Law of Property and Security A

MEANING AND SCOPE OF THE LAW

A) Purposes of the Law: Importance is found in the Constitution Deals with rights and actions with regard to things – the acquisition, use and

protection of the things; the remedies available; implications of holding Section 25(2), (3), (4) and (5):

o Interests of the publico Commitment to land reform and access to resourceso FNB case

Bill of Rights does define the law

B) Meaning of the Law: Contrasted with other nations (America and England) who provide a definite

definition Now set out by the Constitution – Port Elizabeth v Various Occupiers Alternative meanings (Rautenbach and Silverberg and Schoeman)

o Patrimonial interests acquired through personal endeavour o Right of ownership in a legal objecto Variety of legal relationships qualifying for protectiono Object of real rights (corporeal and incorporeal) and real rights in

themselves Roman Dutch provides bundles:

o Right to do as one pleases (ius disponendi) Gien case Mkontwana case

o Right to exclude (rei vindicatio) Chetty case FNB case Diepsloot case

o Right to derive income

C) Changing face of the law of property: Development has brought functionalization and socialization of property in South

Africa So cannot just view property in section 25, but in light of other legislation and values Emergence of a new property law framework

o Substance of rules have changed o Economic and social needs are applied under different conditions o Security of title and tenure have now become of importance o Disappearance of highly personal and individuals character of property

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D) Impact of the Constitutional Order: Inclusion in the constitution gives rise to challenging of natural boundaries of

acquisition, protection and transfer Must consider the scope of the concept of property in the Constitution; range of

permissible limitation on property Influences ambit and restrictions on property in South Africa Constitutional definition:

o Negative guarantee of property as ‘holding’ and ‘regime’o No clear definition of property

Value of testing competing rights are established in FNB case and Mkontwana case and PE Municipality case and Modderklip case.

o The court applies the Harksen test to whether or not there has been and infringement

S28 of the interim constitution – doesn’t refer to property, but rather real rights in relation to property

S25 of final constitution – couched in negative terms, deals with deprivation, expropriation

New property now includes subsidies, welfare, licenses (trade and driving); means of livelihood

Transkei Public Servants Association case

E) Deprivation and Expropriation: Considered in FNB case, confirmed in Mkontwana case Any interference with the use, enjoyments or exploitation of private property amounts

to deprivation Any substantial interference beyond normal restrictions Expropriation is an instance of deprivation

o Harksen case – process whereby public authority take property for public use against payment of use

o Constitutes deprivation, make a distinction between rights in property and expropriation of rights in property

o Compensation is given for expropriation Deprivation:

o Need to consider whether it is arbitrary deprivation – have to consider rationality and proportionality test in context of s25

o S v Makwanyane provide use of proportionality test and to weigh up the different values that need to be considered in light of the constitution

o Law of general application – should be authorized by law of general application at a national level; original and delegated legislation and common law

Expropriation:o Procedure and principles – must be done through general application for

the interests of public policy and subject to the constitutiono Must be just and equitable

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o Public purpose – wider (refer to all purposes which pertain to or benefit general public) and narrow (refer to governmental purposes) – mostly favour the wide definition

o Public interest includes a commitment to land reform o When expropriation occurs, will include all interests associated with the

property o State does not have a general power to use land and right to expropriate –

governed by the Expropriation Acto Must be compensated for – City of Cape Town Municipality case

Amount must be just and equitable, reflecting an equitable balance between public interests and the interests concerned

Done in two stages – consider the Expropriation Act Du Toit case Ex Parte case Pointe Gourde Principle

o Constructive compensation Property is not taken away, but rather state interfers with the use of

the property – which creates some loss as if it were taken away But this is not recognized in South Africa, rather an American

concept Steinberg case – questioned whether the US tradition could be

recognized; no room in our law for this doctrine – too difficult to distinguish this and deprivation

Harksen case

F) Search and Seizure of Property: Siezure is dealt with in legislation if the property was used for illegal behaviour

o Investigation of Serious Economic Offences Acto Proceeds of Crime Act o Prevention of Organized Crime Acto Director of Public Prosecutions caseo Must meet the requirements of s 25 and s36(1) of the Constitution o Gerber caseo Prophet case – increased the test – proportionality, rationality and

connection test (close connection of things – between the committing of the crime and the property associated with it)

Sale in execution o Lesapo caseo Zondi caseo The court can sell the property if it is already seized, then can use the

money for resources o Considered s 38 of the Constitution – and how it deprived people – so

court discussed it in Lesapo case – but then discussed that it was unconstitutional

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G) Sources of Property Law1) Common Law

Mostly English, Roman-Dutch (found in Roman law and Germanic customary law)

Roman Lawi. Original acquisition and ownership of property (dominium)

ii. Principle of abstraction (distinction between contract and delivery in the context of transfer of property)

iii. Forms of real securityiv. Traditional view of ownership as pinnacle in hierarchy of rights;

defition of limited real rights drawn Germanic customary Law

i. Registration of property ii. Mobilia non habent sequelam rule (protection of purchaser in good

faith who was transferred movables)iii. Barclays Nasionale Bank iv. Harris case

English Lawi. Limited extent of influence

ii. Attornment (fictitious delivery) – Standard Bank v O’Connoriii. Forms of land tenure (perpetual quitrent and 99 year lease)iv. Kusa v Kusa CC v Mblelev. Graham v Ridley

vi. Chetty v Naidoo 2) Legislation

Expropriation Acti. City of Cape Town v Helderberg Park Development

ii. Deals with how the state can expropriate property for interests of the public

iii. S 1 – definitions; s2 – powers and purposes of expropriation; s7 – notification for expropriation; s8 – passing of ownership between persons; s10 – offers of compensation for expropriation; s12 – how compensation is calculated; s26 – application of the act

Deeds of Registries Acti. This act amends a number of other acts – and now deals with the

registration of propertyii. S3 – deals with the duties of the registrar (registration, formalities,

etc); s4 – powers of the registrar (issue certification copies, etc); s6 – cancellation of registration by the courts (some orders cannot be cancelled by the court); s7 – inspection of records by the public (records are open to the public); s13 – when registration can take place; s16 – transfer of real rights; s63 – restriction on the registration of immovable property

Extension of Security of Tenure Act

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i. This was enacted to strengthen the rights of occupiers who were previous not recognized

ii. Seek to facilitate long-term security of tenure (through providing tenure and subsidies)

iii. S6 – right and duties of occupiers; s7 – rights and duties of ownersiv. Does respect still the rights of the owners v. Nkosi case

vi. Mhlabati case Land Reform (Labour Tenants) Act

i. Security of tenure for tenants on landii. S3 – right to occupy the land; s4 – provisions for the labour on the

land; s7 – order of evictions from the land Prevention of Illegal Eviction Act

i. Must consider justice and equity of evicting people from propertyii. Regulate eviction procedures lawfully

iii. PE Municipality caseiv. S4 – deals extensively with the eviction of persons from property;

3) Case Law Transkei Public Servants Association case Modderklip case

4) Constitution Post-Apartheid legislation finds its basis in the Constitution (s25 and s26) S8 – right to equality S39 – spirit, purport and objects of the Bill of Rights

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CLASSIFICATION OF PROPERTY

A) Nature of Things Ex Parte Eloff External to humans – must be of an impersonal nature; cannot be an

object, only a bearer; Human Tissue Act Must be an independent entity – must have separate existence,

individuality; demarcation of land an resemble a separate entity Must be capable of human control – and private ownership Must be valuable and useful to humans – economic or sentimental Must be subject to judicial control Corporeal

B) Classification of Things according to their relation to a person1) Things out of commerce – common things, public things, belonging to corporate bodies, religious things ((res extra commercium)

Common things (res omnium communes)i. Common to everyone, but don’t belong to any individual

ii. Not susceptible to private ownership (but possible to acquire a certain part of it)

iii. Air, running wateriv. Sea and sea-shore (while not in Roman law) belong to the state

president as public goods Public Things (res publicae)

i. Items which belong to an entire civil community – commonly referred to as state property

ii. Public roads, national parks, the sea and sea-shore iii. State assumes control of this property to protect the interests of the

publiciv. Questionable whether distinction between public things and

common things is relevant Things belonging to corporate bodies (res universitatis)

i. This are regarded as being essentially public owned – theatres, race tracks

Religious things (res divini iuris) i. Things that were dedicated to the gods (temples, graves, city gates,

etc)ii. Ownership of gravesites and tombstones are vested in the owner of

the land 2) Things in commerce – owned by a person, not owned by a person (res in commercio)

Things owned by a person (res alicuius)i. Privately owned things by a legal subject

Things not owned by a person

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i. Things that have never been privately owned (birds, wild animals, bees)

ii. Have been abandoned by their owners

C) Classification of Things according to their nature1) Corporeal and Incorporeal

Derived from Roman Law Corporeal - tangible or perceivable by the external senses; an object which

occupies space (land, houses, clothing) Incorporeal – intangible; rights (real, personal, immaterial property); air is

one The distinction is significant

i. Corporeal things transfer through delivery (movable) or through deeds (immovable)

ii. Incorporeal is transferred through cession 2) Singular and Composite

Singular – res singulars; individual thing not subject matter of accession; exist independently; can be corporeal or incorporeal

Complex – res universals; consists of different parts or components – composite, accessory and auxiliary things

i. Composite thing – combination of single corporeal things of a principle thing; Kahn case; independent entity

ii. Accessory thing - physically attached to principle thing; can exist independently; now lost their individual identity; JL Cohen case

iii. Auxiliary thing – do not lose identity if attached; remain independent; Senegal case; Falch case;

3) Movable and Immovable Movable – can be moved without being damaged or losing its identity; Immovable – cannot be moved without losing or being changed Incorporeal property relates rights which are movable properties Perumal v The Messenger of the Court Legal significance:

i. S2 of the Alienation of Land Act – no contract of sale is valid unless written for immovable, needn’t be written for movable

ii. Delivery is needed for movable; whereas deeds are needed for immovable

iii. Hypothecation of immovables takes place by registration of mortgage bond; movables are pledges by delivery of registration of a notarial bond

iv. If a debtor is insolvent the movable property must be sold firstv. Law of domicile relates to movable property; whereas immovable

property relates to the law where the property isvi. Also significant for criminal law

4) Divisible and Indivisible

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Divisible – nature and function of smaller parts correspond with that thing before division and total value is not less that the item undivided; all physical things are divisible in legal sense

Legal significance:i. If something is legally indivisible cannot be divided, even if

physically divisible – if this is the case, thing can be sold (Bennett No v Le Roux)

5) Consumable and Inconsumable Consumable – destroyed in accordance with use Inconsumable – clothes, land, housing But may not actually be destroyed in immediate use, but rather long term

use – therefore clothes and money are regarded as consumable Legal significance:

i. Consumable things can be objects of loans of consumptionii. Inconsumable things can be the objects for loans for use

iii. Money and consumables can be quasi usufructs 6) Fungible and Infungible

Fungible – not individually determined – only considered in terms of weight, number, etc; these can be replaced with the same item

Non-fungible – individual determined; these cannot be replaced with identical things; not inter-changeable

Legal significance:i. Found in the law of contract and succession

ii. In law of contract – cannot replace non-fungible itemsiii. In law of succession - if non-fungible is destroyed, cannot be

replaced

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REAL RIGHTS A right is a legally recognized, valued claim by a subject to an object An object is anything in regard to which a person can acquire or hold

rights A subject is a bearer of rights – can be natural or juristic persons

A) Distinction between real rights and personal rights Real right – rights to something; Chetty case; most comprehensive right Personal right – rights to performance; a claim to act positively or refrain;

not considered as a property right Limited real rights – rights protected where person enjoys property of

another person (mortgage, lease, servitude)i. Mortgage

ii. Leaseiii. Servitude: Praedical – adjacent property used for others; Personal

servitude – usufruct iv. Mineral rights – Lebowa Mineral Forum; mineral rights is not

property (rather usufruct); but court has denied this; First Certification Judgment

v. Liens – right of retention exercised by a person who had done work for on another person’s property

May include patrimonial rights and immaterial property rights (copyright, patents, trademarks)

B) Categories of real rights Real right without restriction is ownership; all other real rights are limited Roman law knew a closed system of real rights; not Roman-Dutch law –

South Africa does not have a closed system (new real rights can develop) Mortgage (hypotheca) Perpetual Lease (emphyteusis) Servitude:

i. Praedical – adjacent property used for othersii. Personal servitude – usufruct

Mineral rights i. Lebowa Mineral Forum

ii. mineral rights are not property (rather usufruct) – however the courts have denied this

iii. First Certification Judgment Liens – right of retention exercised by a person who had done work for on

another person’s property Mortgages

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C) Characteristics of real rights Must consider the intention of the person creating the real right – doesn’t

only bind the current owner, but also future owners, Fine Wool Products Case Ex Parte Geldenhuys Felix v Nortier Kain v Kahn Pearly Beach Trust Case

D) Requirements for recognition of new real rights There are a number of types of real rights – not a closed system in South

Africa Arguable that we should return to a closed list of items S3(1)(r) of Deeds Act – long list of real rights; registrar can further

register any rights that are on the list S16 of Conveyance law – ownership can be conveyed only through a deed

of sale S63 of Deeds Act – NB!

i. Ex Parte Geldenhuysii. Have laid down certain requirements for the registration of real

rightsiii. Section is couched in negative terms

E) Registration of real rights Right is adequately protected in registration Ownership in land must be conveyed from one person to another – process

of publicizing and recording Registration has a dual function

i. Indicates the act of delivery in respect of acquisition of immovables

ii. Provides a public record of real rights Deeds Registries Act is fundamental

F) Classes of Personal Rights Odendaalrus case S102 of Deeds Registries Act provides definitions – including rights

which become real on registration Rights of pre-emption

i. Crous v Utilitas Revisionary rights

i. Land sold by government, where property was sold in condition if not used in accordance to rules, would revert to the local government

Registrar of Deeds v Ferreira Deep S20 of Alienation Act – sale of residential property (registered against title

deeds)

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G) Registration of personal rights S63 of the Deeds Registries Act – must be registered in deeds registry,

subject to exceptions; however, generally not registered – unless in proviso (if they are complimentary they may be registered)

Personal rights may be ancillary to real rights – they are so intimately connected with the real right (Ex Parte Geldenhuys)

S63(1) does not related to lease, mortgage bonds or grants

H) Registrability of rights and changing face of property law Meaning is found in definition section of Alienation Act

i. In relation to land means it is capable of being registered as a subject of separate title

ii. All laws relating to registration must be complied withiii. It must be capable of being transferred

Registrability i. Only real rights

ii. Personal rights are only registered under certain conditionsiii. Hollins v Registrar of Deeds

Distinction between Personalist and Classicalist approachesi. Personalist

Focus on person against the right is exercised Real rights are absolute Personal rights are relative to enforcement and situation –

right to pursuit to claim stolen goods (Chetty case) Criticisms –

A) A fiction to regard real rights as creating a universal obligation (which all outsiders must not interfere with)

B) Will not always operate absolutely C) Some personal rights are absolute – Solomon v Du

Preez; Dunn case ii. Classicalist

Real and personal rights in regard to the object of the right Real rights - relationship between a person and an object;

give rise to power and control of corporeal things; direct control

Personal rights – relationship between persons; give rise to a claim against another person; governs relationship between

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ACQUISITION OF REAL RIGHTS

A) Publicity Principle Real rights are absolute, so the holder may claim control over the object of

the right Hence it is desirable that people are aware that someone owns the right So it is best if the world at large are aware that the real right is owned by a

certain person – hence advertised If it is the transfer of movable property – must be publicized to the outside

world; but rebuttable presumption of law that the possessor of a movable thing is also the owner thereof (so possession)

In the case of immovable property – effect is found in the deeds registration act – everyone is given access to these records (registration)

So called doctrine of constructive notice

B) Modes of acquisition of real rights It can either be newly created without the co-operation of the predecessor

in title; or it is already in existence and merely transferred from one to another, or created without the co-operation of a predecessor in title – original and derivative acquisition

Original acquisition (unilateral) – includes occupation of unowned things, accession, specification, mingling, mixing and prescription; not affected by infirmities in the title of a predecessor

Derivative acquisition (bilateral) – result of a bilateral transaction with co-operation from a predecessor in title

Derivative acquisition: Dichotomy between contract and delivery o If a right already exists – then the transfer constitutes the

performance of a contract; but still a separate legal transactiono Whereas if there is an already existing right then it is

transferred in delivery Derivative acquisition: Elements in the transfer of rights

o The object of the real right must be a thing in commerce o Transferor must be legally competent to be transfer the object

(contractual requirements)o Transfer must be effected by the holder of the real right (cannot

contract to transfer something that doesn’t belong to that person)

o For transferor – Mvusi v Mvusio Transferee must be competent to acquire the righto Only transferee can accept the transfero Only through recognizable forms of delivery or registrationo Mere physical deliver or registration is insufficient – must also

be intention to be boundo Only on payment of the contract will the transfer take place

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o Must be based on just cause Derivative acquisition: Abstract and causal theories of transfer

o If the transfer is based on a contract then it is viewed as part of a causal theory of transfer – if the cause for the transfer is defective, the real right will not pass

o Opposite approach to causal theory is the abstract theory – provided agreement to transfer real right its valid, the real right will pass in the pursuance (regardless of the defective cause of the contract)

o Causal system was originally applied, but now this has changed to the abstract approach (Commissioner of Customs case)

o In Air-Kel case court held that the abstract system should be used, except this case only really dealt with the transfer of movable property; but this has been developed to immovable in Brits v Eaton NO

Derivative acquisition: Just cause giving rise to transfer and theories o Because the abstract theory doesn’t make a transfer of real

rights dependant on the validity of the contract, therefore, now whether a putative cause should be required for the effectiveness of a transfer

o Therefore, arguable that there must be some real agreement between the parties

Derivative acquisition: Real agreement (vitiating circumstances) – some contracts are not regarded as being viable and valid in South Africa

o Contracts which have an illegal objecto Contracts, not illegal in themselves, but the law does not regard

as sufficiently importanto Contracts which are unenforceable because the law requires

parties to comply with conditionso In individual cases are voidable as a result of mistake,

misrepresentation, undue influence or duress

C) Good Faith or Doctrine of Notice “nobody will be allowed to derive a benefit from his own bad faith” – Doctrine of notice – acquisition from a counter-balancing consideration

with notice an earlier personal right transferred cannot be permitted to defeat the other person’s personal right

Application of the doctrine if the purchaser acquires ownership of something sold knowing

o It was previously sold to another (successive sales) – this should be known at the time of transfer or delivery

o Of the undertaking of a predecessor in title to grant a servitude to the owner of a dominant tenement (unregistered servitudes) – purchaser will have to have the servitude registered

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o That the acquisition is in conflict with the right of option, pre-emption (these will be declared void)

o Of the right of the lessee to occupy the thing sold o Of an earlier undertaking by the predecessor in title to

constitute a mortgage of the property o Sales in conflict with right of security

Foundation and requirements of the doctrine of noticeo Fraud was regarded as the theoretical basis for the doctrine –

however, developed, and now mere knowledge of the prior right is sufficient

o Requirements Existence of prior personal right Infringement of a personal right by the subsequent

acquirer Knowledge of the existence of the prior personal right

D) Extra stuffo Specificity principles – real rights can only exist in respect of

specific things; owners do not have general rightso Transmissibility – on death, the heirs gain the property; highly

personal rights cannot be transferred freely; unless restricted by registration (ie right of pre-emption)

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OWNERSHIP: GENERAL PRINCIPLES

A) Concept of Ownership Highly valued – basis of social and economic order Difficult to define property – however, real right that potentially confers

the most complete or comprehensive control over a thing, right of ownership entitles the owner to do with his or her thing as he deems fit, subject to limitations

Often viewed as an absoluteness and individualistic right – most absolute real right that is possible of acquiring

Sometimes described according to different entitlements or powers o Entitled to use the thing (ius intendi)o Entitled to the fruits and income (ius fruendi)o Entitled to consume and destroy (ius abutendi)o Entitled to possess (ius possidendi)o Entitled to dispose the thing (ius disponendi)o Entitled to claim from an unlawful possessor (ius vindicandi)o Entitled to resist any unlawful invasion (ius negandi)

Characteristicso “mother right” – most comprehensive control over somethingo Residuary – no matter how many entitlements she disposes of,

she retains a reversionary rights to those o Unlimited in durationo Independent right (not dependant on others)

Gien v Gien Meyer v Tambani Port Elizabeth Municipality case Mkontwana case

B) Public law limitations These are limitations made by state for the benefit of society or the

interests of a certain section of society Regal v African Super Constitutional Limitations

o Section 25 and Section 36o State can either deprive owners of entitlements or to

expropriate the ownershipo Section 25 embodies a negative protection of the right

(deprivation and expropriation) Limitations in ordinary statutes Characteristics

o Expropriation Act: must be done for public purpose and must provide compensation for it (etc)

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o Subdivision of Agricultural Land Act: Agricultural land must be subdivided… No undivided share can be vested in any person… No long-term lease can be made for agricultural land… No portion may be sold or advertise and no right may

be sold by virtue of a long-term lease … WITHOUT THE MINISTER

limits entitlements of an owner to grant servitude o Advertising on Roads and Ribbon Development Act:

restrictions on the use that an owner may make of his property in terms of advertisements which are visible from public roads (s9 – prohibits erection of structures that are too close to public roads; s3 – advertisements outside urban areas; s8 – cannot leave a car within 200 meters of an open road)

C) Private law limitations: Neighbour relations Nuisance

o English term: neighbour’s health, well-being or comfort is interfered with

o Right to use property is limited to allow for neighbour’s use and wants to be allowed

o Question of fact – whether there is a nuisance/annoyanceo Malherbe v Ceres Municipalityo Test is of reasonableness (for actual infliction of patrimonial

harm) – so balance of interests o East London Western District Farmers caseo Dorlun v Smitho Rademeyer caseo Regal case – until this case it was accepted that English law

was to apply, but adaptation to allow Roman-Dutch law to apply

o Main remedies – interdict and an action for damages Lateral Support

o Lateral support is natural support to protect property of adjacent land – so cannot simply decide to excavate if it limits the rights of persons living on adjacent land to you

o Whether intentionally or negligently is irrelevant o East London Municipality caseo The right is only to support to land in its natural state – support

the soil itselfo Durban City Council case o Duty of lateral support is also imposed on public entitieso Anglo Operation Ltd case – discussed different approaches

found in other laws

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Roman Law – considered wide range of remedies; consider the magnitude of damages, whether offending use was normal or ordinary, motive of the offender, relative advantage to offender, prejudice cased; but these factors cannot be used generally

Roman-Dutch Law – underlying principles may be the same; inspired by English law; Regal v African Investment; owner’s rights must take precedent over mineral rights

South African Law – in development, but influenced by English law; Demont case; Gordon case;

o Land needs to be subsidence: Sijzen v Verrinder Encroachment

o Buildings Entitlement to build on one’s land was unrestricted, but

restricted (height, type, area) Three remedies are available for encroachment

Insist on the removal of the building – cannot remove on their own, must interdict the person through court, Rand Waterraad v Bothma

May eject the builder from his or her land, must compensate the builder for the enhanced land, Smith v Visser

Encroaching owner can be made to transfer building to the latter against payment of costs and value

o Overhanging branches and intruding roots If trees are planted so closely and they overhang or

cause roots to grow, then encroachment Malherbe v Ceres Municipality Smith v Basson Can apply that the trees be cut down, or can simply do

that for oneself Drainage of surface water Party walls and fences Duty to eliminate danger

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CO-OWNERSHIP

A) Definition Joint ownership, ownership in common Two or more persons own a thing in undivided shares – various shares

need not be equal Result of contract, bequeath (Ex Parte Geldenhuys), marriage in

community of property, partnership of mixing liquids and solids, voluntary association

B) Types a. Bound common ownership

i. Underlying legal relationship forms a basis for co-ownership ii. Found in Matrimonial property and Partnerships

iii. Cannot alienate or burden undivided share without permission b. Free ownership

i. No underlying relationship – simply own it togetherii. Can burden and alienate undivided share without consent

iii. Can terminate ownership

C) Rights and Duties a. No right to destroy in respect of itb. Cannot prevent co-owner from using property reasonable and in

proportion with undivided share c. Cannot permit strangers to share in the use of the property without the

consent of all the co-ownersd. Can only use freely in ordinary and normal usee. Right to share in profitsf. Pretrious v Nerft Glass

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ORIGINAL ACQUISITION OF OWNERSHIPg. Acquirer does not derive his or her title from a predecessorh. Possession is acquired though unilateral taking of possession by the person

through appropriationA) Occupation (done through appropriation)

Wild animals, sea, res nulliso Governed by common law (has however been amended with

statute)o Originally could simply capture animals and sufficiently care

for themo But Game Theft Act has amended this - this prohibits

poaching in game farmso Original owner will always own these animals, even if stray

Abandoned goods (res derelict)o If the land or good is abandoned o The registered owner remains until he loses his ownership

(requires more than abandonment)o Local government will sometimes charge the owner for rates

and taxes, and when none of this is paid and there is a huge deficit, state will sell it in execution

B) Accession Natural Accession

o Young of animals Normally the mother of the young is the owner of the

young However, this is not the case if the mother was believed

to have been possessed by someone (Mlombo v Fourie)

Or when the mother is the object of a lease or usufruct (Morkel v Malan)

o Alluvion Gradual and unnoticeable adding of soil to the bank of a

river by the action of water (deposits of mud, silt and salt) – this property becomes that of the former owner

o Avulsion Land is torn off by the force of water and attaches itself

to another part of land The land which is washed against the other land

becomes the property of the latter owner Industrial Accession

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o Two things merge from human interaction/worko Planting and sowing

Things that are planted go with the ground (must have struck roots)

Ownership is vested with the owner of the lando Building

Permanent attachment or annexation of buildings to land become the property of the owner of the land

Question of movable being affixed to an immovable (losing its identity) – factors: nature of the thing; manner of the thing; and intention of the owner at the time of its annexation. (MacDonald Ltd case)

o Theories dealing the annexation of immovable to movable property

Traditional Approach : professed intention must be realized of the annexation; intention is the determining element if the first two provide an equivocal result; MacDonald Ltd case, intention only becomes important if the first two criteria are not decisive.

New Approach: Theatre Investments case; Melcorp case; all direct and inferential evidence as to the intention must be considered together with the nature and manner; approach criticized in Sumatie case

Omnibus Approach: Sumarie case; purpose of the annexation be of the utmost importance (if it was to make it immovable permanently is the first question); then consider – nature and function of attached thing, manner of attachment, subjective intention, conduct or behaviour of owner, any relevant factors; if there are problems with this analysis – balance of probabilities; Konstanz case

o Other forms of industrial annexation Inweaving – when the thread of one is threaded into the

cloth of another Writing on someone else’s paper Painting on someone else’s fabric Welding own property to that of someone else’s

Mixed Accessiono Acquisition of fruit (civil or literal fruit)o Before separation, fruit has no independent existence –

therefore the owner of the tree becomes the owner of the fruito But once separation – may belong to person who believes that

he is the owner of the fruit-bearing thingo Otherwise, a usufructuary and a lessee acquire ownership of

the fruits at the time they are gathered (not separated)

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C) Specification Working up of a thing (belonging to someone else) into a new product

(grapes into wine; wheat into bread) The old product must cease to exist when it is made into the new product Manufacture must be under the impression that the material belonged to

him Cooper v Jordan Must be made by the person who claims he owns the product S v Riekert Aldine Timber CO case

D) Prescription South African National Parks case Require physical control continuously for 30 years or more, with intention

to own Cannot be done as a thief or by force Does not apply to land owned by the state Need to seek out predecessor in title (whereabouts). If whereabouts are not known then can advertise that one is seeking to

have the property owned

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DERIVATIVE ACQUISITION (TRANSFER) OF OWNERSHIP: DELIVERY

A) Introduction Acquisition of possession as a result of a bilateral act or the acquisition is

an element of the final ownership May involve an actual handing over of thing or involve a change in

possession

B) Features of the transfer There must be an agreement between the parties to transfer ownership Must be a recognized form of conveyance in respect of immovables

(sometimes it takes place automatically – marriage and insolvency) Parties must intend to transfer ownership (animus)

C) Various forms of transfer Physical or actual delivery (tradition vera) Constructive/Fictitious deliver

o Symbolic delivery/clavium traditio Transferee is supplied with a symbol which enables

them to acquire physical control Property is neither handed over or pointed out S v Magwaliso

o Delivery with long hand/tradition longa manu Because of the nature of property it is impossible to

transfer the property to another person – so have sight of the object which is being transferred

Lapa v Ntsoko; AXZS Industries v AF Dreyer Requirements – transfer must place thing to be

transferred at the disposal of the transferee (allow use of right); thing to be transferred must be in sight of the acquirer with requisite intention (Groenewald v Van Der Merwe); must be able to have physical control, intention and resort of the thing; thing must have been pointed out

o Delivery with short hand/tradition brevi manu Intended transferee is already in possession of the thing

in respect of which will acquire ownership Ownership passes as soon as parties have intention to

transfer Meintjies case

o Constitutum possessorium

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Transferor retains physical control over the thing, then the mental attitude towards the thing will change

Requirements: transfreror of ownerhip has to be in possession of the thing; transferor has to cease possession in his or her name; transferee must consent to transferor retaining possession; must be a contractual agreement between the parties

EPOL Blak v Senbad Oos o Attornment

Taken from Roman Law The possession is not with the transferor or the

transferee but rather a third party (either as an agent or by virtue of a relationship between the parties)

Requirements: must be a tripartite agreement or mental concurrence; third party must actually exercise control of the property

Not confined to transfer of ownership (Payn v Yates)

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DERIVATIVE ACQUISITION: REGISTRATION OF LAND

A) Introduction

Acquisition of possession as a result of a bilateral act or the acquisition is an element of the final ownership

May involve an actual handing over of thing or involve a change in possession

B) Development of the South African system Transfer in different societies is different because of one’s definition of

private ownership Originally in South Africa was based on communal ownership, never

privatized ownership European origin:

o Ius commune – private individual ownership of lando But also provided underlying principle of publicity in transfero Eventually delivery of the deed was sufficient to constitute

delivery of land itself Colonization:

o Initially loan place grant system to released employeeso Title to land was passed on through signing of deeds

Current system is in contrast with torrens system (introduced into various countries which was properly planned) no development was seen

C) Function of the South African system Coram judice loci rei sitae – principle that the transfer must be done

before the court of the place of the transfer is still the backbone for immovable property

Transfer of the land can only happen with deeds transfer executed or attested by the registrar

S16 of the Deeds registries act – main mechanism of ensuring sufficient publicity

Structure and infrastructure of registration systemo Cadastral system

For registration of land require land to be divided into units which are properly surveyed and represented on a diagram

Duly approved diagram is the purpose of this system – describes the land, the extent and boundaries,

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description, position and relation, servitude which all affect the unity

Land Survey Act monitors this surveying of the land Every registrable land unity must have a separate

diagram Unalienated land or alienated land can only be

transferred if the diagram is attached Decisive proof of the boundaries; hence they need not

be repeated in the title deed Will probably remain intact – may however begin to

include more than only those right to land traditionally classified as real rights

May address – more reliable ways of demarcating and identifying land; more cost effect means; more cost effective means of discussing real rights

o Deeds Registries Act Primary source of information of acquiring land Regulate administrative matters in an orderly, clear and

practical fashion through publicity of their land use and control relation

o Deeds registry: office Recording and publicizing takes place at these offices Attempt to eliminate delay by having a number of

different officeso Process of registration

Registration within 5 or 6 working days after lodging (with no objections)

Ideally the entire process should take less than 14 days However, usually takes longer, due to workload and

errors of the conveyancers Process commences with the conveyancer lodging the

documents A deed is executed by a conveyancer or owner in the

presence of the registrar Upon the affixment of the registrar’s signature the

process is complete o Recording of information

Chronologically done with all the necessary information

Role players in the processo Registrar of deeds

Each heads a different office in South Africa A number of deputy and assistant registrars work too Responsible for all the legal requirements for

registration are met Make endorsements; keep the registers

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o Conveyanver Admitted attorney who passed conveyancing exams

(High court of South Africa) Owner may appear in front of the registrar for the

registration, otherwise employs a conveyancer Prepare and sign the deeds relevant Duties are not as meticulously laid out in the deeds

registries act o Notaries

Publicise it Characteristics of the South African system

o Difference between registration of deeds and registration of title

o Cadastral system of register and recording allowed for South African (measure of publicity and security of title)

o Registration of title Best system of recording Positive system Whole matter is placed under supervision of

government, indefeasibility and identity are guaranteed Features – security, simplicity, accuracy, cheapness,

expedition, suitability, completeness Torrens system (Australian system)

o Registration of deeds Negative system Registered title is not warranted State does not guarantee accuracy because of the

abstract system Pursuant, cannot sue the registrar for wrongful

registration, unless through negligence (s99 of Deeds Registries Act)

Cape Explosives works caseo Compare positive versus negative system

Persons relying on the positive system are more likely to get the correct layout, because the positive system guarantees correctness

Positive system provides more legal certainty o Classification of South African registration system

Deeds offices maintain a high standard of accuracy and place a duty of the registrar to keep the registers correct

Barclays case Not always complete or correct picture, often mistakes Doesn’t expressively provide for guarantee of transfer

of deeds

D) Basic Principles of transfer of real rights

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Essential elements of transfer o Land which related to the right must be in commerce (held of

placed under private ownership) – can be alienated, alienate limited rights, register it

o Transferor and transferee must have the necessary legal capacity

o Transferor must have the intention to transfer to the land, transferee must have the intention to receive the land (consensus between the parties)

o Must have a legal cause (causa) – usually the result of sale, exchange, donation or some similar transaction

o Only once the purchasing price has been paid can the transfer occur

Registration of new deed or documento S16 constitutes the core of the registration system o All land which is not privately owned is vested in the stateo Deed of grant (when it is first owned by private persons)o Requires the following components

1) Preparation certificate – upper right-hand corner of first page

2) Heading – describes nature of the deed (Deed of Transfer)

3) Preamble – contains information regarding power of attorney to effect transfer provided by the conveyancer or owner

4) Recital/causa – reason for transfer 5) Vesting clause – particulars of the transferee 6) Property clause – legal object to be transferred 7) Extending clause – diagram of the property and

holding title of the transferor 8) Reference of existing conditions, limitations and

servitudes 9) Divesting clause – previous owner’s particulars 10) Consideration clause – value of the property 11) Execution and registration clause 12) Supporting documents

Sequence of transfero South African system requires that a certain process be

followed, but s14(1)(b) allows for certain circumstances in which people can deviate from the process

When property follows succession Where property is vested in an heir or legatee Case of redistribution agreements Redistribution of assets on divorce or termination of

partnership

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Direct transfer is also possible – if vested in a third person

Linking of deeds and documentso Documents are linked with endorsements o Registrar signs an endorsement of a deedo To ensure that there are not excess of double documents

E) Significant and future of the system Allows the principle of publicity Dual function – indicates act of delivery in derivative acquisition and

provides a public record of real rights Endorses categorization of rights to land

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PROTECTION AND LOSS OF OWNERSHIP

A) Introduction An owner has the right to alienate his or her property A person who is a thief or not the owner may transfer the right – acting in

bad faith Protection is based on assumption that the owner exercises his control

over his property People lose ownership when they transfer it to someone else Different kinds

i. Real – restore the thing to the owner or remove infringement of entitlement

ii. Delictual – compensate owner for any loss or damages from wrongful actions

iii. Enrichment – compensate for loss or damage caused by another person who was enriched by the damage

B) Real remedies Rei vindication

i. Application1. owner is entitled to recover from any person who retains

possession without consent2. Chetty v Naidoo3. right of pursuit to get the property back4. real action for movables and immovables5. requirements

a. must prove ownership burden of proof rests of owner, through a

balance of probabilities – best proof is title deed; however, burden rests on defendant to proof he can hold the property

b. thing was in the possession of the defendant at the commencement of the action

cannot simply have lawful control, must unlawfully possess it – as a result of theft or breach of contract, etc

c. thing is still in existence and clearly identifiable must still exist, if it has been destroyed can

claim delictuallyii. Defences

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1. Loss because of prescription; property is no longer in existence; limited rights because of servitude; Ndlovu and Brisley cases

2. PIEa. Illegal occupant one who occupies without express

or tacit permission of the ownerb. This act was not promulgated to interfere with

normal tenant/landlord disputes c. Not for agreements that have now lapsedd. Only applicable to vacant land e. Absa Bank v Amod

3. The Constitutiona. Right to access to adequate housing (s26(3))

iii. Restrictions1. Estoppel

a. Owner entrusted the property with the other party to possess, leads a third party to believe that the property belongs to the second party

b. Requirements Must be representation by the owner (by

conduct or other) that the person who disposed was the owner or entitled to own it

Representation must have been made negligently

Representation relied upon the person raising estoppel

Reliance upon the representation cause his or her action to his or her detriment

c. Electrolux v Khota 2. Statutory restrictions

a. S4 of PIE prohibits application when the Act is applicable

3. Other restrictionsa. If the person has gained the property in good faith b. Property sold at judicial sales cannot be vindicatedc. If the court has awarded property to a specific party

Actio negatoriai. Roman Law

ii. Real action against person who seeks to exercise servitude which they don’t have or one who exceeds the boundaries of his servitude

iii. Available now to infringement of property – can remove unlawful structures erected; declaration of rights; damages

Interdictsi. Final

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1. Given on agency basis – want something done or refrained from

2. Requirementsa. Clear right to the propertyb. An injury actually has been committed or

reasonably apprehendedc. No other relief is available

ii. Structural 1. Direct violator to rectify the breach of fundamental rights

under court supervision2. Requirements

a. Court declares the respects where governments conduct falls short of constitutional obligation

b. Court orders government to comply with the obligation

c. Court orders to provide report setting out what steps have been and will be taken to ensure compliance

d. Application is given opportunity to respond to the report

e. Matter is enrolled for a hearing and if court is satisfied will become and order of court

3. City of Johannesburg

C) Delictual remedies Financial loss or damage to property Actio ad exhibendum

i. Personal action instituted in conjunction with Rei vindicatio to compel possessor to produce the item

ii. Obsolete in modern lawiii. Brought against someone who fraudulently ceased to possess to get

the market value of the thingiv. Requirements

1. plaintiff was owner when it was disposed2. intentional act of dispossession3. acted in bad faith 4. damage was suffered

Actio legis Aquiliaei. Loss or damage of a thing of the owner negligently or intentionally

Condictio furtive i. Owner can bring action against their and heirs to recover stolen

things with fruits for highest value since theft ii. If rei vindactio is available must be used (this is an alternative)

iii. Must have been the owner of the good

D) Enrichment Someone’s estate has been enriched at the cost of the others

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Compensate for damages and loss caused by the other

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