example
Y sells a chicken to Z. They agree that Y will deliver the chicken to Z at her home the
following day. The next day Y takes the chicken to Z’s home and gives the chicken to her.

This is the most usual form. The transferor gives the thing from his hand into the hand of
the transferee (datio de manu in manum) (the physical element) with the intention of

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 transferring ownership (mental element, see the example above). This form of delivery
was aptly described in Groenewald v Van der Merwe (1917 AD 233 238–239) by Innes
CJ:
In the vast majority of cases the physical factor takes the form of handing the movable in
question bodily to the transferee, who accepts it with the requisite intention and thereby
becomes owner. That is actual delivery.

The physical act, the handing-over, can at the same time be proof of the intention of the
transferor and transferee to transfer ownership and to accept it. It is not always easy to
determine the intention of the transferor from the mere physical act, for example,
whether he/she intended to transfer ownership or to create a pledge (see eg Marcus v
Stamper & Zoutendijk 1910 AD 58). In both cases the intention is determined by the
preceding agreement (sale or pledge agreement) (see SU 11 para 2.2).

4.2 Constructive or fictitious delivery (traditio ficta)

All the cases in which there is not a physical or actual handing-over of the thing are
grouped together under the heading of constructive or fictitious delivery (traditio ficta).
Here three different situations can be distinguished. The transferee may be

1 placed in a position to exercise physical control (symbolic delivery, delivery with

the long hand (traditio longa manu) and bills of lading)
2 already in physical control by virtue of some other legal relationship (delivery with
the short hand (traditio brevi manu)
3 in a position where someone else exercises physical control on his/her behalf
(constitutum possessorium and attornment, as well as its extended form – cession of
ownership)

A TRANSFEREE IS PLACED IN POSITION TO EXERCISE

PHYSICAL CONTROL
4.2.1 Symbolic delivery (clavium traditio)
Things which cannot be physically handed over, owing to their nature or size, are
handed over symbolically in the sense that a token or ‘‘symbol’’ of the thing is delivered.
This is intended to indicate that the transfer of physical control has taken place. The best-
known example of this is the handing over of the keys of a car or a warehouse, by
means of which the car or the contents of the warehouse are considered to have been
delivered. In this way the transferee obtains exclusive control over the thing.

4.2.2 Delivery with long hand (traditio longa manu)

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Example1
In March 1914 D signed a document declaring that he had sold a threshing machine to Van
der Merwe for £150, the receipt of which sum he acknowledged. Van der Merwe, after
inspecting the machine, left it with D on the understanding that D should keep it until it was
reclaimed and should retain any earnings for himself.

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In August 1915 D, being still in possession of the machine, sold it to Groenewald and again
received payment, the parties signing a document which contemplated an immediate
delivery of the machine. Groenewald then went with D to the latter’s farm where
Groenewald, after inspecting the machine, stated that it was now his threshing machine.
Groenewald also wrote to one W who was in charge of the machine asking him to thresh
for Groenewald on the same terms as he had done for D.

Then Van der Merwe removed the machine from D’s farm and Groenewald threatened to
sue him unless D signed a promissory note (type of negotiable instrument) ‘‘as security’’ for
the re-delivery of the machine. D signed a note which was never paid and Groenewald,
who had meanwhile attempted to obtain a charge (real security right) over certain maize
crops belonging to D, sued Van der Merwe for the recovery of the machine and payment
of damages.

[Facts in Groenewald v Van der Merwe 1917 AD 233.]

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Example 2
There is a windmill on the farm belonging to X and Y, which they no longer use. S
purchases it from them. His father takes him to the windmill and shows it to him. He says:
‘‘Here is the windmill. You must come and dismantle it and take it away.’’ S undertakes to
do this as soon as he has the time. For six months S has neither visited his parents nor
removed the windmill. Z approaches X and Y and offers to buy the windmill. They sell it to
him. Z removes the windmill and erects it on his farm. S becomes insolvent and the
curator of the insolvent estate claims that the windmill is part of the insolvent estate. Z
denies this and argues that he is the owner of the windmill.

[Based on the facts in Groenewald v Van der Merwe 1917 AD 233.]

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Example 3
A mining company erected an electrical substation and steel towers on its farm to convey
electricity to its mining operations. The installations and substation were erected in
accordance with Eskom’s specifications. Eskom supplied power to the mining company.
Subsequently the mining company ceased operations and Eskom no longer supplied it with
power.

In 1981 Rollomatic purchased certain steel towers, which had previously been part of the
electrical substation, from the mining company. In terms of the sales contract Rollomatic
was responsible for the removal of the steel towers and their concrete foundations and for
restoring the land to its original state. Delivery of the steel towers to Rollomatic would take
place after the latter had made the necessary arrangements with an official of the mining
company which still owned the farm. No such arrangements were ever made and
Rollomatic left the steel towers on the farm.

The managing director of Rollomatic had, in his personal capacity, hired the farm for grazing
purposes, but the fenced-off area upon which the substation and steel towers stood was
expressly excluded from the lease. Eskom later decided to put the substation into
operation again and purchased a small portion of the farm upon which the substation and
steel towers stood from the mining company. It took transfer of that portion of the farm in
January 1986. Eskom again used the steel towers, which were still standing there, as an

101
 integral part of the new substation. When Rollomatic sent its employees in May 1987 to
remove the steel towers, they could not do so because of the erection of the new
substation.

[The facts in Eskom v Rollomatic Engineering (Pty) Ltd 1992 (2) SA 725 (A).]

The expression ‘‘longa manu’’ (with the long hand) indicates the basis of this means of
delivery. Here physical transfer of the thing is not possible because of its size or weight,
for example the thing might consist of a load of timber, stones in a quarry, livestock or
heavy machinery. In this case the thing to be transferred is pointed out to the transferee
in the presence of the thing. The transferee is placed in a position enabling him/her to
exercise physical control. It is not sufficient merely to point out the thing. The transferee
must be placed in a position to take control of the thing to the exclusion of others.

In Groenewald v Van der Merwe (1917 AD 233 239), Innes CJ described delivery with
the long hand as follows:
But physical prehension is not essential if the subject-matter is placed in presence of the
would-be possessor in such circumstances that he and he alone can deal with it at his
pleasure. In that way the physical element is sufficiently supplied; and if the mind of the
transferee contemplates and desires so to deal with it, the transfer of possession, that is the
delivery is in law complete ... When this deposit of the subject matter in the presence and
at the disposition of the new possessor takes the place of physical prehension, the delivery
is said to be made longa manu ... It is most appropriate to transactions where owing to the
weight or bulk of the article concerned, actual delivery is difficult.

In Eskom v Rollomatic Engineering (Pty) Ltd (1992 (2) SA 725 (A)) the court confirmed this
principle.

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Activity
Before you continue, attempt to answer the following questions:

1 Describe or explain with reference to an example:

(a) delivery (5)
(b) constructive delivery (4)
(c) delivery with the long hand (4)

2 In March 1914, D signed a document declaring that he had sold a threshing

machine to Van der Merwe for £150, the receipt of which sum he acknowl-
edged. Van der Merwe, after inspecting the machine, left it with D on the
understanding that D should keep it until asked for it again and should retain
any earnings for himself.
In August 1915 D, being still in possession of the machine, sold it to Groe-
newald and again received payment, the parties signing a document which
contemplated an immediate delivery of the machine. Groenewald then went
with D to the latter’s farm where Groenewald, after inspecting the machine,
stated that it was now his threshing machine. Groenewald further wrote to one
W, who was in charge of the machine, asking him to thresh for Groenewald on

102
 the same terms as he had done for D.
Then Van der Merwe removed the machine from D’s farm and Groenewald
threatened to sue him unless D signed a promissory note ‘‘as security’’ for the
re-delivery of the machine. D signed a note which was never paid and
Groenewald, who had meanwhile attempted to obtain a charge (real security
right) over certain maize crops belonging to D, sued Van der Merwe for the
recovery of the machine and payment of damages. Which form of delivery is
relevant here? Will Groenewald succeed with his rei vindicatio? Substantiate
your answer with reference to case law. (10)
Remark
Please note that one of the requirements for delivery with the long hand is that
the transferee must be placed in the position that he and he alone can deal
with the thing. Van der Merwe did not fulfil this requirement, but Groenewald
did.

3 A mining company erected an electrical substation and steel towers on its

farm to convey electricity to its mining operations. The installations and sub-
station were erected in accordance with Eskom’s specifications. Eskom sup-
plied power to the mining company. Subsequently the mining company ceased
operations and Eskom no longer supplied it with power.
In 1981 Rollomatic purchased certain steel towers, which had previously been
part of the electrical substation, from the mining company. In terms of the sale
contract Rollomatic was responsible for the removal of the steel towers and
their concrete foundations and for restoring the land to its original state. De-
livery of the steel towers to Rollomatic would take place after the latter had
made the necessary arrangements with an official of the mining company,
which still owned the farm. No such arrangements were ever made and
Rollomatic left the steel towers on the farm.
The managing director of Rollomatic had, in his personal capacity, hired the
farm for grazing purposes, but the fenced-off area on which the substation and
steel towers stood was expressly excluded from the lease. Eskom later decided
to put the substation into operation again and purchased a small portion of the
farm upon which the substation and steel towers stood from the mining
company. It took transfer of that portion of the farm in January 1986. Eskom
again used the steel towers, which were still standing there, as an integral part
of the new substation. When Rollomatic sent its employees in May 1987 to
remove the steel towers, they could not do so because of the erection of the
new substation.
Rollomatic is claiming delivery of the steel towers to it by means of the rei
vindicatio. It claims that it has become the owner of the steel towers. Which
form of delivery is relevant here? Will Rollomatic succeed with its claim?
Substantiate your answer with reference to case law. (12)
Answer
The case in question is Eskom v Rollomatic Engineering (Edms) Bpk. (1)

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 Legal question

To determine whether ownership of the steel towers were transferred to

Rollomatic by means of delivery with the long hand (traditio longa manu). (1)

Ratio decidendi

It is not an essential requirement for delivery with the long hand that the
transferee is placed in physical control. (1) However, the thing must be pointed
out to the transferee and he/she must be placed in such circumstances that he/
she and he/she alone can deal with it at pleasure. (1) In this way the physical
element is sufficiently fulfilled. Obviously the parties must intend to transfer and
receive ownership. (1) If both these requirements have been fulfilled, delivery
is considered complete in law. When the deposit of the subject matter in the
presence and at the disposition of the transferee takes the place of physical
prehension, the delivery is said to be made longa manu, and it constitutes one
of the forms of fictitious, (1) as distinguished from actual delivery.

Application of finding to relevant facts

The court did not find it necessary to determine whether the towers were
movable or not. (1) From the evidence it was clear that Rollomatic never
exercised control (1) either over the land (1) in question or over the towers.
(1) It therefore failed to show that one of the requirements for delivery with
the long hand had been met, namely that it must have been able to take
physical control of the towers after they had been pointed out to it. Rollomatic
therefore failed to prove (1) that it had become the owner of the steel towers
and consequently it was not entitled to an order for delivery of the towers. (1)

4 There is a windmill on the farm of X and Y, which they no longer use. S

purchases it from them. His father takes him to the windmill and shows it to
him. He says: ‘‘Here is the windmill. You must come and dismantle it and take
it away.’’ S undertakes to do this as soon as he has the time. For six months S
does not visit his parents or remove the windmill. Z approaches X and Y and
offers to buy the windmill. They sell it to him. Z removes the windmill and
erects it on his farm. S claims delivery of the windmill from Z with the rei
vindicatio. What must S prove to succeed with the rei vindicatio? Will S succeed
in proving all the requirements for the rei vindicatio (refer to the way in which
ownership was acquired in this example)? Substantiate your answer with re-
ference to case law. (10)
Remark
For the requirements of the rei vindicatio see SU 6 para 2.1.2 below. The
answer to this question is essentially the same as the answer above.

4.2.3 Bills of lading

Closely related to symbolic delivery is the delivery of bills of lading. A bill of lading is the
basic document in the so-called cost, insurance and freight contracts (cif contracts) in
respect of goods for shipment. The bill of lading is distinguished from symbolic delivery
in that the document which is handed over is not a symbol of the thing that is
transferred, but a separately recognised means of transferring ownership.

104
B TRANSFEREE IS ALREADY IN PHYSICAL CONTROL BY
VIRTUE OF SOME OTHER LEGAL RELATIONSHIP

4.2.4 Delivery with short hand (traditio brevi manu)

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Example
Infoplus had entered into a written instalment sale agreement for the purchase of a motor
vehicle with a bank, which had then ceded (transferred) its rights to Wesbank. Wesbank
became owner of the vehicle. The motor vehicle was delivered to Infoplus and registered
in its name, but according to the instalment sale agreement, ownership was to remain
vested in the seller until receipt of the full amount owed by Infoplus. Infoplus’s authorised
representative, M, then agreed with G, a representative of S Motors, that the motor
vehicle would be delivered to the premises of S Motors and that G would attempt to find a
purchaser for the motor vehicle at a stipulated price. If a buyer was found, the prospective
purchaser was to be introduced to Infoplus, whereafter the purchaser would pay the full
purchase price to Infoplus, which would then pay S Motors its commission. The motor
vehicle was duly delivered to S Motors, but neither G nor anyone else acting for S Motors
introduced a purchaser to Infoplus.

When M returned from a subsequent trip abroad he established that G had left the employ
of S Motors and that the motor vehicle was registered in the name of Scheelke. G had sold
the motor vehicle to X, delivering it together with a registration certificate reflecting that S
Motors was the registered owner thereof, for substantially less than the stipulated price,
after which X had sold and delivered the vehicle to Scheelke.

Wesbank wished to repossess the vehicle, but instead concluded an agreement with X in
terms of which X paid the total amount outstanding under the instalment sale agreement,
thus allowing Scheelke to retain control of the motor vehicle.

[The facts in Info Plus v Scheelke 1998 (3) SA 184 (SCA).]

According to this so-called ‘‘short-handed’’ method, no transfer of physical control takes

place, since the transferee is already in control of the thing, although not as owner. For
example, the transferee may be a buyer in terms of an instalment sale and on payment
of the last instalment, he/she acquires ownership by means of delivery with the short
hand. No transfer of control is necessary. It is therefore important that there should be a
clear indication of the intention requirement (Info Plus v Scheelke 1998 (3) SA 184
(SCA)). There should be some clear proof that the transferee holds on a new basis as
owner (see eg Marcus v Stamper and Zoutendijk 1910 AD 58).

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Activity

Before you continue, attempt to answer the following questions:

1 Describe or explain delivery with the short hand with reference to

an example. (4)

105
 2 For the purchase of a motor vehicle, Infoplus had entered into a written instal-
ment sale agreement with a bank. The bank had then ceded (transferred) its
rights to Wesbank. The latter became the owner of the vehicle. The motor
vehicle was delivered to Infoplus and registered in its name, but according to
the instalment sale agreement, ownership was to remain vested in the seller
until receipt of the full amount owed by Infoplus. Infoplus’s authorised re-
presentative, M, then agreed with G, a representative of S Motors, that the
motor vehicle would be delivered to the premises of S Motors and that G
would attempt to find a purchaser for the motor vehicle at a stipulated price. If
a purchaser was found, the prospective purchaser was to be introduced to
Infoplus, after which the purchaser would pay the full purchase price to In-
foplus, which would then pay S Motors its commission. The motor vehicle was
duly delivered to S Motors, but neither G nor anyone else acting for S Motors
introduced a purchaser to Infoplus.

When M returned from a trip abroad, he found that G had left the employ of S
Motors and that the motor vehicle was registered in the name of Scheelke. G
had sold the motor vehicle to X, delivering it together with a registration
certificate reflecting that S Motors was the registered owner thereof, for sub-
stantially less than the stipulated price, after which X had sold and delivered the
vehicle to Scheelke.
Wesbank wanted to repossess the vehicle, but instead concluded an agreement
with X in terms of which X paid Wesbank the total amount outstanding under
the instalment sale agreement, thus allowing Scheelke to retain control of the
motor vehicle. Infoplus wants to claim the vehicle from Scheelke with the rei
vindicatio. Discuss Infoplus’s chances of success fully with reference to case law. (10)

C SOMEONE ELSE EXERCISES PHYSICAL CONTROL ON

BEHALF OF TRANSFEREE

4.2.5 Constitutum possessorium

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Example
During 1967 Z sold his dry-cleaning business, called Vasco Dry Cleaners, to X. It was a
term of the contract of sale that, in respect of the dry-cleaning machinery included in the
sale, the passing of ownership would be suspended until the purchase price had been paid
in full. At the end of June 1972 the balance still due to Z was R 4650,00. X was in financial
difficulties and in order to avoid repossession of the machinery by Z he sought and
obtained financial assistance from Twycross, his brother-in-law. X and Twycross accordingly
entered into a written agreement on 28 June 1972 in terms of which Twycross was to pay
the balance still due to Z. It was agreed that on such payment to Z ownership of the
machinery would pass to Twycross, who agreed to sell the machinery to X for a purchase
price of R4700,00, payable on or before 30 June 1973. It was further agreed between X
and Twycross that ownership of the machinery would not pass to X until the purchase
price had been paid in full to Twycross. They agreed that if the purchase price was not
paid, Twycross would be entitled to obtain the return and repossession of the machinery.
In November 1972, X sold the business, including the machinery, to a new owner. In the
deed of sale X warranted that it was the owner of the machinery. The new owner of Vasco

106
Dry Cleaners was not aware of the contract between Twycross and X. X failed to pay
Twycross the sum of R4700,00. Twycross wishes to claim the machinery from the new
owner.
[Simplified facts based on Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A).]

Constitutum possessorium is in a certain sense the very opposite of delivery with the short
hand (traditio brevi manu). Here the transferor retains physical control over the thing of
which he/she has agreed to transfer ownership to the transferee. It is only the intention
towards the thing that undergoes a change. For example, X buys a watch from a
jeweller and leaves it with the jeweller for cleaning (see further, the example above and
also ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC 2003 (1) SA 401 (SCA) 407J).

Since this form of transfer of ownership depends entirely upon the changed relationship
between the parties, it is obvious that there is ample opportunity for fraud. A debtor
may mislead his creditors when they wish to attach his/her goods by asserting that the
goods under his/her control have been delivered to another person by means of
constitutum possessorium. For this reason the Appellate Division, in Goldinger’s Trustee v
Whitelaw and Son (1917 AD 66 75) laid down the following safeguards:
One is that a constitutum is never presumed: the party alleging it must establish facts from
which the existence clearly and necessarily follows ... Another is that a distinct causa
detentionis is essential ... If A, after selling a movable to B, were to determine to hold it on
behalf of the latter, that change of mind would not effect a transfer of ownership. There
must be a clearly proved contractual relationship under which he becomes the detentor for
the purchaser. Only in such a case would the doctrine of constitutum possessorium operate
to pass the property by a kind of fictitious delivery.

In practice this second requirement is the most important, since there can be no
constitutum possessorium unless the facts support a legal relationship on the basis of
which the transferor continues to hold the thing, but no longer as owner.

In Vasco Dry Cleaners v Twycross (1979 (1) SA 603 (A)) the court had to decide whether
ownership had been transferred by means of constitutum possessorium (see the example
above). It has been held in the Vasco case that constitutum possessorium is the opposite
of delivery with the short hand (traditio brevi manu). After payment of the outstanding
amount, delivery from Z to X took place by means of this form of delivery. In the case of
constitutum possessorium the transferor (X) retains physical control of the thing to be
transferred (610A). Since this form of delivery creates the possibility of fraud, any
assertion that ownership of a movable has passed upon a mere change of mental
attitude is carefully scrutinised by the courts (620F).

It has further been held that the real object of the transaction between X and Twycross
was not a sale to Twycross which would have entitled him to become owner of the
machinery on delivery, but rather that a pledge should be created in his favour (616G–
H). The transaction (sale) between X and Twycross was referred to as a simulated
transaction, because it did not reflect the true intention of the parties. Furthermore, the
court held that no pledge was created since constitutum possessorium does not constitute
delivery for purposes of creating a valid pledge, because the pledged thing remains with
the pledgor (612A). X and Twycross therefore clothed their agreement in the guise of a

107
 sale and re-sale. However, the court decided that the true substance of the contract was
one of pledge. Therefore Twycross could not claim the machinery back, because he is
not the owner of the machinery (this discussion is based on the example above). The
only effective method of constituting a pledge is by an agreement and transfer of control
by delivery of the pledged thing to the pledgee (see SU 11 para 2.2 under ‘‘pledge’’).

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Activity
Before you continue, attempt to answer the following questions:

1 Describe or explain constitutum possessorium with reference to an

example (5)
2 In 1967 Z sold his dry-cleaning business, called Vasco Dry Cleaners, to X. It
was a term of the contract of sale that, in respect of the dry-cleaning machinery
included in the sale, the passing of ownership would be suspended until the
purchase price had been paid in full. At the end of June 1972 the balance still
owing to Z was R4650,00. X was in financial difficulties and, in order to avoid
the repossession of the machinery by Z, he sought and obtained financial
assistance from Twycross, his brother-in-law. X and Twycross accordingly
entered into a written agreement on 28 June 1972 in terms of which Twycross
was to pay the balance still owed to Z. It was agreed that on such payment to
Z, X’s ownership of the machinery would pass to Twycross, who agreed to sell
the machinery to X for a purchase price of R4700,00 payable on or before 30
June 1973. It was further agreed between X and Twycross that ownership of
the machinery would not pass to X until the purchase price had been paid in
full to Twycross. They agreed that if the purchase price was not paid, Twycross
would be entitled to obtain the return and repossession of the machinery.

In November 1972 X sold the business, including the machinery to a new

owner. In the deed of sale X warranted that he was the owner of the ma-
chinery. The new owner of Vasco Dry Cleaners was not aware of the contract
between Twycross and X. X failed to pay Twycross the sum of R4700,00.
Twycross wishes to claim the machinery from the new owner. Fully discuss his
chances of success with reference to case law. (10)
Answer
In order to succeed with the rei vindicatio, Twycross must prove that he is the
owner of the machinery. (1) The facts of the question are similar to the facts in
Vasco Dry Cleaners v Twycross. (1) The question here is whether Twycross
became owner through constitutum possessorium from X to him. (1)
It has been held in the Vasco case that constitutum possessorium is the opposite
of delivery with the short hand (traditio brevi manu). In the case of constitutum
possessorium the transferor retains physical control of the thing to be
transferred. Since this form of delivery creates the possibility of fraud, any
assertion that ownership of a movable has passed upon a mere change of
mental attitude is carefully scrutinised by the courts. (1)
It has further been held that the real object of the transaction between X and
Twycross was not a sale to Twycross which would have entitled him to
become owner of the machinery on delivery, but rather that a pledge should
be created in his favour. (1) According to the facts, he never took physical

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 control of the machinery. (1) The transaction (sale) between X and Twycross
was found to be a simulated transaction, because it did not reflect the true
intention of the parties. (1)
Furthermore, the court held that no pledge was created since constitutum
possessorium does not constitute delivery for purposes of creating a valid
pledge, because the pledged thing remains with the pledgor. (1)
The only effective method of constituting a pledge is by an agreement and
transfer of control by actual delivery of the thing to be pledged to the pledgee.
(1) X and Twycross therefore disguised their agreement as a sale and re-sale.
However, the court decided that the true substance of the contract was one of
pledge. Therefore Twycross cannot claim the machinery back, because he is
not the owner of the machinery. (1)

4.2.6 Attornment

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example1
S had an agreement with C, the cooperative, in terms of which he traded his old truck in as
part payment for a harvester that he was buying from C. The truck was at the premises of
a panel beater, who was repairing accident damage. S and C completed change of
ownership documents for the truck and C informed the panel beater that it (C) was the
new owner of the truck.

The panel beater never declared himself willing to control the truck on behalf of the new
owner. Z, a creditor of S’s, obtained an execution order against S. When the sheriff
attempted to attach the truck while it was still with the panel beater, the latter told the
sheriff that C had informed him that C was the new owner of the truck. Z disputed this.

[Based on the facts in Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein 1980 (3) SA 917
(A).]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 2
A dealer in motor vehicles had a discounting agreement with Caledon & South Western
Districts Board of Executors (hereinafter referred to as Caledon) in terms of which Caledon
discounted hire-purchase agreements concluded by the dealer and various buyers. In
terms of the hire-purchase agreement the dealer retained ownership of the vehicles until
the last instalment had been paid. In terms of the discounting agreement, Caledon paid the
full purchase price to the dealer and the dealer then ceded (transferred) its claim for
payment of the monthly instalments to Caledon, as well as the ownership of the vehicles.
At the time of the notice of the discounting the seller (who had bought the vehicles from
the dealer Mayoss) was no longer in control of the vehicles, but his buyers were. The
dealer had to inform Caledon of the sales and in the sales agreements the buyers
undertook to control the motor vehicles on behalf of the new owner after discounting had
taken place.

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 The motor dealer sold a number of motor vehicles to Mayoss, who in turn sold a motor
vehicle to X and received full payment from X. X sold the vehicle to Wentzel on hire
purchase and delivered the vehicle to Wentzel’s father. Both X and Wentzel were under
the impression that Mayoss was authorised to sell the vehicle and regarded X as the owner
of the vehicle. Mayoss received notice of the discounting to Caledon after he had sold the
vehicles to X. Mayoss never paid the instalments to Caledon. Caledon is claiming the car
from Wentzel.

[The facts of Caledon en Suid-Westelike Distrikte Eksekuteurskamer Bpk v Wentzel 1972 (1)
SA 270 (A).]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 3
S leased a car from a car dealer. The dealer had a discount agreement with a bank. In
terms of the discount agreement the bank undertook to take a cession (transfer) of the
rights contained in the lease agreement and of the ownership when the dealer presented
the bank with the discount agreement. On 21 May 2002 the dealer handed the car to S,
who immediately sold it and delivered it to Z. The relevant lease agreement with S was
submitted to the bank on 26 May 2002. The bank then paid the discounting price to the
dealer and claimed the car from Z. The bank claimed that it had become the owner of the
car by means of attornment.

[The facts in Barclays Western Bank Ltd v Ernst 1988 (1) SA 243 (A).]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 4
X and Y purchase their farm implements in terms of a credit agreement from the
cooperative, C. C reserves ownership until X and Y have paid the final instalment. X and Y
pay a fairly high rate of interest to the cooperative and Q, X’s father-in-law, undertakes to
pay the full amount to the cooperative. X and Y are to repay the money to him in
instalments. The cooperative transfers ownership to Q.

Attornment applies where an owner of a thing wishes to transfer ownership in

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

Definition Attornment can be defined as a derivative method of transferring ownership where the
transferor, the transferee and a third party (who is in control of the thing and will
continue to control it) agree that the third party will control the thing on behalf of the
transferee as owner. There are two requirements for attornment to take place,
namely:

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 (i) A tripartite agreement between the transferor, the transferee and the third party
holder in terms of which the holder will continue to hold for the transferee and no
longer for the transferor. All three parties therefore consent to the transfer of
ownership.
(ii) The holder should exercise physical control at the moment of transfer from the
transferor to the transferee (Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein
1980 (3) SA 917 (A) 922-924; Southern Tankers (Pty) Ltd t/a Unilog v Pescana D’Oro
Ltd 2003 (4) SA 566 (C), see example 1 above).

In Caledon en Suid-Westelike Distrikte Eksekuteurskamer Bpk v Wentzel (1972 (1) SA 270

(A) – see example 2 above) the law relating to attornment was extended and a method
of transfer of ownership analogous to attornment was recognised. By this method the
third-party holder makes a prior declaration of intention, to the effect that he/she will
hold the thing on behalf of a future transferee to whom the owner may transfer
ownership. This declaration can take place at a stage when transfer to the transferee has
not yet taken place and may, possibly, never take place.

The Appellate Division held in the Caledon case that ownership nevertheless had passed
to the transferee (Caledon) in these circumstances, since the holder had undertaken at
an early stage to hold on behalf of the transferee when transfer of ownership (by
cession) took place from the owner to the transferee. The holder’s knowledge of the
date of cession (of the rights in terms of the contract of sale) is not juridically relevant for
the transfer of ownership. What is relevant is the third party holder’s earlier declaration
of will to hold on behalf of a future transferee (cessionary of the claims in terms of the
discounting agreement).

In an obiter dictum the court expressed the idea that it may even be possible to effect
transfer of ownership merely by notifying the third party holder of the cession, provided
there is no disadvantage for him/her. The court seems to be of the opinion that the
holder has no choice in the matter, in other words his previously declared intention to
hold on behalf of a new owner is binding. Notice of the cession is thereafter sufficient to
pass ownership. In Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein (1980 (3) SA 917
(A) 924H) the court referred to this obiter dictum, but expressed no opinion on it. The
Caledon case has been widely criticised.

The effect of the decision is that the Appellate Division acknowledged a new form of
delivery in addition to the acknowledged forms. It held that a holder’s mere declaration
of will to hold in future on behalf of a new transferee causes ownership to pass on the
date on which the transferor cedes his rights to the acquirer and notifies the third party
holder of the cession.

It should, however, be borne in mind that ownership of movable things can only be
transferred in this manner as long as the holder remains in control: Once he/she loses
control (detentio), ownership can no longer be transferred to the transferee by this
method of delivery.

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 ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
Before you continue, attempt to answer the following questions:

1 Describe or explain attornment with reference to an example. (5)

2 Mention and explain the two requirements for attornment. (4)
3 S had an agreement with C, the cooperative, in terms of which he traded
his old truck in as part payment for a harvester that he was buying from C. The
truck was at the premises of a panel beater, who was repairing accident
damage. S and C completed change of ownership documents for the truck and
C informed the panel beater that it (C) was the new owner of the truck.

The panel beater never declared himself willing to control the truck on behalf of
the new owner. Z, a creditor of S’s, obtained an execution order against S.
When the sheriff tried to attach the truck while it was still with the panel beater,
the latter told the sheriff that C had informed him that C was the new owner of
the truck. Z disputes this. Will Z succeed with his application for an attachment
order? Substantiate your answer with reference to case law. (10)
Remark
Z can only attach the truck if S still owns it. If C obtained ownership by way of
attornment, Z will not be able to attach the truck. C will only obtain ownership
if the parties complied with all the requirements for attornment. There is,
however, no tripartite agreement between S, C and the panel beater. You have
to discuss the requirements fully with reference to Air-Kel (Edms) Bpk h/a
Merkel Motors v Bodenstein.

DIAGRAM 7: Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein

S Sale C
(transferor) (transferee)
!

Z
(creditor of S’s) notice of transfer

attachment
!
panel beater
!

(third party holder of truck)

4 S leased a car from a car dealer. The dealer had a discount agreement with a
bank. In terms of the discount agreement the bank undertook to take a cession
of the rights contained in the lease agreement and transfer of the ownership

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 when the dealer presented the bank with the discount agreement. On 21 May
2002 the dealer handed the car to S, who immediately sold it and delivered it
to Z. The relevant lease agreement with S was submitted to the bank on 26
May 2002. The bank then paid the discounting price to the dealer and claimed
the car from Z. The bank claimed that it had become the owner of the car by
means of attornment. Fully advise the parties on their legal position. Refer to
relevant case law. (10)
Remark
It is useful to draw a diagram of the facts when answering a problem-type
question. This question is based on the facts of Barclays Western Bank v Ernst.

DIAGRAM 8: Barclays Western Bank Ltd v Ernst

21-05-2002: Delivery from
!

S car dealer to S. Car

Lease
! dealer
!
Sale 21-05-2002: Sale and delivery Discounting agreement
of car by S to Z.
26-05-2002: Submission of
lease by dealer
to bank and
! payout by bank.
!

Z !
rei vindic
atio
Bank

Note that the dates are important when answering this question.

5 A motor vehicle dealer had a discounting agreement with Caledon & South
Western Districts Board of Executors (hereinafter referred to as Caledon) in
terms of which Caledon discounted hire-purchase agreements concluded by
the dealer and the various buyers. In terms of the hire-purchase agreement the
dealer retained ownership of the vehicles until the last instalment had been
paid. In terms of the discounting agreement, Caledon paid the full purchase
price to the dealer and the dealer then ceded its claim for payment of the
monthly instalments to Caledon, as well as the ownership of the vehicles. At
the time of notice of the discounting Mayoss, the seller (who had bought the
vehicles from the dealer), was no longer in control of the vehicles, but his
buyers were. The dealer had to inform Caledon of the sales and in the sales
agreements the buyers undertook to control the motor vehicles on behalf of
the new owner after discounting had taken place.
The motor vehicle dealer sold a number of motor vehicles to Mayoss, who in
turn sold a motor vehicle to X and received full payment from X. X sold the
vehicle to Wentzel on hire-purchase and delivered it to Wentzel’s father. Both
X and Wentzel were under the impression that Mayoss was authorised to sell
the vehicle and regarded X as the owner of the vehicle. Mayoss received
notice of the discounting to Caledon after he had sold the vehicle to X. Mayoss
never paid the instalments to Caledon. Caledon is claiming the car from
Wentzel. Fully advise the parties on their legal position. Refer to relevant case
law. (10)

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 6 X and Y purchase their farm implements in terms of a credit agreement from
the cooperative, K. K reserves ownership until X and Y have paid the final
instalment. X and Y pay a fairly high rate of interest to the cooperative and Q,
X’s father-in-law, undertakes to pay the full amount to the cooperative. X and Y
can then repay the money to him in instalments. The cooperative transfers
ownership to Q. What form of transfer of ownership applies here? Explain the
operation of this form of delivery with reference to case law. (10)
7 Distinguish the three different forms of constructive or fictitious delivery and
give an example of each form. (6)

5 REGISTRATION (LAND)
5.1 Introduction
The transfer of ownership of immovable things (land) takes place by registration. This
system has been applied in South Africa since the early days at the Cape and is based on
the system which was applicable in the Netherlands. The history of land registration is
discussed in Houtpoort Mining and Estate Syndicate Ltd v Jacobs (1905 TS 105 108–109).

A system of registration presupposes the surveying of land and the representation

thereof on a diagram or general plan. Such a diagram or plan establishes units of land and
fulfils the independence requirement for an object to be recognised as a thing (see SU 1
para 1.1.3 above). The diagram or plan provides particulars of the extent and
boundaries of the land and of the position of servitudes on the land for purposes of
registration. Ownership of the unit of land is transferred by a deed of transfer (see
section 16 of the Deeds Registries Act 47 of 1937), a new deed of transfer being
registered for every change of ownership. Registration of land cannot take place without
the lodging at the deeds registry of the existing title deed, under which the property
concerned is held. Registration is regulated by the Deeds Registries Act 47 of 1937 and
takes place at a deeds registry.

5.2 Transfer procedure

Where an owner sells immovable property to a purchaser, the procedure for transfer is
briefly as follows: An owner can only transfer his/her land by means of the registration of
a deed of transfer (s 16) which is prepared by a conveyancer in the form prescribed by
law or by regulation and which must be executed in the presence of the registrar by the
owner of the land described therein, or by a conveyancer authorised by power of
attorney to act on behalf of the owner, and must be attested by the registrar.

Ownership of the land passes to the new owner as soon as the registrar of deeds affixes
his/her signature to the deed. A number is then assigned to the deed of transfer, which
becomes the new title deed of the land described in it.

[The procedure to be followed in the registration of ownership of land is discussed fully

in the module on conveyancing.]

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5.3 System of transfer of ownership

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Example
X and Y donate to S the part of their farm that he has been leasing from them. They obtain
permission to subdivide the farm and S erects a fence on the new boundary. He fetches X
and Y and together they drink a toast at the new gate. X says to S: ‘‘Son, I am glad that this
piece of land is now your property!’’

When the deed of transfer is registered, it is a requirement, just as it is when a movable

thing is delivered, that the transferor should have the intention of transferring ownership
to the transferee and that the transferee should have the intention of acquiring
ownership. These concurring intentions (real agreement) are seen as the iusta causa. In
Legator McKenna Inc v Shea (2010 (1) SA 35 (SCA)) the Supreme Court of Appeal
considered whether a valid transfer of ownership had taken place despite an invalid sales
agreement. In the past it was uncertain whether the abstract system of transfer of
ownership under which the transfer of ownership was not dependent on the validity of
the underlying agreement also applied to movable and immovable property. Brand JA
held that the abstract system of transfer of ownership applied to movable and
immovable property. Brand JA also clearly stated that although the abstract system did
not require a valid contract of sale, ownership would not pass if there was a defect in the
real agreement, despite registration of the transfer in the deeds registry.

The effect of registration of transfer is that the registered owner of land is in a position to
prove his ownership of the land easily, by producing his registered deed of transfer (Fry’s
(Pty) Ltd v Ries 1957 (3) SA 575 (A) 582–583).

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

Before you continue, attempt to answer the following question:

1 X and Y donate that part of their farm which their son, S, is leasing
from them to S. They obtain permission to subdivide the farm and S erects a
fence on the new boundary. He fetches X and Y and they all drink a toast at the
new gate. X says to S: ‘‘Son, I am glad that this piece of land is now your
property!’’ Did S become the owner of the land? Substantiate your answer fully. (5)

5.4 Positive and negative systems of registration

This brings us to the question whether we can rely on the accuracy of the data
contained in the records at the deeds registry or, to put it differently, whether we have a
positive or a negative system of land registration. If a third party, acting in good faith,
accepts inaccurate data in the deeds registry as correct and acts on this information, he/
she will normally enjoy no protection under a negative system of land registration (apart
from the possible application of the doctrine of estoppel and apart from any delictual
remedies he/she may have), but he/she would enjoy full protection under a positive
system.

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 South Africa’s system of land registration is a negative system. Please note that under
Exceptions certain circumstances the title deed of a piece of land may not reflect the actual legal
position. The exceptions are the following:

1 By entering into a marriage in community of property, a couple become the joint

owners of a joint estate. Each spouse is the joint owner of an undivided half-share
of the joint estate. Delivery of movables or transfer of land is not necessary to bring
into the joint estate the property which each had at the time of entering into the
marriage. From the moment when a marriage in community of property takes
place, the couple are joint owners of the joint estate, which consists of all the assets
which each had before the marriage, without delivery or transfer thereof being
necessary. (For the registration requirements of immovable property belonging to
persons married in community of property, see s 17 (1–6) of the Deeds Registries
Act 47 of 1937.)
2 The ownership of movable and immovable things expropriated in terms of the
provisions of the Expropriation Act 63 of 1975 passes to the expropriator on the
date stated in the notice of expropriation. Neither delivery nor registration is
necessary. Passing of ownership is effected by the mere act of expropriation.
3 Prescription is an original mode of acquiring ownership and there is no ‘‘transfer’’ of
ownership (see SU 4 para 9). Where a person has acquired ownership by means
of prescription and the previous owner fails or refuses to cooperate in the
‘‘transfer’’ of the property into the acquirer’s name (which usually happens), the
only way in which transfer of ownership can be effected is by obtaining a court
order authorising the registrar of deeds to effect registration in the acquirer’s name.
In such circumstances registration can take a long time, and during that time the
land register offers no proof of ownership.
4 Furthermore, mistakes can (and do) occur in the deeds registry, for example,
where land which is subject to a mortgage bond is transferred to a bona fide
purchaser without the bond having been cancelled. (See, eg, Barclays Nasionale
Bank Bpk v Registrateur van Aktes, Transvaal 1975 (4) SA 936 (T); Standard Bank
van SA Bpk v Breitenbach 1977 (1) SA 151 (T)). Until such a mistake has been
rectified, the true position will be unclear.

Although the South African system of land registration is of a high standard, it cannot be
denied, therefore, that it does not always furnish a complete picture of the rights in
respect of land, and that mistakes do sometimes occur, and that it is therefore a negative
system (Knysna Hotel CC v Coetzee NO 1998 (2) SA 743 (SCA); Oudekraal Estates (Pty)
Ltd v City of Cape Town 2002 (6) SA 573 (C)). It is nevertheless a reliable source of
information about the legal position of immovable property and in practice third parties
do rely on its accuracy. In this sense, therefore, it is a positive system.

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S T U DY UN I T

6
OWNERSHIP
PROTECTION
AND TERMINATION

PROTECTION OF OWNERSHIP
CONTENTS
1 Introduction
1.1 Property law remedies
1.2 Delictual remedies
1.3 Enrichment remedies
2 Property law remedies
2.1 Rei vindicatio
2.1.1 Introduction
2.1.2 Requirements
2.1.2.1 Ownership
2.1.2.2 Thing must still exist and must be identifiable
2.1.2.3 Recovery from any party who is in control
2.1.3 Restrictions on application of rei vindicatio
2.1.3.1 Sales in execution
2.1.3.2 Statutory limitations on eviction
2.1.3.3 Estoppel
2.1.3.4 Money
2.2 Interdict
2.2.1 Definition
2.2.2 Requirements
2.3 Declaratory order
2.4 Actio negatoria
3 Delictual remedies
3.1 Condictio furtiva
3.1.1 Definition
3.1.2 Requirements

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 3.2 Actio ad exhibendum
3.2.1 Definition
3.2.2 Requirements
3.3 Aquilian action (delictual claim for damages)
4 Summary of remedies

In this study unit we discuss the protection and termination of ownership. We

deal with property law remedies, namely the rei vindicatio, the interdict, the
declaratory order and the actio negatoria. The delictual remedies, namely the
condictio furtiva, the actio ad exhibendum and the Aquilian action (delictual
claim for damages) are also discussed. After this section we discuss the methods
by which ownership is terminated.

1 INTRODUCTION
This study unit deals with all the remedies an owner can use to protect his/her
ownership. You should be able to distinguish clearly between the various remedies.
Therefore you must know the purpose of each remedy, who can institute the action,
against whom can it be instituted and what must be proved in order to succeed with the
action. It is also important to know which defences are available in each situation. Some
of these remedies are also available to possessors and holders (occupiers). These are
discussed in more detail in Study Unit 9, para 2.2 below.

The remedies can be divided into three groups: property law remedies, delictual
remedies and enrichment remedies.

1.1 Property law remedies

The property law remedies which you must study thoroughly are the following:

1 rei vindicatio
2 interdict
3 declaratory order
4 actio negatoria

1.2 Delictual remedies

The delictual remedies can be divided into the following:

1 condictio furtiva
2 actio ad exhibendum
3 Aquilian action (delictual claim for damages)

1.3 Enrichment remedies

An owner may possibly also claim on the grounds of unjustified enrichment where a
bona fide possessor benefited from the thing which he had under his/her control.
Whether the claim could be instituted would depend on whether the possessor
acquired the thing for value (ex causa onerosa) or without giving value (ex causa

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lucrativa). Where the possessor acquired the thing in return for payment, the owner has
no enrichment action against him/her. Where the possessor gave no value for the thing,
the owner can use the condictio sine causa to claim compensation.

An owner who has forfeited an accessory thing, which lost its independence by
accession to a principal thing, can claim from the owner of the principal thing (see SU 4
para 3.3). The plaintiff must prove that the owner of the principal thing was enriched at
the expense of the owner of the accessory thing and that the enrichment was unjustified.
[Enrichment is discussed fully in the module on undue enrichment and estoppel.]

2 PROPERTY LAW REMEDIES

2.1 Rei vindicatio

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example
The plaintiff Q, a car dealer from Pretoria, provided L, a second-hand car dealer doing
business in Durban, with two motor cars for sale on the explicit condition that ownership
would not be transferred until the full purchase price had been paid to Q. L needed a
credit facility and approached S for credit. S was prepared to provide credit to L on
condition that L furnished real security to S. L concluded an agreement with the defendant,
S, in terms of which the vehicles were sold to S and immediately resold to L in terms of a
so-called floor-plan agreement. At no time did either L or S intend that the vehicles should
be removed from the physical control of L at his business premises. L further agreed that
the re-sold vehicles would be held by him on behalf of S until the full purchase price had
been paid to S by L. L disappeared and subsequently his estate was sequestrated without
the purchase price having been paid to S. S had the vehicles removed from L’s business
premises.

[The facts in Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd 1994 (3) SA 188
(A).]

2.1.1 Introduction
The rei vindicatio can be defined as a real action with which an owner can claim his/her
thing from whoever is in control of it unlawfully (without the owner’s permission or
consent). It may be instituted in regard to movable or immovable things. In the latter
case the remedy takes the form of an eviction order.

In terms of the inviolability of ownership a person cannot lose his/her ownership without
his/her consent. This principle has as its corollary the principle that a person cannot pass
a better title than he/she has. The latter principle is expressed in the Roman law maxim:
no-one may transfer more rights to another person than he himself has (nemo plus iuris
in alium transferre potest quam ipse haberet). For example: If X sells and delivers Y’s thing
to Z, Z does not become the owner of the thing. Y can claim the thing from Z with the
rei vindicatio (see SU 3 para 1.1.2).

In Chetty v Naidoo (1974 (3) SA 13 (A) 20AC), Jansen JA stated the position as follows:

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 [I]t may be difficult to define dominium [ownership] comprehensively ... , but there can be
little doubt ... that one of its incidents is the right of exclusive possession of the res [thing],
with the necessary corollary that the owner may claim his property wherever found, from
whomsoever holding it. It is inherent in the nature of ownership that possession of the res
should normally be with the owner, and it follows that no other person may withhold it
from the owner unless he is vested with some right enforceable against the owner ... .

2.1.2 Requirements
For a successful reliance on the rei vindicatio the plaintiff must prove, on a balance of
probabilities, that:
(i) he/she is the owner
(ii) the thing exists and is identifiable
(iii) the defendant is in control

2.1.2.1 Ownership
The plaintiff must prove ownership. Here the way in which the ownership was acquired
may play an important role.

2.1.2.2 Thing must still exist and must be identifiable

The rei vindicatio may be instituted to recover movable as well as immovable property.
In the latter situation the remedy takes the form of an eviction order. The thing which is
claimed should still be in existence, in some shape or form. It is imperative that it should
still be in existence as an item in its original form (not necessarily in the same condition)
and as such still subject to the owner’s right of ownership. If, for example, some change
has occurred by which the thing has ceased to exist in the form in which it was, it cannot
be reclaimed. A change could be brought about by accession or mixing, for example.

The requirement that the thing must be identifiable is necessary to the extent that the
identification should be sufficient to prove on a balance of probabilities that the person
instituting the action is the owner of the thing.

2.1.2.3 Recovery from any party who is in control

The principle underlying the rei vindicatio is: where I find my thing, there I may vindicate
it (ubi rem meam invenio ibi eam vindico). In Roman-Dutch law this Roman law principle
was applied as the general principle, while the Germanic principle ‘‘movables voluntarily
parted with cannot be followed up in the hands of bona fide third parties’’ (mobilia non
habent sequelam) applied only with regard to pledge and hypothec (mobilia non habent
sequelam ex causa hypothecae). It is therefore clear that the Germanic principle, mobilia
non habent sequelam, has no application to an owner’s rei vindicatio for movable things in
Roman-Dutch law. It applies only in respect of a pledge and hypothec of movable things
(see SU 11 para 2.4.1).

Therefore the rei vindicatio may be instituted against any party who is in control of the
thing unlawfully when the action is instituted. Therefore, where a defendant can show
that he/she has a right to the thing, the statement in Chetty v Naidoo (1974 (3) SA 13 (A)
20C) is pertinent:

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 [I]t follows that no other person may withhold it from the owner unless he is vested with
some right enforceable against the owner (e.g. a right of retention or a contractual right).

The reason why the thing should be in the control of the defendant at the moment
when the plaintiff institutes his/her action is to ensure that the defendant is in a position
to return the thing.

2.1.3 Defences against and restrictions on application of rei vindicatio

A person against whom the rei vindicatio is instituted (a defendant) may allege that some
of the requirements have not been met. For example a defendant can produce
documentary evidence that proves that the person who instituted the rei vindicatio is not
the owner of the thing that he/she claims. Alternatively the defendant can prove that the
claimed thing has been destroyed or cannot be identified. Furthermore the defendant
can defend the rei vindicatio by proving that he/she is not in physical control of the thing.

Besides these defences, the application of the rei vindicatio is restricted in different ways.

2.1.3.1 Sales in execution

Section 70 of the Magistrates Courts Act 32 of 1944 provides as follows:
[A] sale in execution by the messenger shall not, in the case of movable property after
delivery thereof or in the case of immovable property after registration of transfer, be liable
to be impeached as against a purchaser in good faith and without notice of any defect.

Where a sheriff or a messenger of the court sells a judgment debtor’s assets in public at a
judicial sale in execution of a judgment, the true owner (if his/her goods are sold by
mistake as belonging to the judgment debtor, for example, where the judgment debtor
has bought the goods on credit and has not yet acquired ownership of them) cannot
recover his/her property from a bona fide purchaser after the sale and delivery of the
thing to the buyer. The courts treat a sale in insolvency in the same way as a judicial sale.

2.1.3.2 Statutory limitations on eviction

The defendant in eviction proceedings may resort to the protection of the Constitution
of the Republic of South Africa, 1996. In terms of section 26(3) no one may be evicted
from his/her home without a court order. In terms of this section certain circumstances
have to be taken into consideration before the court can grant an eviction order (Jaftha v
Schoeman; Van Rooyen v Stoltz 2005 (1) BCLR 78 (CC)).

Furthermore, in eviction proceedings the defendant can rely on the protection afforded
to certain classes of persons in terms of a statute (see, for example, the Land Reform
(Labour Tenants) Act 3 of 1996, the Extension of Security of Tenure Act 62 of 1997; the
Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998, Ndlovu v
Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA) and Molusi v Voges 2016 (3) SA (CC). See
in this regard SU 14 par 3.3 and 3.4).

2.1.3.3 Estoppel
Estoppel is also an important exception to the rei vindicatio.

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 (a) Definition
Estoppel can be defined as a defence which can be raised against an owner’s rei
vindicatio where the owner of a certain thing, through his/her conduct, culpably leads
third parties to believe that someone else is the owner of the thing or is authorised to
alienate the said thing, and the third party, relying on this representation, obtains
control of a thing and in doing so acts to his/her detriment. If the defence succeeds, the
vindicatory action will be denied.

The requirements for a successful reliance on the defence of estoppel were stated in
Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd (1976 (1) SA 441
(A) 452AG) and confirmed in Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd
(1994 (3) SA 188 (A) 198G–199B; Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie
(Wp) Bpk 1996 (3) SA 273 (A); NBS Bank Ltd v Cape Produce Co (Pty) Ltd 2002 (1) SA
396 (SCA) 412D-E and ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC 2003 (1) SA 401
(SCA)).

(b) Requirements
(i) Representation. There must be a representation by the owner (estoppel denier)
of the thing. Words, written or spoken, or even conduct, may amount to such a
representation. Where a legitimate expectation is created by a statement or
conduct on the part of an owner and he/she remains silent, conclusions may be
drawn therefrom (compare Quenty’s Motors (Pty) Ltd v Standard Credit Corporation
Ltd 1994 (3) SA 188 (A); Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (Wp)
Bpk 1996 (3) SA 273 (A); ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC 2003 (1) SA
401 (SCA) and Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter 2004 (6)
SA 491 (SCA)).
(ii) Fault. The owner must have acted intentionally or negligently.
(iii) Detriment. The person who relies on estoppel (estoppel relier) must show that
he/she acted to his/her detriment in relying on the representation.
(iv) Causal connection. The estoppel relier must prove that his/her reliance on the
representation was the cause of his/her acting to his/her detriment. Such reliance
should be objectively ascertainable.

2.1.3.4 Money
Stolen money cannot be vindicated from a person who acquired the money in good
faith and for valuable consideration.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

Before you continue, attempt to answer the following questions:

1 The applicant Q, a car dealer from Pretoria, provided L, a second-hand car

dealer doing business in Durban, with two motor cars for sale on the explicit
condition that ownership would not be transferred until the full purchase price
had been paid to Q. L needed a credit facility and approached S for credit. S
was prepared to provide credit to L on condition that L furnished real security
to S. L concluded an agreement with the defendant, S, in terms of which the
vehicles were sold to S and immediately resold to L in terms of a floorplan

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 agreement. At no time did either L or S intend that the vehicles should be
removed from the physical control of L at his business premises. L further
agreed that the resold vehicles would be held by him on behalf of S until the full
purchase price had been paid to S by L. L disappeared and subsequently his
estate was sequestrated without the purchase price having been paid to S. S
had the vehicles removed from L’s business premises.
(a) Q claims the cars from S with his rei vindicatio. What must Q prove
and will Q succeed? Substantiate your answer with reference to case
law. (10)
(b) Is there any possibility that S may retain control of the cars? Substanti-
ate your answer with reference to the appropriate defence and its
requirements. In addition, substantiate your answer with reference to
case law. (10)

Remark
(a) In your answer you should refer to the requirements of the rei vindicatio.
The relevant case here is Quenty’s Motors (Pty) Ltd v Standard Corporation
Ltd. The court held that the floorplan agreement between L and S was a
simulated transaction and that the real intention was to use the cars as
security for the financing that L would have obtained from S. The in-
tention was never to transfer ownership to S. S never became the owner
of the cars.
(b) The appropriate defence to the rei vindicatio here is estoppel. Refer to
the requirements of estoppel in your answer. The court in Quenty’s held
that S should succeed with the defence of estoppel

2 Briefly name and discuss the requirements for a successful reliance on estop-
pel with reference to applicable case law. (10)

2.2 Interdict

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Example1
X and Y are owners of Waterford. S, their son leases a portion of the farm for grazing
purposes. X starts to plough on a section of their farm to which S is entitled in terms of the
lease contract. S requests X to stop the ploughing on that portion of the farm. X refuses.

[Based on the facts in Setlogelo v Setlogelo 1914 AD 221.]

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Example 2
During the apartheid regime, Francis Setlogelo occupied land which he inherited from his
grandfather. Francis Setlogelo could not lawfully occupy or obtain transfer of the land as he
was a black person and the land was situated in a white area. Isaac Setlogelo and Ephraim
Setlogelo, brothers and neighbours of Francis Setlogelo, started farming operations on that
land. Francis Setlogelo applied for an interdict prohibiting Isaac Setlogelo and Ephraim

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 Setlogelo from setting foot on the land. Isaac Setlogelo and Ephraim Setlogelo argued that
Francis Setlogelo was not the registered owner of the land and that he therefore could not
avail himself of the interdict.

[The facts in Setlogelo v Setlogelo 1914 AD 221.]

2.2.1 Definition
An interdict can be defined as a summary court order applied for on an urgent basis. In
an application for an interdict the applicant may apply for an order forcing a person to do
something or to refrain from doing something. It is a speedy remedy where rights have
been infringed or are about to be infringed.

2.2.2 Requirements
The requirements for a successful application for an interdict were set out in Setlogelo v
Setlogelo (1914 AD 221 227):
[T]he requisites for the right to claim an interdict are well-known; a clear right, injury
actually committed or reasonably apprehended, and the absence of similar protection by
any other ordinary remedy.

The requirements for an interdict are therefore as follows:

& a clear right,
& an actual or reasonably apprehended violation of a right, and
& no similar protection by any other ordinary remedy.

Note that this remedy is available for the protection of not only ownership but also
other limited real rights such as servitudes (see SU 10 para 9) or lawful real relationships
(see SU 1 para 2.3.2), such as lawful holdership (see SU 9 para 2.2), respectively. In
appropriate circumstances it may also be employed by holders of personal rights
(creditor’s rights).

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Activity

Before you continue, attempt to answer the following question:

1 X and Y are owners of Waterford. S, their son, leases a portion of the

farm for grazing purposes. X starts to plough on the section of their farm
to which S is entitled in terms of the lease contract. S requests X to stop
the ploughing on the farm. X refuses. What remedy can S use? Discuss this
remedy with reference to its requirements. (5)

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2.3 Declaratory order

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Example1
Z, a neighbour of S’s, has been farming a part of S’s farm Highlands for a number of years.
Z avers that he has become the owner of that part of the farm through prescription. S
denies this and claims that Z has merely leased that part of the farm. No documentation
confirming either case can be found.

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Example 2
S gave the exclusive right to trade on a certain piece of land to Z. Z transferred this right to
his son, Zz. The right was not registered in favour of Z. S sold his farm to X. X argues that
Zz is not entitled to trade on that piece of land, but Zz insists that he acquired that right
from his father, Z.

[Based on the facts in Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267.]

A declaratory order may be resorted to where there is a dispute as to the legal position
of contesting litigants. The court determines the rights and duties of the contesting
parties.

If an owner acquired ownership of land and a third person subsequently claims to be

entitled to certain rights to that land, which are not registered against the title deed, the
parties may approach the court for an order setting out the legal position (Willoughby’s
Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267; De Kock v Hänel 1999 (1) SA
914 (C). These cases are discussed below under SU 10 on servitudes.)

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Activity
Before you continue, attempt to answer the following questions:

1 Z, a neighbour of S’s, has been farming a part of S’s farm

Highlands for a number of years. Z avers that he has become the
owner of that part of the farm through prescription. S denies this and claims
that Z has merely leased that part of the farm. No documentation confirming
either case can be found. What remedy could be employed to solve this
problem and what are the requirements for the particular remedy? (4)

2 S transferred an exclusive right to trade on a certain piece of land to Z. Z

transferred this right to his son, Zz. The right was not registered in favour of Z.
S sold his farm to X. X argues that Zz is not entitled to trade on that piece of
land, but Zz insists that he acquired that right from his father, Z. Which is the
appropriate remedy to use here? Explain and refer to case law. (3)
Answer
If a person claims servitude rights and such rights are disputed by the owner of
the land the owner may apply to the court for a declaratory order (1) together
with a mandatory or prohibitory interdict (1) – Willoughby’s Consolidated Co Ltd
v Copthall Stores Ltd. (1)

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 2.4 Actio negatoria
The actio negatoria is a real action aimed at protection of ownership in circumstances
where third persons seek to exercise rights of a servitude holder which they do not have
or where servitude holders exceed the limits of their servitudes (JH Wade v AM Paruk
(1904) NLR 219).

3 DELICTUAL REMEDIES
3.1 Condictio furtiva

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Example1
Q is the owner of a car. T, a thief, steals the car. He changes the engine and registration
numbers and sells the car to Z.

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Example 2
Q is the owner of a car. T, a thief, steals the car and gives it to his son Tt to use.

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Example 3
S rents a car from a car rental agency. In terms of the lease agreement S is liable for any
damage to the car. S goes on holiday and asks Z, his sister-in-law, to park the car in her
garage while he is away. She agrees. One Saturday she removes the car from the garage
and takes her daughter to the doctor. The car is stolen from the doctor’s parking area. The
car cannot be traced and the car rental agency claims the car from S. Since S is unable to
return the car, he pays the car rental agency and claims the amount from Z.

[Based on the facts in Clifford v Farinha 1988 (4) SA 315 (W).]

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Example 4
Q is the owner of a car. T, a thief, steals the car, changes the engine and registration
numbers and sells the car to Z. The car is written off in an accident involving Z.

3.1.1 Definition
The condictio furtiva originated in Roman law. It is a personal action arising from the
delict theft. This means it can only be instituted against the thief or, after his/her death,
the thief’s heirs. The condictio furtiva can be defined as an action which can be instituted
by the owner or a person with a lawful interest in claiming the thing or its highest value
since the theft from the thief or person who removed the thing with deceitful intent
(Clifford v Farinha 1988 (4) SA 315 (W) 323F–324). This action can be used as an
alternative to the rei vindicatio.

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3.1.2 Requirements
To succeed with this action, the applicant must prove:

(i) ownership or retention of a lawful interest from the date of theft to the date of
institution of the action
(ii) theft or removal of the thing with deceitful intent
(iii) if the action is not instituted against the thief or deceitful remover, that the
defendant is the heir of the former

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
Before you continue, attempt to answer the following question:

1 S rents a car from a car rental agency. In terms of the lease

agreement S is liable for any damage to the car. S goes on holiday and
asks Z, his sister-in-law, to park the car in her garage while he is away. She
agrees. One Saturday she removes the car from the garage and takes her
daughter to the doctor. The car is stolen from the doctor’s parking area. The
car cannot be traced and the car rental agency claims the car from S. Since S is
unable to return the car, he pays the car rental agency and claims the amount
from Z. Which action is applicable, what are the requirements and will Z
succeed? Refer to case law. (10)
Remark
In your answer to this question you should refer to the condictio furtiva and the
requirements for a successful reliance on the remedy. The relevant case is
Clifford v Farinha. In this decision the court held that the condictio furtiva can
also be instituted by someone who is not the owner of the stolen thing but
who has a lawful interest in the thing.

3.2 Actio ad exhibendum

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Example1
Q is the owner of a car. T, a thief, steals the car, but because he is afraid of being caught by
the police, he sets fire to the car and destroys it completely.

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Example 2
Q is the owner of a motor vehicle. T, a thief steals the car. T changes the engine and
registration numbers and sells it to Z. The car is written off in an accident involving Z. The
wreck is under the control of a scrap metal dealer.

3.2.1 Definition
In Roman-Dutch law the actio ad exhibendum was regarded as a property-law action. In
modern law the tendency is to regard it as a delictual action. The actio ad exhibendum

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 can be defined as an action in terms of which the owner can claim the market value of
the thing from a person who destroyed or alienated the thing with a mala fide intention.
Because of its peculiar requirements, however, experts in the law of delict find it difficult
to make it fit into the delictual mould.

3.2.2 Requirements
The following must be proved to succeed with the actio ad exhibendum:

(i) ownership of the thing

(ii) wrongful and intentional alienation or destruction of the thing
(iii) mala fide intention (with knowledge) of the person who alienated or destroyed the
thing
(iv) loss by the owner of the thing

The requirements for this remedy were explained as follows in Frankel Pollak Vinderene
Inc v Stanton (2000 (1) SA 425 (W) 429–430):
As it is available today, it is a remedy by which the plaintiff can recover damages for the
wrongful disposal, consumption or destruction by the defendant of his/her res [thing] when
the defendant had knowledge of the plaintiff’s title or claim. Knowledge, used in a neutral
sense at this stage of the discussion, is the vital ingredient. Without it, the plaintiff would
have no remedy because the doctrine of conversion is not part of our law. The mere
acquisition of the property does not give rise to the actio ad exhibendum because, if the
acquisitor retained possession, the remedy against him or her would be the rei vindicatio.
The defendant is, however, liable if the property is intentionally disposed of or consumed
by the defendant (and possibly if it is destroyed, damaged or lost as a result of his or her
negligence) that the defendant is liable. If the property is destroyed or damaged without
fault on the defendant’s part, there is no liability.

3.3 Aquilian action (delictual claim for damages)

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Example
Q is the owner of a motor car. T, a thief, steals the car. Z borrows the car, drives through a
red traffic light and causes an accident. The car is seriously damaged, but can be repaired at
a high cost.

Damages can be claimed with this action from any person who through his/her unlawful
conduct caused loss to an owner’s thing in a culpable (intentional or negligent) manner
(Hefer v Van Greuning 1979 (4) SA 952 (A) and Philip Robinson Motors (Pty) Ltd v NM
Dada (Pty) Ltd 1975 (2) SA 420 (A)). [The requirements for success with the Aquilian
action are discussed extensively in the module on the law of delict.]

The following must be proved to succeed with the Aquilian action (actio legis Aquiliae):

(i) unlawful conduct by the defendant

(ii) culpability (intent/negligence) on the part of the defendant
(iii) proprietary right/interest of the plaintiff in the thing

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 (iv) patrimonial loss by the plaintiff
(v) causal connection between the patrimonial loss and the conduct of the defendant

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
Before you continue, attempt to answer the following question:

1 Q is the owner of a car. T, a thief, steals the car.

(a) T changes the engine and registration numbers and sells it to Z. Can Q
claim the car from Z? If so, which remedy is applicable, what must Q
prove to be successful with his claim and what are his chances of success?(4)
Remark
The fact that the engine and registration numbers have been changed does
not mean that the car is not identifiable. It will depend on the facts of each
case whether the owner can still identify his/her car.

(b) T gives the car to his son Tt to use. Can Q institute the condictio furtiva
against Tt? Substantiate your answer and briefly mention the requirements
for this remedy. (5)
Remark
Take note that Tt is not necessarily the heir of T. The condictio furtiva can only
be instituted against T’s heirs after T’s death.

(c) T changes the engine and registration numbers and sells the car to Z. The
car is written off in an accident involving Z. The wreck is under the control
of X, a scrap metal dealer. Discuss the following remedies and briefly indic-
ate their applicability:
(i) rei vindicatio (5)
Answer
This action can be used against X, the person who is in control of the
thing. In this case Q can claim the wreck from X provided that she can
prove the following:
(i) ownership (1)
(ii) that the car exists and is identifiable (1)
(iii) that X is in control (1)

Q is, however, probably interested in getting more than the wreck of the
car. There are other more suitable remedies such as the actio ad exhibendum
(in terms of which the market value can be claimed) (1) or the condictio
furtiva (in terms of which the highest value since the theft can be
claimed). (1)

(ii) Aquilian action (5)

Answer
This action can only be instituted against the person who caused the
damage (1) unlawfully (1) and culpably. (1) The facts contain no indication that
Z (1) acted in the above way and therefore it would be difficult for Q to prove
the requirements for a successful reliance on the Aquilian action. (1)

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 (iii) actio ad exhibendum (6)
Answer
This action can be instituted against T. (1) For a successful reliance on this
remedy Q must prove that he is the owner of the car, (1) that T intention-
ally (1) alienated (1) the car and that he was mala fide (1) in doing so. If he
can prove the above, he can claim the market value (1) of the car at the
time of the alienation. (1)

(iv) condictio furtiva (10)

Answer
Apart from the actio ad exhibendum, Q could also use the condictio furtiva
against T. (1) This action is a personal action (1) against the thief (or his/her
heirs) in terms of which Q can claim the car (1) or the highest value of the car
since the theft. (1) Q could, therefore, use this remedy as an alternative to the
actio ad exhibendum. (1) Since Q will have to prove mala fide conduct on T’s
part in the latter action, (1) it may be easier to prove the requirements of the
condictio furtiva. (1) The condictio furtiva might also prove to be more ad-
vantageous, (1) since Q could possibly claim more with this action than with
the actio ad exhibendum. (1) This would be the case where the value of the
stolen thing is volatile and subject to market fluctuations, as in the case of gold
coins. (1)

(d) Because T is afraid of being caught by the police, he sets fire to the car and
destroys it. Could Q institute the actio ad exhibendum against T? What could
he claim? What must he prove? Will he succeed in this case? (7)
Answer
The actio ad exhibendum could possibly be instituted against T. (1) For a
successful reliance Q must prove that he is the owner of the car, (1) that T
intentionally (1) destroyed (1) the car and that he was mala fide (1) in doing so.
If he can prove the above, he can claim the market value of the car at the time
when it was destroyed. (1) In this case it may be difficult to prove mala fide
conduct on T’s part, since he could argue that it was not with malicious intent
that he set light to the car, but because he was afraid of being caught by the
police. (1)

(e) Z borrows the car, drives through a red traffic light and causes an accident.
The car is seriously damaged, but can be repaired at a high cost. Advise Q
as to his legal position. (5)

4 SUMMARY OF REMEDIES
The next page contain a summary of the remedies available to an owner. You must
study this summary in detail.

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DIAGRAM 9: Summary of remedies

Remedy What can be Who can claim? Against whom can What must be proved?
claimed? action be insti-
tuted?

rei . thing . owner . any person in . ownership

vindicatio control, unlaw- . thing exists and is identifi-
fully able
. defendant in control
when action instituted

interdict . order to do/re- . owner . violator . clear right

frain . lawful holder . injury actually committed
or reasonably appre-
hended, and
. absence of similar pro-
tection by any other or-
dinary remedy

declaratory . order for setting . owner . opponent in . existing/future

order out the rights and . possessor/ dispute right/interest
duties of holder . real dispute about right/
parties to interest
dispute . requirements for right/in-
terest relied on

actio prohibition of exer- . owner . violator . ownership

negatoria cising . physical infringement of
entitlements of entitlements of ownership
servitude holder/
exceeding of rights
of servitude holder

condictio . stolen thing or . owner or person . thief or thief’s . ownership/retention of

furtiva highest value of with lawful inter- heirs (after thief’s lawful interest from date
thing since theft est death) of theft to date of institu-
. person who re- tion of action or until
moved with de- destruction of thing
ceitful intent . theft/removal with deceit-
ful intent by defendant
. if action is not instituted
against thief/deceitful re-
mover, that defendant is
an heir of former

actio ad . market value of . owner . former holder . ownership

exhibendum thing at time of who mala fide . wrongful and intentional
alienation/de- alienated or de- alienation/destruction
struction stroyed thing . mala fide conduct (with
knowledge)
. loss

actio legis . damages . owner . person who . act against the law (un-
Aquiliae . bona fide posses- caused damage lawful conduct)
sor/holder . culpability (intent/negli-
gence) of defendant
. proprietary right/interest
in thing
. patrimonial loss
. causal connection be-
tween patrimonial loss
and conduct of defendant

131
 TERMINATION OF OWNERSHIP

CONTENTS
1 Introduction
2 Death of owner
3 Destruction of thing
4 Termination of legal relationship
4.1 Transfer of ownership
4.2 Loss of physical control (thing becomes res nullius)
4.3 Operation of law

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Example
X and Y are co-owners of the farm Waterford. X dies and Y is his only heir. Y starts a
nursery on the farm. She spends a lot of money on getting the business off the ground. A
few months after the nursery opens, there is a fire on the farm. Both the nursery and a
section of the farmhouse are destroyed. Some antique furniture and paintings are also
ruined. A number of pieces of furniture which were badly damaged are thrown on the
municipal rubbish dump from which other people remove the useful items. Y was not fully
insured and, to cover her losses, she sells the remaining antique furniture and paintings.
However, she is unable to meet all her obligations and she is declared insolvent.

1 INTRODUCTION
In this study unit the methods by which ownership is terminated are discussed. You
should be able to distinguish three main groups, namely termination by the death of
the owner, the destruction of the thing and termination of the legal relationship. The
last-mentioned method can be divided into three subgroups, namely transfer of
ownership, loss of physical control and by operation of law. The termination of
ownership by operation of the law can take place in various ways. You should be able to
name them.

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2 DEATH OF OWNER
When an owner dies his/her ownership is terminated. In Greenberg v Estate Greenberg
(1955 (3) SA 361(A)), it was held that on the opening (delatio) of an inheritance the heir
acquires a vested right, namely a personal right, against the executor to demand delivery
or transfer of the inheritance. The heir becomes owner of the assets in the inheritance
only when the executor delivers or transfers the property to him or her. The question in
whom ownership vests after the testator’s death was left open by the Appellate Division.

3 DESTRUCTION OF THING
When a thing is destroyed or ceases in some way to be a res in commercio, ownership is
terminated.

4 TERMINATION OF LEGAL RELATIONSHIP

There are three ways in which the legal relationship between the owner and the thing is
terminated, namely transfer of ownership, loss of physical control and operation of
law.

4.1 Transfer of ownership

A person loses ownership of his/her thing when he/she transfers it to another person by
means of delivery or registration.

4.2 Loss of physical control (thing becomes res nullius)

Ownership ends when a thing becomes a res nullius (eg, by loss of control of wild
animals or where tamed animals lose the habit of returning). Here a distinction is drawn
between a res derelicta (which is a thing which has been abandoned by the owner with
the intention of no longer being the owner) and a res deperdita (which is a lost thing).
The former becomes a res nullius, but the latter remains the property of the owner (see
SU 4 para 2.2.2).

4.3 Operation of law

Ownership is terminated by operation of law, for example in accession, acquisitive
prescription, attachment and sale in execution, confiscation (by the State), expropriation
(see, eg, section 8(1) of the Expropriation Act 63 of 1975), forfeiture (in favour of the
State), insolvency, manufacture, and in terms of a number of statutory provisions (eg,
demolition of a house erected in contravention of building regulations).

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 ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After you have studied this section, you should be able to answer the
following questions:

1 Name the three main groups in terms of which ownership is termin-

ated. (3)
2 Mention the three subgroups in which the legal relationship between an
owner and his/her thing is terminated. (3)
3 Name the ways in which ownership is terminated by operation of law. (9)
4 X and Y are co-owners of the farm Waterford. X dies and Y is his only heir.
Y starts a nursery on the farm. She spends a lot of money on getting the
business off the ground. A few months after the nursery opens, there is a fire
on the farm. Both the nursery and a section of the farmhouse are destroyed.
Some antique furniture and paintings are also ruined. A number of pieces of
furniture which were badly damaged are thrown on the municipal rubbish
dump from which other people remove the usable items. Y was not fully
insured and in order to cover her losses she sells the remaining antique
furniture and paintings. However, she is unable to meet all her obligations and
she is declared insolvent. State the three main groups in terms of which
ownership can be terminated in this example, in order of occurrence, with
reference to the factual situation in each instance. (6)

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S T U DY UN I T

7
CO-OWNERSHIP

CONTENTS
1 Introduction
2 Definition
2.1 Elements
2.1.1 Ownership
2.1.2 Two or more persons
2.1.3 One thing in undivided shares
3 Rights and duties regarding thing
3.1 Whole thing
3.1.1 Alienation or burdening
3.1.2 Use
3.1.3 Profit, income and fruits
3.1.4 Maintenance and expenses
3.2 Undivided share
3.3 Exclusive use of part of thing
4 Division of thing
4.1 Agreement to divide without termination of co-ownership
4.2 Agreement to partition and termination of co-ownership
5 Remedies
5.1 Damages or division of profit
5.2 Interdict
5.3 Subdivision

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 In this study unit we analyse co-ownership. We distinguish between free co-
ownership and bound co-ownership. We discuss the rights and duties of co-
owners, as well as the remedies available to co-owners.

1 INTRODUCTION
We define co-ownership in this study unit. A distinction is drawn between free co-
ownership and bound co-ownership and the consequences of this difference are briefly
referred to. We discuss the position of co-owners in regard to the whole thing and in
regard to their undivided share. The remedies available to co-owners are briefly
discussed, as well as termination of co-ownership.

2 DEFINITION

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Example1
Q and R are co-owners of their farm Pulang (one undivided piece of land). They purchased
the farm jointly before they were married.

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Example 2
X and his wife, Y, are married in community of property. They are therefore co-owners of
the farm Waterford (one undivided piece of land) in equal shares.

Definition Co-ownership can be defined as the situation where two or more persons own the
same thing at the same time in undivided shares. It is important to note that it is the
abstract concept of ownership that is divided, not the thing itself. Two forms of co-
ownership can be distinguished, namely free co-ownership and bound co-ownership.
In free co-ownership the co-ownership is the only relationship between the co-owners
(see the position of Q and R in example 1 above). Bound co-ownership exists where
there is an underlying legal relationship between the co-owners which determines the
basis of their co-ownership, for example, a marriage in community of property (see the
position of X and Y in example 2), a partnership or a voluntary association. In all these
cases the underlying relationship will determine, for example, whether the co-owners
can burden or alienate their shares, how the co-ownership can be terminated and how
the entitlements will be exercised by each co-owner.

2.1 Elements

2.1.1 Ownership
Several persons cannot be separate owners of the same thing at the same time. No co-
owner is a separate owner of the whole thing. Each co-owner owns the thing jointly in
undivided shares together with the other co-owners.

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2.1.2 Two or more persons
In co-ownership there are always a number of legal subjects and various legal
relationships are covered. Co-ownership occurs, for example, in the case of mixing of
solids and mingling of fluids (see SU 4, para 4), joint heirs, joint legatees, joint donees
and joint purchasers (see the position of Q and R in example 1 above).

Business partners and members of an unincorporated association are co-owners of the

property owned by the partnership or association. In the case of a marriage in
community of property, the husband and wife become co-owners of the common
estate, each of them having an undivided share in the estate (see the position of X and Y
in example 2 above). When the marriage is dissolved by death or divorce the common
estate ceases to exist and is divided into two halves.

2.1.3 One thing in undivided shares

A co-owner is not the owner of the whole thing. Nor is he/she the owner of a particular
physical part of the thing, for no physical or corporeal division of the thing has taken
place. The thing which is jointly owned is not divided. It is the ownership which is
divided by a conceptual or imaginary division. Thus Q and R can be the co-owners of a
fountain pen, a book, a house, a motor car, a wireless, a farm, et cetera. Q and R are
co-owners, in undivided shares, of the thing concerned, regardless of whether the thing
is a divisible or an indivisible thing. The undivided shares in the ownership of the co-
owners may be equal (eg, Q (½) and R (½)) or unequal (eg, Q (¼) and R (34)).

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
Before you continue, attempt to answer the following questions:

1 X and his wife, Y, married in community of property, are co-owners

of the farm Waterford (one undivided piece of land). Indicate which form
of co-ownership is relevant here. (1)
2 Q and R are co-owners of their farm Pulang. They purchased the farm jointly
before they were married out of community of property. Indicate which form
of co-ownership is relevant here. (1)
3 What is divided in co-ownership the thing or the ownership? (1)

3 RIGHTS AND DUTIES REGARDING THING

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Example
Pretorius is the usufructuary of an undivided half of the farm Leeuwkloof and also acts as the
guardian of a minor son who owns a one-eighth undivided share in the farm, subject to her
usufruct. Glas is the registered owner of the other undivided half of the farm. Apparently,
with the consent of the other interested parties, certain of Pretorius and Glas’s children
quarried and burned lime in kilns which they had erected upon the farm, not far from the
boundary of an adjoining property, Kalkheuvel. They had made a road leading from this
spot to the market or, at any rate, improved an existing track so as to make it suitable for
transport. Nefdt, a son-in-law of Glas’s, having acquired rights to lime on the adjoining farm
of Kalkheuvel, began transporting his lime, with the consent of Glas, through the farm,

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 Leeuwkloof, along the road used by those quarrying lime upon Leeuwkloof. Pretorius
objected to this. Negotiations aimed at giving Nefdt a right of passage began, but they fell
through. It is alleged that a contract was then concluded between Glas and Nefdt, by
which Glas undertook to transport the lime to the market on behalf of Nefdt, and for that
purpose used the road across Leeuwkloof.

[The facts in Pretorius v Nefdt and Glas 1908 TS 854.]

3.1 Whole thing

Please note that in this paragraph we deal with the whole thing owned by all the co-
owners.

3.1.1 Alienation or burdening

It should be borne in mind that the ownership is divided and not the thing. Therefore, to
alienate (by means of a sale or donation) or burden (by means of a pledge or mortgage)
the thing as such, all the co-owners must consent to the alienation or burdening and
cooperate in complying with the required formalities. In Bonheur 76 General Trading (Pty)
Ltd v Caribbean Estates (Pty) Ltd (2010 (4) SA 298 (GSJ) 303G), Van Eeden AJ remarked
that the general rule is that a single co-owner cannot alienate or burden the whole of the
property. If the common property is alienated or burdened with a real right, the consent
of all the co-owners is required.

3.1.2 Use
Every co-owner is entitled to use the thing reasonably and in proportion to his/her
undivided share (Erasmus v Afrikander Proprietary Mines Ltd 1976 (1) SA 950 (W)).

Co-owners can jointly decide how to use the thing, for example, in terms of a use
agreement. This agreement is, however, only binding on the parties to the agreement.

3.1.3 Profit, income and fruits

The co-owners are entitled to share in the fruits, income or profit regarding the
property in proportion to each co-owner’s share. They may vary this by agreement,
which agreement is binding only on the parties to it.

3.1.4 Maintenance and expenses

The co-owners must contribute to the maintenance of and expenses regarding the thing
in proportion to their shares. This is obligatory only in relation to necessary expenses for
the preservation of the property.

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3.2 Undivided share

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Example
X and Y wish to divide their farm Waterford into units where X will use certain parts for
sowing crops and Y will use the other parts for grazing purposes.

Please note that this paragraph deals with the undivided shares of the different co-
owners.

Every free co-owner can make completely independent arrangements with regard to
his/her own undivided share in the ownership of the thing. Thus every free co-owner
may alienate, mortgage, burden with a personal servitude (usufruct – see Pretorius v
Nefdt and Glas 1908 TS 854; Bonheur 76 General Trading (Pty) Ltd v Caribbean Estates
(Pty) Ltd 2010 (4) SA 298 (GSJ) 305A–306A), rent or leave to his/her heirs the
undivided share in the ownership, without the cooperation of the other free co-owners.
In the case of bound co-ownership this entitlement is restricted by the terms of the
underlying legal relationship, for example a marriage in community of property or a
partnership.

Every free co-owner can use the thing in proportion to his/her undivided share in the
ownership, provided that the use is reasonable. A free co-owner cannot use the thing as
though he/she were its sole owner, for example, one of the co-owners cannot give
permission to a third person to use the common property without consulting the other
co-owners (see Pretorius v Nefdt and Glas 1908 TS 854).

The profit which a free co-owner makes out of reasonable use, which is in proportion to
his/her undivided share of the ownership of the thing, may be retained and need not be
shared with the other co-owners.

3.3 Exclusive use of part of thing

Please note that in this paragraph we discuss the position regarding the exclusive use of
a part of the thing.

Only with the cooperation of all the co-owners may any steps be taken with regard to a
specific portion of the thing, for example, by means of alienation, burdening, alteration
or renting of a specific portion of a farm. A co-owner cannot unilaterally appropriate to
him/herself a portion of the thing (not even in proportion to his/her undivided share)
without the cooperation of the other co-owners. The co-owners may also agree on the
proportionate use of a movable thing, for example a tractor may be used by co-owners
for different periods.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

Before you continue, attempt to answer the following questions:

1 Briefly discuss a co-owner’s entitlement to use the thing. (5)

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 Remark
Please refer to para 3.1.2 above and briefly discuss the case mentioned there.

2 Can a co-owner burden the thing without the consent of the other
co-owners? Substantiate your answer. (5)
3 Can a co-owner burden his/her undivided share? Substantiate your answer. (5)
4 X and Y are co-owners of a farm. They built a road on the farm, which they
use to transport lime to the market. Without X’s knowledge and approval Y
gives permission to a neighbour, Z, to use the road so that he can transport
his lime to the market. X is unhappy about the heavy traffic on the road and
asks Y to revoke her permission to Z. X also asks Z to discontinue his activi-
ties. Neither Y nor Z takes any notice of X. Discuss the remedies available
to X. Refer to case law. (8)
5 Pretorius is the usufructuary of an undivided half of the farm Leeuwkloof and
also acts as the guardian of a minor son who owns a one-eighth undivided
share in the farm, subject to her usufruct. Glas is the registered owner of the
other undivided half of the farm. Apparently with the consent of the other in-
terested parties, certain of Pretorius and Glas’s children quarried and burned
lime in kilns which they had erected upon the farm, not far from the bound-
ary of an adjoining property, Kalkheuvel. They had made a road leading from
this spot to the market or, at any rate, improved an existing track so as to
make it suitable for transport. Nefdt, a son-in-law of Glas’s, having acquired
rights to lime on the adjoining farm of Kalkheuvel, began transporting his lime,
with the consent of Glas, through the farm Leeuwkloof along the road used by
those quarrying lime upon Leeuwkloof. Pretorius objected to this. Negotia-
tions aimed at giving Nefdt a right of passage began, but they fell through. It
is alleged that a contract was then concluded between Glas and Nefdt, by
which Glas undertook to transport the lime to the market on behalf of Nefdt,
and for that purpose used the road across Leeuwkloof. Pretorius wished to
prevent Nefdt and Glas from using the road on Kalkheuvel. What must she
prove to succeed with an interdict? Will Pretorius succeed with this applica-
tion? (10)
Remark
In your answer to this question you should refer to the requirements of an
interdict. In Pretorius v Nefdt and Glas the court held that Pretorius’s rights had
clearly been infringed and that she was entitled to an interdict against Nefdt.
However, the interdict against Glas failed because the court found that Glas’s
use of the road did not interfere with the similar use of the road by Pretorius.
Judge Mason decided that a co-owner was not limited to using the road only
for the purposes of the farm.

4 DIVISION OF THING

4.1 Agreement to divide without termination of co-ownership

Free co-owners may agree with each other to divide the thing physically among
themselves. They may do this in proportion to their undivided shares in the ownership
of the thing or in any other proportion. They are free to make such physical division of

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the thing at will. Once all the co-owners have agreed, any co-owner may demand that
the terms of the agreement be carried out. It must be pointed out, however, that such
an agreement to divide in no way terminates the co-ownership in respect of the entire
thing, since the agreement as to the division is only binding on the parties to it.

4.2 Agreement to divide and terminate of co-ownership

Co-ownership in respect of land will only be terminated when partition transfers are
registered. A partition transfer is based on an agreement to terminate the co-ownership
relationship and subdivide the land. Note that an informal partition agreement between
co-owners of land is binding on the parties to it (inter partes). Every co-owner is at
liberty to demand division of the thing at any time, unless he/she has bound him/herself
by agreement with the other co-owners not to demand division for a certain period.
Even in this case the co-owner can still demand division. This act will merely constitute
breach of contract and may lead to a claim for damages.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
Before you continue, attempt to answer the following question:

1 Q and R are co-owners of their farm Pulang. They purchased the

farm jointly before they were married. Q and R wish to divide
Pulang into units. Q will use certain parts for sowing crops and R will
use the rest for grazing purposes. Discuss the possibilities open to Q and R. (5)

Remark
Consult paragraphs 3.3 and 4.1 above for the answer to this question.

5 REMEDIES
Although the co-owners can regulate the use and control of the property by mutual
agreement, co-owners occasionally exceed their entitlements or are not in agreement
with each other. Depending on the circumstances, different remedies are then available:

5.1 Damages or division of profit

If a co-owner uses the thing unreasonably, in relation to his/her share, by using it for a
purpose for which it was not intended or to an extent which is not in accordance with
his/her share, the other co-owners can claim damages or division of profit.

5.2 Interdict
A co-owner can use an interdict to prohibit another co-owner from making
unreasonable use of the property (Pretorius v Nefdt and Glas 1908 TS 854). All the
requirements for an interdict must be proved (see SU 6, para 2.2).

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 5.3 Subdivision
If the co-owners decide to subdivide the property for any reason whatever, they must
first try to reach an agreement on the form the subdivision will take. Only if they fail to
reach such an agreement, can they approach the court. When the co-owners disagree
about the physical or corporeal division of the thing, any co-owner may claim division by
means of the actio communi dividundo. The applicant must show that he/she has already
tried to obtain a division by means of an agreement with the other co-owners. Only
when such an attempt has failed, can a co-owner approach the court.

The court has a wide discretion with regard to the division. The court usually
endeavours to divide the property physically among the co-owners in accordance with
the value of each co-owner’s undivided share. When physical division of the thing is
impossible because the thing is indivisible, as in the case of a painting or a building, the
court may award the thing to one of the co-owners subject to payment of
compensation to the other co-owners. It is also possible that the court may order that
the thing be sold at a public auction and that the proceeds of the sale be divided among
the co-owners in a particular way.

When the action for the division of common property (actio communi dividundo) is
instituted, division and adjustment may be claimed; in other words, apart from division
of the thing, damages or a part of the profit made through unreasonable use of the thing
may also be claimed.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

Before you continue, attempt to answer the following questions:

1 State the remedies available to a co-owner. (3)

2 Briefly discuss:
(a) the remedies available to a co-owner (9)
(b) subdivision of the common property (5)

3 Indicate what the position is if co-owners cannot reach agreement on the

subdivision of the property. (5)

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S T U DY UN I T

8
POSSESSION AND
HOLDERSHIP
NATURE OF

CONTENTS
1 Introduction
1.1 Physical element (corpus)
1.1.1 Direct physical control
1.1.2 Indirect physical control
1.1.3 Acquisition of control
1.1.4 Personal exercise of control
1.1.5 Continuous control
1.1.6 Degree of contact
1.2 Mental element (animus)
1.2.1 Intention of owner (animus domini)
1.2.2 Intention to derive benefit (animus ex re commodum acquirendi)
2 Possession – fact or right?
3 Ius possessionis and ius possidendi
4 Possession and presumption of ownership

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 This study unit deals with possession and holdership. In it we discuss both the
physical and the mental element of possession. We furthermore consider the
nature of possession – is it a fact or a right? We draw your attention to the
distinction between the right of possession (ius possessionis) and the right to
possess (ius possidendi). The function of possession in the presumption of
ownership is also addressed.

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Example1
Q accidentally sinks a borehole on the farm belonging to X and Y and erects a windmill
there. He was under the impression that the borehole had been sunk on his side of the
boundary.

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Example 2
S leases 100 hectares of Waterford from his parents, X and Y for grazing purposes. The
lease contract is invalid and S is unaware of this until his attorney informs him of the
invalidity.

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Example 3
S opens his mail and finds pornographic material in it. He decides to take it to the police the
next day on his way to work. In the meantime he hides it high up in a cupboard in his
bedroom so that his wife and children will not see it. That night the police raid his house
and discover the pornographic material. S is charged with the ‘‘possession’’ of pornographic
material in terms of the Indecent or Obscene Photographic Matter Act 37 of 1967 which
prohibits possession of such material.
[Facts in S v Brick 1973 (2) SA 571 (A).]

1 INTRODUCTION
The concept ‘‘possession’’ is one of the most difficult concepts in the law of things.
Authors writing on this branch of the law approach the problem differently. Broadly
speaking, possession is a compound concept consisting of a physical situation and a
mental state. When the term ‘‘possession’’ is used in this broad sense it includes
possession in the narrow sense (that is, unlawful possession, see SU 1, para 2.3.2) and
holdership. Therefore possession in the broad sense can be described as a real
relationship between a legal subject and a thing, characterised by two elements:
(i) a physical element (corpus)
(ii) a mental element (animus)

Depending on the content of the mental element, this real relationship is described as
possession (which is always unlawful) or holdership (which can be lawful or unlawful).
Physical control with the intention of an owner is ‘‘possession’’, but physical control with
the intention to derive a benefit is ‘‘holdership’’.

144
It is important to understand that possession (narrow sense) is only unlawful when it is
distinguished from holdership. For example, if I am in possession of my car, of which I
am the owner, my possession is lawful. As you will see below, an example of a
possessor in the narrow sense is a thief. A thief’s control (possession) can never be
lawful. It is more accurate to say that an owner controls his/her car. It is also one of the
entitlements of ownership. However, it is not wrong to say that an owner possesses his/
her car. (See SU 3 par 1.4.3.)

1.1 Physical element (corpus)

The physical (corpus) element of possession and holdership refers to the physical or
actual control exercised over the thing by the possessor or holder, in order for the
person concerned to qualify as a possessor or holder. Without actual physical control,
there is no relationship which has any significance for the law of things. However, the law
has given the concept ‘‘physical control’’ a unique content and meaning. It is therefore
always necessary to judge the existence of a physical control relationship according to
the relevant legal criteria. This implies that, in establishing the existence of physical
control, it is necessary to consider the circumstances, the nature of the particular thing,
the nature of the relationship, established customs prevailing in the particular context
where similar relationships are concerned, and other similar considerations.

1.1.1 Direct physical control

In principle, physical control is a factual situation, which is judged on the basis of physical
criteria. A person has actual physical control of the pen in his/her hand, or of the chair on
which he/she is sitting. Such a person has direct physical control over the pen and the
chair. In its narrowest sense, the term ‘‘physical control’’ can therefore be construed
quite literally (Scholtz v Faifer 1910 TS 243 247; Nienaber v Stuckey 1946 AD 1049
1057; Morkel’s Transport v Melrose Foods 1972 (2) SA 464 (W) 467).

1.1.2 Indirect physical control

Since it is not always possible to exercise direct physical control over all things, it is
necessary to construe physical control in a broader sense in certain circumstances and,
specifically, with reference to a particular kind of thing. Physical control in the broader
sense applies, for example, to a chair which stands in a person’s lounge while that
person is at work, or to a car locked up in the owner’s garage. In these situations the
person has indirect physical control (Welgemoed v Coetzer 1946 TPD 701 720; Morkel’s
Transport v Melrose Foods 1972 (2) SA 464 (W) 467). Although the person is not in direct
physical control of the thing, he/she may take up control at any time.

1.1.3 Acquisition of control

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Example
S and his friends go for a hunting weekend. S mortally wounds a kudu. The kudu manages
to escape into dense bush. S gives up the search when darkness falls. On his way home

145
 from a party, Z, one of the farm labourers, stumbles upon the wounded kudu. He fetches
his friends and they slaughter the animal and take the meat to their respective homes. Z is
accused of the theft of the kudu.

[Based on the facts in R v Mafohla 1958 (2) SA 373 (SR).]

The requirements for physical control are applied more strictly where the acquisition of
physical control is concerned than in the case of the continued existence or retention of
control. Before a buyer can establish sufficient physical control for the purpose of
effective delivery over the thing he/she has bought, the buyer will need to gain direct
physical control of the thing. He/she can, however, then retain control over the thing by
means of indirect control, for example simply by locking it in his/her cupboard (Nienaber
v Stuckey 1946 AD 1049 1057–1058; Welgemoed v Coetzer 1946 TPD 701 720:
Morkel’s Transport v Melrose Foods 1972 (2) SA 464 (W) 467; Ex parte Van der Horst: in
re Estate Herold 1978 (1) SA 299 (T) 301; see also R v Mafohla 1958 (2) SA 373 (SR)).
Where actual physical control is required in order to establish control, such contact need
not be comprehensive. A farmer cannot be expected to be present on all parts of his/
her farm at the same time; similarly, one need only sit on one chair to have control over
a lounge suite as a whole. The cardinal question is whether the control of specific parts
of the whole justifies the conclusion that the other parts fall within the sphere of the
controller’s activities (Ex parte Van der Horst: in re Estate Herold 1978 (1) SA 299 (T)
301).

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Activity
Answer the following question before you continue:

1 S and his friends go for a hunting weekend. S mortally wounds a

kudu. The kudu manages to escape into dense bush. S gives up the
search when darkness falls. On his way home from a party Z, one of the farm
labourers, stumbles upon the wounded kudu. He fetches his friends and they
slaughter the animal and take the meat to their respective homes. Z is accused
of theft of the kudu. The state alleges that S was the owner of the kudu and
that Z stole the kudu. To succeed, the state will have to prove that S was the
owner. Will the state succeed in proving this? Substantiate your answer with
reference to case law. (10)
Remark
Note that control is evaluated more strictly when it is for the purpose of
acquisition of ownership.
See Study Unit 4, para 2, question 5.

1.1.4 Personal exercise of control

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Example
X and Y are co-owners of the farm Waterford. They purchase certain farm implements
from C, the cooperative, in terms of a credit agreement. C reserves ownership of the farm

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implements. The farm implements consist of a plough, a tractor, a harvester, spades, hoes
and picks. T steals the plough. The harvester is left with the farm workers on the north-
eastern corner of the farm, where it is required in autumn when the wheat is harvested. Z,
a neighbour, borrows the tractor for a month to plough her own fields. When Z has
finished ploughing, she lends her rented plough to X and Y in return for the loan of the
tractor.

Physical control need not be exercised personally, but may be exercised by one person
for and on behalf of another (as a representative or agent of the person who has control
over the thing). An employee may control an employer’s car on behalf of the employer,
for example, if the employee uses the car in the course of his/her employment. Again, a
doorman may control an umbrella for and on behalf of the owner, who has left it at the
entrance to a building. In such cases it is always very important to distinguish between
control exercised for and on behalf of another and control exercised in one’s own
interests (Strydom v De Lange 1970 (2) SA 6 (T) 11–12). The farm workers in the above
example are exercising direct physical control on behalf of X and Y.

1.1.5 Continuous control

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example1
In September S applies for restoration of control by means of the spoliation remedy
(mandament van spolie) against X and Y, who have locked the gate that gives him access to
their farm, thereby effectively debarring S from access to his farming implements. S had left
these on the farm after having harvested the crop in July. Since July neither he nor his
labourers have set foot on the land. X and Y argue that he has not been in control of the
implements since July and that he is therefore not entitled to succeed with his application.

[Based on the facts in Nienaber v Stuckey 1946 AD 1049.]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 2
S builds a dairy for Z. Z refuses to pay S the agreed amount on the due date. In December
S locks the partially completed building to establish a builder’s lien over the property. At the
beginning of February the following year Z takes control of the building. S applies to the
court for restoration of his control by means of the spoliation remedy (mandament van
spolie).

[Based on the facts in Scholtz v Faifer 1910 TS 243.]

Physical control does not necessarily imply that control of the thing must be maintained
continuously. A farmer retains physical control over those parts of his farm that he
seldom visits, and a person who leaves her car, locked, in a parking area while she does
her shopping still has physical control over it. An important criterion in this regard is
whether the controller is able to regain physical control at any time (Scholtz v Faifer 1910

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 TS 243; Nienaber v Stuckey 1946 AD 1049 1057–1058; Welgemoed v Coetzer 1946
TPD 701 720; Morkel’s Transport v Melrose Foods 1972 (2) SA 464 (W) 467; Ex parte
Van der Horst: in re Estate Herold 1978 (1) SA 299 (T) 301). The nature of the object
under control and the surrounding circumstances (such as the type of use) play a role in
determining if there is sufficient continuous control (compare Nienaber v Stuckey and
Scholtz v Faifer).

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After you have studied this section, answer the following questions:

1 In September S applies for restoration of control by means of the

spoliation remedy (mandament van spolie) against X and Y, who have
locked the gate that gives him access to their farm, thereby effectively debarring
S from access to his farming implements. S left these on the farm after having
harvested the crop in July. Since July neither he nor his labourers have set foot
on the land. X and Y argue that he has not been in control of the implements
since July and that he is therefore not entitled to succeed with his application.
Will their defence succeed? Substantiate your answer with reference to case
law. (8)
Remark
As you will see in the next study unit, in order to succeed with the spoliation
remedy, one must prove control of the thing so the question is: did S have
control of the farm implements before the gate was locked?

2 S builds a dairy for Z. Z refuses to pay S the agreed amount on the due date.
In December S locks the partially completed building to establish a builder’s
lien over the property. At the beginning of February the following year Z takes
control of the building. S applies to the court for restoration of his control. Z
argues that S is not entitled to restoration of control by means of the spoliation
remedy (mandament van spolie), since he did not exercise sufficient physical
control. Will this argument succeed? Substantiate your answer with reference
to case law. (5)

Remark
This question requires you to indicate whether Z’s argument that S is not entitled
to the restoration of control because he did not have sufficient physical control will
succeed. Answer
The facts of this case are similar to those in Scholtz v Faifer. (1) In order to retain a
lien over partially completed buildings, the builder must not only have the
intention to control but he/she must also have actual physical control personally
(or exercise it through a representative). (1) Such physical control must exist at the
time when the holder is despoiled. (1) Control of a partially completed building
must be distinguished from control of a completed building. In the latter case
control is exercised by locking the door and keeping the key. (1) However, in a
partially completed building, evidence of actual control by the holder or someone
on his/her behalf is required. (1) Such evidence was lacking in the above set of
facts. (1)

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1.1.6 Degree of contact
The degree of actual contact required for physical control is generally greater for
movable things than for immovables, simply because it is more difficult to maintain
comprehensive physical contact with an immovable thing (R v Mafohla 1958 (2) SA 373
(SR) and Reck v Mills 1990 (1) SA 751 (A)).

1.2 Mental element (animus)

The mental element, also called the intention of the controller, is – like the physical
element – a factual matter, since the presence or absence of a particular intention is
established factually. In the absence of an intention (animus), no legal relationship can be
said to exist between the legal subject and the thing. The intention must be firmly
established before the nature of the legal relationship can be determined. In this regard
the following requirements are relevant:

(i) The legal subject must be capable of forming a legally recognised intention, in
other words he/she must have capacity to act. Specific legal principles govern this
requirement (see the module for law of persons).
(ii) The legal subject must be aware of the particular relationship between him/
herself and the thing, in order for him/her to be able to form a specific intention
with regard to it.
(iii) The legal subject must form and maintain a specific intention with regard to his/
her control over the thing. It may be said that he/she should direct his/her will at
the control of the thing.

The specific intention formed by a legal subject with regard to his/her control of a specific
thing determines the nature of the real relationship. Although different forms of intention
were used in legal literature through the centuries, for the purposes of this module we
concentrate only on the intention of an owner (animus domini) and the intention to
derive a benefit (animus ex re commodum acquirendi).

1.2.1 Intention of owner (animus domini)

The ‘‘intention of an owner’’ means that the legal subject exercises control over a thing
with the intention or disposition which would normally be found in the owner of a thing.
The ownership intention entails that the person controlling the thing regards him/herself
as its owner, and his/her conduct signifies to the world that he/she has assumed
ownership. The necessary implication is that the controller will not recognise any other
person’s claim to ownership of the thing. Please note that the animus domini does not
refer to the intention to be the owner or to become the owner, it is the intention of an
owner (as if he/she is the owner).

Although this intention and behaviour can be exercised legally only by real owners, it is
possible for a non-owner (that is, one who is not the owner in law, because he/she does
not meet the legal requirements for establishing ownership to the thing) to have the
intention of an owner in certain circumstances.

This intention may be found among three groups of persons:

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 (i) Owners
Obviously, the legally recognised owner will regard and conduct him/herself as the
owner of the thing. However, strictly speaking, the owner’s intention regarding his/her
control is irrelevant as far as the law of things is concerned, since the consequences of
ownership that are legally ascribed to the owner are based not on his/her subjective
intention, but on the recognition of his/her ownership according to the law. The real
relationship of an owner to his thing is ownership.

(ii) Bona fide possessors (possessors in good faith)

A bona fide possessor can be defined as a person who is not recognised as the owner of
the thing, because he/she does not comply with the requirements for establishing
ownership, but who has the intention of an owner, on the incorrect assumption that he/
she is in fact the owner. (This assumption is also called the opinio domini.) The person
concerned is unaware of the fact that he/she does not meet all the requirements for
ownership, or he/she has accidentally appropriated another’s property, unaware that it is
not his/her own. The best examples of bona fide possessors are:

& a person who concludes a contract of sale with a non-owner and who, after delivery,
uses the thing, assuming that he/she has become its owner
& a person who accidentally picks up another’s pen, believing it to be his/her own, and
who then uses it as his/her own property in that belief
& a person who encroaches on his/her neighbour’s land, unaware that he/she is doing
so

Although the bona fide possessor’s control of the thing is unlawful (since he usurps a right
that is not legally recognised), it still has certain legal consequences, and is therefore
significant for the law of things.

(iii) Mala fide possessors (possessors in bad faith)

A mala fide possessor can be defined as a person who is aware of the fact that he/she is
not legally recognised as the owner of a thing, since he/she does not conform to the
requirements for ownership, but who nevertheless has the intention of an owner. A thief
is, of course, the best example. The mala fide possessor is characterised by the fact that
he/she is aware that he/she is not the owner of the thing, although he/she need not
know who the true owner is, or even whether there is an owner: he/she simply does
not recognise another person’s ownership of the thing. Although this relationship is
unlawful, it nevertheless has legal consequences.

It is important to bear in mind that the animus domini excludes the recognition of another
person’s ownership. A purchaser on credit who has agreed contractually that he/she will
become the owner of the thing only when the final payment has been made does not
have the animus domini, even though, in lay terms, he/she may regard himself as the
owner in the interim. Before the final instalment has been paid, the purchaser on credit
intends to derive benefit from the thing and is not a possessor but a holder.

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1.2.2 Intention to derive a benefit (animus ex re commodum acquirendi)
A person who controls a thing with the intention of deriving a benefit does not regard
him/herself as the owner of the thing, but simply intends to retain control over the thing,
and to keep controlling it to his/her own advantage. He/she does not consider him/
herself the owner or conduct him/herself as such, and will always recognise the owner’s
ownership. Such a person usually exerts control over the thing on the basis of the
owner’s permission or other valid legal grounds. The recognition of the owner’s
ownership is usually based on that permission or on the legal basis for control (eg, a
contract: Scholtz v Faifer 1910 TS 243 246–247; Yeko v Qana 1973 (4) SA 735 (A) 739).

This intention is found among two groups of persons:

(i) Lawful holders

A lawful holder can be defined as a person who physically controls the thing with the
owner’s permission or on another legal basis, in order to derive some benefit from it.
The holder does not regard himself/herself as the owner; nor does he/she pretend to
be the owner: He/she exercises control while recognising and respecting the owner’s
ownership. The best examples of lawful holders are:
& tenants
& borrowers
& purchasers on credit who have not yet paid all the instalments
& pledgees

These persons all base their control of the thing and their intention to derive a benefit
from it on the owner’s permission or on a legal ground (such as a contract) incorporating
the owner’s permission.

(ii) Unlawful holders

An unlawful holder can be defined as a person who does not regard or conduct him/
herself as the owner, and who recognises and respects the owner’s ownership to the
thing, but who physically controls it for the sake of the benefit he/she derives from it,
without the owner’s permission or other legal ground for his/her control. Two classes of
unlawful holders can be distinguished here, namely bona fide and mala fide unlawful
holders.

The bona fide unlawful holder can be defined as a person who physically controls the
thing unlawfully, but he/she is unaware of the fact, since he/she is under the incorrect
impression that he/she has the necessary permission or legal ground to control it. An
example would be that of a ‘‘lessee’’ who has unknowingly concluded an invalid lease
contract. He/she therefore believes, bona fide but wrongly, that he/she is using the thing
with the owner’s consent (while such ‘‘consent’’ would not be recognised legally and is
therefore invalid), with the result that his/her control is unlawful.

The mala fide unlawful holder can be defined as a person who knows that he/she does
not have the owner’s consent to control the thing, but he/she still exercises physical

151
 control over it for the sake of the benefit he/she can derive from it not with the intention
of an owner. An example would be that of the ‘‘lessee’’ who remains on the leased
premises after the lease has expired.

Possessors and holders are therefore distinguished on the basis of the specific content of
the intention (animus) with which each exercises physical control.

2 POSSESSION – FACT OR RIGHT?

An age-old debate centres on the question whether possession is a fact or a right, more
particularly, a real right. In Roman-Dutch law there was a difference of opinion on
whether or not possession is a real right. Roman law, as we have indicated above (see
SU 2, para 1), did not refer to rights, but to actions. The question was always whether a
person had an action in a specific situation. Certain classes of possessors were protected
mostly in terms of possessory interdicts, and in one instance even with an action.
However, the classes of possessors that we have referred to above were only protected
by means of possessory interdicts and holders were not protected at all. Therefore, in a
sense we can say that the factual situation of physical control with the necessary intention
(possession as a fact) never gave rise to an action and therefore possession was not a
right. In modern law, however, physical control is protected to such an extent that even
a mala fide possessor enjoys a strong measure of protection in terms of the spoliation
remedy (see SU 9, para 2.3). The real relationship of possessors is therefore protected
although they do not have a right to the thing.

3 IUS POSSESSIONIS AND IUS POSSIDENDI

Ius possessionis means the right of possession. Anyone who is in possession has the right
of possession, because the law recognises this real relationship and attaches certain
consequences to the factual situation. Therefore, even the thief has the ius possessionis,
while the thing is in his/her possession. The right of possession (ius possessionis) entails
that the real relationship may not be disturbed unlawfully.

Ius possidendi means the legally recognised right to possess. The thief does not have the
right to possess the stolen thing. A buyer of a thing has a right to possess (ius possidendi)
before delivery has taken place and, once it has taken place, he/she has the right of
possession (ius possessionis). A holder, for example a lessee, also has the legally
recognised right to possess.

4 POSSESSION AND PRESUMPTION OF OWNERSHIP

As long as a person is in control of a thing, that person has the right of possession (ius
possessionis). This does not mean that person has a right to possess (ius possidendi). If,
however, a third person wishes to claim the thing from the person in control, the third
person must prove a right to possess it (ius possidendi). The onus of proving a better title
is on the person wishing to enforce it. Consequently, there is a rebuttable presumption
of law that the person in control of a thing is also the owner of it, unless there is an
admission by the controller of the other party’s title as owner. An illustration of this

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principle can be found in the requirements for a successful reliance on the rei vindicatio
(see SU 6, para 2.1.2), where an owner who claims his/her thing from the person in
control bears the onus of proving ownership.

DIAGRAM 10: Possession and holdership

Possession (in the broad sense)

A real relationship between a legal subject and a thing,
characterised by a physical element and a mental element

Possession (in the narrow sense) Holdership

always requires physical control always requires physical control

mental element mental element

– intention of an owner – intention to derive a benefit
– always unlawful – could be lawful or unlawful

– possessor has a mere real relationship – lawful holder has a real right

eg usufructuary or pledgee

A lawful holder has a ius possessionis

(a right of possession) and a ius possidendi
( a right to possess).

– unlawful holder has a mere real relationship

bona fide possessor mala fide possessor bona fide unlawful mala fide unlawful
holder holder
controls the thing controls the thing
based on the incorrect while he/she is aware controls the thing controls the thing
assumption that of the fact that he/she unlawfully, but is knowing he/she
he/she is the owner is not legally unaware of the fact doesn’t unlawfully and
recognised as the is aware of that
eg possessor who eg a ‘lessee’ with
owner of the thing eg a ‘lessee’ who
acquires from invalid lease contract
a non-owner eg a thief remains on premises
after lease has expired

A possessor has a ius possessionis (a right of

possession), but not a ius possidendi
(a right to possess).

After you have studied this study unit, you should be able to answer the
following questions:

1 Indicate the different elements of or distinguish between:

(a) possession (2)
(b) holdership (2)

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 2 X and Y are co-owners of the farm Waterford. They purchase certain farm
implements from the cooperative, C, under a credit agreement. C reserves
ownership of the farm implements. The implements consist of a tractor, a
plough, a harvester, spades, hoes and picks. T steals the plough.
Remark
In your answer you must explain whether it is a lawful real relationship, thus a
real right (that is ownership) or an unlawful real relationship (that is possession
or unlawful holdership) and provide reasons for your answer.

(a) How would you describe the real relationship between C and the
farm implements and why would you describe the relationship in this
way? (3)

Answer
The real relationship between C and the farm implements is that C is the
owner (1) of the farm implements which are being controlled by X and Y.
This is because C has reserved ownership until the purchase price has
been fully paid. (1) C retains the intention of an owner. (1)

(b) How would you describe the real relationship between X and Y and
the farm implements and why would you describe the relationship in
this way? (3)
(c) How would you describe the real relationship between T and the
plough and why would you describe the relationship in this way? (3)

3 Q accidentally sinks a borehole on the farm belonging to X and Y and erects

a windmill there. He was under the impression that the borehole had been
sunk on his side of the boundary. How would you describe the real relation-
ship of Q with the land on which the windmill was erected and on what is
this description based? (3)
4 S leases 100 hectares of Waterford for grazing purposes from his parents, X
and Y. The lease contract is invalid. S nevertheless continues as if the lease
were valid.
(a) What is the real relationship between S and the land before he be-
came aware of the invalidity of the contract and why is this so? (3)
(b) What is the real relationship between S and the land after he be-
came aware of the invalidity of the contract and why is this so? (3)

5 S opens his mail and finds pornographic material in it. He decides to take it
to the police the next day on his way to work. In the meantime he hides it high
up in a cupboard in his bedroom so that his wife and children will not see it.
That night the police raid his house and discover the pornographic material. S is
charged with ‘‘possession’’ of pornographic material in terms of the Indecent or
Obscene Photographic Matter Act 37 of 1967, which prohibits such ‘‘pos-
session’’.
S argues that he did not possess the material, since he had no intention of
keeping it for himself. Will the court accept this argument? Substantiate your
answer with reference to case law. (8)

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 Answer
This question is based on the facts of S v Brick. (1)
Legal question
What is the meaning of the term ‘‘possession’’ in the statute? (1)
Ratio decidendi
The precise meaning (1) to be assigned to the word ‘‘possession’’ occurring in
a penal statute often causes considerable difficulty. The difficulty may
sometimes be lessened if the word is used in association with ‘‘custody’’. In
the final analysis, however, the decision essentially depends on the intention (1)
of the legislature as reflected in the context of the statutory enactment
concerned.

In terms of the statute, the offence is committed by any person who ‘‘has in his
possession’’ any indecent or obscene photographic matter. Having regard to
the obvious objective of the Act, the court held that witting physical detention,
custody or control (1) of such matter is penalised. Once it is shown that the
holder was aware of the existence of such photographic matter in his
detention, custody or control, it is not essential for a conviction under the Act
that the State should prove that the holder intended (1) to exercise control
over the photographic matter in question for his own purpose or benefit. (1)

Application of finding to the relevant facts

The accused was found guilty, (1) but the fact that he intended to turn the
material over to the police was regarded as a mitigating circumstance entitling
him to a lesser fine.
Remark
In this case ‘‘possession’’ merely means control for the purposes of the Act.

6 X and Y are co-owners of the farm Waterford. They purchase certain farm
implements from C, the cooperative in terms of a credit agreement. C re-
serves ownership of the farm implements. The farm implements consist of a
plough, a tractor, a harvester, spades, hoes and picks. T steals the plough. The
harvester is left with the farm workers on the north-eastern corner of the farm
where it is required in autumn when the wheat is harvested. Z, a neighbour,
borrows the tractor for a month to plough her own fields. When Z has finished
her ploughing, she lends her rented plough to X and Y in return for the loan of
the tractor.
(a) Who is in control of the harvester and what is the nature of this real
relationship? Substantiate your answer. (3)
Answer
X and Y (1) are in control through their farm workers, who are acting as
their representatives/agents. They are lawful holders, (1) because they
have the intention to derive a benefit. (1)

(b) Who is in control of the stolen plough and what is the nature of this
real relationship? (3)

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 Answer
T (1) is in control of the stolen plough. He is a mala fide (½) unlawful
possessor (½) who has the intention of an owner (½) knowing that he is
not the owner. (½)

(c) Who is in control of the borrowed tractor and what is the nature of
this real relationship? (3)
(d) Discuss the question whether control must be exercised in person
with reference to the position of the farm workers. (3)
(e) With regard to the harvester that has been left with the farm workers,
indicate who is in control and what form this control takes. (3)
(f) Indicate the intention with which the following persons exercise control:
(i) X and Y with regard to the farm implements (1)

Answer
Intention to derive a benefit. (1)

(ii) X and Y with regard to the rented plough of Z, the neighbour (1)
Answer
Intention to derive a benefit. (1)

(iii) the farm workers with regard to the harvester (1)

Answer
Intention to exercise physical control on behalf of (1) X and Y.

(iv) T with regard to the plough (1)

Answer
Intention of an owner. (1)

(v) Z with regard to the tractor (1)

Answer
Intention to derive a benefit. (1)

(vi) Z with regard to the rented plough (1)

Answer
Intention to derive a benefit. (1)

(g) Describe the real relationships between the following persons and
things (substantiate your answer):
(i) C in regard to the farm implements (2)
Answer
C is the owner (1), since it reserved ownership. (1)

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(ii) Z in regard to the tractor (2)
Answer
Z, the neighbour, is a lawful holder (1) since she has borrowed the
tractor from X and Y. (1)

(iii) T in regard to the plough (1)

Answer
T is a thief, therefore a mala fide (unlawful) possessor. (1)

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S T U DY UN I T

9
POSSESSION AND
HOLDERSHIP
PROTECTION
AND TERMINATION

PROTECTION
CONTENTS
1 Introduction
2 Remedies
2.1 Declaratory order
2.2 Interdict
2.3 Spoliation remedy
2.3.1 Purpose
2.3.2 Definition
2.3.3 Requirements
2.3.4 Defences against spoliation remedy
2.4 Possessory action
2.5 Condictio furtiva
2.6 Aquilian action
2.7 Enrichment action

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 This study unit is very important. Here we discuss the different remedies for the
protection of possession and holdership. Some remedies are also applicable to
owners and therefore you are referred back to Study Unit 6, which deals with the
protection of ownership. We further discuss the ways in which possession and
holdership are terminated.

1 INTRODUCTION
In this section we discuss the various remedies to protect possession and holdership. It is
important to distinguish clearly between these remedies. Make sure that you know the
purpose and definition of each remedy as well as the requirements for and possible
defences against each remedy. The remedies are:

1 declaratory order
2 interdict
3 spoliation remedy
4 possessory action
5 condictio furtiva
6 Aquilian action (delictual action for damages)
7 enrichment action

2 REMEDIES
2.1 Declaratory order
Under appropriate circumstances a possessor or holder may apply for a declaratory
order, for example where there are two street vendors who both claim to have a right
to use a stand on the street. Both street vendors can be either possessors or holders
and must then apply for a declaratory order to determine who has the right to use the
stand (Padayache v Veerapan 1979 (1) SA 992 (W)). (See SU 6, para 2.3 for a discussion
of a declaratory order.)

2.2 Interdict

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example
During the apartheid regime, Francis Setlogelo occupied land which he inherited from his
grandfather. Francis Setlogelo could not lawfully occupy or obtain transfer of the land as he
was a black person and the land was situated in a white area. Isaac Setlogelo and Ephraim
Setlogelo, brothers and neighbours of Francis Setlogelo, started farming operations on that
land. Francis Setlogelo applied for an interdict prohibiting Isaac Setlogelo and Ephraim
Setlogelo from setting foot on the land. Isaac Setlogelo and Ephraim Setlogelo argued that
Francis Setlogelo was not the registered owner of the land and that he therefore could not
make use of the interdict.

[The facts in Setlogelo v Setlogelo 1914 AD 221.]

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The purpose of this remedy is to protect the applicant’s right to a thing or control over a
thing from prejudice ensuing from the continual or imminent disturbance of his/her right.
This is a summary court order ordering or prohibiting a specific act, in order to prevent
the prejudice from continuing or occurring. (See SU 6, para 2.2, for a discussion of an
interdict, as well as the requirements for this remedy.)

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
Before you continue, answer the following question:

During the apartheid regime, S occupied land which he inherited from his
grandfather. S could not lawfully occupy or obtain transfer of the land as he was a
black person and the land was situated in a white area. Z, a brother and neighbour
of S’s, started farming on that land. S applied for an interdict prohibiting Z from
setting foot on the land. Z argued that S was not the registered owner of the land
and that he therefore could not avail himself of an interdict. Would this defence
succeed? Substantiate your answer with reference to the requirements for an
interdict and case law. (8)
Remark
Briefly refer to the court’s argument that S could succeed because he had a clear
right.

2.3 Spoliation remedy

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example1
Z leases a billiard room in Newtown from S. In terms of the lease agreement Z is not
allowed to serve alcohol on the premises or stay open after twelve at night. S and Z insert
a term in the agreement entitling S to take control of the premises if Z contravenes any of
the terms of the lease. Z serves alcohol on the premises to his friends and holds rowdy
parties that went on until sunrise. The neighbours complain to S. S removes the locks from
the building and fits new locks. He locks all entrances to the premises and effectively debars
Z from using or entering the premises. Z applies for a spoliation order.

[Based on the facts in Nino Bonino v De Lange 1906 TS 120.]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 2
V and W, farm workers in the employ of S, occupy and cultivate a portion of Highlands. S
has an argument with the farm workers and they refuse to work. S removes their furniture
from their houses and burns it. He throws their clothing away. He also breaks down their
houses and dumps the building material on a rubbish dump.

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 DIAGRAM 11: Spoliation

Spoliatus disturbs control Spoliator

!
unlawfully;
Peaceful and undisturbed
commits spoliation
control

!
Spoliatus obtains restores the existing relationship of

!
spoliation order physical control summarily, without
investigation of merits of parties’ claims

2.3.1 Purpose
The spoliation remedy is aimed at the protection of the legal order, in a unique way. Its
purpose is to prevent self-help which may result in a breach of the peace. A spoliation
order summarily undoes the consequences of such self-help (in so far as it has disturbed
the existing relationships of control), without any reference to the lawfulness or
otherwise of the pre-existing control which is to be restored (Nino Bonino v De Lange
1906 TS 120 125; Yeko v Qana 1973 (4) SA 735 (A) 739G). In other words, the court
does not investigate the merits of the rights of the parties. Specific performance of a
contractual right (personal right) does not form part of the purpose of the spoliation
remedy (Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) 314G–H).

2.3.2 Definition
The spoliation remedy is a summary remedy, usually issued upon urgent application
aimed at restoring control of a thing to the applicant from whom it was taken by means
of unlawful self-help, without investigating the merits of the original rights of the parties
to control the thing.

2.3.3 Requirements
The requirements for a successful reliance on this remedy are the following:

(i) The applicant (spoliatus: the person whose control has been disturbed) must have
enjoyed peaceful and undisturbed control of the thing.
(ii) The respondent (spoliator: the person who disturbed the control of the spoliatus)
must have disturbed the applicant’s control in an unlawful manner.

This remedy is used to restore an existing relationship of physical control summarily,

without any investigation into the merits of the claims of the parties to the thing, the
principle being that control must first be restored to the party despoiled (spoliatus ante
omnia restituendus est). The above emphasis on the purpose of the spoliation remedy
(that is, to prevent persons from taking the law into their own hands by resorting to self-
help) leads to the conclusion that the spoliation order (mandament van spolie) focuses
not so much on the parties’ rights to the thing as on the factual existence of control and
on the protection of such control against self-help. It is not the applicant’s right to the
thing which is foremost, but the fact that the respondent unlawfully took the law into his/
her own hands.

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The courts have stated on several occasions that the purpose of the remedy is the
immediate restoration of the control which has been disturbed unlawfully, so that the
control which originally prevailed may be restored legally. This argument is supported by
the consideration that an applicant (spoliatus) who has succeeded with an application for
a spoliation order has not thereby received the court’s blessing on his/her control of the
thing. The court does not condone the spoliatus’s control or declare it lawful when
restoration of control is summarily ordered. It merely condemns the unlawfulness of the
self-help of the spoliator.

It is self-evident that the act of spoliation must be unlawful, and this is generally
presumed by the courts when a disturbance of control has taken place against the
controller’s wishes or without his/her knowledge (Nino Bonino v De Lange 1906 TS 120
122). To deprive someone of control may be lawful (and will then not constitute
spoliation) if there is a valid and enforceable legal ground for such an act, for example, a
court order. It is not sufficient for the spoliator to have a valid claim to control the thing:
such a claim must be enforced via the normal legal channels. In order to obtain lawful
control of a thing from another person a valid legal ground, such as an order for
attachment or ejectment, is required.

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Activity
After you have studied this section, answer the following questions:

1 State the requirements for successful reliance on the spoliation remedy. (4)
2 Z rents a billiard room in Newtown from S. In terms of the lease agreement
Z is not allowed to serve alcohol on the premises or stay open after twelve at
night. S and Z insert a term in the agreement entitling S to take control of the
premises if Z contravenes any of the terms of the lease. Z serves alcohol to his
friends and holds rowdy parties until sunrise. The neighbours complain to S. S
removes the locks from the building and fits new locks. He locks all entrances
to the premises and effectively debars Z from using or entering the premises.
Z applies for a spoliation order.

Answer the following questions:

(i) What is the nature and purpose of the spoliation remedy? (4)
Answer
The purpose of the spoliation remedy is to protect the legal order in a
unique way. (1) It is also aimed at preventing self-help, (1) which may result
in a breach of the peace by summarily (1) undoing the consequences of
the self-help without determining the lawfulness of the pre-existing control.
(1) (or: The courts do not consider the merits (1) of either parties’ rights.)
Relevant case law: Nino Bonino v De Lange (1) or Yeko v Qana. (1)

(ii) Will Z’s application succeed? In your answer refer to the requirements for a
successful reliance on the spoliation remedy as well as relevant case law. (7)

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 Answer
Z must prove that
– he had peaceful (½) and undisturbed (½) control (1) of the billiard room and
– S unlawfully (1) disturbed his control.

Z will succeed because it is clear that S unlawfully disturbed Z’s control. (1) S
cannot rely on the clause in the lease entitling him to take control of the
premises. (1) This clause authorises S to take the law into his own hands and is
therefore against public policy. (1) In effect it allows S to be the judge in his own
case, (1) seeing that he can decide whether there is a breach of contract, or
not. (1) Nino Bonino v De Lange. (1) (Maximum 7 marks.)

2.3.4 Defences against spoliation remedy

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Example1
A number of dwellings were erected on land belonging to Northcliff Ceramics
(respondent) without the latter’s consent. The unauthorised dwellings were demolished
by the respondent and the materials with which certain of the dwellings had been
constructed were burnt. Rikhotso (the applicant) applied for a spoliation order on behalf of
the occupants who had been dispossessed of their dwellings by the respondent.

[The facts in Rikhotso v Northcliff Ceramics (Pty) Ltd 1997 (1) SA 526 (W).]

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Example 2
The applicant (Ierse Trog CC) brought an urgent application against both respondents,
Sulra Trading CC as purchaser of the property [first respondent] and the demolition
corporation [second respondent] for a spoliation order. What the applicant wanted was the
restoration of a structure comprising a storeroom on first respondent’s property in Fish
Hoek. The applicant alleged that it was in possession (control) of this room which it had
used as a storeroom until 08:30 on 18 April 1997.

The background to this matter is that the first respondent had launched ejectment
proceedings against the applicant on 2 April 1997. First respondent had bought the
premises in which applicant traded under the name of O’Hagan’s Irish Pub & Grill. The
applicant had apparently used the storeroom for the storage of empty crates, beer barrels,
bottles, furniture and umbrellas. At least part of the trouble which arose in this case was the
result of the fact that the applicant had used this storeroom, apparently without paying for
it, and either hoped or expected to be able to continue to do so.

The ejectment proceedings, which were opposed by the applicant, were pending in the
Simonstown magistrate’s court. On 18 April 1997 at 08:30, the applicant noticed that
employees of the second respondent had commenced knocking holes into the external
walls of the storeroom. Attorneys on both sides were immediately engaged. Not much
later, the applicant noticed that the workmen were completing demolition of the external
walls of the storeroom. The applicant pointed out that he was unable to secure any of his
property in the room in its present state.

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[The facts in Ierse Trog CC v Sulra Trading CC 1997 (4) SA 131 (C).]

The following valid defences may be raised against the spoliation remedy:

(i) The applicant did not have peaceful and undisturbed control at the time of
spoliation.
Bear in mind that there are different forms of physical control (on the nature of
control see SU 8 above and Nienaber v Stuckey 1946 AD 1049).
(ii) The respondent did not disturb the applicant’s control.
This defence is self-explanatory.
(iii) The disturbance was not unlawful.
Disturbance in terms of a court order, for example, is not unlawful.
(iv) The applicant waited too long in making his/her application.
As a general principle the applicant for a spoliation order should not wait longer
than a year before the application is submitted. If the applicant has waited longer
than a year, he/she should indicate the special circumstances which caused the
delay (Manga v Manga 1992 (4) SA 502 (N) and Le Riche v PSP Properties CC 2005
(1) SA 551 (C)).
(v) It is impossible to restore control.
The defence of impossibility requires further explanation. Since the spoliation
remedy is aimed at the immediate restoration of control to the position in which
the applicant was before the spoliation took place, it goes without saying that this
cannot be achieved if restoration is no longer possible.

However, in Fredericks v Stellenbosch Divisional Council (1977 (3) SA 113 (C) 116–118) it
was held that restoration may be ordered where it can be effected with materials of a
similar nature to the materials which had been destroyed. In this case the spoliator
destroyed the materials on purpose so that restoration would become impossible. This
approach was followed to a certain extent in Ierse Trog CC v Sulra Trading CC (1997 (4)
SA 131 (C)), where the court held that a spoliation order can be granted where the
property has not been entirely destroyed. The court here granted an order for the
rebuilding of a wall and a degree of substitution of the building materials. However, the
court in Rikhotso v Northcliff Ceramics (Pty) Ltd (1997 (1) SA 526 (W)) emphasised the
inherent nature of the spoliation remedy, that is, the fact that it is aimed at restoration of
control, and refused such an order. The court argued that if the materials had been
destroyed, restoration was impossible and the spoliation remedy was not the applicable
one. In such circumstances a delictual claim for damages is the appropriate remedy.

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Activity

After you have studied this section, answer the following questions:

1 V and W, farm workers in the employ of S, occupy and cultivate

a portion of Highlands. S has an argument with the farm workers

165
 and they refuse to work. S removes their furniture from their houses and burns
it. He throws their clothing away. He also breaks down their houses and
dumps the building material on a rubbish dump. V and W want immediate
restoration of control of all their property.
(a) Advise V and W about the possible remedy that is available to them and
what the requirements for success are. (3)
(b) S raises the defence that restoration of control is impossible. Will S
succeed with this defence? Substantiate your answer with reference to
case law. (10)
(c) S avers that V and W were never in control of the houses because they
were living elsewhere on the farm where they were harvesting their
crops. Will S succeed with this defence? Substantiate your answer. (3)
Remark
Here you must remember that control does not have to be exercised
continuously (see SU 8, para 1.1.5).

2 A number of dwellings were erected on land belonging to Northcliff Ceramics

(respondent) without the latter’s consent. The unauthorised dwellings were
demolished by the respondent and the materials with which certain of the
dwellings had been constructed were burnt. Rikhotso (the applicant) applied
for a spoliation order in respect of the occupants who had been dispossessed
of their dwellings by the respondent. What would Rikhotso have to prove to
succeed with this remedy? Will he succeed in these circumstances? Refer to the
relevant case. (10)
3 The applicant (Ierse Trog CC) brought an urgent application for a spoliation
order against both respondents: (Sulra Trading CC) as purchaser of the
property (first respondent) and the demolition corporation (second re-
spondent). What the applicant wanted was the restoration of a structure
comprising a storeroom on first respondent’s property in Fish Hoek. The
applicant alleged that it was in possession (control) of this room, which it had
used as a storeroom until 08:30 on 18 April 1997.
The background to this matter is that the first respondent had launched
ejectment proceedings against the applicant on 2 April 1997. The first re-
spondent had bought the premises in which the applicant was trading under
the name of O’Hagan’s Irish Pub & Grill. The applicant had apparently used the
storeroom for the storage of empty crates, beer barrels, bottles, furniture and
umbrellas. At least part of the trouble which arose in this case was the result of
the fact that the applicant had used this storeroom, apparently without paying
for it, and either hoped or expected to be able to continue to do so.
The ejectment proceedings which have been opposed by the applicant, are
pending in the Simonstown magistrate’s court. On 18 April 1997 at 08:30, the
applicant noticed that employees of the second respondent had started
knocking holes into the external walls of the storeroom. Attorneys on both
sides were immediately engaged. Not much later, the applicant noticed that
the workmen were completing demolition of the external walls of the store-
room. The applicant points out that he is unable to secure any of his property
in the room in its present state.

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 (a) What must the applicant prove to succeed? (3)
(b) Which defences may be raised by the respondent and will he succeed
with any of these defences? Substantiate your answer with reference to
case law. (10)

2.4 Possessory action

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Example
S, the son of X and Y, leases a portion of his parents’ farm. When his father’s farm
implements are stolen, he gives some of his (rented) equipment to his father, X, to use.
Father and son have an argument. In his anger X destroys his son’s rented equipment.

Where a person in control loses control under circumstances where the spoliation
remedy does not apply, such a person may still use the possessory action to recover
control or even to claim damages resulting from the loss of control, or may even claim
both the restoration of control and damages. The purpose of the possessory action is to
claim the thing or its value from anyone with a weaker right to control the thing.

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Activity

After you have studied this section, answer the following question:

1 S, the son of X and Y, leases a portion of his parents’ farm. When his
father’s farm implements are stolen, he gives some of his (rented) equipment
to his father, X, to use. Father and son have an argument. In his anger X
destroys his son’s rented equipment. Indicate which remedy is available to S.
What are the requirements to succeed? (5)

Answer
The appropriate remedy available to S is the possessory action. (1) The
purpose of the action is to claim the implements (1) or their value (1) from
anyone with a weaker right, in this case S’s father. S must prove his stronger
right to control (1) the implements and that his father was in control of the
implements at the time of their destruction. (1)

2.5 Condictio furtiva

The purpose and requirements of this action are the same as for the situation where
ownership is protected by means of this remedy (see Clifford v Farinha 1988 (4) SA 315
(W) and the discussion of the case and the requirements for the condictio furtiva above in
SU 6 para 3.1). In the Clifford case the plaintiff was indeed not the owner of the car, but
a lawful holder.

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 ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
Answer the following question before you continue:

1 X and Y are co-owners of the farm Waterford. They purchase

certain farm implements from C, the cooperative, in terms of a credit
agreement. C reserves ownership of the farm implements. The farm imple-
ments consist of a plough, a tractor, a harvester, spades, hoes and picks. T
steals the plough and gives it to his son, Tt, to use. Which remedy is available
to X and Y, against whom can it be instituted and what are the requirements to
succeed? (5)
Answer
The condictio furtiva is a personal action (1) arising from the delict theft. This
means it can only be instituted against the thief (1) or, after his/her death, the
thief’s heirs. (1) The condictio furtiva can be defined as an action which can be
instituted by the owner or a person with a lawful interest in claiming the thing
(½) or its highest value (½) since the theft from the thief or person who
removed the thing with deceitful intent (Clifford v Farinha). (1)
To succeed with this action the applicant must prove:
(i) ownership (½) or retention of lawful interest (½) from date of theft to the
date of institution of the action (1)
(ii) theft (½) or removal (½) of the thing with deceitful intent (1)
(iii) if the action is not instituted against the thief or deceitful remover, that the
defendant is the heir of the former (1)

2.6 Aquilian action

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Example1
Employees from the local authority, without notice and without the proper authority, start
to break up the dam on S’s farm and dig trenches across his land. This is part of an
extensive sewerage system which also crosses S’s farm. While working on the farm, they
use some of S’s farm implements, which S bought on credit from the cooperative, with
reservation of ownership, causing such wear that S can no longer use the implements.

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Example 2
S, the son of X and Y, leases a portion of his parents’ farm. When his father’s farm
implements are stolen, S gives some of his (rented) equipment to his father, X, to use.
Father and son have an argument. In his anger X destroys the rented equipment which his
son, S, had lent to him.

The purpose of and requirements for this action are the same as for the situation where
ownership is protected by means of this remedy (for a full discussion of Aquilian liability,
see the module on the law of delict).

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Note that the Aquilian action is a delictual remedy (originating from an obligation created
in terms of a delict) by means of which the owner of a thing (for the purpose of the law
of things) may recover damages from someone who has culpably and unlawfully
damaged it. In principle, it is clearly the owner of the thing whose estate is impaired by
damage to the thing (which forms part of the estate). The owner is therefore, in
principle, the only one who may use the delictual remedy. However, there are cases in
which another person may suffer patrimonial loss as a result of damage to a thing of
which he/she is not the owner, and the question then arises whether such a person
should also be protected by the delictual remedy.

This question becomes relevant in cases in which a non-owner has an interest in the
particular thing, to the extent that damage to the thing will impair his/her estate as well.
Someone who buys a car on credit with reservation of ownership, for example, and
who is therefore a lawful holder, may have paid a large part of the price when the car is
damaged by a third person. The owner-seller may decide not to sue for damages, since
the car has almost been paid for in full. The buyer’s predicament is that, although he/she
is not the owner, he/she is prejudiced directly by the damage to the car. In a case such as
this it may be necessary to put the delictual remedy at the buyer’s disposal, in spite of
the fact that he/she is not the owner, since his/her estate is directly affected by the
damage.

In principle (bearing in mind the requirements for the delictual remedy), one may only
recover damages on the basis of the Aquilian action for unlawful infringement of a
patrimonial interest, that is, if the plaintiff has a lawful claim to the thing or to its control.
This implies that the delictual action is available only to those who can prove a lawful
patrimonial interest in the thing. Therefore, this remedy is at the disposal only of the
owner or the lawful holder who can prove the elements of the Aquilian action.

The debate about the possibility of, and the theoretical justification for the so-called
extension of the delictual action to holders, is based on the theoretical point of departure
that patrimonial damage is damage to the thing of an owner, since the thing forms part of
the owner’s estate.

On the basis of this argument, but with consideration for the fact that modern law
recognises that other persons besides the owner may have a patrimonial interest in the
thing or in control of the thing, the delictual remedy has been conferred on the following
non-owners (Smit v Saipem 1974 (4) SA 918 (A); Refrigerated Transport Edms (Bpk) v
Mainline Carriers 1983 (3) SA 121 (A)):

(i) bona fide possessors

(ii) lawful holders (eg, buyers in terms of a deed of sale where the risk has passed to
the buyer, but ownership has not been passed (Smit v Saipem 1974 (4) SA 919 (A))

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Activity
After you have studied this section, answer the following questions:

1 Employees from the local authority, without notice and without the
proper authority, start to break up the dam on S’s farm and dig trenches across
his land. This is all part of an extensive sewerage system which also crosses S’s
farm. While working on the farm, they used some of the farm implements

169
 which S bought on credit with reservation of ownership from the cooperative.
Their use of these implements has rendered them useless. Discuss the remedy
available to S with reference to the requirements for that remedy and to case
law. (10)

Remark
Please note here that a lawful holder may institute the Aquilian action (see Smit
v Saipem 1974 (4) SA 919 (A)). Refer to this position and discuss the operation
of the Aquilian action thereafter.

2 X and Y are co-owners of the farm Waterford. They purchase certain farm
implements from C, the cooperative, in terms of a credit agreement. C re-
serves ownership of the farm implements. The farm implements consist of a
plough, a tractor, a harvester, spades, hoes and picks. Z, a neighbour, borrows
the tractor for a month to plough her own fields. Because the tractor still
belongs to the cooperative, X and Y are reluctant to lend it to Z. Z agrees to
pay for any damage which may result from her use of the tractor. While the
tractor is still under her control, T steals it. On his way home he overturns the
tractor and it is a total write-off. Discuss Z’s possible remedies against T. (10)

2.7 Enrichment action

In terms of an enrichment action a plaintiff can recover compensation for unjustified
enrichment from the owner of the improved thing. This action is based on the principle
that unjustified enrichment should be compensated. Unjustified enrichment takes place
when one person improves another person’s thing without legal cause (eg a contract) so
that the owner of the thing is enriched at the expense of the improver. The enrichment
action is specifically aimed at cases where there is no legal cause for the improvements
and therefore no legal action available to the plaintiff (see Singh v Santam Insurance 1997
(1) SA 291 (A) and Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty)
Ltd 1996 (4) SA 19 (A)).

An enrichment action can be instituted for expenses incurred to improve the thing or
expenses incurred to salvage the thing. Expenses or improvements are divided into
three main categories:

(i) essential (necessary) expenses or improvements (impensae necessariae), which are

expenses essential for the preservation of the thing, for example installing a new
crankshaft in a motor vehicle that is not in working condition because of a broken
crankshaft
(ii) useful expenses or improvements (impensae utiles), which are expenses that, while
not essential for the preservation of the thing, nevertheless raise its market value,
for example installing a device that improves the petrol consumption of a motor
vehicle
(iii) luxurious expenses or improvements (impensae voluptuariae), which are expenses
that are neither essential for the preservation of the thing, nor increase its market
value, but merely gratify the caprice or fancy of a particular individual, for example
the replacement of a motor vehicle’s upholstery with leather upholstery.

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An enrichment claim can only be instituted for essential (necessary) expenses or
improvements and useful expenses or improvements and not for luxurious expenses or
improvements.

This action is available to possessors and holders, lawful or unlawful.

A successful plaintiff will be entitled to compensation for the amount by which the owner
is enriched, or for the amount by which the plaintiff is impoverished, whichever is the
lesser of the two. If it is feasible and will not cause damage to the property, the plaintiff
may be allowed to remove the improvements to the thing (ius tollendi).

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 TERMINATION OF POSSESSION AND HOLDERSHIP

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Example
X and Y are co-owners of the farm Waterford. They purchase certain farm implements
from C, the cooperative, in terms of a credit agreement. C reserves ownership of the farm
implements until the final instalment has been paid. The farm implements consist of a
plough, a tractor, a harvester, spades, hoes and picks. Z, a neighbour, borrows the tractor
for a month to plough her own lands. T steals the plough and gives it to his son, Tt, to use.
After some intensive searching for the plough, X and Y decide to get a new one because
they cannot do without a plough on the farm. Since they are buying a new plough they
decide to get a new harvester and allow the neighbour, Z, to use the old one. Tt can no
longer hide the tractor from the police and he sets fire to it, destroying it completely. Y
dies.

In this section the methods by means of which possession and holdership are terminated
are discussed. These are similar to the methods of termination of ownership discussed
above in Study Unit 6. Since both the physical and mental elements are required for
possession and holdership, these real relationships are terminated once one of the
elements is no longer present. The chief methods of termination of possession and
holdership are:

1 death of possessor or holder

2 destruction of the thing
3 termination of the legal relationship through
(i) loss of physical control, or
(ii) loss of the mental element (intention of an owner in the case of possession
and intention to derive a benefit in case of holdership)

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Activity
After you have studied this study unit, you should be able to answer
the following questions:

1 Briefly mention the chief methods by which possession and holdership

are terminated. (3)
2 X and Y are co-owners of the farm Waterford. They purchase certain farm
implements from C, the cooperative, in terms of a credit agreement. C re-
serves ownership of the farm implements until the final instalment has been
paid. The farm implements consist of a plough, a tractor, a harvester, spades,
hoes and picks. Z, a neighbour, borrows the tractor for a month to plough her
own lands. T steals the plough and gives it to his son, Tt, to use. After some
intensive searching for the plough, X and Y decide to get a new one because
they cannot do without a plough on the farm. Since they are getting a new
plough they decide to get a new harvester and allow the neighbour, Z, to use
the old one. Tt can no longer hide the tractor from the police and he sets fire
to it, destroying it completely. Y dies. Identify the ways in which possession and
holdership are terminated in this example. (6)
3 When is the legal relationship of possession or holdership terminated? (2)

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S T U DY UN I T

10
LIMITED REAL RIGHTS
INTRODUCTION SERVITUDES
RESTRICTIVE CONDITIONS

INTRODUCTION
CONTENTS
1 Introduction

175
 In this study unit we discuss two types of limited real rights: servitudes and
restrictive conditions. We discuss the vesting, definition, nature and classification
of servitudes in general. We also distinguish between land (praedial) servitudes
and personal servitudes. We further discuss the termination of servitudes, the
relationship between the servitude holder and the owner of the burdened thing,
remedies and public servitudes. Restrictive conditions and the remedies available
in the case of noncompliance with condition of title are also dealt with.

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Example
X and Y are co-owners of the farm Waterford and of their car. The farm implements were
purchased from the cooperative, C, in terms of a credit agreement. The cooperative
reserved ownership of the farm implements until the final instalment had been paid. X and
Y owe L, the Land Bank R100 000,00 and to secure this debt L has a mortgage over the
farm. X’s mother, M, has a right of habitation (personal servitude) over the old homestead
where she lives at present. S has a right of way (personal or land servitude) and drives over
his grandparents’ farm, Pulang, every day to inspect his cattle on Waterford.

1 INTRODUCTION
We remind you that in this module you encounter different types of real relationships.
So far you have studied ownership (real right) and other real relationships (possession
and holdership). This study unit deals with limited real rights. These are real rights which
a person has over another person’s thing. Ownership is a real right with regard to one’s
own thing, while a limited real right is a real right with regard to a thing belonging to
another person. In principle, ownership is unlimited, whereas limited real rights are
limited (see SU 2, para 5).

The following types of limited real rights can be distinguished: servitudes, restrictive
conditions and real security rights (see SU 11). We discuss servitudes and real security
rights in this study unit. Because of their peculiar nature, (sui generis nature), mineral
rights and the rights of lessees (tenants) will be discussed in Study Unit 12.

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DIAGRAM 12: Limited real rights
LIMITED REAL RIGHTS
real right over another’s person’s thing

Servitudes Restrictive conditions Real security rights

Personal Express forms Tacit forms (ex lege)

Land/Praedial Pledge Tacit hypothecs

Public Security by means of Liens

claims
Judicial pledge
Mortgage

In the example above we can identify the following real rights:

1 X and Y have co-ownership (real right over own thing) of the farm Waterford and
of their car.
2 C reserved ownership of the farm implements (real right over one’s own thing: a
specific form of ownership to secure a debt which, on insolvency, is converted into
a tacit hypothec – a specific form of real security (see SU 11, para 2 under Tacit
Hypothecs (Mortgages)).
3 L has a mortgage (limited real right over another person’s thing: real security right)
over X and Y’s farm (see SU 11, para 3).
4 M has a right of habitation (limited real right over another person’s thing: personal
servitude) over the old homestead (see para 6.2.3 below).
5 S has a right of way (limited real right over another person’s thing: personal or land
(praedial) servitude) to drive over his grandparents’ (Q and R’s) farm Pulang (see
para 6.1 and diagram 17 below).

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Activity
After you have studied this section, you should be able to answer the
following question:

1 X and Y are co-owners of the farm Waterford and of their car.

The farm implements were purchased from the cooperative, C, in terms of a
credit agreement. The cooperative reserved ownership of the farm imple-
ments until the final instalment has been paid. X and Y owe L, the Land Bank
R100 000,00 and to secure this debt L has a mortgage over the farm. X’s
mother, M, has a right of habitation over the old homestead where she lives at
present. S has a servitude of way and drives over his grandparents’ farm,
Pulang, every day to check his cattle on Waterford. Mention the nature and
type of real right that each of the following persons have:
(a) X and Y (3)

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 (b) C (3)
(c) L (3)
(d) M (3)
(e) S (3)

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SERVITUDES

CONTENTS
1 Introduction
2 Definition
3 Establishment
3.1 Source
3.2 Vesting
3.3 Doctrine of notice
4 Nature and classification
4.1 Significant differences between land and personal servitudes
4.2 Significant common characteristics of land and personal servitudes
5 Land (praedial) servitudes
5.1 Definition
5.2 Characteristics
5.2.1 General
5.2.2 Requirements for validity
5.2.2.1 Two or more properties
5.2.2.2 Benefit (utilitas)
5.2.2.3 Proximity (vicinitas)
5.2.2.4 Permanency (perpetua causa)
5.2.2.5 Passivity (servitus in faciendo non potest)
5.2.2.6 Indivisibility
5.2.3 Classification
5.2.3.1 Rural servitudes
5.2.3.2 Urban servitudes
6 Personal servitudes
6.1 Definition
6.2 Specific personal servitudes

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 6.2.1 Usufruct
6.2.1.1 Introduction
6.2.1.2 Rights of usufructuary
6.2.1.3 Duties of usufructuary
6.2.2 Use (usus)
6.2.3 Dwelling (habitatio)
7 Termination of servitudes
8 Relationship between servitude holder and owner of burdened thing
9 Remedies
10 Public servitudes

In this study unit the nature of servitudes is discussed extensively. The

classification of servitudes, the different types of servitudes, the establishment of
servitudes, the characteristics of servitudes, and the protection and termination
of servitudes are dealt with in detail.

1 INTRODUCTION
You should note that a limited real right of servitude is established only after it was vested
in the prescribed way (that is, by registration). This means that the parties must agree on
the creation of a servitude and this agreement must be registered. Until registration has
taken place, the future servitude holder merely has a personal right (creditor’s right/
claim) against the owner. Only on registration does the holder acquire a limited real right
that is enforceable against the owner and successors in title.

In exceptional cases an agreement creating the servitude can operate against third
parties. As a rule, before registration has taken place, the agreement creating the
servitude (servitude agreement) cannot be enforced against third parties. In the
exceptional case where a third person has knowledge of the existence of the servitude
agreement, it may be enforced against him/her. This is a consequence of the application
of the doctrine of notice. Make sure that you understand the operation of the doctrine of
notice (see par 3.3 below).

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DIAGRAM 13: Vesting of servitudes

servitude agreement plus vesting act servitude

!
!
!
(registration/delivery)

! !
mere personal right limited real right
!

!
only enforceable against
other party to agreement third parties who
knew about the

!
servitude agreement
!
must register
exception: doctrine of notice

In studying this section you must ensure that you understand the distinction between a
personal right (creditor’s right), a personal servitude (limited real right) and a land (real/
praedial) servitude (limited real right).

2 DEFINITION
A servitude can be defined as a limited real right to another person’s thing. It confers
specific entitlements of use and enjoyment on the holder who enjoys these
entitlements as owner of a particular piece of land (in the case of a land (praedial/real)
servitude) or in his/her personal capacity (in the case of a personal servitude).

In this study manual we use the term ‘‘land servitude’’ to denote a praedial/real
servitude. We regard this term as more appropriate as it eliminates confusion in that the
term ‘‘real servitude’’ may lead students to think that a personal servitude is not a limited
real right. Furthermore, the term ‘‘land servitude’’ clearly indicates that in this case we
are dealing with (two pieces of) land (immovable things).

The owner’s entitlements to his/her thing are limited in favour of another person, either
in his/her capacity as the owner of a piece of land (land servitude) or in his/her personal
capacity (personal servitude). The servitude holder acquires a limited real right to
exercise these entitlements when he/she complies with the necessary requirements.

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Activity

Answer the following question before you continue:

1 Distinguish the two main groups into which servitudes are

divided. (2)

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 3 ESTABLISHMENT

3.1 Source
Servitudes may arise from one of the following legal facts: agreement, legislation, court
order or prescription. Only an owner may grant a servitude over his/her property. In the
case of more than one owner, all the co-owners must cooperate, and where there is a
bond on the property the bondholder must consent to the granting of the servitude.

An agreement (even if it has been notarially executed) or a testamentary bequest will not
establish a servitude, but merely create a personal right (creditor’s right) to have the
servitude registered (see Janse Van Rensburg v Koekemoer 2011 (1) SA 118 (GSJ)).

A negative servitude cannot be acquired by prescription just because the owner of land
has not exercised all his/her entitlements of ownership. Acquisition of the servitude in
this case requires a positive act preventing the owner from exercising his/her rights.

3.2 Vesting
One should differentiate between movable and immovable things. A servitude over
movables vests once the movables are delivered. In the case of immovables (land) a
servitude vests once it is registered in the deeds registry (see Janse Van Rensburg v
Koekemoer 2011 (1) SA 118 (GSJ)). The only exceptions to this rule are the
establishment of a servitude by prescription, legislation or a court order. Only personal
servitudes may vest over movables, for example a usufruct over a flock of sheep. Both
personal and land servitudes may vest over immovables, for example a usufruct over a
farm or a right of way over a farm.

A servitude over immovable things is established (vests) on registration of a:

(i) reservation in a grant by the State

(ii) reservation by a transferor in a deed of transfer
(iii) notarial deed

The registration of the servitude is endorsed against the title deeds of the dominant and
servient tenements in the case of land servitudes. The registration of a servitude which is
established by statute, prescription or a court order serves merely as a correction of the
deeds registry records.

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Activity
After you have studied this section, answer the following question:

1 State the requirements for the establishment (vesting) of servitudes. (6)

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3.3 Doctrine of notice

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Example
S has entered into an agreement with Q and R in terms of which they have given him the
right to use the road over their farm to Waterford. This agreement is in writing but not
registered. Q and R sell the farm and the new owner, who knows about the servitude
agreement, refuses to allow S to use the road.

[Based on the facts in Grant v Stonestreet 1968 (4) SA 1 (A).]

A servitude agreement creates a personal right (creditor’s right) to have the servitude
registered. The limited real right is created only on registration. The registration of a
servitude serves as notice to the world at large of the existence of the limited real right.
However, someone who acquires ownership of the servient tenement, knowing that
there is an unregistered servitude agreement in respect of that land, is bound to respect
the existence of the servitude agreement. In terms of the doctrine of notice such new
owner who has knowledge of the servitude agreement is bound to register the
servitude.

Someone who acquires land without paying for it (successor titulo lucrativo eg, as a gift or
in terms of a will) or at a judicial auction, is bound to respect the servitude agreement
even if that person does not know of the servitude agreement (Grant v Stonestreet 1968
(4) SA 1 (A); Wahloo Sand Bpk v Trustees, Hambly Parker Trust 2002 (2) SA 776 (SCA)).

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 DIAGRAM 14: Permission, personal right, personal servitude and land servitude
distinguished

Action Nature of right Remedy

Q and R grant S permission S has no right against Q If Q and R revoke their
to use the road over their and R – this is mere permission, S has no
farm. permission that can be remedy.
revoked at any time.
S enters into an agreement S has a personal right If Q and R refuse to let S
with Q and R in terms of against Q an R in terms of use the road, S has
which S pays them to use their agreement. contractual remedies
the road over their farm. against Q and R.
Q and R register a right of S has a personal servitude If Q and R refuse to let S
way over their farm in (limited real right) over Q use the road, S can
favour of S. and R’s farm. This right is institute one of the
granted to S in his personal following actions,
capacity. depending on the
circumstances: actio
confessoria; interdict;
declaratory order;
spoliation order or Aquilian
action.
Q and R register a right of S, as the owner of If Q and R refuse to let S
way over their farm in Highlands, has a land (or his successor in title)
favour of Highlands. (praedial) servitude (limited use the road, S (or his
real right) over Q and R’s successor in title) can
farm. This right is granted institute one of the
to S in his capacity as following actions,
owner of Highlands. S’s depending on the
successor in title will also circumstances: actio
be able to exercise the confessoria; interdict;
servitude in his/her capacity declaratory order;
as owner of Highlands. spoliation order or Aquilian
action.

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Activity
Answer the following questions before you continue:

1 Q and R have no agreement with S but allow him to drive over

their farm. One day S argues with his grandfather, Q, who forbids
him to use the road any longer. Can S force Q to allow him to use the road?
Briefly substantiate your answer. (3)
Answer
No, S cannot force Q to allow him to use the road. (1) We are dealing here
with a permission (1) which can be revoked at any time. (1)

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2 Q and R have an agreement with S in terms of which he is allowed to use
the road for five years against payment of R2 000,00 per year. The money is
payable in advance. After two years S has an argument with his grandfather and
Q forbids him to use the road any longer. Can S force Q to allow him to use
the road? Briefly substantiate your answer. (5)
Answer
S has a personal right (creditor’s right) (1) in terms of the lease contract. S
cannot, as a servitude holder, force Q to allow him to use the road. S could
apply to the court for an order for specific performance (1) of the lease
contract. The courts are, however, reluctant to grant such an order, since it is
difficult for them to enforce compliance with the order. (1) S will probably have
to be satisfied with a claim for damages based on breach of contract. (1) S will
have to prove damage. (1)
Remark
An order for specific performance is a contractual remedy in terms of which
the court orders a contracting party to perform (to do what he/she has
undertaken to do in the agreement).

3 Q and R have an agreement with S in terms of which he can use the road
over their farm free of charge for as long as he lives.
(a) S dies and his wife wants to use the road. Q and R refuse. Briefly
advise S’s wife. (2)
(b) This agreement is registered against the title deed of Pulang, Q and
R’s farm. S dies and his wife wishes to use the road. Briefly advise S’s
wife. (2)
Remark
Note that in this question we are dealing with a personal right in (a) since there
is no registration. This personal right was created in terms of an agreement and
is therefore enforceable only by the parties to the agreement. See the answer
to 4(a) below.
In (b) we are dealing with a personal servitude (limited real right). Although it
has been registered, S’s wife still cannot use the road, because a personal
servitude is granted to the servitude holder (S) in his personal capacity.

4 Q and R have an agreement with S, the owner of Highlands, in terms of

which they undertake to register a servitude over their farm in favour of
Highlands.
(a) Before the servitude can be registered, S dies and his wife now wishes
to use the road. Briefly advise her. (3)
Answer
S’s wife will not be able to use the road. (1) The servitude agreement was not
registered (1) and therefore she acquired no rights from the contract. If she
had been appointed heir to all S’s rights, she could have claimed registration as
heir (cessionary) in terms of the will. (1)

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 Remark
In terms of a cession the cedent cedes (transfers) a personal right to the
cessionary in such a way that the cessionary becomes the creditor. The
cessionary can then enforce the cedent’s right. In our example, S’s wife can
compel Q and R to register the servitude.

(b) After the servitude has been registered, S dies and his wife now wishes
to use the road. Under what circumstances will she be entitled to use
the road? (2)
Remark
Note the difference in the facts between questions 3 and 4. In question 3,
depending on the circumstance, the parties intend to create a personal right
(agreement) or a personal servitude (agreement plus registration). It is a
personal servitude because the right is granted to S in his personal capacity.

In question 4, on the other hand, we are dealing with a land servitude since it
is stated that Q and R undertake to register the right in favour of ‘‘Highlands’’.
In principle, therefore, if S’s wife succeeds him as owner of Highlands, she will
be entitled to exercise the servitude.

(c) Before the servitude can be registered, S sells the farm to Z, the new
owner, who now wishes to use the road. Under what circumstances will
Z be entitled to enforce registration of the servitude? (5)
Answer
We are dealing with a land servitude (1) and registration (1) is required before
Z, the new owner, will be entitled to use the road. If S cedes (transfers) (1) his
personal right in terms of the servitude agreement to Z, Z as cessionary (1)
who stepped into the shoes of the cedent (S), may claim registration of the
servitude from Q and R. (1) If there is no cession, Z has no right against Q and
R.
Remark
See remark under 4(a) above.

(d) After the servitude has been registered, S sells the farm to Z, the
new owner, who now wishes to use the road. Briefly advise him. (2)
Remark
See the remark under (b). Z is in the same position as S’s wife. They
are owners of Highlands and as such they can exercise the servitude.

(e) Before the servitude can be registered, Q and R sell the farm to Z,
who knows of the agreement between S and his grandparents.
After ownership of the farm has been transferred to Z, he prevents
S from using the road. Advise S fully with reference to case law. (10)
Remark
See the answer to question 5 below. The same principles are applicable when
you answer this question.

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5 S has entered into an agreement with Q and R in terms of which they grant
him the right to use the road to Waterford that crosses their farm. This
agreement is in writing, but it is not registered. Q and R sell the farm and the
new owner, who knows about the servitude agreement, refuses to allow S use
of the road. Did S obtain a real right? Briefly substantiate your answer with
reference to case law. (12)
Answer
No, S did not obtain a real right. (1) A limited real right of servitude is acquired
only on registration (1) of the servitude. However, the court in Grant v
Stonestreet (1) held that a buyer (new owner) who has knowledge (1) of the
existence of the servitude agreement (1) may be obliged to register the
servitude in terms of the doctrine of notice. (1)
The basis of this doctrine is that in attempting to repudiate the servitude the
buyer, under these circumstances, is acting mala fide. (1) The law refuses to
countenance such attempted repudiation, since in reality this type of action by
the buyer amounts to a species of fraud (1) and the court refuses to be part of
such fraud (1). The courts require S in the circumstances to provide clear proof
of knowledge (1) of the existence of the servitude agreement on the part of
the buyer. (1)

6 Discuss the application of the doctrine of notice in the case of unregistered

servitude agreements. Refer to an example and to case law. (10)
Remark
This is a direct question on the doctrine of notice. See the answer above to
question 5.

4 NATURE AND CLASSIFICATION

You must always bear in mind that all servitudes are limited real rights. Servitudes are
divided into personal servitudes (servitutes personarum) and land servitudes (praedial or
real servitudes = servitutes praediorum). Although they have certain features in common
and are established in the same way, there are fundamental differences between the
two.

A servitude subtracts from the owner’s ownership and, because there is a rebuttable
presumption that ownership should be unencumbered and free from servitudes,
servitudes are construed in such a way as to give the least onerous interpretation to
them. If there is some doubt as to whether a servitude is a personal or a land servitude,
it will be construed as a personal servitude, since personal servitudes have a limited
duration and are therefore less onerous than land servitudes.

4.1 Significant differences between land and personal servitudes

1 Land servitudes are created in favour of a piece of land, while personal servitudes
benefit someone in his/her personal capacity.
2 Land servitudes last indefinitely, in principle, while personal servitudes can be
granted only for a specific period, or for the holder’s lifetime or, if not granted for a
specific period, in the case of legal persons for 100 years (Willoughby’s Consolidated
Co Ltd v Copthall Stores Ltd 1913 AD 267 282).

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 3 Land servitudes can be established over immovable things only; personal
servitudes may be established over movables (eg, over money or a flock of
sheep or a herd of cattle) and immovables (land).
4 Land servitudes are alienated together with the land. Personal servitudes are
inseparably attached to the holder’s person and are in no way transferable.

4.2 Significant common characteristics of personal and land servitudes

1 Both are limited real rights.
2 The maxim that no one can establish a servitude over his/her own thing (nulli res
sua servit) applies to both land and personal servitudes.
3 The maxim that a servitude cannot be established over another servitude (servitus
servitutis non esse potest) applies to both types of servitudes.

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Activity
After you have studied this section, you must answer the following
questions:

1 Distinguish between personal servitudes and land servitudes. (8)

2 Briefly discuss the common characteristics of personal servitudes and
land servitudes. (3)

5 LAND (PRAEDIAL) SERVITUDES

5.1 Definition
A land servitude can be defined as a limited real right to the land of another (servient
tenement) which confers on the owner of the dominant tenement, in principle,
permanent, defined entitlements of use and enjoyment with regard to the servient
tenement.

The tenement in favour of which the servitude is established is referred to as the

dominant tenement (praedium dominans) and the tenement subject to the servitude is
referred to as the servient tenement (praedium serviens).

5.2 Characteristics

5.2.1 General
South African law does not recognise a limited or closed number (numerus clausus) of
land servitudes. However, a right must comply with certain requirements before it will
be recognised as a land servitude. The reason for this is that if land could easily be
burdened by all kinds of servitudes, commercial traffic in land would be affected
detrimentally.

5.2.2 Requirements for validity

5.2.2.1 Two or more properties
There must be at least two properties, a dominant and a servient tenement, belonging
to different owners. If there is no dominant tenement, the servitude may at the most be

188
a personal servitude. If the two properties have a single owner, the maxim that no one
can have a servitude over his/her own thing (nulli res sua servit) applies. If these
requirements have been met, but the owner of one of the tenements (whether the
dominant or the servient tenement) subsequently becomes the owner of the other
tenement as well, the same maxim applies and the servitude terminates through merger.

5.2.2.2 Benefit (utilitas)

A land servitude must enhance the use and enjoyment of the dominant tenement. It
must be to the use and benefit of the dominant tenement, and not serve merely to
satisfy the owner’s whims and fancies (Willoughby’s Consolidated Co Ltd v Copthall Stores
Ltd 1913 AD 267 286–287; De Kock v Hänel 1999 (1) SA 914 (C)). There is authority
for the view that the advantage conferred by the servitude need not be economic, but
may also be merely aesthetic.

5.2.2.3 Proximity (vicinitas)

The tenements must be situated, in relation to each other, in such a way that the
effective exercise of the servitude to the benefit of the dominant tenement is possible
(Bisschop v Stafford 1974 (3) SA 1 (A) 11). The tenements need not be adjacent. Even
where two tenements do share a common boundary, the physical character of the
environment may be such that the one tenement could not possibly enhance the use or
enjoyment of the other. For example, if a water source were separated from a
catchment dam on a neighbouring farm by, say, a mountain range, a servitude of
aqueduct would hardly be a practicable proposition. This requirement is closely related
to the benefit (utilitas) requirement.

5.2.2.4 Permanency (perpetua causa)

The servitude must have a degree of permanency. A land servitude cannot be
established for a single (non-recurrent) exercise of the right conferred. The servient
tenement must be able to satisfy the needs of the dominant tenement on a continual
basis (Venter v Minister of Railways 1949 (2) SA 178 (EDL) 185).

5.2.2.5 Passivity (servitus in faciendo consistere non potest)

A servitude cannot impose a duty on the owner of the servient tenement to perform a
positive act. It can only require that he/she endures a particular activity or that he/she
refrains from a particular act. He/she cannot be obliged to do something. In Roman law
there were certain exceptions to this so-called passivity principle, namely the servitude
for the support of a buttress (servitus oneris ferendi), for example, where a beam is
supported by a wall on the servient tenement. In this case the wall must be maintained
by the owner of the servient tenement. There is also the servitude of not building higher
(servitus altius non tollendi). The latter is not really an exception to the principle, since it
does not expect the owner of the servient tenement to do something, but to refrain
from doing something.
This principle was recognised as a requirement for validity in Schwedhelm v Hauman
(1947 (l) SA 127 (E)), but in Van der Merwe v Wiese (1948 (4) SA 8 (C)) doubt was cast
on the view that the passivity principle is an absolute requirement for land servitudes.

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 The point of departure in the first decision would seem to be more acceptable. The
Schwedhelm case was subsequently confirmed in Low Water Properties (Pty) Ltd v Wahloo
Sand CC (1999 (1) SA 655 (SE) 661D).

5.2.2.6 Indivisibility
A land servitude relates to the entire dominant tenement, and burdens the whole of the
servient tenement. The divisibility of a servitude must be distinguished from the physical
subdivision of the land to which the servitude applies. The servitude remains vested in
each subdivision of the original dominant tenement, in so far as the subdivision benefits
thereby, and provided that the burden on the servient tenement is not increased. Mere
subdivision does not entail a burdening of the servient tenement. A person relying on
this must indicate why the subdivision amounts to a burdening of his/her position as
owner.
The same applies to the subdivision of a servient tenement, except where the servitude
is demarcated and relates to a particular portion of the tenement only, such as a right of
way. Those subdivisions which are not crossed by the right of way (eg a road) are
exempted from the servitude in the case of subdivision. For example, a servitude of way
was established over Pulang in favour of Highlands. Highlands is subsequently subdivided
so that the subdivisions are transferred to X, Y and Z. Notwithstanding the principle that
the owner of the dominant tenement may not increase the burden on the servient
tenement, X, Y and Z, as owners of the respective subdivisions of Highlands, may
nevertheless each exercise the servitude of way. The same applies if the servient
tenement, Pulang, is subdivided, unless the right of way has been determined with
reference to a specific route (De Kock v Hänel 1999 (1) SA 914 (C); Smith v Mukheibir
2001 (3) SA 591 (SCA)).

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Activity
After you have studied this section, answer the following question:

1 State the requirements for the valid creation of a new land (praedial)
servitude. (6)

5.2.3 Classification
Land servitudes are divided into rural servitudes (servitutes praediorum rusticorum) and
urban servitudes (servitutes praediorum urbanorum). While rural servitudes usually relate
to rural land and urban servitudes to urban land, the distinction is actually to be found in
the purpose for which the land is designated, for example, for agricultural use or else for
residential, commercial or industrial use. Although the proximity (vicinitas) principle is
applied more strictly in the case of rural servitudes than for urban servitudes, the
significance of the distinction between the two kinds of land servitudes has become less
important.
Both rural and urban servitudes are usually positive: they create entitlements to perform
an act on the servient tenement, for example, to walk over it (ius faciendi); but in the
case of urban servitudes certain negative servitudes also occur. In these cases the
servitude holder acquires entitlements to prohibit the performance of certain activities
on the servient tenement, for example, the entitlement to prohibit the owner of the

190
servient tenement from building higher (servitus altius non tollendi). The distinction
between positive and negative servitudes has greater practical significance, for example,
in the case of the termination of a servitude by prescription. The non-use of a negative
servitude cannot lead to its termination by prescription.
There is no closed category of land servitudes. As long as these servitudes comply with
the requirements for validity, they need not conform to any particular mould.

5.2.3.1 Rural servitudes

Important forms of rural land servitudes are:

(i) rights of way (for example the right to walk or drive over the servient tenement)
(ii) rights to water (for example the right to draw or lead water from the servient
tenement)
(iii) rights to grazing (for example the right to graze animals on the servient tenement)
(iv) outspan (for example the right to rest, graze and water animals on the servient
tenement)

Circumstances may sometimes necessitate a right of way namely a via necessitatis

(way of necessity) over a servient tenement. The owner of a piece of land which is
without access to a public road can obtain a right of way over another’s land, so as to
gain such access. Two situations can be distinguished:

(a) temporary, emergency way of necessity where no compensation is paid, and

(b) a permanent way of necessity where compensation is paid to the owner of the
servient tenement.

A way of necessity can be acquired either by an agreement and registration or by a court

order. If the way of necessity is granted in terms of a court order the latter merely
confirms the existence of the servitude.

In Van Rensburg v Coetzee (1979 (4) SA 655 (A)) the underlying principle of a way of
necessity was indicated as being that it must follow the shortest route and cause the
owner of the servient tenement the least possible inconvenience. The following
guidelines were laid down by the court for a successful application for a permanent
way of necessity:

1 The particulars of claim must allege the particular necessity (eg, that the defendant’s
land is situated between the applicant’s land and the nearest public road).
2 The nature of the way of necessity must be stated (eg, that a farmer will be able to
exercise his/her farming activities reasonably).
3 The nature of the terrain over which the way of necessity will run must be
determined (eg, that the terrain is such to accommodate the way of necessity).
4 A particular route must be determined as being the most suitable.
5 The width of the road must be stated.
6 An amount of compensation should be offered, which must be reasonable, taking
into account factors such as the advantage gained by the applicant.

(Confirmed in Sanders NO v Edwards NO [2003] 1 All SA 109 (SCA)).

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 ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
Answer the following questions before you continue:

1 Briefly mention the guidelines for an application for a way of necessity

and name the case in which these guidelines were laid down. (7)

Remark
Here you must discuss the guidelines for a successful application for the
granting of a way of necessity as set out in Van Rensburg v Coetzee (1979 (4) SA
655 (A)).

2 Z allows S to use a road over his farm to the national road to which S had
no direct access. After some months Z informs S that he can no longer use the
road. S approaches a neighbour who allows S to use the road over his farm.
After a while, he also informs S that he can no longer use the road. S ap-
proaches the court and applies for a way of necessity. Will the court award S a
way of necessity? Refer to case law. (10)

5.2.3.2 Urban servitudes

Important forms of urban servitudes are those relating to:
(i) light and view, for example, a servitude of letting light in (servitus luminis immitendi)
and a servitude of not building higher (servitus altius non tollendi) – negative
servitude
(ii) rain and drainage, for example, a servitude to have the water dripping from one’s
eaves onto the neighbour’s building or land (servitus stillicidii avertendi) and a
servitude of water streaming (not dripping) onto neighbour’s land (servitus fluminis
recipiendi)
(iii) walls and structures, for example, a servitude by which the owner of the servient
tenement is obliged to support a buttress (servitus oneris ferendi) – an exception to
the passivity principle – and where no such obligation exists, but the servitude
holder is entitled to insert a beam in his/her neighbour’s property (servitus tigni
immitendi)

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Activity

After you have studied this section, answer the following question:
1 Give three examples of praedial servitudes. (3)

6 PERSONAL SERVITUDES

6.1 Definition
A personal servitude can be defined as a limited real right granting the servitude holder
specific entitlements of use and enjoyment with regard to the movable or immovable
thing of another in his/her personal capacity for a specific period of time, or for his/
her lifetime or, in the case of a legal person, for a maximum of 100 years.

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This servitude is of a highly personal nature, in the sense that it is inseparably attached to
the person of the holder, and cannot last longer than his/her lifetime. (In the case of a
legal person, the duration is 100 years, if no period has been stipulated.) A personal
servitude cannot be transferred in any way (Durban City Council v Woodhaven Ltd 1987
(3) SA 555 (A)) and it lapses on the holder’s death. A servitude holder may, however,
abandon his/her servitude. A personal servitude may be created over movable or
immovable things.

Unlike Roman law, modern South African law does not have a closed category of
personal servitudes. Familiar forms of personal servitudes are usufruct (ususfructus), use
(usus) and dwelling (habitatio). Personal servitudes may also take the external form of
land servitudes, the so-called irregular servitudes (servitutes irregulares). Such servitudes
have the substance of recognised land servitudes, but are constituted, not in favour of a
dominant tenement, but in favour of a specific person in his/her personal capacity (eg, a
right of way or a right to lead water granted in favour of a particular person).

DIAGRAM 15 Distinction between personal and land servitudes

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 Personal servitude: Road over Pulang (servient tenement) registered in favour of S in
his personal capacity. Only S can exercise the servitude.

Land servitude: Road over Pulang (servient tenement) registered in favour of

Highlands (dominant tenement). Any owner of Highlands can exercise the servitude.

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Activity
Answer the following question before you continue:

1 Give three examples of personal servitudes. (3)

6.2 Specific personal servitudes

6.2.1 Usufruct
6.2.1.1 Introduction
A usufruct can be defined as a personal servitude conferring a limited real right on a
person (the usufructuary) to use another person’s thing and to reap its fruits, with the
duty to return the thing to the owner with the preservation of its substance (salva rei
substantia). ‘‘Preservation of its substance’’ means that after termination of the usufruct,
for example, in the case of a usufruct of a farm with a certain number of trees and cattle
on it, the farm must be restored to the owner with the same number of trees and cattle,
not necessarily the same trees and cattle.

Usufruct is the most common personal servitude and is often reserved in a will to benefit
a person nominated by the testator, such as his wife or her husband or reserved on
transfer of land, in favour of the transferor (eg, a father may transfer the land to his
children and reserve a usufruct for himself and his wife).

The servient thing may be either movable (money or a flock of sheep) or immovable. It
may be a singular thing such as a farm, or a collection of things such as a flock of sheep, a
library or an estate. However, it cannot be a consumable thing (res consumptibiles),
because, if a thing is consumed, it cannot be returned to the owner in the same
condition.

6.2.1.2 Rights of usufructuary

The usufructuary is entitled to control, use and enjoy the servient thing. He/she may also
enjoy the fruits, both natural and civil.
& Natural fruits (fructus naturales), in the case of land, are vegetables, flowers,
harvests, plantations planted for the purpose of cutting (silva caedua), and, in the case
of animals their produce and the services they render, (eg, milk, wool, manure, meat
and their offspring).
& Civil fruits (fructus civiles) include interest, dividends and rentals.

The usufructuary becomes the owner of the fruits when they are gathered. Fruits that
have not yet been gathered when the usufruct terminates do not accrue to the

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 usufructuary or his/her heirs. Civil fruits become the usufructuary’s property at the time
when they are due. Should the usufruct terminate before that date, provision is made
pro rata for the period during which the usufruct existed. Although brushwood and
shrubbery are not considered fruits, they may be used by the usufructuary for household
and agricultural purposes. Trees, even uprooted trees, may be used only to benefit the
land. Trees planted for cutting may be cut, subject to the principle that ensures
preservation of the thing (salva rei substantia).

Owing to the highly personal nature of the servitude, a usufruct cannot be alienated; nor
can the usufructuary alienate the servient thing. He/she may, however, let his/her
entitlement to use the object of the usufruct. The entitlement acquired in this way by the
third party is not a limited real right against the owner, but a personal right (claim/
creditor’s right) against the usufructuary who retains the limited real right against the
owner.

6.2.1.3 Duties of usufructuary

The usufructuary is obliged to use the servient thing in a reasonable manner for the
purpose for which it was intended. He/she should have the attitude of a reasonable man
(person) (bonus paterfamilias), and restore the thing to the owner in the condition in
which it was when he/she took control of the thing (salva rei substantia). He/she may not
exhaust or destroy the thing, or allow it to lose value or change character. He/she may,
however, develop or exploit the thing in a new way only if this is reasonable and sensible
in the circumstances. For example, the usufructuary may convert grazing land into arable
land (Fourie v Munnik 1919 OPD 73).

Security The usufructuary is obliged to give security for restoration of the thing in the condition in
which it was when he/she took control of it. A failure to do so will deprive him/her of
the right to exercise the servitude. There are, however, certain exceptions to this rule,
and the usufructuary need not give security where:
Exceptions (i) parents have left their property to their children under a will, reserving a usufruct
for themselves
(ii) an owner, on alienating his/her property, reserves a usufruct for himself/herself
(iii) the usufructuary has been explicitly exempted from giving security
(iv) the State (fiscus) is the usufructuary

The usufructuary is responsible for the expenses involved in the ordinary maintenance of
the thing in the condition in which he/she received it. Extraordinary expenses are borne
by the owner. The usufructuary is not held responsible for normal wear and tear or for
improvements where the thing is destroyed through no fault of his/her own. However,
he/she must maintain the number of livestock in a herd or flock out of the young that are
born, or by buying new stock, and he/she must replace trees that die in an orchard.
Ordinary taxes on the servient thing are paid by the usufructuary, but not premiums on a
fire insurance policy or interest on a bond taken out by the owner. These are regarded
as extraordinary expenses for which the owner is responsible. The usufructuary would
only be responsible for these expenses if he/she had agreed to assume this responsibility.
If the owner fails to pay these, the usufructuary may pay them and recover the

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 extraordinary expenses from the owner if the latter has consented to the incurring of
such expenses. If not, the usufructuary will have to base his/her claim on the principles of
unauthorised administration of another’s affairs (negotiorum gestio).

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Activity

After you have studied this section, you must answer the following
question:

1 Briefly discuss usufruct. (10)

6.2.2 Use (usus)

Use is a less comprehensive personal servitude than usufruct. It is a personal servitude
conferring on the holder a limited real right to use the property of another for his/her
own needs and those of his/her household, provided the character of the thing is
preserved.
The user may only use such property to provide for his/her daily needs and those of his/
her household, which includes employees and guests. For this purpose he/she may
gather only fresh products such as vegetables, milk and eggs. The rest are due to the
owner. The user may, of course, also draw water and collect firewood for personal use.
By the very nature of his/her right, the user cannot alienate the property or his/her real
right to it. Unlike usufruct, use does not entitle the holder of the right to let the thing.
Note, however, that even in the case of a usufruct, the third person (who has acquired
an entitlement from the usufructuary) does not acquire a limited real right against the
owner, but merely a personal right (creditor’s right/claim) against the usufructuary. In the
case of use, however, not even the latter is possible.

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Activity

After you have studied this section, answer the following question:

1 Briefly discuss use (usus). (5)

6.2.3 Dwelling (habitatio)

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Example
M, X’s mother, has a right of habitation over the old homestead on the farm where she
lives at present. This right is registered in the deeds registry against the title deed of
Waterford.

Definition This servitude is less comprehensive than a servitude of use. Dwelling is a personal
servitude conferring a limited real right on the holder to occupy another’s house,
with retention of the character of the thing. The servitude holder may occupy the
house with his/her household.

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He/she may not alienate his/her real right nor can he/she alienate the property. Unlike
the user, he/she may let the house, but he/she does not have the right to use the fruits
of the land for his/her own daily needs.

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Activity

After you have studied this section, answer the following question:

1 M, X’s mother, has a right of habitation over the old homestead on the
farm where she lives at present. This right is registered against the title deed
of the land. Describe the nature and content of the right. (5)

DIAGRAM 16 Entitlements of holders of personal servitudes

7 TERMINATION OF SERVITUDES
A servitude is terminated:

(i) upon the expiry of the period for which it was established, or the fulfilment of a
resolutive condition and, specifically in the case of a personal servitude, by the
death of the holder or, where the holder is a legal person, after 100 years, if no
time period was fixed by
(ii) agreement
(iii) prescription
(iv) expropriation
(v) renunciation (abandonment)
(vi) merger
(vii) the impossibility of exercising the right as a consequence of a permanent change in
the condition of the dominant or servient tenement (eg, in the case of a servitude
to draw water, where the well has completely dried up). In Kidson v Jimspeed
Enterprises CC (2009 (5) SA 246 (GNP)) it was decided that a right of habitation
does not extinguish when the building it pertains to is destroyed. The court held
that the right will ‘‘revive’’ when the building is replaced or repaired. The owner

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 must allow the holder of the right of habitation to rebuild or repair the building.
This judgement was, however, widely criticised.

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Activity

After you have studied this section, answer the following question:

1 Name the ways in which servitudes are terminated. (7)

8 RELATIONSHIP BETWEEN SERVITUDE HOLDER AND

OWNER OF BURDENED THING
The rights of the servitude holder enjoy precedence over those of the owner, in so far as
the exercise of the servitude is concerned. He/she is entitled to perform all the acts that
are necessary for the due exercise of the servitude. This should take place in a
reasonable manner (civiliter modo) with the least possible inconvenience to the owner.
On the other hand, the owner of the servient tenement is entitled to exercise his/her
rights as owner as long as these do not conflict with the servitude holder’s rights (Brink v
Van Niekerk 1986 (3) SA 428 (T)).

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Activity

After you have studied this section, answer the following questions:

1 How is the criterion of reasonableness applied in the case of

servitudes? (4)
2 S has a registered right of way over Q and R’s farm. S allows Z, his neigh-
bour, to use this road to access the main road. Q and R request Z orally and in
writing not to use the road. They indicate to him that the servitude is available
to S only. Z ignores their requests and persists in using the road. Q and R also
ask S to revoke his permission to Z. S and Z refuse to cooperate. Discuss the
legal position of the parties with reference to case law. (8)
Answer
This question is based on the facts in Brink v Van Niekerk. (1) The court referred
to the general requirement that the servitude holder must exercise the
servitude in a reasonable manner (civiliter modo). (1) This means that the
servitude holder should not place a greater burden upon the servient
tenement than is reasonably necessary. (1) S’s permission to Z to use the road
does not necessarily place a greater burden on the servient tenement –
evidence must be submitted to the court showing such burdening. (1) A
servitude holder cannot grant a further servitude over the existing servitude,
(1) but there is no evidence here that S granted Z a servitude. (1) Q and R are
entitled to either a declaratory order (1) or an interdict (1) or both, (1)
provided they place evidence before the court that their position was
burdened. (1)
Remark
See the discussion of remedies in paragraph 9 below.

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9 REMEDIES
The following remedies are available to a servitude holder:

(i) The actio confessoria is a real remedy available to a holder of a servitude by

means of which he/she can prohibit impediment or limitation of the reasonable
exercise of his/her servitude entitlements by means of a court order. The servitude
holder can also claim compensation with this action.
(ii) The actio negatoria is an action available to an owner against the holder of a
servitude who exceeds his/her servitude entitlements and also against any other
person who wrongfully claims servitude entitlements.
(iii) An interdict (see SU 6, para 2.2 and SU 9, para 2.2) (see, eg, Willoughby’s
Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267).
(iv) A declaratory order (see SU 6, para 2.3 and SU 9, para 2.1).
(v) A spoliation order – if the servitude holder’s control over the thing is disturbed in
an unlawful manner he/she can restore his/her control with the spoliation order
(see SU 9, para 2.3).
(vi) The Aquilian action (see SU 6, para 3.3 and SU 9, para 2.6).

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Activity

After you have studied this section, answer the following questions:

1 S has a right of way over Q and R’s farm, Pulang. S has a dairy farm
and uses the road to transport milk to different shops in the area. One day S, Q
and R have a difference of opinion, after which Q and R lock the gate that gives
S access to the road. Which remedy, if any, is available to S? (3)
Answer
S can apply to the court for a mandatory interdict (1) to compel Q and R to
open the gate. He can also claim his damages (1) with the Aquilian (delictual)
action (1) because he was unable to transport his milk to the shops.

2 In his personal capacity, S has a right of way over Q and R’s farm, Pulang. S
develops part of his farm into a holiday resort and lets all his guests use the road
over Pulang. Q and R are very unhappy about this. What remedy/remedies, if
any, do Q and R have? (4)
Answer
Q and R can apply to the court for a prohibitory interdict (1) against S. They
can also institute the actio negatoria. (1) This action is available to an owner
against the holder of a servitude who exceeds (1) his servitude entitlements
and also against any other person who wrongfully claims (1) servitude
entitlements.

10 PUBLIC SERVITUDES
Certain rights, referred to traditionally as public servitudes, are established for the benefit
of the general public, for example, the right of outspan and commonage. This is not a
land servitude, as there is no dominant tenement. Nor is it a personal servitude, since

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 the right is not vested in a particular person. It cannot be acquired through prescription
and it does not lapse through non-use. It is therefore questionable whether this right can
really be classified as a servitude at all.

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Activity
After you have studied this study unit, answer this question:

1 S gave the exclusive right to trade on a certain piece of land to Z. Z

transferred this right to his son, Zz. The right was not registered in favour
of Z. S sold his farm to X. X argues that Zz is not entitled to trade on that piece
of land, but Zz insists that he acquired that right from his father, Z. Discuss the
legal position of the parties with reference to case law. (10)
Remark
This question is based on Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd
(1913 AD 267). To answer this question, you are required to address the
following issues:
(i) the difference between a personal right and a personal servitude (limited
real right), as well as the consequences of this difference for the parties in
the question
(ii) the acquisition and vesting of servitudes
(iii) the remedy available to the parties in this question

In the question above S gave the exclusive right to trade to Z. From the facts it
is clear that there was no registration of a servitude in Z’s name. Z therefore
acquired a personal right against S to trade exclusively on the land. Such a
personal right can be transferred by means of cession to a third person, the
cessionary, who steps into the shoes of the cedent (Z). The cessionary (Zz) can
enforce this personal right against the debtor (S). In our question this means
that Z could transfer his personal right against S to Zz. Zz could also have
enforced this personal right against S. However, because it is a personal right
and S has sold his land to X, Zz can enforce it against S only, but not against X.
Only real rights are enforceable against third parties (see SU 2 par 2).
If Z had wanted this right to be enforceable against third parties (eg, X), he
should have insisted that S register a servitude. No registration took place and
therefore there was no servitude that could be enforced against X. Further-
more, even if this agreement between S and Z had been registered, it would
have been a personal servitude since it was granted to Z and not in favour of
another piece of land. Personal servitudes cannot be transferred and therefore
even after registration of the personal servitude, Zz would still have had no
right against X.
Because Zz argued that he was entitled to the exclusive right to trade and X
denied the existence of his right, there was a dispute between the parties on
their legal position. The appropriate remedy in such a case is a declaratory
order setting out the rights of the parties. In this case Zz has no rights against X.

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 RESTRICTIVE CONDITIONS

CONTENTS
1 Introduction
2 Remedies

1 INTRODUCTION
This study unit refers briefly to restrictive conditions. Restrictive conditions are a group of
limitations on ownership, comprising such limitations as conditions of title, town planning
conditions, conditions imposed on the subdivision of stands, restrictive covenants, etc.
Definition Restrictive conditions can be defined as a category of limitations on ownership which
are
(i) either registered against the title deed of property, or not so registered and
(ii) imposed in terms of a statute or based on a contract and
(iii) in the interests of land-use planning.

Although restrictive conditions as a group are not necessarily classified as limited real
rights, some restrictive conditions can be classified as limited real rights.

For the purposes of this module we concentrate only on conditions of title because
Definition these are a category of limited real rights. Conditions of title can be defined as limited
real rights inserted into title deeds of property either in terms of legislation or as a
result of a contract to regulate land use.

2 REMEDIES
Remedies available in the case of noncompliance with conditions of title include:

(i) interdict
(ii) Aquilian (delictual) claim for damages

Conditions of title may be removed or modified in a variety of ways, including:

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 (i) by court order
(ii) in terms of certain statutes, for example, the Spatial Planning and Land Use
Management Act 16 of 2013 (see discussion in SU 14)

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Activity

After having studied this section, answer the following question:

1 How can conditions of title be removed or amended? (2)

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S T U DY UN I T

11
REAL SECURITY
RIGHTS

CONVENTIONAL MORTGAGES
CONTENTS
1 Introduction
1.1 Real security rights and personal security
1.2 Real security rights
1.2.1 Limited real rights
1.2.2 Conventional and tacit real security rights
1.2.3 Preferential claim
1.2.4 Legal acts involved in creation of real security right
1.2.5 Accessory nature
1.2.6 Security object
1.2.7 Different meanings of ‘‘mortgage’’

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 1 INTRODUCTION
In this study unit we discuss real security rights. Real security rights form the second
group of limited real rights, the first being servitudes and conditions of title (see SU 10).
We discuss the following real security rights: pledge, mortgage, security by means of
claims, tacit hypothecs, liens and judicial pledge.

1.1 Real security rights and personal security

Real security rights are limited real rights over another person’s thing (iura in re aliena).
Real security rights secure performance by a security grantor that the debtor will
perform his/her obligations towards the security holder (creditor = holder of a real
security right). Two basic forms of credit security can be distinguished: personal security
(suretyship = creditor’s right) and real security (different forms = limited real rights).

Personal security occurs where a person (the surety) binds him/herself personally to the
creditor for the performance of the debtor’s obligation. Take note that the security
receiver in the case of personal security (suretyship) obtains only a personal right
(creditor’s right) against the surety, while in the case of real security he/she obtains a
limited real right to the thing of the security grantor. The law of property is, however,
concerned only with real security rights, while the principles of suretyship are dealt with
in the law of obligations, specifically in the law of contract.

Diagram 17: Real and personal security

Real security Personal security

Principal debt Principal debt

S " Bank S " Bank
(creditor) (creditor)

ght ght
l ri ri
rea al
ited rson
Lim Pe

!
!

!
!

Car (thing) Z (surety – person)

S = debtor S = debtor

1.2 Real security rights

1.2.1 Limited real rights
In the case of real security rights the person accepting security obtains a limited real right
over a thing as security for the fulfilment of an obligation (the principal debt). If the
principal debtor does not fulfil the obligation, the creditor can use the security object
(thing) to satisfy the debt.

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1.2.2 Conventional and tacit real security rights
Real security rights (limited real rights) are divided into conventional (or express)
security rights which are based on agreement between the creditor and the debtor and
tacit mortgages arising by operation of the law. Tacit mortgages, unlike conventional
mortgages, are not created by agreement and registration, but by operation of law,
independently of the creditor’s and the debtor’s wills. For this reason tacit mortgages are
also sometimes called legal mortgages (mortgages ex lege). Tacit mortgages are discussed
below.

1.2.3 Preferential claim

Real security rights are aimed at strengthening the creditor’s position, especially in the
case of a concurrence of creditors (concursus creditorum) (that is, the debtor’s
insolvency). Every debtor is contractually obliged to pay his/her debt and his/her estate,
in general, is liable for proper performance. However, where a debtor has a number of
creditors, and where his/her liabilities exceed his/her assets, the liability of his/her estate
is a poor consolation. Moreover, a debtor may alienate all his/her assets, leaving his/her
creditors without recourse.

Where several creditors have claims to the same estate on insolvency, the principle of
equality of creditors (paritas creditorum) applies. According to this principle all creditors
are on an equal footing as holders of claims (personal rights/creditor’s rights), and none is
entitled to preference. To avoid this unsatisfactory position, a creditor may secure his/her
claim (personal right/creditor’s right) for payment by means of a real security right which
will give him/her a preferential claim to the proceeds of the object of security. The
security holder can have the object of security sold in execution. Only when his/her
claim has been satisfied can the other, the unsecured, creditors lay claim to the free
residue. The real security right also entitles the secured creditor to prevent the debtor
from disposing of the security object, since the creditor is physically in control of the
object of security in the case of a pledge, for example, and, in the case of a mortgage,
registration against the title deed has been effected.

1.2.4 Legal acts involved in creation of real security right

It is important to distinguish between the different parties as well as the different
agreements that are relevant in conventional real security rights. The parties are usually
the security holder (creditor, credit grantor) and the security grantor (principal debtor or
a third party). The person who furnishes security is usually the debtor, but this need not
be so, since it is possible to provide security for another person’s debt (Millman NO v
Twiggs 1995 (3) SA 674 (A)). The person in whose favour the security is provided is,
however, always the creditor. The owner of a thing or his/her representative is the only
person who is entitled to burden a thing with a real security right.

In a security transaction the following legal facts can be distinguished:

(i) The loan contract (or other credit facility) in terms of which the creditor lends a
sum of money to the debtor. The debt created here is the principal debt.
(ii) The security contract (this can exist independently or be incorporated in the same
document as the loan contract) in terms of which the security grantor undertakes
to provide security for the debt created in terms of the loan agreement. The

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 security contract determines the nature of the security, in other words, if a pledge
or a mortgage is constituted.
(iii) Constitution (vesting) of the limited real right. Once the above contracts have
been concluded, the real security right must still be constituted (vested). The act
constituting the real security right, for example, in a pledge is the physical transfer
(delivery) of the pledged object. To distinguish this delivery from delivery where
ownership is transferred, the physical transfer goes hand in hand with a real
agreement in terms of which the pledgor has the intention to constitute a pledge
over the pledged object and the pledgee has the intention to accept it as a pledge.

These different legal transactions are normally entered into simultaneously, but can be
distinguished from one another, if not in time, in effect.

DIAGRAM 18 Legal acts involved in creation of real security right

1.2.5 Accessory nature

All real security rights (conventional and tacit) are accessory in nature (see Thienhaus v
Metje & Ziegler Ltd 1965 (3) SA 25 (A)). This means that the security rights cannot exist
if there is no principal debt. When the principal debt is discharged, the security right is
extinguished by operation of law (ipso iure). This principle is enunciated as follows in
Kilburn v Estate Kilburn (1931 AD 501 506):
It is true that you can secure any obligation whether it be present or future, whether it be
actually claimable or contingent. The security may be suspended until the obligation arises,
but there must always be some obligation even if it be only a natural one to which the
security obligation is accessory ... . If there is no obligation whatever there can be no
hypothecation giving rise to a substantive claim.

The principal debt may arise from a contract or a delict, or from other causes such as
unauthorised management of another’s affairs (negotiorum gestio) or enrichment. It may

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also arise from a natural obligation or an obligation which is subject to a condition or a
time clause. The Deeds Registries Act 47 of 1937 (section 51) even makes it possible to
secure a future debt by means of a covering bond (see par 3.3.4 below).

1.2.6 Security object

Any movable or immovable thing that is part of the commercial world (in commercio)
can be the object of a real security right. It may take the form of a single thing, like a car
or a horse, or a composite thing, such as an estate or a herd of livestock (Burger v
Rautenbach 1980 (4) SA 650 (C)). It can also be an incorporeal thing, like a personal
right (creditor’s right/claim – see the discussion below under para 3) or a servitude (see
discussion above in SU 10).

Real security rights are indivisible. Unless there is an agreement to the contrary, they
secure the entire claim (principal debt). In other words, the whole thing remains
burdened until the whole debt has been paid.

1.2.7 Different meanings of ‘‘mortgage’’

The word ‘‘mortgage’’ is used in a variety of meanings: in a generic sense it refers to a
real security right (including pledge, mortgage and hypothec). Note, too, that there is a
difference in the functioning or effect of a right of mortgage and a mortgage bond
(mortgage deed). The mortgage bond (deed) is the document embodying the terms
and conditions of the mortgage (real security right). In this course the emphasis falls on
the functioning and effect of a right of mortgage as a limited real right. You should be able
to define and distinguish the different types of mortgages.

After having studied this section, answer the following questions:

1 Name the two basic forms of security. (2)

2 Name the two forms of real security rights as determined by the way in which they
are created. (2)
3 Discuss the operation of the accessory principle. (4)

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After having studied this section, answer the following questions:

1 Name the two basic forms of security. (2)

2 Name the two forms of real security rights as determined by the way in
which they are created. (2)
3 Discuss the operation of the accessory principle. (4)

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 PLEDGE
MORTGAGE
SECURITY BY
MEANS OF CLAIMS

CONTENTS
1 Introduction
2 Pledge
2.1 Definition
2.2 Constitution/vesting
2.3 Clauses in pledge agreement
2.3.1 Clause for summary execution (execution without court order
‘‘parate executie’’)
2.3.2 Clause that pledgee may keep thing if pledgor fails to pay (pactum
commissorium)
2.3.3 Clause that pledgee may buy thing at specific price
2.3.4 Clause that debt may not be redeemed
2.3.5 Pactum antichresis
2.4 Rights and duties of parties
2.4.1 Pledgee
2.4.2 Pledgor
2.5 Extinction of pledge
3 Mortgage
3.1 Definition
3.2 Kinds of mortgages
3.3 Kinds of conventional or express mortgages
3.3.1 Notarial bond
3.3.1.1 Definition
3.3.1.2 Security by Means of Movable Property Act 57 of 1993

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 3.3.1.2.1 Position before enactment of Security by
Means of Movable Property Act 57 of 1993
3.3.1.2.2 Position after enactment of Security by Means
of Movable Property Act 57 of 1993
3.3.2 Special mortgage over immovable things
3.3.3 Kustingbrief
3.3.4 Covering bond
3.3.5 Participation bond
3.4 Operation of special mortgage over immovable things
3.5 Extinction of mortgage
4 Security by means of claims
4.1 Introduction
4.2 Pledge
4.3 Fiduciary security cessions
4.4 Notarial bonds of claims (incorporeal movable things)

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 1 INTRODUCTION
In this section pledge, mortgage and security by means of claims are discussed.

2 PLEDGE

2.1 Definition
A pledge can be defined as a limited real right over the pledgor’s thing, delivered to
the pledgee as security for repayment of the principal debt which the pledgor or a third
person owes to the pledgee.

2.2 Constitution/vesting

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Example
In 1967 Z sold his dry-cleaning business, Vasco Dry Cleaners, to X. It was a term of the
contract of sale that, in respect of the dry-cleaning machinery included in the sale, the
passing of ownership would be suspended until the purchase price had been paid in full. At
the end of June 1972 the balance still due to Z was R 4650,00. X was in financial difficulties
and in order to avoid repossession of the machinery by Z he sought and obtained financial
assistance from Twycross, his brother-in-law. X and Twycross accordingly entered into a
written agreement on 28 June 1972 in terms of which Twycross was to pay the balance still
due to Z. It was agreed that on such payment to Z ownership of the machinery would
pass to Twycross, who agreed to sell the machinery to X for a purchase price of R4700,00,
payable on or before 30 June 1973. It was further agreed between X and Twycross that
ownership of the machinery would not pass to X until the purchase price had been paid in
full to Twycross. They agreed that if the purchase price was not paid, Twycross would be
entitled to obtain the return and repossession of the machinery.

In November 1972, X sold the business, including the machinery, to a new owner. In the
deed of sale X warranted that it was the owner of the machinery. The new owner of Vasco
Dry Cleaners was not aware of the contract between Twycross and X. X failed to pay
Twycross the sum of R4 700,00. Twycross wishes to claim the machinery from the new
owner.

[The facts in Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A).]

The following are required to constitute a pledge:

(i) a principal debt,

(ii) a pledge agreement (security agreement) and
(iii) delivery

The accessory nature of pledge requires the existence of a principal debt. The pledge
agreement (security agreement) is an agreement creating an obligation: the pledgor
undertakes to give the thing in pledge. The pledgee does not acquire a real right to the
thing until delivery has taken place. He/she merely acquires a personal right (creditor’s

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right/claim), by virtue of the pledge agreement, to compel the pledgor to deliver the
thing. Since the transfer of control is required for the vesting of a pledge, it is usually
accepted that only movable, corporeal things can be given in pledge (see, however, SU
1 par 1.1.1 under things as legal objects and par 3 below).

DIAGRAM 19 Vesting of pledge

The requirement of transfer of control has given rise to certain problems in practice,
and several methods have been devised to circumvent this requirement. Certain
authors advocate a non-possessory pledge, since transfer of control has an inhibiting
effect on the credit grantor’s business. The courts (Vasco Dry Cleaners v Twycross 1979
(1) SA 603 (A) and ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC 2003 (1) SA 401
(SCA)) eliminated most of the devices for circumventing this requirement, and followed
a conservative approach, requiring the transfer of control by means of actual or
constructive (fictitious) delivery. Constitutum possessorium as a constructive (fictitious)
form of delivery for the constitution of a pledge is, however, unacceptable because it
provides ample opportunity for fraud. [Constitutum possessorium is a form of constructive
(fictitious) delivery where the transferor (pledgor) remains in control of the thing and
exercises control on the transferee’s (pledgee’s) behalf (see SU 5, par 4.2.5).]

Since the transfer of control is a requirement for the constitution of a pledge, it is not
possible for more than one pledge to exist at the same time over the same thing.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After having studied this section, answer the following questions:

1 In 1967 Z sold his dry-cleaning business, Vasco Dry Cleaners, to X. It was a

term of the contract of sale that, in respect of the dry-cleaning machinery
included in the sale, the passing of ownership would be suspended until the
purchase price had been paid in full. At the end of June 1972 the balance still
due to Z was R4650,00. X was in financial difficulties and in order to avoid
repossession of the machinery by Z he sought and obtained financial assistance
from Twycross, his brother-in-law. X and Twycross accordingly entered into a

211
 written agreement on 28 June 1972 in terms of which Twycross was to pay
the balance still due to Z. It was agreed that on such payment to Z ownership
of the machinery would pass to Twycross, who agreed to sell the machinery to
X for a purchase price of R4700,00, payable on or before 30 June 1973. It was
further agreed between X and Twycross that ownership of the machinery
would not pass to X until the purchase price had been paid in full to Twycross.
They agreed that if the purchase price was not paid, Twycross would be
entitled to obtain the return and repossession of the machinery.

In November 1972, X sold the business, including the machinery to a new

owner. In the deed of sale X warranted that it was the owner of the machinery.
The new owner of Vasco Dry Cleaners was not aware of the contract be-
tween Twycross and X. X failed to pay Twycross the sum of R4 700,00.
Twycross wishes to claim the machinery from the new owner. Will Twycross
succeed? Fully substantiate your answer with reference to case law. (10)
Remark
This questions is based on the facts of Vasco Dry Cleaners v Twycross (1979 (1)
SA 603 (A)). See the answer to question 2 in Study Unit 5, paragraph 4.2.5.

2.3 Clauses in pledge agreement (Also relevant to clauses in mortgage

agreements)

2.3.1 Clause for summary execution (execution without court order – ‘‘parate
executie’’)

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Example

S hands ostrich feathers to Z to sell on his behalf. Z is unable to sell all the feathers. Z
advances a large sum of money to S and agrees that he will try to sell the feathers, if
necessary, at a public auction. The feathers will serve as a pledge object to secure
repayment of the money advanced to S. Z sells the feathers at a public auction and buys
them at a very low price. S argues that this sale is invalid since it was executed in terms of
an invalid summary execution clause.

[Based on the facts in Osry v Hirsch, Loubser & Co 1922 CPD 531.]

The pledgor and pledgee may agree that, in case of default payment, the pledgee may
sell the thing without an execution order from the court. Such a clause is valid and,
should such a sale take place, the pledgor may seek the protection of the court if he/she
was prejudiced by the sale (Osry v Hirsch, Loubser & Co 1922 CPD 531 and Bock v
Duburoro Investments (Pty) Ltd [2003] 4 All SA 103 (SCA) paras 6–9). After the debt has
been satisfied, the pledgor is entitled to the balance of the proceeds and he/she may
claim it by means of his/her action upon pledge (actio pigneraticia directa).

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2.3.2 Clause that pledgee may keep thing if pledgor fails to pay (pactum
commissorium)

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Example
B, one of S’s farm workers, wants to borrow R2 000-00 from S. He offers an antique
pocket watch which he inherited from his grandfather as security. S accepts the watch and
B signs a document in which he agrees that S may keep the watch if B does not repay the
full amount within six months.

The clause that the pledgee may keep the thing if the pledgor fails to pay his/her debt is
invalid (Sun Life Insurance Co of Canada v Kuranda 1924 AD 20; Mapenduka v Ashington
1919 AD 33; Baines Motors v Piek 1955 (1) SA 534 (A); Bock v Duburoro Investments
(Pty) Ltd [2003] 4 All SA 103 (SCA) paras 6–9 and in particular Graf v Buechel 2003 (4)
SA 378 (SCA)).

2.3.3 Clause that pledgee may buy thing at specific price

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example
S buys 152 bags of maize from C, the cooperative, on credit. As security for repayment of
the debt, he leaves 6 oxen, a cow and a horse with C as a pledge. The parties agree in
writing that C may keep the pledged animals if S does not repay the debt on the due date.
S fails to pay and C regards the animals as his property in terms of the written agreement
between himself and S. Two years later S tenders R8000-00 as payment of the outstanding
debt. He also claims his animals back, or R12 000-00 as damages in lieu of the animals.

[Based on the facts in Mapenduka v Ashington 1919 AD 33.]

Although Voet (Commentary on the Pandects 20 1 21) regards a stipulation that the
pledgee may buy the thing at a specific price as valid, its application was restricted in
Mapenduka v Ashington (1919 AD 343) to the case where the agreement was made
after the debt had become due or, where the agreement preceded the due date, only if
the pledgor at the time of non-payment was prepared to part with ownership of the
thing at the agreed price. The pledgor and pledgee may also agree that the pledgee may
keep the thing at a fair price or at a price determined by a third party, if the pledgor and
pledgee cannot reach consensus (Bock v Duburoro Investments (Pty) Ltd [2003] 4 All SA
103 (SCA) paras 6–9 and in particular Graf v Buechel 2003 (4) SA 378 (SCA)).

2.3.4 Clause that debt may not be redeemed

Such a clause, preventing the pledgor from paying his/her debt and having the pledged
article restored to him/her, is invalid (Michell v De Villiers (1900) 17 SC 85).

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 2.3.5 Pactum antichresis
Normally, the pledgee may not use the fruits of the thing given in pledge. However, the
parties may agree that the pledgee may do so, instead of claiming interest on the
amount owing by the pledgor.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After having studied this section, answer the following questions:

1 S hands ostrich feathers to Z to sell on his behalf. Z is unable to sell

all the feathers. Z advances a large sum of money to S and agrees that he will
try to sell the feathers, if necessary, at a public auction. The feathers will serve as
a pledge object for repayment of the money advanced to S. Z sells the feathers
at a public auction and buys them for a very low price. S argues that this sale is
invalid since it was executed in terms of an invalid summary execution clause.
Will S succeed? Substantiate your answer with reference to case law.

Answer
The facts of this question is based on Osry v Hirsch, Loubser & Co. (1)

Legal question
Is the summary execution clause valid? (1)
Ratio decidendi
S and Z agreed to a clause for summary execution or ‘‘parate executie’’. In
terms of this clause the pledgee (Z) and the pledgor (S) agreed that in the case
of default on payment, (1) the pledgee may sell (1) the thing without an
execution order from the court. (1) This type of clause is valid in principle. (1)
Should the pledgor (S) be prejudiced (1) by the sale, however, he can seek the
protection of the court. (1)
Application of decision to facts
In principle a summary execution clause is valid. S might, however, succeed if
he can prove that he has been prejudiced by the way Z carried out the sale of
the feathers. (1)

2 S buys 152 bags of maize from C, the cooperative, on credit. As security for
repayment of the debt, he leaves six oxen, a cow and a horse with C as a
pledge. The parties agree in writing that C may keep the pledged animals if S
does not repay the debt on the due date. S fails to pay on the due date and C
regards the animals as his property in terms of the written agreement between
himself and S. Two years later S tenders R 8000-00 as payment of the out-
standing debt. He also claims his animals back, or R 12 000-00 as damages in
lieu of the animals. Will S succeed with his claim? Substantiate your answer with
reference to case law. (10)
3 B, one of S’s farm workers, wants to borrow R 2 000-00 from S. He offers
an antique pocket watch which he inherited from his grandfather as security. S
accepts the watch. S and B sign a document in which B agrees that S may keep
the watch if B does not repay the full amount within six months.

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 (a) Advise S about the nature of a pledge and the way in which it must
be constituted. (5)

(b) Discuss the validity of the agreement that S may keep the watch. Refer
to case law. (3)
Answer
This question deals with a clause that the pledgee may keep the thing if the
pledgor fails to pay (pactum commissorium). (1) In both Mapenduka v Ashington
and Graf v Buechel (1) it was decided that a clause that a pledgee may keep
thing if the pledgor fails to pay is invalid. (1)

2.4 Rights and duties of parties

2.4.1 Pledgee
The pledgee acquires a limited real right to the pledged article. This right enables him/
her to keep the thing in his/her control until the pledgor has paid the principal debt. In
the case of involuntary loss of control, the pledgee can claim it by means of the real actio
quasi Serviana from whoever is in control of the thing, even a bona fide purchaser. As a
lawful holder the pledgee may also use the spoliation remedy to recover control of the
pledged thing from a person who has unlawfully removed control from the pledgee (see
the discussion above in SU 9 on the protection of possessors and holders).

If the pledgee voluntarily loses control, the principle that movables cannot be followed
up in the hands of bona fide third parties in the case of a hypothec (pledge) (mobilia non
habent sequelam ex causa hypotheca) applies. In this instance the pledgee cannot claim
the thing (Heydenrich v Fourie (1896) 13 SC 371) and also loses his/her limited real right
as pledgee.

If the pledgor is unable to pay the principal debt, the pledgee may obtain judgment
against him/her and have the thing sold in execution by the sheriff or messenger of the
court. The pledgee can satisfy the debt from the proceeds and must pay the surplus to
the pledgor. If the pledgor is declared insolvent, the pledgee enjoys preference by virtue
of his/her pledge, and his/her debt is satisfied from the proceeds of the sale of the
pledged thing (section 83 of the Insolvency Act 24 of 1936).

The pledge applies not only to the thing itself, but also to the fruits and the offspring.
Therefore, if X has taken a cow in pledge, and the cow gives birth, the calf will also be
subject to the pledge.

The pledgee may recover any necessary expenses he/she has incurred in the
maintenance of the thing by means of the actio pigneraticia contraria (Acton v Motau
1909 TS 841).

The pledgee is obliged to take care of the thing as a reasonable man (person) (bonus
paterfamilias) would do. He/she is liable to the pledgor for any damage to the thing
caused by his/her fault, but he/she is not liable for damage caused by chance (eg,
damage caused by lightning; see also Nyabele v Pieterse 1914 TPD 516). When the debt
is paid, the pledgee is obliged to return the thing to the pledgor.

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 2.4.2 Pledgor
If the pledgee should use the pledged article in a way that is contrary to the pledge
agreement, the pledgor may require security of him/her that he/she will refrain from
doing so.

When the pledgor has paid his/her debt, the pledge is extinguished and the pledgor can
reclaim the pledged article from the pledgee by means of a personal action, the actio
pigneraticia directa, or from whoever is in control of it with the rei vindicatio (real action).

When the pledge has been extinguished, the pledgor is obliged to refund the pledgee for
any necessary expenses he/she may have incurred with regard to the maintenance of
the thing.

2.5 Extinction of pledge

A pledge may be extinguished by:

1 discharge of the debt

2 destruction of the pledged article
3 effluxion of time, where the pledge was subject to a condition or time clause
4 the pledgee’s renunciation of the pledge
5 novation of the principal debt
6 merger, where the pledgee becomes the owner of the thing
7 prescription
8 voluntary loss of control
9 court order
10 sale in execution

3 MORTGAGE
See the discussion in par 2.3 above with regards to the validity of certain clauses in a
mortgage agreement.

3.1 Definition
A mortgage can be defined as a limited real right over a thing belonging to the
mortgagor in order to secure repayment of a debt owed by the mortgagor or a third
person to the mortgagee.

3.2 Kinds of mortgages

We referred to the different meanings of the term ‘‘mortgage’’ above and also to the fact
that mortgages in the generic meaning (as hypothecs) can be divided into two groups,
namely:

(i) conventional or express mortgages (mortgages by means of agreement)

(ii) tacit mortgages (mortgages created by operation of law – see the discussion in this
study unit under Tacit Hypothecs (Mortgages) below.

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In its narrow sense ‘‘mortgage’’ refers to the situation where the creditor is not in control
of the object of security. An express mortgage is established by a mortgage agreement
and registration. Because of the accessory nature of real security rights, there must be a
principal debt (see para 1 above). Both movable and immovable things may be
burdened by such a mortgage.

3.3 Kinds of conventional or express mortgages

3.3.1 Notarial bond
3.3.1.1 Introduction
A notarial bond is a bond registered over the movable property of the mortgagor. The
legal position pertaining to notarial bonds has an interesting history. Prior to the
enactment of the Security by Means of Movable Property Act 57 of 1993 the legal
position pertaining to notarial bonds in Natal was different than in the other provinces.
The legal historical development of notarial bonds is not fully discussed here. (See the
module on Notarial Practice for a comprehensive discussion of notarial bonds.) For
purposes of this module you must have knowledge of the following aspects pertaining to
notarial bonds: the definition of, the difference between, and the vesting and legal
operation of general notarial bonds and special notarial bonds.

3.3.1.2 Definition
A distinction is drawn between general notarial bonds and special notarial bonds. A
general notarial bond burdens all the movable things of the mortgagor in general,
whereas a special notarial bond burdens specified movable things.

A general notarial bond burdens all the movable property (eg all a farmer’s farm
implements, tractors and livestock) of a mortgagor (debtor). This notarial bond creates
no limited real right but has certain advantages for the mortgagee (creditor) in the case of
the mortgagor’s (debtor’s) insolvency. The legal position pertaining to general notarial
bonds is governed by the common law.

In terms of the Security by Means of Movable Property a special notarial bond is a bond
attested by a notary and registered over certain specifically described corporeal
movable property (eg the green John Deere tractor) of a mortgagor (debtor) in favour
of a mortgagee (creditor) as security for the repayment of the principal debt. A special
notarial bond cannot be registered over incorporeal movable property.

After the registration of the special notarial bond it grants a limited real right (real
security right) over the specified movable property to the mortgagee (creditor) without
the movables being delivered to the mortgagee (creditor). This form of security is
beneficial to the mortgagor (debtor) since he/she can, unlike in the case of pledge, still
use the movables while they serve as security.

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 DIAGRAM 20 Notarial bonds – security objects

General notarial bond Special notarial bond

specifically
all movable described
property of movable property
mortgagor of mortgagor

corporeal and only corporeal

incorporeal movable property
movable property

3.3.1.3 Vesting
Both general notarial bonds and special notarial bonds must be attested by a notary and
registered in the Deeds Office.

(a) General notarial bond

A general notarial bond does not create a real right of security in favour of the
bondholder. If a valid and enforceable perfection clause is included in the bond,
however, the bondholder can acquire a limited real right of pledge on attachment of
the bonded articles. The mortgagee can get control in terms of the perfecting clause
when:

(i) the mortgagor agrees to it, or

(ii) in terms of a court order for specific performance and execution, if he/she refuses.

Perfecting the bond refers to the method in terms whereof the notarial bond acquires
real operation.

(b) Special notarial bond

The Security by Means of Movable Property Act 57 of 1993 determines that a real
security right vests on registration of the special notarial bond. In terms of section 1(1)
of the Act such movables, if specified and described in a way that renders them readily
recognisable, shall be deemed to have been pledged as effectually as if they had been
pledged and delivered. Here the Act creates a fictitious (non-possessory).

In Ikea Trading Und Design AG v BOE Bank Ltd (2005 (2) SA 7 (SCA)) the debtor
registered a special notarial bond over certain of his movable property in favour of BOE
Bank. The movable property was listed in a schedule attached to the bond, but not

218
described and specified in the bond itself. A year later the debtor was declared insolvent
and Ikea Trading Und Design AG, a creditor of the debtor, then contested the validity of
the special notarial bond on the grounds that it was impossible to identify the specific
movable assets from the bond itself and that the movable assets were therefore not
‘‘readily recognisable’’ as required by section 1(1) of the Security by Means of Movable
Property Act 57 of 1993 and that external evidence had to be used to identify the
specific movable assets. The court had to determine whether a special notarial bond is
valid when the movable property over which the bond is registered is only described
and specified in an attachment to the bond.

The Supreme Court of Appeal refers to section 1(1) of the Security by Means of
Movable Property Act 57 of 1993 in terms of which movable property must be
described in the notarial bond in a manner that deems it ‘‘readily recognizable’’. The test
to determine whether the movable property is ‘‘readily recognizable’’ is whether a
third party can recognise the movable property from the description in the notarial bond
without the use of extrinsic evidence. According to the court a notarial bond must, as
far as possible, have the same characteristics as a pledge. Physical control of the pledged
thing is required (delivery by way of constitutum possessorium is not possible since
physical control is required for a valid pledge) and serves as publication to third parties.
The notarial bond, as in the case of physical control for a pledge, serves as publication of
the existence of a real right to third parties. The notarial bond must therefore contain a
complete description of the object of the real security right. Consequently the court held
that the notarial bond registered in favour of BOE Bank is invalid as the movable
property is not "readily recognizable" from the notarial bond.

3.3.1.4 Legal operation

(a) General notarial bond
The Security by Means of Movable Property Act 57 of 1993 does not affect this type of
bond. A distinction is drawn between the position before and after perfection by means
of attachment.
(i) Before perfection
This bond does not enjoy preference over a special notarial bond. Priority is determined
with reference to the date of registration. This bond does not create a real right of security
in favour of the bondholder. The movables subject to this bond can therefore be attached
in the hands of the mortgagor and are also subject to the landlord’s tacit hypothec, which
would enjoy preference.
In terms of section 102 of the Insolvency Act 24 of 1936 the general notarial bondholder
enjoys preference in respect of the free residue over the concurrent creditors of the
debtor. (This view was confirmed in Cooper NO v Die Meester (1992 (3) SA 60 (A).)
(ii) After perfection
If a valid and enforceable perfection clause is included in the bond the bondholder can
acquire a limited real right of pledge on attachment of the bonded articles in terms of a
court order. The bondholder/creditor will be in the same position as a pledgee and thus
have a secured claim/limited real right.

(b) Special notarial bond

The Security by means of Movable Property Act 57 of 1993 clearly creates a (fictitious –
non-possessory) pledge on registration of the bond in the bondholder’s favour. It is,

219
 therefore, unnecessary to perfect the security since such perfection will afford the
bondholder no stronger protection than the Act provides for. The Act creates a real
security right in the form of a pledge and this notarial bondholder is therefore a secured
creditor who can realise his/her claim as such in terms of section 83 of the Insolvency
Act 24 of 1936.

DIAGRAM 21 Notarial bonds – vesting of real security right and preference

General notarial bond Special notarial bond

real security right vests

once bondholder a real security
acquire physical control right vests on
of the movables registration of
(perfecting) the bond

before perfection
notarial bondholder
notarial bondholder is an
is a secured
unsecured creditor but
creditor
enjoys preference in respect
of free residue over concurrent
creditors of the debtor
after perfection
notarial bondholder is in the
same position as a pledgee
and therefore a secured
creditor

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Activity

1 Distinguish between a general notarial bond and a special notarial

bond with specific reference to to following:
(i) security object (4)
(ii) vesting of real security right (2)
(iii) secured right and/or preferent right (5)
Answer
(i) Security object
A general notarial bond hypothecates all (1) the movable property of the
mortgagor in general. This includes corporeals and incorporeal (1) movable
property.
A special notarial bond hypothecates specifically described (1) movable
property of the mortgagor. This movable property is limited to corporeal (1)
movable property.

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 (ii) Vesting
General notarial bond: A real security right vests on perfection (1) of the bond
by means of attachment.
Special notarial bond: In terms of the Security by means of Movable Property
Act a real security right vests in favour of the mortgagee upon registration (1) of
the bond.

(iii) Secured right and/or preferent right

General notarial bond: Before the perfection of the bond by means of
attachment the bondholder has an unsecured claim (1). This unsecured claim
enjoys preference in respect of the free residue of the insolvent estate over the
claim/s of concurrent creditors (1). After perfection by means of attachment
the bondholder is in the same position as a pledgee (1) and has a secured claim
(1).
Special notarial bond: The bondholder has a real security right (1) and
therefore a secured claim (1) against the insolvent estate.

2 Explain the role and operation of a perfection clause. (5)

Answer
General notarial bonds (and special notarial bonds before the enactment of the
Security by Means of Movable Property Act 57 of 1993) do not create real
security rights (1) over the relevant movable property of the mortgagor in
favour of the mortgagee. In terms of a valid and enforceable perfecting clause
in the bond, the mortgagee can vest a limited real right of pledge (1) by taking
control (1) of the movable property securing the creditor’s right. The
mortgagee can get control in terms of the perfecting clause when (i) the
mortgagor agrees (1) to it, or (ii) in terms of a court order (1) for specific
performance and execution, if he/she refuses.

3 S registers a special notarial bond over certain of his movable property in

favour of L, the Land Bank. The movable property was listed in a schedule
attached to the bond, but not described and specified in the bond itself. A
year later S was declared insolvent and Z, a creditor of S’s, then contested the
validity of the bond on the grounds that it was impossible to identify the
specific movable assets from the bond itself and that external evidence had to
be used to identify the specific movable assets. Will Z’s argument succeed?
Discuss with reference to relevant legislation and case law. (10)
Remark
See the discussion of section 1(1) of the Security by means of Movable
Property Act 57 of 1993 and Ikea Trading Und Design v BOE Bank (2005 (2) SA
7 (SCA)) above.

3.3.2 Special mortgage over immovable things

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Example
X and Y owe L, the Land Bank, R100 000-00. L requires security for payment of the debt.
X and Y grant a mortgage over their farm to the Land Bank. They agree in the mortgage

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 deed that the Land Bank, without the intervention of the court, may sell the farm if X and Y
do not pay their debt or may keep the farm and have it registered in its name if X and Y do
not pay their debt.

A special mortgage can be established only with regard to a particular immovable thing
and cannot be established over immovables in general. It is deeds registry practice to
endorse the existence of the bond against the title deed of the land. In Standard Bank van
SA v Breitenbach (1977(1) SA 151 (T)), however, this endorsement was not considered
to be a requirement for registration of the bond, since a bond is deemed to have been
registered in terms of the Deeds Registries Act 47 of 1937 (see section 47) when the
Registrar of Deeds has signed the bond.

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Activity

After having studied this section, answer the following questions:

X and Y owe L, the Land Bank, R100 000-00. L requires security for
payment of the debt. X and Y grant L a mortgage over their farm. They agree in
the mortgage deed that L, without the intervention of the court, may sell the farm
if X and Y are unable to pay their debt. They also agree that L may keep the farm
and have it registered in its name if X and Y are not in a position to pay their debt.

Remark
The discussion of the clauses in a pledge agreement (see para 2.3 above) is also
applicable to a mortgage agreement.

(a) Discuss the nature of L’s security and the validity of the agreement that L
may sell the farm without the intervention of the court. (5)
(b) Discuss the validity of the agreement that L may keep the farm. Under
what circumstances is such a clause valid in security agreements? (5)

3.3.3 Kustingbrief
Definition A kustingbrief can be defined as a special mortgage over an immovable thing to secure
a principal debt that has been incurred in respect of the purchase of that thing where
the deed of hypothecation is registered simultaneously with the deed of transfer of
the particular thing. An example of this type of bond is when S buys a farm from Z but is
only able to pay part of the purchase price. S can then register a kustingbrief in favour of
Z over the farm as security for the outstanding part of the purchase price that he owes
Z.

3.3.4 Covering bond

Definition A covering bond can be defined as a special mortgage over an immovable thing
securing a future debt. It must be expressly declared to secure a future debt, and a
maximum amount must be stipulated. The preference conferred by this bond is

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determined by the date of its registration, and not by the date on which the debt is
incurred. The object of the security will determine the type of bond.

3.3.5 Participation bond

It is a well-known commercial practice for investors to make money available to
investment companies, who in turn lend out the collective amount they obtain in this
way against the security of a mortgage bond over immovables. The Collective
Investment Schemes Control Act 45 of 2002 allows for the fragmentation of mortgage
bonds without the consent of the mortgagor in such cases. The bond is registered in the
name of a nominee company as the representative of the participants. The debt owed
by the mortgagor is deemed to be a debt owed to the individual participants to the
extent of their participation in the scheme. Consequently, the limited real right created
by the mortgage bond can be exercised by each participant to the extent of that person’s
participation in the scheme.

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Activity
Before you continue, answer the following questions:

1 Briefly discuss a participation bond. (5)

2 Name four forms of conventional mortgage. (4)

3.4 Operation of special mortgage over immovables

In establishing a special mortgage over immovable things, the mortgagee acquires a
limited real right over the mortgaged land. Although the mortgagee is not in control of
the mortgaged land, the mortgagor cannot establish any other real right over the
mortgaged land without the mortgagee’s consent. It is not necessary, however, for the
mortgagee to consent to the registration of a long lease contract which creates a limited
real right over the mortgaged land. Nor is it necessary for him/her to consent to the
registration of an additional mortgage over the mortgaged land. Since the mortgagor
retains control of the mortgaged land, it is possible for him/her to constitute more than
one mortgage over it, and the first registered mortgagee enjoys preference over
subsequent mortgagees (qui prior est tempore potior est iure).

The mortgagee’s right is not over the mortgaged land only, but also over any
attachments to it (Venter v Graham and Muller (1906) 23 SC 729).

As soon as the mortgagor discharges his/her debt to the mortgagee, the mortgage is
extinguished. The mortgagor is entitled to pay his/her debt and discharge the mortgage
before the date of payment, provided that he/she also pays the interest in advance up to
the date of payment (Bernitz v Euvrard 1943 AD 595).

If, however, the mortgagor fails to pay the whole debt on the due date, the mortgagee
can obtain judgment against him, and have the mortgaged thing declared executable and
sold in execution by the sheriff (we refer to this process as ‘‘foreclosure’’). The action
which a mortgagee may take on the ground of a mortgage is called a claim for
provisional sentence. It is an urgent remedy. In this proceeding the mortgagor can deny
only his/her signature on the bond or that he/she authorised signing of the bond on his/

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 her behalf. The mortgagor must first comply with the judgment before he/she can raise
any defences on the merits. The mortgagee furnishes security to restore (de restituendo)
in case any of the mortgagor’s defences are subsequently upheld at the hearing. Keep in
mind that section 26 of the Constitution, 1996, has an influence of the eviction of the
mortgagor.

The mortgagor and mortgagee usually insert clauses in the bond with regard to the
repayment of the debt and interest. They would stipulate under which circumstances
the bond may be foreclosed. A summary execution (‘‘parate executie’’) clause, as well as
a pactum commissorium, is invalid in the case of a mortgage (see the discussion of these
clauses in para 2.3 under Pledge above).

The mortgage does not make the mortgaged thing in any way immune from attachment
by the sheriff or the messenger of the court by virtue of another creditor’s having
obtained judgment against the mortgagor. However, because of the priority principle it
does give him/her the right to place a reserve price on the mortgaged thing. And if the
mortgaged thing is sold in execution, the mortgagee has a preference in respect of the
proceeds for the payment of his/her claim which is secured by the mortgage (Ex parte
Saltmarsh 1912 TPD 710).

The preferential rights conferred by the various mortgages in the case of insolvency are
regulated by sections 86, 87 and 88 of the Insolvency Act 24 of 1936. [This issue is
discussed in detail in the module on the law of insolvency.]

3.5 Extinction of mortgage

Mortgage is extinguished by:

1 extinction of the principal debt, for example, by payment, set-off, etc

2 destruction of the mortgaged thing
3 extinction of the mortgagor’s title in respect of the mortgaged thing, for example,
where the mortgagor who is merely the usufructuary of the mortgaged thing, dies
4 express or tacit renunciation of the mortgage by the mortgagee
5 merger (confusio), where the mortgagee becomes the owner of the mortgaged
thing
6 court order
7 delivery of the mortgaged thing to the purchaser in consequence of its sale in
execution
8 prescription
9 loss of control of a thing over which there was a lien
10 removal of the invecta et illata from the rented premises and transport to a new
destination, by which the landlord’s tacit hypothec is extinguished (see the
discussion of tacit hypothecs in the second part of this study unit below)

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Activity
After having studied this section, answer the following question

1 How is a right of mortgage terminated? (10)

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4 SECURITY BY MEANS OF CLAIMS

4.1 Introduction
Security by means of claims can be granted in one of three ways:

(i) a pledge of claims

(ii) a fiduciary security cession
(iii) a notarial bond of claims

Security by means of claims is therefore security by means of an incorporeal thing.

Personal rights (creditor’s rights/claims) are assets in a person’s estate. For example, X’s
personal right to his/her salary or his/her claim against an insurance company is an asset
in his/her estate (see SU 1, para 1). Such assets can be sold and transferred by means of
cession.

Cession can be defined as an act of transfer in terms of which a creditor (cedent/

transferor) transfers his/her personal right (creditor’s right/claim) against his/her debtor
to the cessionary (transferee) in such a way that the cessionary steps into the shoes of
the cedent as creditor. The transfer takes place by means of a transfer agreement.

A personal right as an asset in a person’s estate can, however, also be used to secure
payment of a debt. It must be borne in mind that a personal right (creditor’s right/claim)
as an incorporeal thing can (as an exception – see SU 1, para 1.1.1 under Things as legal
objects) sometimes be the object of a real right. The following example illustrates this:
In the same way that I can deliver my car in pledge to my creditor to secure payment of
the principal debt, I can cede my personal right to payment of my salary against my
employer to my creditor in pledge.

The nature and effect of security by means of personal rights differ according to the type
of security, as well as the difference in the nature of the object of the security in the
one instance, a corporeal thing, and in the other, an incorporeal thing.

DIAGRAM 22: Corporeal and incorporeal things as security objects

pledge;
corporeal mortgage
eg car, farm (all types);
hypothec
object

incorporeal pledge;
eg personal fiduciary security
right against cession;
employer notarial bond

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 4.2 Pledge
In dealing with a pledge of claims, one should bear in mind that the principles that
govern this legal institution are derived from the law of property and specifically the
principles pertaining to the law of pledge (National Bank v Cohen’s Trustee 1911 AD 235
242–243). Because of the difference in the nature of the object of the pledge in the case
of a pledge of a claim (incorporeal), it is self-evident that all the principles that apply to
the pledge of a corporeal thing cannot apply mutatis mutandis to a pledge of claims
(incorporeal things).

Although, in principle, these rules find application where the nature of the object permits
(for example, Millman NO v Twiggs 1995 (3) SA 674 (A)), the basic rules must be adapted
to make provision for the specific nature of the security object, that is, a claim. The
following aspects of pledge deserve special attention in a pledge of claims: the nature and
effect of a pledge, the constitution of the pledge and the rights of the pledgor and
pledgee.

In constituting a pledge of claims, the basic principles of the law of pledge such as
publicity, specificity and the fact that a pledge is of an accessory nature should be adhered
to.

In the case of a pledge of claims the quasi-control of the thing is transferred to the
pledgee, while the pledgor retains ownership (dominium). The pledgee therefore only
acquires a limited real right.

4.3 Fiduciary security cessions

A fiduciary security cession takes place where a creditor X (cedent), transfers his/her
personal right against Y, his/her debtor (third party debtor), to Z, his/her creditor
(cessionary), as security for payment of the principal debt. The right is transferred fully to
the cessionary/creditor, but because it is not an outright transfer of the right (eg, in terms
of a sale) and merely for security purposes, the effect of a full transfer of the right must be
limited.

This limitation takes place in terms of a fiduciary agreement. The agreement is called a
‘‘fiduciary’’ agreement because the trust which the cedent/principal debtor places in the
cessionary/creditor underlies their relationship. The cedent/principal debtor agrees in
the fiduciary agreement with the cessionary/creditor that the personal right is transferred
for security purposes only. Consequently, the cessionary/creditor may not enforce the
personal right that has been ceded to him – by claiming payment from the cedent/
principal debtor’s debtor (the third party debtor) – until the cedent/principal debtor’s
debt to the cessionary/creditor falls due and the cedent/principal debtor is unable to pay.
Furthermore, the cessionary/creditor may not transfer the right ceded to him/her to
other persons and he/she must cede the personal right back to the cedent/principal
debtor, after the latter has paid his/her debt to the cessionary/creditor (see Trust Bank of
Africa Ltd v Standard Bank of SA Ltd (1968 (3) SA 166 (A)).

The difference between the pledging of a creditor’s right (as discussed in para 4.2 above)
and fiduciary security cession is that the creditor’s right in the first instance is merely
pledged to the creditor as security for performance of the debtor and not ceded or
transferred as in the case of fiduciary security cession.

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DIAGRAM 23: Pledge and fiduciary security cessions distinguished

Pledge

R500
X Z (X’s debtor)

!
(pledgor, principal debtor) X ‘‘dominium’’

X owes Y
R400

!
! Y Y quasi-control
(pledgee, creditor)

Fiduciary security cession

Z owes X
R500
X Z (X’s debtor)
!

(cedent, principal debtor) X

X owes Y
R400

!
! Y Y ‘‘dominium’’
(cessionary, creditor)

4.4 Notarial bonds of claims (incorporeal movable things)

The Security by Means of Movable Property Act 57 of 1993 makes provision in section
1(1) only for the registration of a notarial bond over specified corporeal movables. This
Act excludes incorporeal movables from the operation of the Act, and it appears from
section 1(3) that it also excludes a special notarial bondholder of incorporeal things from
enjoying the preference bestowed on special bondholders of movables registered
before the commencement of the Act, since the section reads: ‘‘Subject to the
provisions of subsection (4) a notarial bond contemplated in subsection (1) ... ’’ .

This Act does not affect the position of the general notarial bondholder of incorporeal
movable things. The effect of the wording of section 1(3) is such, however, that it
excludes the special notarial bondholder of incorporeal things. Consequently, the
general notarial bondholder of incorporeal movable things is in a stronger position than
the special notarial bondholder of incorporeal things who, in terms of Cooper NO v Die
Meester (1992 (3) SA 60 (A)), cannot rely on section 102 of the Insolvency Act 24 of
1936 and is, as a non-preferent creditor, liable to contribute to the costs in terms of
section 106 of that Act. (See discussion of Notarial Bonds in par 3.3.1 above.)

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Activity
After having studied this section, answer the following questions:

1 Briefly explain the difference between a pledge of claims and a

fiduciary security cession. (10)
2 Mention the ways in which claims can be used as security. (3)
3 Write short notes on security by means of claims. (10)

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TACIT MORTGAGES (HYPOTHECS)

CONTENTS
1 Introduction
2 Tacit hypothecs
2.1 Landlord (lessor)
2.2 Credit grantor (seller on credit)
3 Liens (rights of retention)
4 Judicial pledge

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 1 INTRODUCTION
In this section real security rights (limited real rights) that arise by operation of the law are
discussed. Tacit mortgages may be constituted over movable or immovable things.
Unlike conventional mortgages, they are not created by agreement and delivery or
registration, but by operation of law, independently of the creditor’s and the debtor’s
will. For this reason tacit mortgages are also sometimes called legal mortgages
(mortgages ex lege). They may be in respect of specific things, whether movable or
immovable, or even in respect of the debtor’s whole estate.

You should be able to define each of these real security rights and distinguish them from
one another. In the case of the tacit hypothec of the landlord (lessor) you should know
how the hypothec is constituted (by attachment) and you should pay particular attention
to the circumstances under which the movable things of third parties can be subject to
the hypothec. (Note that section 2(1) of the Security by Means of Movable Property Act
57 of 1993 provides that the tacit hypothec of the lessor does not extend over movables
which are the objects of notarial bonds or which are the objects of instalment sale
transactions.)

Ensure that you fully understand the operation of the tacit hypothec of the credit grantor.
Section 84 of the Insolvency Act 24 of 1936 is important here. Also note that a conflict
could possibly arise between the tacit hypothec of the lessor and that of the credit
grantor.

The section on liens is very important and must be thoroughly studied. You should be
able to distinguish the different liens as well as the types of expenses or the
improvements that can be made to things.

Tacit mortgages are classified as:

(i) tacit hypothecs (landlord and credit grantor)

(ii) rights of retention or liens (enrichment and debtor-creditor)
(iii)) tacit mortgages in terms of statutory restraints against alienation of immovables
(iv) judicial mortgages

DIAGRAM 24: Tacit mortgages

Tacit mortgages

tacit hypothecs liens statutory

judicial pledge
restraints

landlord
enrichment
(lessor)

creditor debtor-
grantor creditor

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2 TACIT HYPOTHECS
2.1 Landlord (lessor)

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Example1
X and Y lease a house on their farm to Z. Z lives in the house with his family and parents-
in-law. Z fails to pay the rent.

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Example 2
Z, S’s farm manager, buys furniture on credit from a furniture store. Z tells the manager of
the store that he lives on S’s farm, Highlands. S terminates Z’s contract and Z moves to a
municipal flat in town. He fails to inform the furniture store that he has moved to rented
premises. Z fails to pay rent and the municipality applies to the court for an order allowing
attachment of all the movable property on the leased premises.

[Based on the facts in Bloemfontein Municipality v Jacksons Ltd 1929 AD 266.]

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Example 3
X and Y lease a part of their farm Waterford to Z. Although Z has a successful cattle farm,
he decides to begin large-scale farming with maize and other grain crops. Z is very busy
and employs a foreman to take over the farming on Waterford on his behalf. The foreman
lives with his wife and children in a house on the farm. Z has purchased a tractor on credit
from C, the cooperative, which he stores together with his other farm implements in the
shed on Waterford. Z registers a notarial bond over his green trailer, his Yamaha generator
and his John Deere harvester in favour of the bank where he has overdraft facilities.

To secure arrear rent a landlord has a tacit hypothec over all the movables (invecta et
illata) which are brought onto the premises by the tenant. Anything belonging to third
parties which is brought onto the rented premises by the tenant is also subject to the
landlord’s tacit hypothec if the third parties know where their property is and intend the
tenant to have the use of it, on the rented premises, for an indefinite period. It is then
considered that the third parties have tacitly agreed to their property’s being subject to
the landlord’s tacit hypothec. If the third parties wish to avoid this, they must notify the
landlord that the tenant has their property on the premises and that they do not wish
this property to be subject to the landlord’s tacit hypothec (Bloemfontein Municipality v
Jackson’s Ltd 1929 AD 266).

In the Bloemfontein case the court stated the conditions under which movables
belonging to third persons are subject to the landlord’s (lessor’s) tacit hypothec as
follows:
When goods belonging to a third person are brought onto the leased premises with the
knowledge and consent, express or implied, of the owner of the goods, and with the

231
 intention that they shall remain there indefinitely for the use of the tenant, and the
owner, being in a position to give notice of his ownership to the landlord, fails to do so,
and the landlord is unaware that the goods do not belong to the tenant, the owner will
thereby be taken to have consented to the goods being subject to the landlord’s tacit
hypothec, and liable to attachment. (Our emphasis.)

Even where the property bears a third party’s special mark, this is insufficient to release
such property from the landlord’s tacit hypothec (TR Services (Pty) Ltd v Poynton’s Corner
Ltd 1961(1) SA 773 (D)).

The landlord’s tacit hypothec comes into operation as soon as the rent is owing. But the
tacit hypothec does not in itself confer on the landlord a limited real right over the things
subject to it. In order to render his/her tacit hypothec effective it is necessary for the
landlord to have the movables (invecta et illata) that have been brought onto the leased
premises attached while they are still on the rented premises or while they are in the
process of being removed from the rented premises, but have not yet reached their
new destination (Webster v Ellison 1911 AD 73 and Eight Kaya Sands v Valley Irrigation
Equipment 2003(2) SA 495 (T)). This is known as the doctrine of quick pursuit. This tacit
hypothec is protected in terms of section 85 of the Insolvency Act 24 of 1936.

In terms of section 2 of the Security by means of Movable Property Act 57 of 1993

movable property subject to a special notarial bond (sec 2(1)(a)) or an instalment sale
agreement (sec 2(1)(b)) are not subject to a landlord’s tacit hypothec.

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Activity
After having studied this section, answer the following questions:

1 X and Y lease a house on their farm, to Z. Z lives in the house with

his family and parents-in-law. Z fails to pay the rent. How can X and Y ensure
that the rent will be paid? Advise them fully on what they should do. (5)
2 State the circumstances under which things belonging to third parties will be
subject to the tacit hypothec of the lessor. (4)
3 Z, S’s farm manager, buys furniture on credit from a furniture store. Z tells
the manager of the store that he lives on S’s farm, Highlands. S terminates Z’s
contract and Z moves to a municipal flat in town. He fails to inform the
furniture store that he has moved to rented premises. Z fails to pay rent and
the municipality applies to the court for an order allowing attachment of all the
movable things on the leased premises. Can the furniture store object to the
application for attachment? Substantiate your answer with reference to case
law. (10)
Remark
This question is based on the facts in Bloemfontein Municipality v Jackson’s Ltd
(1929 AD 266). See the remark at question 5 below.

4 X and Y lease a part of their farm Waterford to Z. Although Z has been

farming very successfully with cattle on the farm, he decides to begin large-
scale farming with maize and other grain crops. Z is very busy and employs a
foreman to take over the farming on Waterford on his behalf. The foreman

232
lives with his wife and children in a house on the farm. Z has purchased a
tractor on credit from C, the cooperative, which he stores together with his
other farm implements in the shed on Waterford. Z registers a notarial bond
over his green trailer, his Yamaha generator and his John Deere harvester in
favour of the bank where he has overdraft facilities. Initially Z’s farming op-
erations go well but after he has a major crop failure as a result of drought, he
can no longer pay the rent. The only income X and Y have is the rent. They
warn Z to pay the rent and then consult their attorney. They want the
attorney to attach all the movables on the farm belonging to Z.

With reference to case law, discuss the attorney’s advice to X and Y with
regard to the attachment of the following:
(a) foreman’s furniture (3)
(b) tractor (5)
(c) farm implements (3)
(d) trailer, harvester and generator (3)

Remark
In all these cases you have to refer to the principles enunciated in Bloemfontein
Municipality v Jackson’s Ltd (1929 AD 266).

In (a) you should note the requirement that the third party’s (foreman’s) things
should have been brought onto the property for the indefinite use of the
lessee.

In (b) you should apply the principles of this case, since we are dealing with a
credit grantor (C) who is still the owner of the property.

In (c) the farm implements are subject to the tacit hypothec, because the facts
state that they are his (the lessee’s) property.

In (d) you have to refer to the effect of the Security by Means of Movable
Property Act 57 of 1993 on things subject to a notarial bond and the tacit
hypothec of the lessor.

The four requirements set out by the court are:

(i) The property must be on the landlord’s (lessor’s) premises with the
knowledge of the actual owner.
(ii) There must be a degree of permanence regarding the property on the
premises, which should not merely be temporarily stored there.
(iii) The property must be on the premises for the use and enjoyment of the
lessee.
(iv) The landlord (lessor) must not be aware of the fact that the property
does not belong to the lessee.

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 2.2 Credit grantor (seller on credit)

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Example
X and Y purchase their farm implements from C, the cooperative, in terms of a credit
transaction. The cooperative is not prepared to grant credit to X and Y unless they can
provide security for the payment of the instalments.

In terms of a credit agreement which reserves ownership the seller retains ownership of
the property until the last instalment has been paid. Although we are dealing here with
retention of ownership, it is a form of security for the credit grantor that the credit
grantee will discharge the debt. While retention of ownership is not a limited real right of
security, to protect the interests of the credit grantee and his/her creditors, the
ownership of the credit grantor changes to a limited real right in the event of the credit
grantee’s insolvency.

Section 84 of the Insolvency Act 24 of 1936 confers a tacit hypothec on the credit
grantor over goods delivered to a credit receiver (hire-purchaser) in the event of the
latter’s insolvency. The effect of this section is that the credit grantor loses his/her
ownership on insolvency and acquires a tacit hypothec against the insolvent estate. The
credit grantor therefore becomes a secured preferent creditor of the insolvent estate.

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Activity

After having studied this section, answer the following questions:

1 X and Y purchased their farm implements in terms of a credit

transaction from C, the cooperative. C requires security that the debt
will be paid.
(a) Name two possible types of security. (2)
Answer
Real (1) and personal (1) security.

(b) Mention the best type of security and give a reason for your answer. (3)
Answer
Real security, (1) since it provides a limited real right (1) to the thing. (1)

(c) Name the form of security you would recommend here. Substantiate
your answer. (3)
Answer
The applicable form of security here is reservation of ownership by C (1). C
retains ownership until the last instalment had been paid and on insolvency of
the debtor, (1) C acquires a tacit hypothec (limited real right). (1)

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2 X and Y lease part of their farm Waterford to Z. Although Z has a very suc-
cessful cattle farm, he decides to begin large-scale farming with maize and
other grain crops. Z is very busy and employs a foreman to take over the
farming on Waterford on his behalf. The foreman lives with his wife and
children in a house on the farm. Z has purchased a tractor on credit from C,
the cooperative, which he stores together with his other farm implements in
the shed on Waterford. Z registers a notarial bond over his green trailer, his
Yamaha generator and his John Deere harvester in favour of the bank where
he has overdraft facilities. Advise C on his legal position with reference to case
law. (5)
3 X and Y purchase their farm implements from C, the cooperative, in terms
of a credit agreement. The cooperative is not prepared to grant credit to X and
Y unless they give security that the instalments will be paid. They agree that C
will reserve ownership. Before X and Y have paid the last instalment they
become insolvent. Advise C as to his legal position. (5)
4 Briefly explain the operation of the tacit hypothec of the credit grantor in the
case of insolvency. (5)

3 LIENS (RIGHTS OF RETENTION)

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example1
JS (respondent) is the owner of a stand in Johannesburg. The respondent concluded a
contract with a developer, D, to the effect that D would develop the property. Thereupon
D concluded a contract with B (appellant) to the effect that the appellant would undertake
the electrical work on the property. The appellant completed the work, but in the
meantime D was liquidated and the appellant could not recover its fees as provided for in
the contract with D. The appellant continued to occupy the property and claimed to
exercise a lien as against the respondent (owner) for essential (necessary) and useful
improvements. The parties agreed that the appellant would vacate the property on the
understanding that, should the appellant prove its enrichment claim, the respondent would
pay compensation. The appellant instituted its claim for compensation based on unjustified
enrichment.

[The facts in Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd 1996
(4) SA 19 (A).]

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 2
Y takes a tractor, which he purchased on credit from C, the cooperative, to a garage for
repairs. Y instructs the garage to replace the steering mechanism because it is defective. He
also requests the garage to install a canopy over the driver’s seat to keep out the sun and
to paint the tractor pale pink because he is bored with the green colour. Y stops paying the
instalments to C and he refuses to pay the garage for the repairs.

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 _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example 3
While driving S’s car M is involved in an accident. M is insured with Santam, which must
indemnify the loss. Santam instructs a panel beater to effect the repairs and pays him. After
the repairs have been completed and paid for by Santam, Santam realises that the
premiums had never been paid by M. Santam cancels the insurance contract and collects
the car from the panel beater. S now claims the car from Santam, which refuses to give the
car to S.

[The facts in Singh v Santam Insurance Ltd 1997 (1) SA 291 (A).]

Definition A lien can, in general, be defined as a limited real right to secure the claim of a person
who has spent money or done work on another person’s thing. It entitles the
lienholder to keep the thing until he/she has been paid.

A lien is generally regarded as a limited real right. There are, however, two different
categories of liens, namely: debtor-and-creditor liens and enrichment liens. This
distinction comes from the different sources from which the debt that a lien secures can
arise. In the case of a debtor-and-creditor lien, the principal debt arises from an
agreement. A debtor-and-creditor lien is enforceable only against the other contracting
party and is regarded as a personal right. When the principal debt arises from
enrichment the lien is classified as an enrichment lien. An enrichment lien is enforceable
against third parties and is regarded as a limited real right. Even though this classification
of liens has been criticised, it is the generally accepted classification of liens.

DIAGRAM 25: Division of liens

Source of
principal debt

Enrichment Agreement

Salvage lien Improvement Debtor-and-

(expenses preserve lien (expenses improve the creditor lien (all
the thing) market value of the thing) expenses agreed on)

Liens always depend on the physical control of a thing: in other words, the holder loses
his/her lien as soon as he/she loses physical control over the thing (Gazide v Nelspruit
Town Council 1949 (4) SA 48 (T) 51 and Van Niekerk v Van den Berg 1965 (2) SA 525 (A)
539).

236
If the lien holder was in control and was deprived of his/her control unlawfully or against
his/her will, then, upon application to the court, control will be restored to him/her.
After such restoration, the lien will revive (Assurity (Pty) Ltd v Truck Sales (Pty) Ltd 1960
(2) SA 686 (SR) and Beetge v Drenka Investments (Isando) (Pty) Ltd 1964 (4) SA 62 (W)).
Liens may apply to both movable and immovable things.
A lien serves as security for the lien holder’s outstanding claim for expenses incurred by
him/her. The expenses which one may incur in respect of another person’s thing are
divided into three groups. They could be:
(i) essential (necessary) expenses (impensae necessariae), which are expenses
essential for the preservation of the thing
(ii) useful expenses (impensae utiles), which are expenses that, while not essential for
the preservation of the thing, nevertheless raise its market value
(iii) luxurious expenses (impensae voluptuariae), which are expenses that are neither
essential for the preservation of the thing nor increase its market value, but merely
gratify the caprice or fancy of a particular individual

On the basis of the principle that no one may be unjustly enriched at another person’s
expense, someone who incurs essential or useful expenses in respect of another
person’s property has a right against the owner of the thing to compensation for the
expenses. Since he/she can be regarded as an unauthorised manager of another
person’s affairs (negotiorum gestor), this applies even where he/she did not obtain the
owner’s consent before incurring the expenses. In order to secure his/her claim, he/she
is entitled to retain the thing until he/she has been compensated for his/her expenses. As
already mentioned, a lien that secures the principal debt which arises from enrichment is
an enrichment lien.

Enrichment liens can be divided into the following two categories:

(i) If the expenses were essential (necessary) expenses, his/her lien is termed a
salvage lien, in which case the lien holder may retain the thing until he/she has
been compensated for the amount by which the owner was enriched or he/she
was impoverished, whichever is the lesser.
(ii) If the expenses were useful expenses, the lien is termed an improvement lien and
the lien holder is entitled to retain the thing until he/she has been compensated for
the amount by which the market value of the thing has been increased (Brooklyn
House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3) SA 264 (A) 270 271).

The doctrine of unjustified enrichment applies to essential (necessary) and useful

expenses only, and not to luxurious expenses. Someone seeking compensation for
luxurious expenses which have been incurred in respect of another person’s thing will be
able to reclaim these only if the expenses were incurred under a contract, and then only
from the person with whom the contract was concluded, and not from the owner
(unless the contract was concluded with him). Only a debtor-and-creditor lien can
secure a claim for luxurious expenses.

Salvage and improvement liens (enrichment liens) are limited real rights because they
can be maintained against the owner and all third parties, including buyers, regardless of
whether they were aware of the existence of the lien, or not. Enrichment liens are
limited real rights which come into existence by operation of law (United Building Society

237
 v Smookler’s Trustees and Golombick’s Trustee 1906 TS 623). Debtor-and-creditor liens
are not limited real rights: these rights may be enforced only against the debtor and his/
her successors who have knowledge of the existence of the lien.

Buzzard The basis for liability in enrichment liens is the enrichment of the owner at the expense
of the lienholder. Where no enrichment occurred, the lienholder has no enrichment
claim and consequently no lien (Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue
Investments (Pty) Ltd 1996 (4) SA 19 (A)).

The main effect of the Buzzard decision is to emphasise two important requirements
for the availability of an enrichment lien:

(i) An enrichment lien is accessory to the principal debt, which is a claim for
compensation based on unjustified enrichment, and therefore there can be no lien
unless there is proof of unjustified enrichment.
(ii) The unjustified enrichment of the owner of a thing must be at the expense of the
person who claims to exercise a lien over the thing.

First The first of these two requirements seems fairly obvious, but is often forgotten. The
court stated that a lien does not exist in a vacuum (in vacuo). It is a real security right
which ensures payment of an underlying claim for compensation (based on enrichment).
Without proof of unjustified enrichment, there is no principal debt and therefore no lien.
(See also Singh v Santam Insurance 1997 (1) SA 291 (A) discussed below).

Second The second requirement is slightly more complicated. It concerns the troublesome
three-party situations where the owner of property, X, concludes a contract with Y to
improve X’s thing, and Y then subcontracts Z to do the work. After completion of the
work, Z finds that Y has disappeared without paying the contract price. The question
then is whether Z acquires an enrichment claim for compensation (and a lien) against the
owner, X. The decision in Brooklyn House Furnishers (Pty) Ltd v Knoetze and Sons (1970
(3) SA 264 (A)), which did provide Z with an enrichment lien against X in this situation,
was criticised by various authors. The Buzzard Electrical decision overturned the
Brooklyn House decision on this point and returned to the position assumed in Gouws v
Jester Pools (Pty) Ltd (1968 (3) SA 563 (T)) and Wynland Construction (Pty) Ltd v Ashley-
Smith (1985 (3) SA 798 (A)).

The argument on which the Buzzard case rests is that neither a direct nor an indirect
enrichment liability could arise in this situation, since any enrichment of the owner which
resulted from Z’s work was not without legal cause. It was no more than the owner
contracted for with Y and therefore such enrichment could not have been at the
expense of Z, even if there was enrichment. The fact that Z was unable to enforce its
contractual rights against Y was an unhappy coincidence which should not be laid at the
door of the owner, X.

It is important to distinguish between the two cases of three-party relationships

referred to by the court:

(i) The first case is where person X contracts with Y to improve the thing of a third
person, Z, and then Y wants to enforce an enrichment claim against the owner, Z.
(ii) The second case is where the owner, X, personally contracts with Y to improve
X’s thing. Y then subcontracts Z to do the work. After completion of the work, Z

238
 finds that Y has disappeared. Z then attempts to enforce an enrichment claim
against the owner, X. The Buzzard decision concerns only the second case.

Singh The Singh case followed the Buzzard case: A number of points regarding the existence
of a lien based on unjustified enrichment were emphasised by the court:

1 Any lien the panel beater might have had against Singh or M terminated when
Santam paid for the repairs, because a lien depends on the existence of a principal
debt.
2 It was impossible for Santam to claim that the panel beater possessed (controlled)
the car on behalf of Santam without proof of attornment, since the car was actually
delivered to the panel beater by M.
3 For Santam to prove a lien it first had to prove enrichment, since a lien depends on
the existence of a principal debt and, even if Santam was impoverished and Singh
(the owner) enriched as a result of the repairs, such enrichment was not
unjustified, because it was the result of Santam’s legal duty to indemnify M in terms
of the insurance contract.
4 To rely on a lien Santam also had to prove that the enrichment somehow occurred
while Santam was in control of the car, while in fact Santam was never in control
while the repairs were being effected and by the time Santam obtained control
there was no principal debt or further enrichment.
5 To prove a lien Santam also had to prove that it obtained control lawfully, but this
was doubtful, since it had no legal cause to obtain control from the panel beater to
whom M had returned the car because the repairs were inadequate.

The court therefore decided that Santam could prove no enrichment and therefore it
had no lien. Singh succeeded in claiming her car back with her rei vindicatio.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After having studied this section, answer the following questions:

1 Name and briefly discuss the categories of expenses or improvements

to a thing. (6)
2 JS (the respondent) is owner of a stand in Johannesburg. The respondent
concluded a contract with a developer, D, to the effect that D would develop
the property. Thereupon D concluded a contract with B (the appellant) to the
effect that the appellant would undertake the electrical work on the property.
The appellant completed the work, but in the meantime D was liquidated and
the appellant could not recover its fees as provided for in the contract with D.
The appellant continued to occupy the property and claimed to exercise a lien
against the respondent (owner) for essential (necessary) and useful improve-
ments. The parties agreed that the appellant would vacate the property on the
understanding that, should the appellant prove its enrichment claim, the re-
spondent would pay compensation. The appellant instituted its claim for
compensation based on unjustified enrichment. Will the appellant succeed in
proving his enrichment claim? Discuss with reference to case law. (10)

239
 Remark
Here you must refer to Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue
Investments (Pty) Ltd (1996 (4) SA 19 (A)) and the discussion of the case above
under paragraph 3.

3 Y takes a tractor, which he purchased on credit from C, the cooperative, to

a garage for repairs. Y gives instructions to the garage to replace the steering
mechanism because it is defective. He also requests the garage to install a
canopy over the driver’s seat to keep out the sun and to paint the tractor pale
pink because he is bored with the green colour. Y stops paying the instalments
to C and he refuses to pay the garage for the repairs. C claims the tractor from
the garage with the rei vindicatio. Discuss the position of the garage fully. (10)

4 T steals Q’s car. T takes the car to Highway Motors, which undertook to:
(i) install a new crankshaft
(ii) install a device to improve the petrol consumption
(iii) replace the upholstery with leather upholstery

In terms of their agreement, T was to pay R 2600-00, R 2000-00 and

R 3 000-00 respectively for the above services. On passing the garage, Q sees
his car and institutes the rei vindicatio against the owner of Highway Motors. Z,
who was bona fide all the time, and who was under the impression that T was
the owner of the car, relies on his lien and alleges that he is entitled to keep the
car until the full R 7600-00 has been paid for his services.
Discuss Z’s legal position. (15)
Remark
This question and answer are discussed fully in Part II, para 4.4.

5 While driving S’s car, M is involved in an accident. M is insured with Santam,

which must indemnify the loss. Santam instructs a panel beater to effect the
repairs and pays him. After the repairs have been completed and paid for by
Santam, Santam realises that the premiums have never been paid by M.
Santam cancels the insurance contract and collects the car from the panel
beater. S now claims the car from Santam, which refuses to give the car to S.
Will S be successful? Substantiate your answer fully with reference to authority. (10)
Remark
Here you must refer to Singh v Santam Insurance (1997 (1) SA 291 (A)) and the
discussion of this case above under paragraph 3.

4 JUDICIAL PLEDGE
Judicial pledge arises officially, that is by the attachment by the sheriff in terms of a court
order of the judgment debtor’s movable or immovable things, in execution of a
judgment (Liquidators Union and Rhodesia Wholesale Ltd v Brown & Co 1922 AD 549

240
558–559 and Menzies Motor Co (Pty) Ltd v Turkstra 1955 (3) SA 408 (T) 412). The
attachment of movables by the sheriff has the same effect as a pledge and the attachment
of immovables by the sheriff has the same effect as a special mortgage on immovables.

When the attached property is sold in execution, the judgment creditor has a preference
in respect of the proceeds of the sale. His/her preference is diminished, however, if
other judgment creditors also obtain judgment against the judgment debtor before the
judgment debt is paid (Liquidators Union and Rhodesia Wholesale Ltd v Brown & Co 1922
AD 549 558–559). His/her preference must give way to an earlier preferent claim (for
example, where the attached property was already subject to a bond when the
attachment occurred – Ex Parte Saltmarsh (1913 TPD 710). Where the attached
movable has been delivered by the judgment debtor to a pledgee, the pledgee’s right
ranks in preference above the judgment creditor’s judicial pledge (Schoeman NO v
Aberdeen Trading Co (Pty) Ltd 1955 (l) SA 100 (C) 106). Furthermore, the preference
which the judgment creditor’s judicial pledge confers is extinguished by the insolvency of
the judgment debtor, that is, where the judgment debtor becomes insolvent after the
judgment creditor has had a movable or immovable thing attached by the sheriff. The
sheriff then enjoys preference in respect of the costs of the attachment. It is possible,
however, for the court to order that the judgment be executed in spite of the judgment
debtor’s insolvency where the judgment creditor has a preferent claim. Where
immovable property is mortgaged after its attachment, the bond is invalid (Thorne NO v
Registrar of Deeds 1964 (3) SA 20 (N)).

Thus we see that as soon as a judgment debtor becomes insolvent the execution of the
judgment against him/her is suspended when the sheriff becomes aware of the
insolvency. Ownership of the attached thing or the proceeds thereof which are in the
hands of the sheriff pending payment is henceforth under the control of the Master, or of
the trustee of the insolvent estate after his/her appointment. This means that a judgment
creditor who has had assets of the judgment debtor attached acquires no preferent right
on the insolvency of the judgment debtor. But the pledgee who is in possession of the
pledged thing does acquire a preferent right on the insolvency of the pledgor, as we saw
when we discussed pledge.

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S T U DY UN I T

12
MINERAL RIGHTS,
WATER RIGHTS,
LESSEE’S (TENANT’S) RIGHTS

MINERAL RIGHTS
CONTENTS
1 Introduction
2 Meaning of concept ‘‘mineral’’
3 Mineral rights
3.1 Common law
3.2 Mineral and Petroleum Resources Development Act 28 of 2002

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 1 INTRODUCTION
In this part we discuss the meaning of the concept ‘‘mineral’’ and mineral rights. The
Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), which came
into effect on 1 May 2004, declared the State custodian of all the petroleum and mineral
resources in the Republic of South Africa. This act abolished the concept of ‘‘mineral
rights’’ and provides for the regulation of the rights to prospect and to mine for minerals.
In the paragraphs below we explain the meaning of the word ‘‘mineral’’, refer to the
concept ‘‘mineral rights’’ as it existed before promulgation of the Act and, very briefly,
discuss a number of important provisions of the Act.

2 MEANING OF CONCEPT ‘‘MINERAL’’

The word ‘‘mineral’’ can have different meanings. In a very broad sense it refers to all
substances in the earth’s crust that are neither of vegetable nor of animal origin.
Scientifically and technically the word ‘‘mineral’’ may refer to ‘‘an inorganic substance
having a definite chemical composition and possessing certain characteristics easy to
define’’ (Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein 1985 (4) SA 773
(A)). In a popular and narrow sense the word ‘‘mineral’’ refers to everything that is
usually regarded as a mineral in common parlance. This would normally exclude
substances such as sand, stone and clay. (Please note that the MPRDA includes sand,
stone and clay in the definition of a mineral. See definition below.)

To determine the correct meaning of the word ‘‘mineral’’ in a particular instance, it is

important to distinguish between the different contexts in which the word is used and to
determine the intention with which the word was used by the parties to a contract or by
the legislature in a particular statute. The intention of the parties to a contract has to be
ascertained from the contract as a whole. In the absence of indications to the contrary it
will be assumed that the parties intended the word ‘‘mineral’’ to be understood in its
ordinary popular meaning. Even if a mineral is defined in a statute, it may in certain
circumstances still be necessary to ascertain from the statute as a whole whether the
legislature intended a particular substance to be included as a mineral as defined in the
statute.

The Mineral and Petroleum Resources Development Act 28 of 2002 defines ‘‘mineral’’
as follows:

Definition ‘‘mineral’’ means any substance, whether in solid, liquid or gaseous form, occurring
naturally in or on the earth or in or under water and which was formed by or
subjected to a geological process, and includes sand, stone, rock, gravel, clay, soil
and any mineral occurring in residue stockpiles or in residue deposits, but excludes:

(a) water as a carrier of minerals;

(b) petroleum; or
(c) peat

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3 MINERAL RIGHTS
3.1 Common law
At common law the owner of land was also the owner of all the minerals in the land
until the minerals had been extracted or separated from the soil.

The owner of land, as owner of the minerals, was also the holder of the mineral rights in
respect of the minerals in the land except where the rights to certain, or all of the
minerals, had been reserved or transferred to another. A mineral right entitles the holder
to enter upon the land and to prospect and to mine for minerals. Mineral rights could be
severed from the ownership of the land by issuing a separate title of rights to minerals to
the owner of the land, or by means of a notarial cession (transfer) of mineral rights to
another. Furthermore, mineral rights could also be expropriated.

Mineral rights, often referred to by the courts as ‘‘quasi servitudes’’, were generally
regarded as a class of unique real rights (sui generis), comparable to servitudes, although
they differed from servitudes in many respects.

In Agri South Africa v Minister of Minerals and Energy (2013 (4) SA 1 (CC) 8) the
Constitutional Court described the common law mineral right as a limited real right
providing the holder thereof with the entitlement to enter the relevant property, search
for minerals, and sever and remove minerals so found.

3.2 Mineral and Petroleum Resources Development Act 28 of 2002

The legal position regarding the extraction of minerals has changed significantly with the
promulgation of the Mineral and Petroleum Resources Development Act 28 of 2002.

Section 3 of the Act vests all mineral and petroleum resources in the State, to be held by
it as custodian for the benefit of all the people of South Africa. In effect the common-law
rule that the owner of the land is also the owner of all unsevered minerals in the land has
been abolished. The Act does not stipulate that the State is now the owner of all
minerals and petroleum and the matter is open to interpretation. The Act contains no
definition of mineral rights but provides for and regulates prospecting rights and mining
rights. Prospecting rights and mining rights must be applied for and these rights may be
granted only by the State. The exercise of these rights, as well as the maximum
exploitation and utilisation of minerals, is fully controlled by the State subject to certain
transitional measures contained in the Act. Existing ‘‘old order’’ prospecting rights and
‘‘old order’’ mining rights (including common law mineral rights) terminate if not
converted into ‘‘new order’’ rights within the prescribed transitional period. ‘‘Unused old
order’’ prospecting rights and mining rights will expire, if the holders of these rights do
not apply for ’’new order’’ prospecting rights and mining rights during the prescribed
transitional period. The transitional period has lapsed. The conversion and granting of
these rights and their continued existence depend on compliance with the provisions of
the Act and the discretion of the Minister of Mineral Resources.

The Act states that prospecting rights and mining rights are limited real rights in respect
of the mineral or petroleum and land to which the right relates, yet they may only be
transferred with the written consent of the Minister. The content of a prospecting right
and a mining right, as well as the duties of the holder of each right, are circumscribed in
the Act.

245
 Applications for prospecting rights and mining rights have to be lodged in the prescribed
manner at the Office of the Regional Manager of the Department of Mineral Resources
in whose area the land is situated.

A prospecting right and a mining right become effective, and therefore vest as limited
real rights, on the date of approval of the environmental programme required by the
Act. Approval of the right must be lodged for registration at the Mineral and Petroleum
Titles Registration Office within 60 days after the right has become effective.

A prospecting right is granted for a specified period that may not exceed five years and
may be renewed once for a period not exceeding three years. A mining right is granted
for a specified period not exceeding 30 years and may be renewed for further periods,
each of which may not exceed 30 years at a time.

The Act repeals the provisions of the Deeds Registries Act 47 of 1937 pertaining to the
registration of mineral rights. The registration of mineral rights and prospecting contracts
in the Deeds Registry has therefore been abolished.

246
 DIAGRAM 26: Ownership of minerals

Ownership of minerals

6
Common law Mineral and Petroleum Resources Development Act (MPRDA)
6 6

6
Owner of the soil is also owner of the cuius est solum eius did away with cuius est solum principle
minerals under the soil and therefore has est usque ad coelum
the mineral right et ad inferos 6

Sec 3(1): minerals and petroleum are the common

heritage of all the people of South Africa

6
6
6

6
right of right to right to ancillary right to
6
access to prospect mine rights remove
6
land minerals regulates access to State = custodian thereof
the resources 6

ensures maximum exploitation and utilisation of minerals

6
the landowner can keep the mineral right or the mineral
right can be separated and transferred to a holder/ any one who wants to prospect or mine
nominee who has the same entitlements as the must apply to the DMR on the prescribed
landowner forms
6

6 is a limited real right

6
6 State grants
must be registered in the deeds office prospecting rights may only be transferred with
and mining rights minister’s consent

6
6

granted for a
6
specified period registration in Mineral
not longer than 5 granted for a specific period and Petroleum Titles
years, may be not longer than 30 years, may Registration Office
renewed once for be renewed for further required (no registration
a maximum period periods not exceeding 30 in Deeds Office required
of 3 years years at a time

247
 ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After having studied this section, you must answer the following
questions:

1 Write short notes on the meaning of the word ‘‘mineral’’. (5)

2 Write short notes on the changes in the common law position with regard
to mineral rights brought about by the Mineral and Petroleum Resources
Development Act 28 of 2002. (5)
3 S wants to mine for coal on X and Y’s farm, Waterford. Advise S with
reference to the procedures that he must follow in terms of the Mineral
and Petroleum Resources Development Act 28 of 2002. (5)

248
WATER RIGHTS

CONTENTS
1 Introduction
2 Water Act 54 of 1956
3 National Water Act 36 of 1998
3.1 General
3.2 Purpose
3.3 State as trustee
3.4 Water licence
3.5 Servitudes

1 INTRODUCTION
Prior to October 1998 the right to water and water use were mainly regulated by the
Water Act 54 of 1956. This Act retained the common-law distinction between public
water and private water. Although it regulated the use of water, it acknowledged the
private claims of riparian landowners to public water and those of all landowners to
private water. The National Water Act 36 of 1998, in declaring the State to be the
trustee of all the water resources of the Republic of South Africa, brought about
significant changes in the legal position pertaining to the access to and use of water in the
Republic. With reference to the Water Act 54 of 1956, we shall briefly discuss a number
of important provisions of Act 36 of 1998 in the paragraphs below. The paragraphs
below contain a brief discussion of a number of important provisions of Act 36 of 1998,
and include references to the Water Act 54 of 1956.

2 THE WATER ACT 54 OF 1956

The Water Act 54 of 1956 consolidated previous legislation pertaining to water. It
retained the common-law distinction between public water and private water. These
two categories of water were defined for the purposes of the Act.

249
 (i) Public water
There was no right of ownership to public water (s 6(1)). The control, use and
enjoyment of public water were comprehensively regulated by the Act.

(ii) Private water

Section 5(1) of the Act provided that the sole and exclusive use and enjoyment of
private water belonged to the owner of the land on which such water was found,
but that such an owner could not, except under the authority of a permit from the
Minister and on such conditions as may have been specified in the permit, sell, give
or otherwise dispose of such water to any other person for use on any other land,
or convey such water for his own use beyond the boundaries of the land on which
such water was found (section 5(2)).

Under the circumstances described in the Act an upper owner also had to allow a lower
owner the use of a reasonable share of water that arose on the land of the upper owner.

3 NATIONAL WATER ACT 36 OF 1998

3.1 General
The Act, which came into operation on 1 October 1998, repealed and replaced all
previous legislation dealing with water. The use of water is currently regulated by two
statutes only, namely the National Water Act 36 of 1998 and the Water Services Act 108
of 1997.

3.2 Purpose
The National Water Act no longer recognises the distinction between public water
and private water. The purpose of the Act is to ensure that the nation’s water resources
are protected, used, developed, conserved, managed and controlled in ways which
take into account various factors so as to meet the basic human needs of present and
future generations, to promote equitable access to water, to promote the efficient,
sustainable and beneficial use of water in the public interest, to protect aquatic and
associated ecosystems and their biological diversity, to reduce and prevent pollution and
degradation of water resources and to manage floods and droughts (section 2).

3.3 State as trustee

Section 3(1)–(3) of the Act provides that the State, as trustee of the nation’s water
resources, must ensure that water is protected, used, developed, conserved,
managed and controlled in a sustainable and equitable manner for the benefit of all
people and in accordance with the Constitution of the Republic of South Africa, 1996.
To this end the State is empowered to regulate the use, flow and control of all water in
the Republic of South Africa (section 3(3)). The Minister of Water and Sanitation is
ultimately responsible for ensuring that water is allocated equitably and used beneficially
in the public interest, while at the same time environmental values are promoted
(section 3(2)).

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 DIAGRAM 27: Old and new Water Acts distinguished

Water Act 54 of 1956 National Water Act 36 of 1998

6 6
distinguish between public water and private water draws no distinction between public water and private water

6
6 6
no ownership owner of land is water sources are common heritage of all people of South Africa
owner of water
(needs a permit 6
to sell water)
State = trustee of all water resources

6
ensure that water resources are protected, used, developed,
conserved, managed and controlled in an
efficient, sustainable and beneficial way

6
licence?
necessary for all other
6
6

Not neccesary if: uses

(i) authority responsible for the issue
of a licence has dispensed with the
requirement
(ii) for reasonable domestic use,
domestic gardening, animal
watering, fire fighting and
recreational use as
circumscribed in Schedule 1
to the Act

251
 ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After having studied this section, answer the following questions:

1 Briefly discuss the most important differences between the Water

Act 54 of 1956 and the National Water Act 36 of 1998. (6)
Answer
The Water Act 54 of 1956 distinguished between public and private water. (1)
Public water could not be owned by anyone. (1) In the case of private water
the owner of the land was also the owner of the water under the land. (1)

In terms of the National Water Act 36 of 1998 there is no longer a distinction

between public and private water. (1) The State is the trustee of the water (1)
and the water belongs to all the people of South Africa. (1)

2 Write short notes on the control and use of water in terms of the National
Water Act 36 of 1998. (5)

252
LESSEE’S (TENANT’S) RIGHTS

CONTENTS
1 Introduction
2 Applicable only to houses and land
3 Establishment of lessee’s (tenant’s) real right
3.1 Long leases
3.2 Short leases
3.2.1 General
3.2.2 Gratuitous and onerous successors
4 Effect of lessee’s (tenant’s) real right

1 INTRODUCTION
Many South African cases confirmed the rule ‘‘huur gaat voor koop’’ (lease overrides
sale) (Johannesburg Municipal Council v Rand Townships Registrar 1910 TPD 1314;
Breytenbach v Frankel 1913 AD 390; Graham v Local and Overseas Investments 1942 AD
95; Genna-Wae Properties (Pty) Ltd v Medio-Tronics (Natal) (Pty) Ltd 1995 (2) SA 926 (A)
and Spearhead Property Holdings Ltd v E & D Motors (Pty) Ltd 2010 (2) SA 1 (SCA)).

We indicated above that a lease contract creates personal rights (creditor’s rights/claims)
for the parties to the contract (see SU 2 para 1). These rights cannot be enforced against
third parties. In Roman law this meant that a new owner of the leased property could
evict the tenant from that property. In Roman-Dutch law the rule lease overrides sale
(‘‘huur gaat voor koop’’) was introduced and the lessee acquired a limited real right
against a subsequent purchaser of the land. This rule entails that a lessee is protected in
certain circumstances against a new owner of the leased premises. Since this rule also
applies in South Africa, we shall proceed to determine its scope.

253
 2 APPLICABLE ONLY TO HOUSES AND LAND
The rule ‘‘huur gaat voor koop’’ developed out of the medieval use of land.
Consequently, it originally applied to leases of houses and land only. The rule was later
extended to cattle (James Bell and Co v Irvins and Edwards 26 NLR 449) and it is generally
accepted in modern law that the rule should extend to all movable things.

3 ESTABLISHMENT OF LESSEE’S (TENANT’S) REAL RIGHT

Between the lessor and the lessee (inter partes) the mere contract offers sufficient
protection to the lessee: the lessee can enforce his/her personal right against the lessor
even if he/she is not in control (possession – see SUs 1 and 8 on the meaning and use of
the term ‘‘possession’’) of the premises and even if his/her right has not been registered.
Depending on whether we are dealing with a short or long lease, however, control or
registration is a requirement for the establishment of the lessee’s limited real right.

3.1 Long leases

A long lease is a lease for 10 years or more. In Roman-Dutch law registration was a
requirement for the establishment of the lessee’s real right in this case. An unregistered
long lease was also valid for the full term against the lessee’s successors who had notice
of the lease. Even if a lessor’s successor had no knowledge of the existence of the lease,
the lessee was still protected for the first 10 years of the lease, provided that he/she was
in control of the leased property.

Furthermore, an unregistered long lease was valid for the full term against universal
successors in title in terms of a will (successores universali) in contrast to particular
successors in terms of a gift or donation (successores singulari). In South African law this
distinction fell away, but now a distinction is drawn between successors under lucrative
title (successores titulo lucrativo) and successors under onerous title (successores titulo
oneroso). The former category refers to persons who do not give value for the
acquisition (eg, a donation) and the latter to persons who acquire for value (eg, who buy
the property).

In other words, the position regarding a long lease before the commencement of
section 2 of the General Law Amendment Act 50 of 1956 can be summarised as
follows:

1 Successors under lucrative title (successores titulo lucrativo) were always bound to
the lease for the full period thereof.
2 Successors under onerous title (successores titulo oneroso) were bound
a for the full period of the lease if the lease was:
(i) registered against the title deed of the property
(ii) not registered, but he/she knew of the lease, or

b for the first 10 years of the lease, if the lease was not registered and the
successor under onerous title (successor titulo oneroso) did not know of the
existence of the lease, provided that the lessee was in control of the leased
property.

254
The law on this point became somewhat confused when the legislature enacted section
2 of the General Law Amendment Act 50 of 1956. The section simply provided that no
long lease would apply against the successors of the lessor unless it was registered
against the title deeds of the leased property. In Kessoopersadh v Essop (1970 (1) SA 265
(A)) the Appellate Division held that the common law was not amended by section 2 of
Act 50 of 1956. The position as explained above therefore prevailed.

In the meantime section 1(2) of the Formalities in Respect of Leases of Land Act 18 of
1969 replaced section 2 of Act 50 of 1956. The new section, like its predecessor,
applies to long leases. It regulates leases entered into for a period of at least 10 years or
for the natural life of the lessee or another person mentioned in the lease or which from
time to time, at the will of the lessee, are renewable indefinitely or for periods which,
together with the first period, amount in all to at least 10 years.

Section 1(2) determines that no long lease shall be valid against creditors or successors
under onerous title of the lessor for a period of longer than 10 years:

(i) unless it is registered

(ii) or the creditor or successor had knowledge of the lease

This section has eliminated the uncertainty arising from the 1956 Act, and the position
existing before 1956 has been reestablished.

3.2 Short leases

3.2.1 General
As we indicated above, a short-term lessee who is not in control obtains a personal right
only. He/she can enforce this right against the lessor, but not against any third persons,
such as purchasers in good faith.

In the case of a short lease, the lessee’s limited real right vests when he/she obtains
control. Where the purchaser has had actual or constructive notice of the lease, the
lessee is protected, even though he/she is not in control.

3.2.2 Gratuitous and onerous successors

All short-term lessees who are not in control under an unregistered lease may maintain
their lease against gratuitous successors of the landlord, even if they do not have notice
of the lease. They can maintain their lease for the original lease period. They cannot
maintain the lease against onerous successors.

255
 DIAGRAM 28: Lease overrides sale (‘‘huur gaat voor koop’’)

6
S (lessee) leases property from X and Y (lessors)
6
sell property to
!

!
long term lease short term lease 6

6
Z
6
6 6
S has a real right S only has a personal
(huur gaat voor right against X and Y,
koop) against Z unless S is in
provided it is control of the S has a real right
registered property or Z knew (‘‘huur gaat voor
about the lease koop’’) against Z

4 EFFECT OF LESSEE’S (TENANT’S) REAL RIGHT

It should not be concluded from the maxim ‘‘huur gaat voor koop’’ (lease overrides sale)
that it is only the buyer’s right that has to give way to that of the lessee. The maxim
applies to the rights of anyone who has established rights to the thing after the lessee’s
right has been established.

Reference to ‘‘sale’’ is only a specific illustration of the fact that the lessee has a limited
real right. The lessee’s real right enjoys preference if it conflicts with any other
subsequent vested right. Thus if the right of a mortgagee or servitude holder vests after
that of the lessee, the lessee’s limited real right takes preference over the real rights
subsequently vested. In addition to this, the right of the lessee is preferred to purely
personal rights irrespective of the time when they were vested. Thus non-preferent
creditors of the lessor are always bound by the lessee’s limited real right.

The effect of the lessee’s limited real right is that the successor cannot disturb him/her in
the exercise of the rights in terms of the lease. In respect of the alienation of the leased
property, the question arises whether the new owner will, apart from having to allow
the lessee to continue in his/her control, also take over from the original lessor the rights
(as creditor) and the duties (as debtor) in terms of the lease contract.

In accordance with the general principles of the law of contract, it is not possible for the
new owner to take over the rights and duties without following the prescribed rules for
the cession of personal rights and delegation of duties. Personal rights (claims) are
transferred by cession and duties by delegation (novation). Therefore, in principle, the
new owner must tolerate the lessee’s exercise of his/her real right, but this does not
mean that the new owner simultaneously takes over the rights and duties of the lessor.

However, the courts have taken a different view of the matter. It has been held that as
soon as the new owner has taken transfer as owner he/she is entitled to the rent and,
further, that the seller by alienating the property releases him/herself from the
contractual duties created by the lease contract. These duties now rest on the buyer.
This was clearly stated by Corbett CJ in Genna-Wae Properties (Pty) Ltd v Medio-Tronics
(Natal) (Pty) Ltd (1995 (2) SA 926 (A) 936A–C):

256
 [I]n terms of our law the alienation of leased property consisting of land or buildings in
pursuance of a contract of sale does not bring the lease to an end. The purchaser (new
owner) is substituted ex lege for the original lessor and the latter falls out of the picture. On
being so substituted, the new owner acquires by operation of law all the rights of the
original lessor under the lease. At the same time the new owner is obliged to recognise
the lessee and to permit him to occupy the leased premises in terms of the lease,
provided that he (the lessee) continues to pay the rent and otherwise to observe his
obligations under the lease. The lessee, in turn, is also bound by the lease and, provided
that the new owner recognises his rights, does not have any option, or right of election, to
resile from the contract. This is the impact of huur gaat voor koop in our modern law. (Our
emphasis.)

The buyer is therefore bound by all the terms of the lease. If the actual terms of the
lease differ from the apparent terms, for example, where a lease which is in writing has
been amended orally, the buyer is bound by the actual terms. The lessee has no right,
on a change in the person of the lessor (that is, where the lessor sells the premises and
the purchaser becomes the new lessor), to elect whether he/she wishes to continue
with the lease or not.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After having studied this section, answer the following questions:

1 Write short notes on:

(a) the reasons that led to the introduction of the lease overrides sale rule
(‘‘huur gaat voor koop’’) in Roman law. (3)
Answer

A lease contract creates personal rights (1) only and is not enforceable
against third parties. (1) This means that a new owner can evict the lessee
from the property before the lease agreement has expired. (1) The lease
overrides sale rule (‘‘huur gaat voor koop’’) was subsequently introduced to
provide the lessee with a limited real right against the new owner.
(b) the lessee’s (tenant’s) real right (10)
(c) the rights and duties of the lessor’s successor in title (5)

257
S T U DY UN I T

13
CONSTITUTIONAL
PROPERTY LAW

CONTENTS
1 Introduction
2 Property clause
2.1 Meaning of ‘‘property’’ in terms of section 25
2.2 Deprivation
2.3 Expropriation

259
 1 INTRODUCTION
Up to now we have concentrated in this module on the law relating to ‘‘things’’,
‘‘ownership’’ and ‘‘limited real rights’’. You have learned, for example, what things are,
and how ownership and limited real rights to things are acquired and protected.
However, the Constitution of the Republic of South Africa, 1996, compels us to
broaden our view of the law of things to include a discussion of ‘‘property’’. For
constitutional purposes, therefore, we have to take a fresh look at the concept
‘‘property’’.

One of the aims of the Constitution, 1996 is to recognise fundamental (human) rights.
One fundamental right which is important in the law of things is the right to property as
protected by section 25 of the 1996 Constitution (the property clause). This study unit
deals with the first part of the property clause, namely sections 25(1) to (4). The main
issues to be addressed with regard to section 25(1)–(4) are the following:
& What is property?
& What is a deprivation?
& What is an expropriation?

The second part of the property clause, section 25(5) to (9), deals mainly with land
reform. This is discussed in Study Unit 14.

2 PROPERTY CLAUSE
Section 25 (the property clause) reads as follows:
Property
(1) No one may be deprived of property except in terms of law of general application, and
no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application –
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of
payment of which have either been agreed to by those affected or decided or
approved by a court.

(3) The amount of the compensation and the time and manner of payment must be just
and equitable, reflecting an equitable balance between the public interest and the
interests of those affected, having regard to all relevant circumstances, including
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct State investment and subsidy in the acquisition and beneficial
capital improvement of the property; and
(e) the purpose of the expropriation.

(4) For the purposes of this section –

(a) the public interest includes the nation’s commitment to land reform, and to
reforms to bring about equitable access to all South Africa’s natural resources; and
(b) property is not limited to land.

260
 (5) The State must take reasonable legislative and other measures, within its available
resources, to foster conditions which enable citizens to gain access to land on an
equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an Act of
Parliament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an Act of
Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the State from taking legislative and other
measures to achieve land, water and related reform, in order to redress the results of
past racial discrimination, provided that any departure from the provisions of this
section is in accordance with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).

2.1 Meaning of ‘‘property’’ in terms of section 25

When a person alleges that his/her right to property has been infringed, it must be
determined what constitutes ‘‘property’’ for constitutional purposes.

The object of constitutional protection is wider than the traditional private-law category
of corporeal or tangible things (see SU 1, para 2). Not only are ownership and limited
real rights granted protection, but presumably also a number of other rights such as
shares; immaterial property rights (eg, copyright in a book); traditionally neglected
property rights, such as customary land rights and so-called ‘‘new property-rights’’ (eg,
rights against a pension fund and labour rights, eg, the right to belong to a union).

In recent judgments the Constitutional Court confirmed that the following were
‘‘property’’ for the purpose of section 25:
& a commercial trading licence allowing the sale of wine in a grocery store (Shoprite
Checkers (Pty) Ltd v Member of the Executive Council for Economic Development,
Environmental Affairs and Tourism (2015 (6) SA 125 (CC))
& a personal right to recover money paid for goods delivered in terms of section
89(5)(c) of the National Credit Act 34 of 2005 (National Credit Regulator v Opperman
(2013 (2) BCLR 170 (CC))

The wide interpretation of the term ‘‘property’’ accords with widely accepted
constitutional practice, in terms of which ‘‘property’’ is given an extensive interpretation
to include a diversity of rights.

The Constitutional Court in First National Bank of SA Limited t/a Wesbank v Commissioner
for the South African Revenue Services and Another; First National Bank of SA Limited t/a
Wesbank v Minister of Finance (2002 (4) SA 768 (CC) par 51) examined the content of
section 25 and specifically the meaning of ‘‘property’’ and stated that:
At this stage of our constitutional jurisprudence it is ... practically impossible to furnish and
judicially unwise to attempt – a comprehensive definition of property for purposes of
section 25 ... [it] is sufficient to hold that ownership of a corporeal movable must – as
must ownership of land – lie at the heart of our constitutional concept of property,
both as regards the nature of the right involved as the object of the right and must
therefore, in principle, enjoy the protection of section 25. (Our emphasis.)

261
 2.2 Deprivation
The term ‘‘deprivation’’ is misleading or confusing because it can create the erroneous
impression that it always refers to the taking away of property, whereas in fact
‘‘deprivation’’ is distinguished from the narrower term ‘‘expropriation’’. It is therefore
important to understand that a ‘‘deprivation’’ does not necessarily refer to the ‘‘taking
away’’ of property. Synonyms for the word deprivation are ‘‘regulation’’, ‘‘limitation’’ and
‘‘restriction’’. In a sense any interference with the use and enjoyment of private property
involves some deprivation with regard to the person who has a right to or in the
property concerned. In this sense ‘‘deprivation’’ refers to interference in the wide sense,
whereas ‘‘expropriation’’ refers to interference in the narrow sense. ‘‘Expropriations’’
are, therefore, a subspecies of ‘‘deprivations’’.

Remember that section 25(1), which deals with deprivations, reads as follows:
No one may be deprived of property except in terms of law of general application, and no
law may permit arbitrary deprivation of property. (Our emphasis.)

A deprivation is the exercise of a state’s ‘‘policing power’’, that is, its ability to regulate
the use of private property by restricting an owner’s exercise of his/her entitlements as
owner. Normally the State does not pay compensation for a deprivation. Examples
would be limitations in terms of land-use planning, developmental and environmental
conservation legislation.

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Example
S sells a part of his farm to Z, a developer, who wants to develop the land as a township.
After Z has obtained permission for the development, he lays out the area in terms of
township establishment legislation as Newtown Extension 1. Newtown Extension 1
consists of 30 stands of 500 square metres each. Against the title deeds of each of the
stands in Newtown Extension 1, a condition is inserted which provides that only a single
residential dwelling house may be erected on the stand.

The following two requirements have to be met for a deprivation to be valid:

(i) A deprivation must take place in terms of a law of general application.

Deprivations of property usually occur as a result of a statutory provision.
(ii) A deprivation of property may not take place arbitrarily.
In 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 Minster of Finance
(2002 (4) SA 768 (CC)) the court concluded that a deprivation of property is
‘‘arbitrary’’ when the ‘‘law’’ that is referred to in section 25 does not provide a
sufficient reason for the deprivation or limitation or if it is procedurally unfair.

2.3 Expropriation
Expropriation of property in terms of section 25(2) of the 1996 Constitution results in
the legitimate imposition of limitations that involve the actual taking away or acquisition,
by the State, of private property. Compensation is always payable. Normally, it is said

262
that the State can legitimately expropriate private property for public use of the property
to facilitate the State’s functions and duties in the public interest. This is most often
illustrated with reference to the building of public facilities like roads and dams.

An expropriation of property will be valid if:

(i) it takes place in terms of a law of general application, for example, in terms of a
statute.
(ii) it is for a public purpose, or in the public interest.
The terms ‘‘public purpose’’ and ‘‘public interest’’ have different meanings, but they
are usually interpreted with reference to a public purpose that is clearly not a purely
private interest, but one that falls somewhere in the range between mere public
benefit (something that will benefit the public in some way) and strict public
necessity (something that is absolutely necessary for public safety, etc).
(iii) compensation is paid.
The amount and the time and manner of payment must be determined by the
parties affected by the expropriation or should be decided or approved by a court
of law. There are specific provisions regulating the payment of compensation (see s
25(3) of the Constitution, 1996, above). The court has a discretion to determine
the amount of compensation payable, taking the factors in section 25(3) and other
relevant circumstances into account in each individual case. The Expropriation Bill
of 2015 will, once it is enacted, also affect how compensation is calculated.

In this study unit we touched only superficially on this very important issue. Consult the
textbooks in the bibliography for further explanation and expansion on the topic.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After studying this study unit, you should be able to answer the
following questions:

1 Name the requirements for constitutionally valid expropriation. (5)

Answer
Property may be expropriated only in terms of law of general application (1)
for a public purpose or in the public interest; (1) and subject to payment of
compensation, (1) the amount of which and the time and manner of payment
of which have either been agreed to by those affected (1) or decided or
approved by a court. (1)

2 S sells part of his farm to Z, a developer, who wants to develop the land
as a township. After Z has obtained permission for the development, he lays
out the area in terms of township establishment legislation as Newtown Ex-
tension 1. Newtown Extension 1 consists of 30 stands of 500 square metres
each. Against the title deeds of each stand in Newtown Extension 1 a condition
of title is inserted into all the title deeds which provides that only a single
residential dwelling house may be erected on the stand. Explain how a court
could interpret whether the condition of title would constitute a deprivation in
terms of section 25(1) of the Constitution. (5)

263
 Answer
Section 25(1) of the Constitution, (1) (the deprivation clause) (1) provides that
‘‘no one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of property’’. (1) The
conditions of title were inserted in terms of township establishment legislation,
in other words, a law of general application. (1) The conditions of title are of a
restrictive nature, because they provide that only a single residential dwelling
house may be erected on each erf. (1) Owners of these properties obtain
ownership, but subject to this limitation, which can be seen as a deprivation (1)
for the purposes of section 25 of the Constitution.

3 S is the owner of the farm Highlands. The municipality needs to build a dam
on S’s property and wants to purchase a portion of his farm. He refuses. The
municipality expropriates that portion of S’s farm, but is uncertain whether
compensation must be paid for the expropriation and how it would be cal-
culated. Fully advise the municipality. (10)
Remark
This is clearly a case of expropriation for which the municipality must pay
compensation. Give the definition of expropriation and mention the factors
that would be taken into consideration to determine the amount of
compensation payable to S.

4 Z bought three tractors under an instalment sale agreement from L, the Land
Bank. L therefore remained the owner of the tractors. The Commissioner of
Inland Revenue detained, and thereby established a lien over, these tractors on
Z’s premises in terms of section 114 of the Customs and Excise Act 91 of
1964. This was done to obtain security for payment of predominantly out-
standing customs duty and penalties. The Commissioner has indicated that he
intends selling the tractors to satisfy the outstanding customs debts of Z. L
claims substantial sums to be outstanding with regard to the tractors, both in
terms of payments which have fallen into arrears and in terms of total out-
standing contract payments. L institutes the rei vindicatio against the Com-
missioner for return of the tractors. The Commissioner relies on section 114
of the Act, which empowers him to detain and sell various types of property.

Discuss 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 (2002 (4) SA 768 (CC)) in relation to the following ques-
tions:
(a) Will the Commissioner succeed in his defence? (2)
(b) What is the purpose of section 25? (4)
(c) What was the court’s view on the meaning of property in section 25? (5)
(d) When is State action ‘‘arbitrary’’? (3)
(e) What was the court’s finding on the interpretation of section 114? (3)
(f) What was the court’s view on the proportionality requirement of section
36(1) of the Constitution, 1996? (3)
Remark
For your answer consult the judgment. Take note of the following specific
paragraphs of the judgment:

264
Questions:
(a) See paragraphs [53]–[56].
(b) See paragraphs [47]–[50].
(c) See paragraphs [51]–[56].
(d) See paragraphs [65]–[67] and [100].
(e) See paragraphs [108] and [109]
(f) See paragraph [111].

265
S T U DY UN I T

14
LAND REFORM

CONTENTS
1 Introduction
2 Redistribution of land
2.1 Introduction
2.2 Provision of Land and Assistance Act 126 of 1993
2.3 Spatial Planning and Land Use Management Act 16 of 2013
3 Land tenure reform
3.1 Introduction
3.2 Land Reform (Labour Tenants) Act 3 of 1996
3.3 Extension of Security of Tenure Act 62 of 1997
3.4 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19
of 1998
4 Restitution of land rights
4.1 Introduction
4.2 Restitution of Land Rights Act 22 of 1994

267
 1 INTRODUCTION
Land reform forms an integral part of the transformation process in South Africa. Land
reform can be divided into three main categories: redistribution of land (see s 25(5)),
land tenure reform (see s 25(6)) and restitution of land rights (see s 25(7)). Each of
these categories is discussed briefly below with reference to the constitutional directive
for each category, its function and some of the initiatives taken by the government to
achieve the objectives of each category of reform.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
Before you continue, answer the following question:

1 Mention the three main categories of land reform in terms of the

Constitution, 1996. (3)

2 REDISTRIBUTION OF LAND
2.1 Introduction
Section 25(5) of the Constitution, 1996, provides the following:
The State must take reasonable legislative and other measures, within its available
resources, to foster conditions which enable citizens to gain access to land on an equitable
basis.

For the purpose of establishing a more equitable distribution of land, government was
authorised by section 25(5) of the Constitution, 1996, to rectify a general state of affairs,
namely the unequal distribution of land. Redistribution of land is the process of making
land or access to land available to people who have never had land or who had
insufficient land. The State has taken various legislative and other measures in the form of
statutes and state programmes to attain this goal. The statutes include among others the
Provision of Land and Assistance Act 126 of 1993, the Spatial Planning and Land Use
Management Act 16 of 2013 (‘‘SPLUMA’’), the Land Reform (Labour Tenants) Act 3 of
1996 and the Extension of Security of Tenure Act 62 of 1997. We discuss only two of
these Acts briefly below.

2.2 Provision of Land and Assistance Act 126 of 1993

The legal basis for redistribution is provided by the Provision of Land and Assistance Act
126 of 1993. It authorises the Integrated Programme of Land Redistribution and
Agricultural Development (LRAD) and the Settlement and Land Acquisition Grant
(SLAG) programmes whereby advances or subsidies are granted to persons who have
no land or who have limited access to land and who wish to gain access to land or
additional land.

2.3 Spatial Planning and Land Use Management Act 16 of 2013

Another measure to achieve the objective of the redistribution of land is spatial planning
and the management of land use. What is spatial planning and land use management,
you may ask. It refers to the processes and laws regulating the planning for and

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management of the development of spaces, both urban and rural. During the apartheid
years, planning laws were used to exclude certain persons from certain areas and
prevented these persons from owning or having access or other rights to land. A
plethora of both national and provincial legislation resulted in an uncoordinated,
fragmented and discriminatory system of land use and management. These ‘‘spatial
injustices’’ are now addressed in the national framework act – Spatial Planning and Land
Use Management Act 16 of 2013 (‘‘SPLUMA’’). It came into force on 1 July 2015 putting
in place a single, uniform spatial planning and land-use management system. SPLUMA
also repealed the following national legislation: The Removal of Restrictions Act 84 of
1967, the Physical Planning Act 88 of 1967, the Less Formal Township Establishment Act
113 of 1991, Physical Planning Act 125 of 1991 and the Development Facilitation Act 67
of 1995.

The objectives of SPLUMA, as enunciated in section 3, are to provide for a spatial

planning and land-use management system, which promotes social and economic
inclusion, redresses the imbalances of the past and ensures equity in the application of
spatial development planning and land-use management. In order to achieve these
objectives, SPLUMA provides for five development principles to be applied to spatial
planning and development and land use management:
& spatial justice (section 7(a)),
& spatial sustainability (section 7 (b)),
& efficiency (section 7(c)),
& spatial resilience (section 7 (d)), and
& good administration (section 7 (e)).

These principles are based on the constitutional values provided for in section 24 (the
right to have the environment protected), section 25 (the protection of property rights
and promotion of land reform), section 26 (right to access to adequate housing) and
section 27(1)(b) (the right to sufficient food and water) of the Constitution. The
significance of the principles lies in the fact that they must guide the preparation,
adoption and implementation of any spatial planning and development instrument as
well as any decision-making in terms of SPLUMA (s 6(1)).

The principle of spatial justice is of special importance in the context of expanding access
to both rural and urban land. The components of this principle can be summarised as
follows:
& Past spatial imbalances and exclusions must be redressed.
& People and areas previously excluded must be included.
& Informal areas and settlements must be upgraded.

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Activity

1 Name the five development principles to be applied to spatial

planning and development in terms of SPLUMA. (5)

Answer
& spatial justice (1)
& spatial sustainability (1)
& efficiency (1)
& spatial resilience (1) and
& good administration (1)

2 Name the components of the principle of spatial justice as included in

SPLUMA. (3)

Answer
1 1
& Past spatial imbalances and exclusions ( /2) should be redressed ( /2)
& People and areas previously excluded (1/2) must be included (1/2)
& Informal areas and settlements (1/2) must be upgraded (1/2)

3 Which constitutional values are promoted by the development principles:

spatial justice, spatial sustainability, efficiency, spatial resilience, and good
administration? (4)

Answer
1
& The right to have the environment protected ( /2) (section 24 of the
Constitution (1/2))
& The protection of property rights and promotion of land reform (1/2) (section
25 of the Constitution (1/2))
& The right to access to adequate housing (1/2) (section 26 of the Constitution
(1/2)) and
& The right to sufficient food and water (1/2) (section 27(1)(b) of the
Constitution (1/2))

4 What is the significance of the inclusion of the development principles in

SPLUMA? (2)

Answer
The development principles must guide the preparation, adoption and
implementation of any spatial planning and development instrument (1) as
well as any decision-making in terms of SPLUMA. (1)

3 LAND TENURE REFORM

3.1 Introduction
Section 25(6) of the Constitution, 1996, authorises land tenure reform by providing as
follows:
A person or community whose tenure of land is legally insecure as a result of past racially

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 discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament,
either to tenure which is legally secure or to comparable redress.

This category, therefore, applies to people who do have access to land or housing
(‘‘tenure’’), but whose tenure is based on weak or insecure property rights. The
purpose of land tenure reform is to give legal recognition and protection to weak and
insecure rights.

This process involves the introduction of legislation and other measures to improve the
quality and security of existing land rights. Several statutes have been introduced to
improve weak and insecure land rights, namely the Upgrading of Land Tenure Rights Act
112 of 1991, the Communal Property Associations Act 28 of 1996 and the Communal
Land Rights Act 11 of 2004. The Communal Land Rights Act has however been
declared unconstitutional in Tongoane v National Minister for Agriculture and Land Affairs
(2010 (6) SA 214 (CC)) and was never implemented.

This process also involves the protection of certain categories of persons from eviction
by ensuring that certain procedures must be followed before they can be evicted. This is
authorised by section 26(3) of the Constitution, 1996, which provides that:
No one may be evicted from their home or have their home demolished, without an
order of court made after considering all the relevant circumstances. No legislation may
permit arbitrary evictions.

Statutes such as the Land Reform (Labour Tenants) Act 3 of 1996, the Extension of
Security of Tenure Act 62 of 1997 and the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 provide requirements and procedures
which must be complied with before an occupier or user may be evicted. We briefly
discuss these three statutes below.

3.2 Land Reform (Labour Tenants) Act 3 of 1996

This Act is aimed at regulating the position of labour tenants. In terms of this Act a labour
tenant is a person who has the right to reside on a farm and also has the right to use the
land for cropping or grazing in return for his/her labour. The substantive part of a labour
tenant’s remuneration consists of the right to occupy and use the land.

The Act provides for the security of tenure of labour tenants and those persons who
occupy or use land as a result of their relationship with labour tenants. In addition, a
labour tenant can only be evicted in terms of a court order. A court will make such an
eviction order if it is just and equitable to do so after the labour tenant has refused or
failed to provide labour to the owner despite one calendar month’s written notice to
resume work, or if the labour tenant has committed such a material breach of the
relationship between him/herself and the owner that it is not practically possible to
remedy it.

3.3 Extension of Security of Tenure Act 62 of 1997

This Act applies to ‘‘occupiers’’, that is people occupying land lawfully. In terms of the Act
an ‘‘occupier’’ is a person who resides on land which belongs to another person, and

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 who has permission or another right in law to do so, but excluding a person using or
intending to use the land in question mainly for industrial, mining, commercial or
commercial farming purposes. The Act applies to rural areas only.

The security of tenure of occupiers is promoted by regulating the conditions and

circumstances under which the rights of persons to reside on land may be terminated.
An occupier’s right of residence may be terminated on any lawful ground as long as the
termination is just and equitable having regard to certain factors. The Act also provides
that the rights, duties and legitimate interests of the owners of the land should be
recognised.

Farm workers who occupy land with the permission of the landowner are protected
against unlawful eviction by the provisions of the Act. A farm worker is a person who
performs work similar to that of a labour tenant, but who is remunerated predominantly
in cash.

ESTA was enacted to give effect to section 26(3) of the Constitution which aims to
protect a person against eviction from his/her home without a court order, made after
the relevant circumstances have been considered. In considering the eviction of an
occupier the courts will therefore balance the opposing interests of the landowner and
the occupier. The common law is subject to the provisions of ESTA and a landowner will
only be able to evict an occupier in terms of a court order obtained under ESTA (Molusi
v Voges NO 2016 (3) SA 370 (CC)).

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

After having studied this section, answer the following questions:

1 S plans to start a nursery on his farm Highlands. He asks his brother,

Z, to manage the nursery and agrees with Z that he may live on the farm. S
decides that the fence of the nursery should be painted, but S and Z disagree
about the colour . S does not want Z to live on his farm any more. Is Z an
‘‘occupier’’ in terms of the Extension of Security of Tenure Act 62 of 1997?
Substantiate your answer. (3)
2 X and Y are the owners of Waterford. On 1 September 2000 they enter in-
to an agreement with Z in terms of which Z hires the farm from them for 10
years. The contract of lease is registered in the deeds registry. The lease
terminates on 31 August 2010. X and Y do not renew the lease. Z refuses to
vacate the farm. Will the Extension of Security of Tenure Act 62 of 1997
protect Z from eviction? Substantiate your answer. (4)
Answer
This Act applies to ‘‘occupiers’’, viz persons who lives on the land lawfully. (1)
In terms of the Act an ‘‘occupier’’ is a person who lives on another person’s
land, and who has permission or a right to do so. (1) An occupier’s tenure can
be terminated on any lawful ground, provided that such termination is just and
equitable having regard to certain factors. (1) Z is no longer lawfully on the land
and the Act therefore will not protect him. (1)

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3 D, E, F and G work on Pulang, a farm belonging to Q and R. D and E
live on the farm and have the right to use a portion of the farm for cropping or
grazing purposes in exchange for the work they perform for Q and R. F and G
work on the farm, are paid a monthly wage and reside there. Because of
continual crop failures Q and R are forced to reduce their farming activities. As
a result they have to evict some of the workers on the farm. Indicate which
statutes are applicable to D and E and F and G in view of possible evictions. (10)
Answer
D and E are ‘‘labour tenants’’ (1) as defined in the Land Reform (Labour
Tenants) Act (1) and their security of tenure is regulated by this Act. They are
‘‘labour tenants’’ because they have the right to use a portion of the farm in
exchange for their labour. (1) F and G, however, are ‘‘farm workers’’ (1) as
defined in section (1) of the same Act, because they are paid a monthly wage.
(1) This Act, however, only regulates the position of ‘‘labour tenants’’. (1) The
security of tenure of F and G is regulated by the Extension of Security of Tenure
Act. (1) The latter Act applies to ‘‘occupiers’’, (1) that is people occupying land
lawfully, (1) as defined in the Act. F and G reside on the land lawfully. (1)
Eviction procedures must therefore take place in terms of the provisions of
these respective Acts. (1)

3.4 Prevention of Illegal Eviction from and Unlawful Occupation of

Land Act 19 of 1998 [‘‘PIE’’]
This Act differs from the Extension of Security of Tenure Act 62 of 1997 because it
protects people who occupy land unlawfully, in other words, people who occupy land
without the permission of the landowner. The Act was enacted to give effect to section
26(3) of the Constitution. The purpose of the Act is to provide for procedures to evict
unlawful occupiers, the principle being that nobody may evict an unlawful occupier of
land without the authority of a court order.

A part of the eviction process of unlawful occupiers is that certain circumstances must be
considered before an unlawful occupier may be evicted. These circumstances include
the rights and needs of the elderly, children, disabled persons and households headed by
women and, in certain cases, the availability of alternative accommodation for the
relocation of the unlawful occupier.

In Port Elizabeth Municipality v Various Occupiers (2005 (1) SA 217 (CC)) it was held that
an eviction order must be just and equitable. Consequently parties with competing
interests must attempt to reach an agreement through discussions and/or mediation. If
parties cannot reach an agreement the court may, considering all relevant circumstances,
grant an eviction order.

(9)

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 ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After having studied this section, answer the following question:

1 A group of persons occupy a part of S’s farm, Highlands, without his

permission. S is very unhappy and wants to evict the group of persons.
Which legislation is applicable to the eviction of such persons. (4)
2 X and Y are owners of Waterford. On 1 September 2000 they enter into
an agreement with Z in terms of which Z hires the farm from them for 10
years. The contract of lease is registered in the deeds registry. The lease
terminates on 31 August 2010. X and Y do not renew the lease. Z refuses to
vacate the farm and X and Y wishes to evict him. Are X and Y entitled to evict
Z? Which legislation is applicable and why? (5)
Answer
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 (‘‘PIE’’) (1) will be applicable because Z is now an unlawful occupier (1) of the
farm, for his lease agreement has expired. (1) X and Y will only be able to evict Z
by following the procedures (1) set out in PIE and by obtaining a court order to this
effect. (1)

4 RESTITUTION OF LAND RIGHTS

4.1 Introduction
Section 25(7) of the Constitution, 1996 authorises the land restitution process and
provides as follows:
A person or community dispossessed of property after 19 June 1913 as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an Act of
Parliament, either to restitution of that property or to equitable redress.

Restitution of land rights is aimed at returning specific pieces of land, taken away from
specific people during the apartheid era, to those people. It is a restricted process
because it only concerns specific pieces of land and specific people. Section 25(7) also
restricts the process to dispossessions that took place after 19 June 1913.

This process differs from the process of redistribution, discussed above, because land
restitution is aimed at rectifying specific dispossessions that took place in the past
whereas land redistribution is aimed at rectifying the unequal distribution of land in
general.

Section 25(7) authorises Parliament to promulgate an Act for the restitution process. The
statute dealing with such restitution is the Restitution of Land Rights Act 22 of 1994. The
Act initially provided that claims could only be instituted up to 31 December 1998. In
terms of the Restitution of Land Rights Amendment Act 15 of 2014, claims can be
submitted again until 30 June 2019. The Constitutional Court has, however, declared
the amendment act unconstitutional because proper consultation did not take place
before the passing of the Act. Parliament has until July 2018 to rectify and re-enact the
Act (Land Access Movement of South Africa v Chairperson of the National Council of
Provinces (CT 40/15 2016).

274
4.2 Restitution of Land Rights Act 22 of 1994
A person is entitled to restitution if land was taken away after 19 June 1913 as a result of
past racially discriminatory laws or practices. Such a person will, however, not be entitled
to restitution if just and equitable compensation was received at the time of the
dispossession.

After considering a claim, the Land Claims Court can make different restitution orders.
Some of these orders include:

(i) restoration of land, a portion of land or any right in land

(ii) grant by the State of an appropriate right to alternative state-owned land
(iii) payment of compensation by the State
(iv) inclusion of the claimant as a beneficiary of a State support programme for
housing or the allocation and development of rural land
(v) grant of alternative relief

For several reasons it may not be possible or desirable to return a specific piece of land
to the claimant. For example: if the piece of land has been developed into an office block
or a shopping centre or if the piece of land is occupied by another group of people and
dispossessing them would be unjust and inequitable. It is also possible for a court to
order that additional compensation be paid in a case where inadequate compensation
was paid to the claimant at the time of the original dispossession.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity
After studying this section, answer the following question:

1 V and W live in the city and work for S, the owner of Highlands.
The farm Highlands was taken from their parents in 1923 in terms of racially
discriminatory legislation in return for compensation. Since the farm was taken
away from their parents, it has been developed into a commercial farm and
hundreds of people are employed on the farm and also live there.
(a) Advise V and W fully on their legal position (5)
(b) Which orders may the Land Claims Court make in terms of the
Restitution of Land Rights Act 22 of 1994? (5)

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S T U DY UN I T

15
ADDITIONAL FORMS OF
STATUTORY LAND USE
AND REVISION

CONTENTS
1 Introduction
2 Sectional Titles Act 95 of 1986
3 Share Blocks Control Act 59 of 1980
4 Property Time-sharing Control Act 75 of 1983
5 Housing Development Schemes for Retired Persons Act 65 of 1988
6 Revision

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 1 INTRODUCTION
So far in this module on the law of things we have discussed the following real
relationships to land: ownership of land (SU 3), lawful occupation (holdership) of land
(SU 8) and land use driven in terms of the Constitution (SU 13). In this study unit we
take a brief look at other forms of statutory land use. It is important that you determine
the nature and content of the rights which are granted in terms of the statutes discussed
below. We discuss the Sectional Titles Act 95 of 1986, the Share Blocks Control Act 59
of 1980, the Property Time-Sharing Control Act 75 of 1983 and the Housing
Development Schemes For Retired Persons Act 65 of 1988

2 SECTIONAL TITLES ACT 95 OF 1986

This Act provides for the division of buildings and the land on which they stand into
sections and common property. It also makes provision for the acquisition of separate
ownership of sections together with co-ownership of common property which jointly
make up a unit which is the object of the sectional title ownership (= real right). A
unit consists of a section (a defined part of a building such as a flat, garage, office or shop
in a building, office block or business complex) together with an undivided share in the
common property (the land and all permanent structures on the land that do not form
part of a section) apportioned according to the participation quota. Ownership and co-
ownership still form the basis of sectional title ownership. To facilitate this kind of
ownership certain common-law principles had to be amended by the Sectional Titles
Act (see SU 1, ‘‘Things as legal objects’’ para 1.1.3 (iii)). The Act further regulates the
control over certain rights connected with the separate ownership of sections and joint
ownership of the common property; the transfer of ownership of units and the
registration of sectional mortgage bonds over and real rights in units and the granting and
registration of rights in and the disposal of the common property; as well as the creation
of a body corporate to manage each sectional title scheme by way of rules.

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Activity

After studying this section, answer the following questions:

1 What is the object of sectional title ownership and how is it

composed? (4)
2 Why was statutory intervention required to make provision for sectional
title ownership? (5)

Remark
Refer to Study Unit 1, ‘‘Things as legal objects’’ para 1.1.3 (iii) for the answer.

3 What is the nature of a sectional title owner’s right? Briefly explain with
reference to the object of the right. (4)

3 SHARE BLOCKS CONTROL ACT 59 OF 1980

This Act regulates the operation of share block schemes and provides for related
matters. In terms of this legislation a shareholder in a share block company acquires a

278
personal right (creditor’s right/claim) to use part of a particular building (flat, office or
shop) or a piece of land according to his/her shareholding. The share block company can
be the owner or lessee of the relevant building or land. The object of the shareholder’s
right is therefore not an independent immovable thing, but he/she has a personal right
against the company based on his/her shareholding to which the right to use a specific
part of the building or land for a specific period is linked.

The principles pertaining to sectional titles and share blocks are applicable to both
property time-sharing and housing development schemes for retired persons.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Activity

After studying this section, answer the following question:

What is the nature of the right of a shareholder in a share block

company? Briefly explain with reference to the object of the right. (4)

4 PROPERTY TIME-SHARING CONTROL ACT 75 OF 1983

This Act regulates the alienation of property time-sharing interests pursuant to property
time-sharing schemes and related matters. In terms of these schemes a person acquires
a right or interest in the exclusive use or occupation of accommodation during
determined or determinable periods during every year. The nature of the right depends
on the form of the relevant scheme. A property time-sharing scheme can be
established either as:

(i) a sectional title scheme in terms of the Sectional Titles Act 95 of 1986 (real right),
(ii) a share block scheme in terms of the Share Blocks Control Act 59 of 1980
(personal right),
(iii) membership of or participation in a club which operates a time-sharing scheme
(real or personal right), and
(iv) any scheme, measure or undertaking declared by notice in the Gazette to be a
time-sharing scheme.

5 HOUSING DEVELOPMENT SCHEMES FOR RETIRED

PERSONS ACT 65 OF 1988
This Act regulates the alienation of certain interests in housing development schemes for
retired persons and related matters. The Act provides for the acquisition of a right of
occupation in relation to immovable property in terms of a housing development
scheme which confers such rights on retired persons in terms of either ownership or a
personal right (creditor’s right). The following types of housing development schemes
can be established:

(i) a sectional title scheme in terms of the Sectional Titles Act 95 of 1986 (real right)
(ii) a share block scheme in terms of the Share Blocks Control Act 59 of 1980 (a
personal right)
(iii) membership of or participation in a club which manages a housing development
scheme (real or personal right)
(iv) a registered long-term lease (limited real right)

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 Please note that a housing development scheme for retired persons cannot take the
form of a time-sharing scheme.

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Activity
After having studied this study unit, you should be able to answer the
following questions:

1 Mention the forms of statutory land use that are not directly related to
the constitutional land reform programme and briefly discuss one of these
forms. (8)

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