LAW OF PROPERTY

• The Principles of THE LAW OF PROPERTY IN SOUTH AFRICA

Mostert H; Badenhorst P Pienaar J & others. Oxford Univ Press.
Cape Town.
. Introduction to the LAW OF PROPERTY. Van der Walt & Pienaar G J.
Juta & C0. Cape Town.
Introduction
• We look at principles of PL as applied here in SA. It is an abstruct discipline. It is a battle ground
for socio-economic & political issues.
• Property refers to a particular object.eg, car or house.
• In PL we protect relationships as used in every day language. We look at the btwn the person and
others and also the object.
• In legal technical sense property means rights; rights of people in or over certain objects or
things.
• Property means right of ownership in a legal object or can refer to the legal object to which the
right of ownership refers.
• It denotes legal relationships that qualify for constitutional protection.
• As a child you assert your claim with “my toys”, this behavioural pattern is formalized here in PL.
• PL harmonizes individual interests & control relationship btwn people & objects.
• It protects private interests in property.
• PL protects both tangible & intangible objects and those that have sentimental values.
Sources of law of things.
• Traditional Sources: 1. Roman Dutch law/ common law.
• 2. Statutory law/ legislation. (Sectional Title Act 95 of 1986)
• 3 Case Law/ precedent eg Ex parte Geldenhuys 1926 O. PIE Act

• Current Sources . Above and below.

• 4 Customary Law. Bhe case 2005 CC held to be unconstitutional

the male primogeniture as it discriminate against women and extra
marital children.
• 5 Constitution.

• Look at definition of terminology in p7 of van der Walt.

Characteristics of a thing
• 1. Corporeality. It is tangible & occupies space. Can be observed with
any of the 5 senses. Light, sound & electricity are not. In Ben-Tovin 2001 C
it was held that shares in a company form shareholders estate & can be
attached & also in Graf v Buechel 2003 SCA. Read also Telkom v Xsinet 2003
SCA.
• 2. External to humans. Human organs can be donated but not for
trading. Only human hair can be sold as property. Human Tissue Act
65/1983
• 3. Independence. To exist separately. Air can be property if contained in
cylinders. Land must be demarcated before it can be property.
•4 subject to juridical control. Sun, moon & sea cannot be things as they
cannot be susceptible to human control.
•5 Useful and valuable to humans. Dead leaf can be useful as compost.
Classification of things
• 1 Negotiable and non- negotiable things (natural resources & things owned by the state. Read Mostert pages
28-31. Latin terminology and meaning thereof.
• 2 Singular and composite. Single things could be a ball, car but composite are
single things that have lost their independence eg car, house. Composite thing
will be formed by a) principal thing b) Accessory thing c) Auxiliary things In
Senekal v Roodt1983 T it was held that bar stool forms part of the bar. d) fruits-
can be natural –off spring of animal or civil fruits like rent. Khan v Police 1991 (3)T
• 3 Movable and immovable things.(Corporeal or incorporeal) Movable things
are transferred by delivery whilst immovable is by registration. Real security for
immovable is by registration of mortgages whereas in movable it is by a pledge.
Both can either be corporeal or incorporeal eg shares or goodwill
• 4 Fungible and non-fungible things. Fungible things are referred to according
to their weight, measure or number whereas non-fungible have a specific
characteristic eg painting, hand woven cloth.
Classification cont.
• 5 Consumable and non-consumable things. These are depleted by
normal use like food & petrol. Non –consumable would have normal
wear and tear like a house & car. Money is consumable.
• 6 Divisible and indivisible things. Can be divided in small
components like flour or wine. Painting (picture)or a chair cannot be
divided.
Rights. Chapt 3.
• A right in a thing belonging to oneself is called a real right whilst if the thing
belongs to another person that right is called limited real right. The thing is
the object. Right can be forced against the whole world.
• A right against a person is called creditor’s or personal right. This could be
that a person must do something or refrain from that, pay someone money
or give that person something. Here the object is the action or
performance. Right can be enforced against a person or group of people.
• Real right is at times limited as in the case where there is a usufruct.
• Registration of personal right is restricted to circumscribed circumstances.
• There is a difference in the way in which rights are acquired, transferred,
exercised and protected.
Rights cont. courts approach to distinction
btw real & personal rights
• Ex parte Geldenhuys 1926 0. Mutual will by husband & wife. Eldest child
when reaching majority will divide farm into equal portion, lots to be
drawn & one with house to compensate others. Co ownership here has
real rights. Time & manner created creditor’s rights that are not
registerable.
• The claim from the one with house. Is it real or personal right?
• Owners right to sub division is diminished above. All co-owners would be
affected as they can only do it once eldest son reaches majority.
• Payment only affects child with house. Its creditors right & not registerable.
But because it was closely connected, it was registered by way of an
exception.
• Also the court had to take into consideration of the testator. This
(intention) must not override law.
Courts approach. Dominion test
• Lorentz v Melle 1978 T. Farm bought & co owners had agreed that if one
sells for development then profit will be shared in half.
• Conditions here were in a contract. Both above & here was to pay money,
& in this case the condition was already registered. This clause was a
subtraction from the dominion test & did not affect owner’s right. Court
here said that an obligation to pay money could never constitute a real
right. Court had to override the intention of the parties.
• Pearly Beach v Registrar of Deeds 1990 C. here the Lorentz decision was
rejected as obligation to pay sum of money could constitute limited real
rights. This has been criticised by various authors claiming that burden on
land will create unnecessary financial burden upon ownership of land. In
this case, intention of the parties was taken into consideration by the court
POSSESSION. Chapt 12 van der Walt & 4 in
Mostert.
• It is when there is physical control(detention/ detentio/corpus) and person
should have mental attitude of the control (animus possidendi). This
includes the consciousness of the control. 2people may have possession a
thing simultaneously eg. 2 sisters owning a computer to use for studies.
• One can have physical control but we are unable to know the mental
attitude.
• Possession involves control mostly of tangible things.
• Person must have legal capacity to possess.
• 1 person picks up a lost pen res deperditae(thing) he will have bare
possession of the pen /jus possessionis. Person who picks up the pen can
defend his entitlement/possession.
Possession cont.
• An owner may cease factual possession without losing right of
possession. This would be in case when you loose your book & is
picked up by someone else who now has possession and might want
to keep it.
• The right of possession cannot be exercised by person who picked up
the book.
• Control denotes actual physical power over a thing whilst incorporeal
things it denotes ability to exercise such control.
• Control must be lawful.
Elements & Protection of possession
• Physical control need not be exercised continuously Wegemoed v
Coetzer 1946 TPD.
• De Beers v Zimbali Estate Management Ass, 2007 (3) SA 254 (N).
• MANDAMENT VAN SPOLIE. It is robust and speedy
• Meyer v Glendinning 1939 CPD 84 & Yeko v Qana 1973 (4)SA 735 (A)
• Administrator Cape v Ntshwaqela 1990 (1) SA 705 (T)
• Zinnan v Miller 1956 (3) SA 8 (T)
• Telkom SA v Xsinet LTD 1995 (1) SA 309 SCA- Contractual rights cannot
be enforced by above remedy. In Du Rant v Du Rant 1995 (1)SA 401
(o) it was held, on telephone cut, that spolation had occurred.
Spoilation is used to restore lost possession. It is
used to deter people from taking law into their
own hands. Muller v Muller 1915 TPD 28 @ 30.
• One must check if there is existence of sufficient physical control, eg.
Plant crop on land or graze animals on land; keys for your car together
with registration papers.
• Factors or requirements for spoliation.
• A) legal capacity
• B) be conscious of physical control of the thing
• C) have intention to benefit
• D) was in peaceful and undisturbed possession when deprived.
• All the above factors are called facta probanda.
• Spoliation is against the spoiler only.
• Thing has to be put back into its original condition. This could be a positive
act also like in the case of Miller where electrical wires were cut and panel
removed. Court ruled that connection must be restored and panel
replaced.
• Spoliation is a remedy against breach of peace. Merits of rightful owner are
not looked at.
• It could be brought on urgent application and decided on affidavits.
• Applicant need to only prove that he was in peaceful & undisturbed
possession when respondent unlawfully deprived him.
• Quasi-possession- (incidental use of water by cottage dwellers) see Zulu v
Min of Works KZN 1992 (1) SA 181 Drn and Naidoo v Moodley 1982 (4) SA
82 (T) (use of electricity).
Defences available to respondent
• A) attack facta probanda
• B) challenge locus standi of applicant
• C) respondent was not the spoliator
• D) unreasonable delay in bringing the application
• E) restoration is impossible or in hands of 3rd person. Rikhotso v
Northcliff Ceramies 1997 (1) SA 526 (W).
• Action were lawful and also counter spoliation. De Beer v Firs
Investments 1980 (3) SA 1087 (W). Applicant put new keys &
respondent in-turn did likewise.
Possessory action
• When the spoliator has disposed thing to a 3rd party, owner uses
above action. Oral evidence is adduced,
• Plaintiff has to prove that he is entitled to be in possession and his
right is stronger than that of the defendant.
• That the defendant is in control of the thing and is responsible for its
removal.
• The plaintiff may be awarded to recover the thing; or its value; or
both if it is damaged.
• DEFENCES AVAILABLE: defendant could say he has stronger
entitlement to possession (ius possidendi).
INTERDICT
• Where possession) is merely disturbed or anticipated to be disturbed, an urgent
interdict is made. It can order a particular conduct to be performed or can
prohibit a particular conduct.
• Proceedings are on affidavits only, no oral evidence is heard.
• The interdict may be temporal or final.
• A) temporal interdict- the applicant must prove a prima facia right
• B) on final interdict there must be convincing proof of a clear right
• C) proof that the respondent has committed a harm(or intends)
• D) irreparable damage will result if harm were to continue
• E) interdict is the only suitable remedy.-Victoria A Waterfront v Police Western
Cape 2004 (5)BCLR 53 C. where it was said that people cannot be prevented from
entering Waterfront but they must dissist from their behaviour. The people were
interdicted from their unlawful behaviour.
Interdict cont.
• An order is issued that requires respondent to discontinue his (intended)
conduct immediately.
• Date is set to make order final, especially if application was ex parte.
• Defences:- the respondent can challenge facta probanda and can also
assert that he has a better claim.
• When is no longer be recovered, the applicant can institute delictual action
for compensation for patrimonial loss.
• The claim would be for value of the thing and any subsequent damage
suffered. Action proceedings are under lex Acquilia.
• One must prove patrimonial loss in the thing; that interest is harmed.
• Respondent can challenge facta probanda.
OWNERSHIP. Chapt 5.
• Different rights in property are recognised and protected in SA.
• Because of political ideologies and systems, there is a distinction between capitalism,
socialism, communism and African communalism
• Definition of ownership is said to be the real right a person has over a thing : Gien v Gien
1979 (T) where it is said that the unlimited freedom over a thing is partially true as there
are limitations.
• Customary rights and freedoms are now constitutionally protected.
• Entitlements of an owner:
• A) to control
• B) to use
• C) to encumber
• D) to alienate
• E) to vindicate
Limitation of ownership in the public interest

• An owner cannot do whatever he wants to or in his property, his rights

might be limited in the interest of others (the community) see Diepsloot
Residents Ass vAdministrator Transvaal 1994 (A) where it was held that
interest of residence are subject to that of informal residence and they
should tolerate the smoke, dust, pollution and noise (nuinsance).
• In PE Municipality v Various Occupiers 2005 CC it was held that interest of
squatters has to be catered for in terms of PIE Act of 1998.
• The CC imposes obligations to courts to look at interest of children, elderly,
vulnerable & single parents before they are evicted.
• An owner can be prevented from building in his land due to nature
conservation. Petro Pops v Barlow 2006 (W) refused to build petrol station.
• Ownership without entitlement is impossible.
CO- OWNERSHIP
•The thing is owned by two or more people in undivided co-owner shares
•Co-owner will be only able to deal with his undivided co-owner share
•Ways to establish co-ownership.
•1 Inheritance. Testator leaves a thing to 2 or more people.
•2 conclusion of marriage in community of property
•3 Mixing (commixtio) mixing of 2 movable things to create new thin
without permission from the owners.
•4 Estate holdership. When surviving spouse continues with heirs
•5 Voluntary association without legal personality. Eg rugby clubs
•6 Contract. 2 people agrees to buy a thing jointly in undivided shares.
Rights and obligation of co-owners.

• 1 Alienation and encumbrance. To give consent before thing can be alienated.

Van der Merwe v Van Wyk 1921 EC.
• 2 Use. Both to decide on how to use. Use to be according to his size or share.
Look at whether use is unreasonable and for the purpose to which bought for.
• 3 Profit , income and fruit enjoyment. Sauerman v Schultz 1950 (o) enjoy
profit even if initiated by one person.
• 4 Maintenance and expenses. Have to contribute to expenses.
• 5 Right to veto. Decision of majority not binding. Pretorious v Nefdt
• Remedies available:
• 1 Damages or division of profits
• 2 Interdict
• 3 Subdivision
LIMITATION OF OWNERSHIP. Chapt 6.
• Owner does not have absolute and unlimited entitlements regarding
his property. There are several limitations: namely statutory, creditors
right, limited rights of 3rd parties, provisions of neighbour law.
• STATUTORY LIMITATIONS
• Taxation- Property Tax; Transfer Duty Tax, M/Vehicle licence etc.
• Immovable property Laws- Restitution of Land Rights Act 22 of 1994. Expropriation Act 63 of
1975. Physical Planning Act 125/1991. PIE Act 19/1998.
• Minister can allocate specific use of land for development or he can prevent use of land
specifically through Environment Conservation Act 73/1989. Health Act 63/1977. Housing Act
107/1997. Read Corium Pty Ltd v Myburg Park Langenbaan 1993 (1) SA 853 C.
• CREDITORS RIGHTS OF 3RD PARTIES AGAINST OWNER
• Only enforceable against the owner personally and do not encumber the property.
Limited (cont)
• LIMITED REAL RIGHTS OF 3RD PARTIES IN THE PROPERTY
• Can be limited by rights of other people may have regarding the thing.
• Limits ownership since it is a burden on the thing.
• Enforceable against owner and his successors.
• It is created by registration and in the case of movable property, by delivery of the thing eg real servitudes
such as right of way or grazing rights.
• NEIGHBOUR LAW. (NUISANCE LAW)
• Limited against and in the interest of owner in the adjacent land.
• Purpose is for harmonisation and to balance conflicting ownership interests. Tolerance of each other.
• No person must prejudice or burden another or prevent the use and enjoyment of his property. If he does, he
acts unreasonable. Gien v Gien 1979 (2) SA 1113 T. Cracking sound noise to scare monkeys was prohibited.
Leith v PE Museum Trustees 1934 where seals were prohibited as they make noise in the surburban residential
area.
• Owner will have recourse through delictual remedy.
• Where there are encroachments from buildings and roots of trees & plants, the ff remedies are available: a)
Removal of roots. B) Compensation. C) Transfer of encroaching section and payment of compensation
to each other.
cont
• Branches, leaves and roots have to be cut off and removed. Neighbour to
be given time to remove them or it will be by order of court.
• Natural flow of water.- low lying area to accept water from high lying areas.
• Landowners to eliminate dangers originating from their land eg. Cattle
straying on the road, owner liable. Enslin v Nhlapo 2008 SCA where held
that defendant should have locked gate. But a neighbour who electrifies
wall for safety is not unreasonable & does not create a dangerous situation
Dorland v Smuts 2002 C.
• Damages can be claimed from land owners in case of fires which originates
from their farms
Acquisition of Ownership. Chapt7.
• ORIGINAL ACQUISITION
• Acquirer gains ownership by operation of law, any previous existing ownership is terminated. Even
limited real right can be acquired eg grazing of cattle in neighbour’s land for 30yrs.
• It is important that the new owner asserts authority & public to understand as such.
• Elements used are physical control (corpus) and appropriate mental attitude (animus). Will and
intention of previous owner not important
• 1. APPROPRIATION (OCCUPATIO)
• When property is capable of being in private hands, but has never been owned, it is res nullius eg
wild animals. Res derelictae is property previously owned, but abandoned, Wreck & Salvage Act
94/1996 governs ship wreck. Res deperditae (lost thing) is not open to appropriation
• There must be sufficient and physical control, this depends on each case. Under common law
ownership is not acquired by the unlawful capturer, but see Sv Frost & Noah 1974 (3)
• Game Theft Act 105/1991 prohibits appropriation of game without permission of owner/contoller
Acquisition (cont)
• 2. ACCESSION (ACCESSIO)
• It is joining items that belong to different people. Owner of principal thing becomes owner of accessory, because
accessory looses its legal identity & its owner may claim compensation. Khan v Min of Law & Order 1991 (3)SA 439 T.
Principal & accessory must be identifiable. The joined thing must be permanent and not easily separable.
• A) Natural accession
• i) Young animals
• Ii) Alluvion- adding of soil to piece of land by water through mud, & silt
• Iii) Avulsion- extension of piece of land added through flooding.
• B) Industrial accession
• Conversion of 2 things to 1 eg building on land
• Planting & sowing- it is a combination of human effort & natural process. Omne quod implantur solo cedit. All that is
planted in the soil accedes to the soil. Owner of soil owns the plants, as plants draws nourishment from the soil. Secretary
for Lands v Jerome 1922 AD 103.
• In nursery the plants do not belong to land owner but to planter as the purpose was to remove plants.
• Building- read Macdonald LTD v Potch Dairies Ltd 1915 AD 454. Attachment must indicate permanency. Nature and
purpose of movable, manner & degree of attachment and intention as at time of attachment. Standard-Vacuum
RefiningCo v Drn City Council 1961 (2)SA 669 A.
Acquisition (original-cont)
• 3. MANUFACTURE/SPECIFICATION- use of things (from others) to form a new product
• If there is an agreement to use, then it binds. Eg grapes to wine. New product must be
created which cannot revert back to original form. Maker will own new thing, but
materials not to belong to him, & also no agreement to use of material.
• 4. MINGLING (FUSING) & MIXING.-(confusio et commixtio)-
• Mixing without consent things of equal value to become inseparable (liquids) or
indeterminable (solids). The new thing becomes owned in undivided shares.
• 5.ACQUISITION OF FRUITS.- upon separation, fruits acquires separate legal entity.
• Owner of sheep is owner of lamb.
• Natural fruits when separated are distinct and also as civil fruits eg rent.
• 6.FORFEITURE & CONFISCATION- from crime gains. Act 68/1969. It must be used by or
with the consent of the owner. No compensation is paid. The aim is to deprive criminals
of proceeds of their crimes NPA v Rebuzzi 2002 SCA. Drug Trfficking Act 140/1992 and
Prevention of Organized Crime Act 121/1995
Acquisition –original (cont)
• 7. PRESCRIPTION. After 30yrs. Prescription Act 68/1969 (18/1943)
• Open as if he were the owner & uninterrupted possession for a long time (30yrs) can lead to
acquisition by prescription. Physical control & mental attitude must be satisfied. Intention of
owner to be determined objectively. Hayes v Harding Town Board 1958 (2)SA 297
• State land cannot be acquired through prescription State Land Disposal Act 48/1961 s3.
• Requirements are that: a)there must be Possession b)without force c) openly d) without consent
e) adverse use Malan v Nabygelen Estates 1946 (A). f) For a period of 30yrs, uninterrupted.
• In the 1969 Act requirements are: a) possession b) use openly c) as if he were the owner d) for a
period of 30yrs. Interruption is now allowed and years are added to the period after 30 years.
• 8. EXPROPRIATION.- ownership is acquired by the state through operation of law. Previous owner
involved to some extent to determine compensation. It is in public interest & confirmed in B/R.
• 9. PASSING OWNERSHIP. Ownership passes without previous owner co-operation.
• Limitations to previous owner are passed also.eg Insovency and on company liquidation.
• Assets passes to Master of High Court and to curator or to liquidator.
Acquisition (cont.)
• DERIVATIVE ACQUISITION
PROTECTION OF OWNERSHIP. Chapt 8.
• Remedies available to owner where ownership is infringed.
• 1 REAL REMEDIES- Restores physical control
• B) Rei Vindicatio.- Owner can recover thing from controller even if controller received thing in good faith and
had paid for it. Owner need not compensate controller for money paid to 3rd party. Dreyer v AXZS Industries
Ltd 2006 SCA. Ubi rem meam invenio, ibi vindico (where my property is found, there I vindicate it,) ie. An
owner can claim back his property wherever he finds it and from whosoever has it. Chetty v Naidoo 1974
(3)SA 13 A. The owner cannot loose ownership without consent. Grosvenor Mts v Douglas 1956 (3)SA 420 A
• Vindicatio can be instituted against any person who controls the thing without owners consent. In
immovable property it will be eviction order- Pres of RSA v Modderklip Boerdery Ltd 2005 CC held that
landowner need not leave eviction to state but landowner has an obligation to evict unlawful occupiers.
Vindicatio is restricted by s26(3) of Const. PIE Act comes into play, see Ndlovu v Ngcobo 2003 (1)SA 113 SCA
• It is only when there is fraudulent alleanation of the thing, after institution of claim, that u can use above
remedy for damages.
• Requirements to be successful:
• Owner to prove ownership of the thing- proof on balance of probability. Proof by means of original means of acquisition is
ideal.
• Only an existing and identifiable thing can be claimed. Paint applied to the wall cannot be claimed as it has acceded to wall
• Property to be in control of defendant when action is instituted. Melape v Min of Safety 1996 W and Chetty v Naidoo 1974.
Protection (cont)
• Defence available to defendant.
• 1 Can prove that claimant is not the owner
• 2 Thing is destroyed or unidentifiable.
• 3 Not in physical control when action was instituted.
• 4 He has real rights or creditors rights which is still valid.
• 5 Has lien over the thing.
• 6 Is an occupier in terms of PIE Act or Land Reform Act.
• 7 Relevant circumstances- from Sec 26(3) of Const. Common law position has not been changed by
Constitution, read-Brisky v Drosky 2002 SCA. Ndlovu v Ngcobo and Bekker v Jika 2003 SCA where the court
said that there must be a balancing of owner’s rights & that of unlawful occupier and eviction order only in
just and equitable circumstances.
• 8 ESTOPPEL- when the owner of the thing (i) intentionally or negligently (ii) created impression that
ownership is transferred (iii) Controller relying on this impression, exercises physical control (iv) to his
detriment (v) For estoppel to be sustainable, not to be unlawful or against public policy. Electrolux v Khota
1961 W; Grosvenor Mts v Douglas 1965 A; Kia Mts v Van Zyl & another 1999 O; ABSA T/A Bankfin v
Jodashe Auto CC 2003 SCA and Oackland Nominees v Gelria Mining 1976 A.
Protection cont.
• 2. ACTIO NEGATORIA ( Fallen into disuse)
• Was aimed at protecting the exercise of an owners entitlements. Requirements to be
able to institute Actio negatoria: (i) to be instituted by owner only (ii) instituted as a
result of infringement entitlements of owner (iii) instituted on both movable and
immovable (iv) Result in declaratory order or damages awarded.
• 3. INTERDICT
• Requirements:- i) Proof of a clear right ii) Proof that responded infringed upon right
unlawfully iii) Reason that there is no other alternative remedy.
• 4. DECLARATORY ORDER
• The court will set out rights and obligations of parties to a dispute before actual
infringement.
• Requirements;- i) Proof of actual, existing obligation to property. ii) Proof of existing and
real dispute about right or obligation in question. iii) Convince court why it must be
involved in the dispute.
Delictual action
• It is a claim for compensation for patrimonial loss.
• You claim for the value of the thing & any subsequent damage
suffered
• Claim by action proceedings (long form) under lex Acquilia
• Plaintiff must prove that he has interest in the thing or in its control,
that the interest has been harmed, which has resulted in patrimonial
loss.
• An award/ compensation for damages suffered may be made by court
• The defendant can challenge facta probanda in his defence.
Delictual remedies- cont.
• 1. Actio ad exhibendum. In RMS transp v Psicon 1996 T, the following requirements were
tabled: a) the thing must be destroyed / alienated on purpose (b) it could be destroyed in any
other way c) Controller must have been mala fide d) remedy available to owner of destroyed
property. Owner entitled to recover market value of thing from the mala fide controller.
• 2. Condictio furtiva- instituted against thief or thief’s heirs. It is when the thing was destroyed
by accident or against his will.
• 3. Actio legis Acquiliae- When the thing is damaged or destroyed in intentional or negligent
way, owner can claim damages from person who caused the damage. Delictual liability can arise
from either an act or an omission. Van der Merwe v Munic van Warrenton 1987 NC. A Claim for
pure economic loss, you use Acquiliae. Municipality failed to clean furrow & it flooded farm.
Farmer claim for loss.
• ENRICHMENT ACTION.- Claim amount with which the controller’s estate has been enriched
without cause/benefit.
• Delictual remedies differ from real remedies in that they are actions against a person to claim
compensation for damage or injury to owner as a result of such a person’s actions.
Servitudes & restrictive conditions
• It is a limited right granted by the owner to another certain specific
entitlements (use & enjoyment). This limits the use by the owner.
• It is (it confers) a limited real right in the property of another.
• A person who alleges existence of a servitude, must prove it on a balance
of probabilities. Servitude burden the property. (immovable)
• Holder must exercise the servitude so that as little inconvenience is caused
to the owner.
• 2 kinds, which are praedial and personal servitudes. The latter vests in a
particular person only. It ends when owner dies. With juristic person it
lapses after 100yrs. The former runs with the thing (land) perpetually.
Praedial servitudes- requirements
• Requires 2 pieces of land.
• Servitutal benefits cannot be severed from the land to which they are attached.
• 2 tenements must be close enough to each other to enhance use & enjoyment. You may have to have
intervening other servitudes as well to ensure access.
• Must be used on a permanent basis by whoever owns the land.
• Servitude does not allow servient owner to do/ perform something see. Schwedhelm v Hauman 1947.1 SA
127 E.
• Praedial servitude are indivisible. If there is sub-division of land the owner will need to comply.
• Servitude must be exercised properly & carefully to cause little inconvenience.
• Rural & urban praedial servitudes.
• Classified as above according to use of land. In rural it will encompass : right of way; water servitude; &
grazing servitude. Urban servitudes will incorporate rights of support; rights to encroach on neighbouring
land and negative servitudes to preserve a view or source of light.
• Way of necessity . This servitude is imposed by the court & do not need owner’s consent. The owner of a
land locked place may request reasonable & sufficient access to a public road. See Van Rensburg v Coetzee
1979. 4.(A). Illing v Woodhouse 1923. NPD 166.
Personal servitudes-
• This is a limited real right that is tied to the holder thereof. It cannot extend beyond the lifetime of holder & cannot be transferred
to a 3rd party. Usufruct (use & enjoy another’s property & draw its fruits); right to use (only use property & no fruits) & right to
occupy a house (Habitatio). As the usufructuary is nt the owner, he may not alienate the property, may not consume it, or destroy
it. May not alienate his right in the property. See Durban City Council v Woodhaven 1987 3.(A)
• Consumable property cannot be subject to usufruct since usufructuary must be able to give property back to the owner.
• Usufructuary may claim compensation for expenses necessarily incurred for the preservation of the property.
• Praedial servitudes may be granted in perpetuity but may also exist for a specific period or until specific condition is fulfilled. May
be created by a state grant- over its land.
• May be created by statute eg sec28 of Sectional Titles Act 95/1986. Servitude is also created by court order.
• Extinction or termination.
• May be terminated by agreement. May be abandoned- proof of intention to abandon is necessary
• May expire because of non-use. It expires after an uninterrupted period of 30 years.
• Servitude terminates if property to which it relates is destroyed. Expires at the end of the stipulated period.
• Will expire upon death of a personal servitude holder.
• May expire upon fulfilment of a resolutive condition (eg remarriage of the servitude holder)
• Enforcement.
• May be through declaration order. Interdict. Mandament van spolie (restores lost use). Action through damages.
Real Security
• In our daily lives we borrow money and creditors will want protect
debt given by way of security. It can be personal security or real
security.
• Personal security gives right against a third person to settle debt.
• Real right like pledge & mortgage give limited real right in property
that belongs to the debtor.
• Where the debtor is unwilling to pay, a court order will be obtained
issuing a writ in execution. –call for sheriff to attach debtor’s assets.
• When the debtor is unable to pay, the court will declare him insolvent
Categories of real security rights
• Express R S R (by agreement)= Pledge; mortgage; notarial bonds
• Tacit R S R (by operation of law)= lessor’s tacit hypothec; credit grantor’s hypothec; liens; statutory security rights.
• Judicial RSR (court order) = judicial pledge; judicial mortgage.
• First created real security takes precedence or ranks number 1 & unsecured creditors claim from free residue.
• Real security helps creditor to distinguish btn debtors who are creditworthy.
• It forces debtors to prioritise his obligations to the creditor.
• Security confers on creditor the power to prevent debtor from disposing security item ( prevents creditor’s rights & interest in that
item eg pledge)
• Security rights are accessory in nature as they are created when there is a principal debt. If principal debt is invalid, then right is
invalid & voidable see Kilburn v Estate Kilburn 1931 AD 501.where husband passed notarial bond on his movable property in
favour of his wife. Appellate Court rejected this.
• Security is indivisible, secures whole debt including interests and costs to recover debt and it prevents use and enjoyment by the
creditor.
• The security object may be movable or immovable; single or collection of things; corporeal or incorporeal (eg servitude).
Mortgage as security
• Mortgage is a limited real right on an immovable property created by registration
in the Deeds Registry.
• The mortgagor is usually debtor or holder of right in an immovable property and
the mortgagee is the creditor.
• Immovable property to be in existence at time the mortgage is created & must be
res in commercio.
• Specific description of property is required.
• Incorporeal immovable property like usufructuary interest may be mortgaged.
• The act of registering the bond is referred to as act of hypothecation
• Bond to be prepared by conveyancer who practises in the province and signed by
owner of immovable property or his duly authorised conveyancer.
• It comes into existence when Register has attested (signed as witness) & recorded
in register & endorsed on the title deed of the property.
• Mortgage agreement must comply with all requirements for a valid contract. It must also comply
with National Credit Act 34 of 2005. read Thienhaus NO v Metje & Ziegler 11965(3) SA 25A.
• There are no standard forms prescribed but over time banks have developed forms that will
include the following information on the form:
• 1. identity of parties and description of immovable property.
• 2 mortgager to unconditionally acknowledge debt to mortgagee
• 3 the amount is clear. 4 . The finance charges set out
• 5 nature and origion of the principal debt set out
• 6 mortgagee not to use & enjoy mortgaged property nor take its fruits
• 7 the repayment of capital. 8. foreclosure possibility 9. maintenance of property 10. domicilium
citandi et executandi of mortgagor.
• 11 There could be an agreement that when the principal debt has fallen due, the mortgagee can
take over the property at a specified fair price. National Bank v Cohens Trustee 1911AD 235; graf
v Beuchel 2003.4 SA 378 SCA.
Operation of mortgage bond
• Mortgagee has preferential claim to proceeds of sale in execution of
mortgaged property. See Roodeport Gold Reef v Du Toit 1928AD @71
• Mortgagee is secured creditor when debtor is declared insolvent, only a
lien is ranked higher than a mortgage. Where there is one mortgage, each
is ranked according to the date & time at which was registered.
• Mortgagee right to sell property may infringe right of access to adequate
housing guaranteed in s26(1) of the Constitution. See Std Bank v
Saunderson 2006 SA 264 SCA & ABSA v Ntsane 2007 3SA 554 T. Also even
when property is sold provisions of PIE Act will kick in.
• Mortgagor cannot alienate property or burden it with a servitude without
written consent.
Types of mortgages & termination thereof
• Kustingsbrief: used for immovable property, a house
• Covering Bond: Provides security for payment of future debt
• Particpation Bond: provides security for funds various individuals have invested in
a company that runs a collective investment scheme. The bond is registered in
company’s name but it is individuals the real security rights not the company.
Collective Investment Scheme 45/2002.
• 1 Bond is terminated when principal debt is paid.
• 2 through a compromise or merger, prescription novation, release, set-off.
• 3 By operation of law. 4.When the property is destroyed.
• 5 when mortgagee acquires ownership of the mortgaged property
• 6 When specific period of time or a resolutive condition is fulfilled
• 7 Could be terminated by agreement 8. When it is sold in execution.
Pledge
• Pledge is a limited real right over movable property. It is created by delivery of the property. Pledger is the
debtor and he must be the owner of the property. The pledgee is the creditor.
• Pledge of incorporeal movable property occurs when pledger cedes claim in form of personal right to her
own creditor as security for debt.
• Pledge needs to comply with all requirements for a valid contract but need not comply with any formalities.
• A valid underlying principal debt is essential. It is accessory in nature.
• Parties may agree that when debtor fails to pay the pledge may be bought at a fair price by the creditor.
• If the pledgee gives up possession of pledged object, the pledge is terminated.
• Pledgee is not entitled to use & enjoyment. He is obliged to take reasonable care of pledged property.
• Pledgee is entitled to protect his possession by means of an interdict and if expended money on property, he
must be refunded by pledger before pledger receives his property.
• Pledge terminated as is the case with mortgage bond. Also when the pledger loses ownership of pledged
property or he voluntarily gives possession of pledged item to a third party.
Notarial bonds
• It refers to a bond registered over immovable property in the Deeds Registry & attested to by a notary.
Requirements of mortgage apply to notarial bonds.
• General notarial bonds apply generally to all movable property whilst special notarial are creatures of
statures & subject to Security by Means of Movable Property Act 57/1993.
• Holder of general notarial does have a limited right of preference following sale in execution.
• Claim must be perfected- bond holder must take possession of movable property like in a pledge. A pledge
will come into existence when he does this & may not be done without consent of debtor or court.
• Special notarial bonds must be specially enumerated in the notarial bond & is deemed to have been
delivered to bond holder in pledge. Ikea Trading v BOE Bank 2005 2SA 7 SCA.
• Lessor’s Tacit hypothec arise by operation of law where goods brought by the lessee for permanent use are
attached not to be removed until rent is paid or can be followed before reaching new destination by quick
pursuit. Bloemfontein Municipality v Jackson 1929 AD 266.
• The Insolvency Act 24/1936 provides that goods bought on instalment cannot be affected by insolvency
when last instalment has not been paid.
• Lein or right of retention. Lein holder must exercise physical control of property. Singh v Santam 1997 1SA
29 SCA. Lein holder is not entitled to use property & is required to take reasonable care of property.