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Property Law notes:

Law of things (branch of substantive law):

-falls under the category of Private law but property is no longer the
exclusive preserve of private law as it is also in public law today.

Property law versus law of things:

 Property law: why is this an unsatisfactory term?
o It is confusing as it can be used in two senses;
o 1) object of rights with pecuniary or economic
value. Object of the right of ownership.
Property = object of the right.
o 2) use property to denote the right itself i.e.
denote the legal right of ownership itself.
 Law of things: better term!
o It has a simple clear-cut meaning.
o Thing = physical/ corporeal object.

Where does the law of things come from?

 Predominantly from Roman law.
 Germanic law; esp. for land registration.
 English law; rei vindicatio, esp. for the doctrine of estoppel.
 Courts have also shaped the law of things to meet changing needs.
 Deeds Registries Act, Prescription Acts, Expropriation Acts etc.
 Legislation; Extension of Security of Kenya Act etc.

Key Principles in SA Law of Things (5)

1) Numerus Clausis:
“closed system”. The law of things has various closed systems. Strict list of
real rights that is closed i.e. it is not open for anyone to come along and
invent a real right that was not available to the law before. But courts have
deviated from this recently (last 100 years). Con = it undermines legal
certainty. Pro = certainty is not the only consideration in law i.e. the law must
grow and develop. You need to strike a balance between the two. For
example there is a closed list of constructive delivery.
2) Absolute Character of Real Rights:
Can be enforced against anyone in the world who infringes on your real right.
“ubi rem meam invenio, ibi vindico.” The holder can ward off any
interference. There is no right in private law that is as powerful as ownership.
3) Publicity:

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Law of things deals with real rights and thus you need maximum publicity for
this. Transfer of ownership of a moveable can only be effected by a physical
handover which gives publicity to the handover. Transfer of immoveables
only possible by way of registration in the Deeds office.
4) Specificity:
Real rights can only exist in relation to specific things. You can bind yourself
by contract to transfer your entire estate to someone else. But contract only
creates personal rights. To make other party owner, there has to be delivery.
But you cannot deliver your entire estate, unless you use a sequence of
transfers. The law of things does not allow you to alienate your entire estate
as a whole, but law of contract says you can.
5) Transmissibility Principle:
This principle says that real rights are freely transmissible to heirs and by
cession i.e. they can be transferred to other people freely. But this is only the
case with real rights and not with personal rights. The exception to this
principle is in the case of certain servitudes which cannot be transmitted and
whereupon conditions can be imposed.

 We deal with property in the narrow sense:

o “the right in a corporeal or an incorporeal thing belonging to oneself”
o The right in this thing is a real right.
o The right in a corporeal or incorporeal thing belonging to someone else then
is called a limited real right in the corporeal/incorporeal.

 Van der Merwe in LAWSA describes 7 characteristics for real rights:

1. The object of the real right is a thing (but not always)
2. The real right affords direct physical control over a thing
3. In principle real rights are absolute rights i.e. they bind people other than the
people involved i.e. they bind people outside of parties involved in a legal
transaction. Specifically this will involve successors in title i.e. your heir,
somebody who buys your property will transfer ownership to him which will make
him a SIT. Think of it as the next person who steps into your real right.
4. A real right affords preference in insolvency
5. Maxim: prior in time, stronger in law i.e. if first sale is a valid sale then the thing is
sold again, then the first buyer has a stronger right.
6. Publicity principle: when real rights (including limited real rights) are transferred
or exchanged they have to be done so that people know about the transfer e.g.
registration of immovable property in the deeds registry.
7. Real rights are derived from juristic facts.

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 Only number 3 is specific to the law of property and thus 3 distinguishes a real right
from an obligation.

 The law of obligations: rights of performance, namely personal/creditor’s rights:

(use the term personal and not creditor rights when speaking about it):
 Contract
 Delict
 Unjustified enrichment
 The law of property: real rights are property rights.
 NB: personal and real rights can exist side by side in a transaction sometimes.
 Real rights are the strongest right you can have and are stronger than personal
rights.
 A real right cannot be invoked against the whole world but it is capable of binding
other persons besides the parties to a contract etc.

4 types of real rights which stem from roman law:

1. Ownership: most complete/absolute real right where thing in question
belongs to the owner.
2. Servitude: right in the property belonging to someone else and thus it is a
limited real right.
3. Pledge: security for a moveable object until you can pay it back,
predominantly through pawnshops and it is also a limited real right.
4. Mortgage: security for immoveables (similar to a pledge). Attached to land or
something that is attached to the land. Right of control over property and
thus also a limited real right.
Roman Dutch law in the 17th century introduced another real right:
5. “lease before sale”: “huur gaat voor koop” which still applies today i.e. the
tenants’ rights remain in place in a lease agreement despite the sale of the
property to someone else.
Modern Law:
6. Mineral rights: you can outright own the minerals beneath your land but
today this is subject to statute. Why is this a limited real right? Because you
could sell the right to prospect minerals to someone else.
7. Statutory lease/hold: not dealt with in the law of property.

 Although there are 7 recognised real rights there is no real closed list for real rights
and new real rights can be created by the Deeds Registries’ Act 47 of 1937.
 Test set out in Geldenhys and later captured in statute by S63(1) of the Deeds
Registries’ Act.
a) “no deed or condition in a deed purporting to create or
embodying any personal right, and no condition (term) which

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does not restrict the exercise of any right of ownership in respect

of immoveable property shall be capable of registration.”
 What this subsection does is allow for registration of real rights in land but it does
not confine the list of land to those 4 real right elements and thus there is no closed
list. Only real rights can be registered, but not personal/creditor’s rights. All real
rights to do with land must be registered there.
 If there is no registration then it will not be binding on third parties or successors in
title. The transfer of ownership will be valid despite no registration but it will not
be binding on any third parties.

 Ex parte Geldenhys:
o This case drew the distinction between personal and real rights.
o Look at textbook for the facts of the case.
o Because the shares and the land are transmissible then third parties will not
be bound to the will unless the conditions imposed by the will are registered
at the Deeds Registry as a real right.
o Registrar refused to register the conditions as to sub-division as payment to
other siblings considered to be a personal and not a real right.
o Condition 1 = real right
o Condition 2 = personal right
o But both 1 and 2 were interconnected and thus registration of both at the
Deeds Registry for convenience.

 Subtraction from Dominium test as created in Geldenhys:

1. Does the obligation intend to bind successors in title?
2. Is there a subtraction from dominium i.e. a subtraction from full plenary
ownership of the land).
 For C1 the court held yes there was a subtraction as the kids no longer had a free choice to
decide when the subdivision of the farm was to take place and thus it amounted to a
changing right of ownership in that land in part. Intended to take away this right and thus
there was a burden upon land and subtraction from dominium.
 For C2 here only one child burdened, this is clearly a once off burden intended to restore
the balance between kids following subdivision of the farm. Burden rested on the individual
in a personal capacity and did not subtract from ownership itself and thus it was a personal
right.
 Court held: that you can register both the personal and the real rights in the Deeds
Office in this case because the PR was ancillary to the RR i.e. C2 necessary for
operation of C1. Thus the entire clause of the will was registered.
 NB: even though the personal right was registered in this case it does not make it a
real right, the right remains a personal right despite registration.

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 The difference between security in 3 and security in 4 is that in a pledge you have to
handover the moveable to someone while in a mortgage you cannot hand over the
thing as you use it.
 Also remember that possession is not a real right and it cannot be registered.
 Limited real rights aim to bind successors in title otherwise it disadvantages the
person holding a LLR.

 Geldenhys Subtraction from dominium test:

1. The parties must intend to bind successors in title to the LLR.
2. Has there actually been a subtraction from dominium i.e. a
loss of ownership even to the slightest degree.
 Judge stated; “one has to look not so much to the right but rather to the correlating
obligation”. If the obligation amounts to a burden upon the land, a subtraction
from the dominium (full plenary ownership) then the corresponding right will be
real.”
o If it is not such an obligation but merely an obligation intending to bind two
parties then it is only a right in personam (personal right) and it cannot bind
successors in title. Etc.
 “You can register a personal right provided it is ancillary to a registered real right
i.e. operation of real right will not function without a personal right.

 Can payment be a real right?

 This issue continues to plague courts and thus there is still debate
 Geldenhys = uncertain.
 Ferreira Deeds case: “you can register as a real right, reservations of the right to claim the
owner’s half share of mineral prospecting fees. This case is based on the statutory law of
minerals; you have to have a licence for mineral prospecting and pay a fee for the licence. If
an owner’s land was being prospected they reserved the right to get half the fee of the
reaps of prospecting. This case wanted to register this right for that particular owner and
not for a successor in title. Look at the subtraction from dominium test.

 Lorentz v Melle:
o Facts: two parties L and B. At some point they agreed to subdivide the land.
In their notarial agreement (any conditions/terms which they would want to
be registered, ancillary to the actual deed)
 Conditions of the notarial doc;
 Mineral servitude
 Grazing and hunting servitude
 Water servitude
 General right of way servitude

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 Pre-emptive rights- have to make first offer to person first. Subtraction from dominium
because this amounted to a taking away from the right to determine who they sell it to etc.
 Township clause; although rural land, you can change this land into urban land which is a lot
more valuable than the former. “if one decided to develop a township on his land, he would
have to pay the other party one half of the net profit.”
o Registered in 1975, but case was only in 1985.
o L2 sold to L1 and L1 sold to L3 etc.- all successors in title.
o M wants to sell to public and thus wants to develop the land and does not want the
township clause to operate as he will have to give half of his profits to L. M tries to claim
that township clause was erroneously registered at the Deeds Registry and is not a real
right. L3 says it is a form of praedial servitude.

[aside];
o Personal servitude = attaches to a person
o Praedial servitude = attaches to land, wherein one type of land serves another.
o All servitudes will diminish your rights in a physical sense; it must do this in the case
of a praedial servitude.
o Servient tenement; has duties and provides some permanent advantage to a
dominant tenant.
o Dominant tenement; the owner of the dominant tenement gains something from
the Servient tenement.
o Court claimed that this was not a praedial servitude as L3 claimed.
o Unlike Geldenhys the payment does not amount to a real right because the obligation
sounds in money and it is thus a personal right.
o Court held: the obligation to pay money does result in a subtraction from dominium but it
argued that it does not diminish the land in a physical sense.
o This argument takes all sense out of the dominium test. The judge’s logic was unreasoned.
o Here in this case the second part of the dominium test changes to include; “in the physical
sense.”
o It is widely viewed that there is a financial aspect to dominium i.e. the fruits. But this case
seems to reject this notion.

 Pearly Beach Trust v Registrar of Deeds:

 This case tears apart the Lorentz case.
 FACTS: PBT wanted to register 3 clauses in a deed of sale against the title deeds of the land
sold. The clauses provided for a third party to receive the following (either directly from the
person selling the property or from his successors in title);
i. A third consideration of the share of the net consideration on the issuing of rights to
prospect property.
ii. One third share net consideration received in consequence of expropriation of property.
Expropriation= govt takes land away from you.

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iii. One third share net consideration received from voluntary alienation of property to the
state.

[aside];
 Reservations;
o If you sell the land, you sell all ownership rights to that land. Anything that
you hold back = a reservation.
o Thus registered reservations = registered real rights.
o With reservations, it makes the product you’re buying cheaper.
o Problem = successors in title.
o If reservations are not registered they will not be binding on successors in
title and thus reservations always attach to land and not to the individual.
 Ownership;
o Full ownership = dominium i.e. the whole package – the right to exclusive
possession, the right to use/ to abuse/ the right to disposition (ius
dispodendi) ease with which owners can transfer/alienate ownership right/
right to encumber etc. CUVAE
o If anything limits the above rights to any degree then it will be a limited real
right. If anything limits CUVAE.
 Back to case:
 3 conditions = subtractions from dominium as they deal with aspects of ownership.
 Court also reasoned that they detract from owner’s normal right to dispose of fruits
of land (mineral right and expropriated land).
 Conditions clearly intended not only to bind current owners but also successors in
title and thus all three = real rights.
 Conditions are pure payments in money and not physical. Judge said it’s a different
way of seeing dominium, - taking away the fruit of the property.
 This judgement opposes Lorentz.
 Problem with the payment of money = it benefits no one except for the person with
the foresight to create it.
 Does this case change the test again?
o It appears that an obligation to pay a sum of money to someone else can
create a real right if the obligation
 Is intended to bind the owner and successors in title
 That is subtracts from the owner’s right to dispose of the
fruits of the property (ius dispodendi)
o This decision should not be seen as authority for the general proposition that
a contractual obligation placed upon a land owner to pay a sum of money to
someone else creates a real right.

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o The test should still be whether or not it is intended to bind both land owner
and successors in title and whether or not the obligation amounts to a
subtraction from the owner’s dominium- CUVAE.

 Starting point when you are dealing with whether something is a real right suitable
for registration at the Deeds Office:
o Starting point = Geldenhys case.
o Then depending on the argument you need to make when dealing with the
financial aspect/payment on dominium.
 Lorentz if you want the narrow test- physical burden
 Pearly Beach Trust if you want the wide test- subtraction of disposing
of fruits of property thus payment = real right.

o Cape Explosive Works v Denel (2001):

- This case doesn’t deal with payment and is merely a broad confirmation of
the Geldenhys test.
- FACTS:
- 2 pieces of land, big and small piece. C sells both pieces to A and both pieces
of land are subject to two conditions;
1) The property sold will be used by the transferee only for the
development and manufacture of armament and or by the
government of SA for the development and manufacture of
armaments.
2) If no longer used for purposes in one then buyer would have to
sell the land back to the seller for the same price he bought it
etc.
- The conditions of the smaller piece of land cancelled by the notarial deed,
conditions were only applicable to big piece of land.
- A sells to D and took land subject to conditions but later these conditions
put together into a deed of transfer which omitted the second conditions
and the first condition was now only applicable to a small section of the big
piece of land.
- D then sought a declaratory order (court to confirm your rights) in which he
wanted it declared that he was the owner of the land unencumbered by the
second condition.
- C countered this application and sought rectification of the deed of transfer
so that it reflected both conditions.
- Court held:
- HC held that D had won.

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- SCA confirmed the principle that ownership in SA law cannot be transferred

by contract or agreement alone, you need to effect delivery and have the
requisite intention to transfer ownership or registration and intention.
- Thus the SCA held that the Deed of Sale = written document only but transfer
of ownership will only take place when properly registered in the Deeds
office.
- The word ‘successors in title’ was missing from the Deed of Sale in this case.
- HC said that because ‘successors in title’ was missing from the Deed of Sale
then the condition was not binding on successors in title as it is the Deed of
Sale that counts.
- On appeal to SCA: what counts is the Deed of Transfer and NOT the Deed of
Sale. DOS is only the contracting part of the sale but DOT is what counts
and what determines the registered real rights.
- Result: DOS was suspended and incorporated into the DOT.
- Word “successors in title” always in DOT and always binding.
- SCA confirmed the Geldenhys test. In this case the question was whether;
o a condition in a sale agreement could be registered in terms of which
the purchaser had to inform the seller if the land was no longer used
for the stated purpose so the seller could exercise the right of first
refusal to repurchase the land.
o This confirmed the test that two requirements had to be satisfied
when determining whether such a condition could be registered;
 Intention to bind successors in title
 Subtraction from dominium i.e. from the full plenary rights of
ownership.
- The land was only good for making dynamite and both companies were
involved in the making of explosives.
o What if D does not want land anymore because the land use is
restricted i.e. he would have to sell back the land to C at the same
price and thus this was a problem for D and was the reason why he
did not want the second condition incorporated into the contract.
o Condition 2= if you’re going to sell back the land C has 90 days in
which to consider sale. Said No and thus A sold to D.
- Conditions;
o 1 = what you can use land for and thus it is a subtraction from
dominium.
o 2;
 HC said you can register 1 but not 2 as 2 results in a positive obligation and this is a
violation of the maxim that servitudes can only impose negative obligations on people
or land.

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 SCA said you have to see the two conditions as a package as they go together. 1 and 2
together. There is a land use restriction but if it is only 2 then there is no land use
restriction.
 SCA 1 and 2 together and thus similar to Geldenhys and binding.
- What is a subtraction from dominium?
o The nature of the right/condition regarding notification and
repurchase was suited for registration and the creation of a limited
real right.
- WHY?
o Because the two conditions could not be separated and they
acquired their meaning and effectiveness from each other like in
Geldenhys.
o Thus second condition also part of restriction on use of land and thus
could also be registered.
- This case is authority for;
o Subtraction from dominium test
o Causa for sale; i.e. what is binding is not the Deed of Sale/ Sale
Agreement but rather the Deed of Transfer/ Transfer Agreement. This
means that it is not the transfer of sale that counts but rather the sale
of transfer that is important and capable of registration.
o Land use restriction; a LUR is a real right and when coupled with
positive obligation it must be read together to be considered a real
right (provided they can be read together).

[aside] – All servitudes create negative obligations they cannot be positive in nature unless
supplementary as above in Denel case.

Ownership

- Ownership is the central feature of a private property system and a property system
(PS) is a way of responding to scarce resources. Thus this is solved in the PS by the
concept of ownership.
- Scarce resources: land, property, homes = all acquire economic value.
- In a social property system: resources are owned by everyone socially e.g. trust. We
use this system in SA for water and minerals; we have licences and permits for
people to use them even though they are owned by the government.
- Generally SA has a private property system.

o Private property system: CUVAE

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o Ownership is based on a broad concept with a number of features – consists

of a bundle of rights which = collection of powers, rights, duties, services and
entitlements.
o Ownership consists of control, the right to use, to encumber (pledge as
security), alienate, donate and vindicate.
 Use – includes right to derive fruits of use
 Encumber – grant a limited real right over property in favour of
someone else e.g. mortgage.
 Alienate
 Vindication – if you lose possession, you can get it back.
o NB: ownership is flexible and elastic:
 It is a real right and is thus the most extensive set of rights and
entitlements (CUVAE) and it is absolute.
o However there are two forms of limitations on ownership:
1) Public law limitations e.g. you need permission to build. This PLL is the
largest restriction on ownership especially for land.
2) Common law limitations
 Common law/private law
 “sic utere tuo ut alienum non laedas” is the basis
for common law limitation. It means “a person
must use their property in such a way that another
person is not burdened or prejudiced, and you
must use your stuff in such a way that it does not
harm the rights of other people – neighbour law.
o Entitlements of Ownership: CUVAE
 To control – physically control and keep a thing
 To use and benefit from it
 To encumber - a limited real right in relation to a thing
 Alienate
 Vindicate – claim a thing from someone else

o Abstract nature of ownership refers to: S v O and S v S

 The relationship between owner and a thing
 The relationship between owner and other legal subjects regarding
the thing.
o Content of ownership varies from time to time as entitlements of owner change.
Also different for every legal relationship.
o Despite the fact that ownership changes, without any entitlements ownership would
be unimaginable as it would be an empty right and meaningless for the owner.
o The entitlements of an owner can be limited by statutory measures, LRRs or creditor
rights of 3rd parties as well as the interests of the community.

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o An owner cannot use property in such a way as to harm someone else or in an

abusive manner.

 Neighbour Law:
- Sic utere tuo ut alienum non laedas principle.

o Casuistic Rules (on a case to case basis):

- Developed since roman law
o Lateral support for walls
o Building encroachment
o Encroachment of trees
o Flow of water
o Collapsing buildings
o Right of ownership limited by neighbour law which arises through legislation
o We don’t use the English law of nuisance in SA
o SA courts developed a remedy to the law of nuisance but based it on the “sic utere
tuo” principle.
o SA law has to do with the Lex Aquilia in that neighbour law usually requires an
interdict and the LA is important for interdicts.

 Regal v African Superslate:

- FACTS: Appellant and Respondent had properties adjacent to each other near
a river. A’s original application as against R property’s prior owners.
- [ASIDE: Interdicts]
o Positive interdict – facere
o Negative interdict – non facere
 To get an interdict you need to show:
o You have a clear right
o Your right is harmed by the other party
o No other remedy available to you
- Although NL is based on the LA, you only need to show loss, causation and
wrongfulness in NL i.e. you don’t have to prove fault.
- NB: NL usually requires an interdict which is based on the Lex Aquilia hence
the requirements for delict minus fault.
- Legal convictions of the community are also used for neighbour law.
 “can you expect the neighbour to do something or not do something i.e. would it be
reasonable?”
- In this case the respondent’s predecessor in title was guilty of the harm.
- Court held:

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o The basis for neighbour law is the Lex Aquilia. Clear from this case
what NL is on fault.
 Court held that NL is based on;
 Fairness
 Reasonableness
o Each owner has to exercise his own right and must endure the exercise
of his neighbour’s rights within the limits prescribed by reason.
- Principle of fairness;
o Landowner can only be held responsible for damage caused to a
neighbour in the use of his land when it is fair to expect him to avert
the damage in question.
- The court held here that the only way in which respondent could avert a
future damage caused to the A’s property (only future as R could not be held
responsible for predecessor in title’s damage) would be to build a retainer
wall on the A’s land.
- The court weighed up this possibility with the damage that may be caused to
the A’s property and held that it would be unrealistic and unreasonable to
expect respondent to do this (since the cost to build this wall would be too
great).

o The term nuisance still has some use in that it describes that which NL is about.
Nuisance refers to conduct by an owner which causes annoyance or discomfort to
another. Infringes on exercise to ownership entitlements in general.
o Types of nuisance:
 In the strict sense nuisance =
o Smells
o Noise
o Smoke
 In the broad sense =
o Nudity
o Alarms
o Any abnormal or unusual use of land which causes
damage to a neighbour’s property (or his enjoyment
of his property). NB don’t think of damage in the
physical sense only.

 Gien v Gien:
- FACTS: two brothers who subdivided a farm. Baboons raided vegetables and brother 1 (B1)
erected a noisy apparatus to scare off the baboons. B1 ran this machine day and night. B1
believed that he was acting on own property and thus protecting his interests.
- B2 asked for an abatement of the nuisance (noise) through an interdict.

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- NB: you have to prove wrongfulness if you can’t prove this then you won’t have a remedy.
Wrongfulness is an OBJECTIVE assessment i.e. what would be reasonable in the
circumstances, as viewed objectively by RP.
- Assume that harm and causation are met.
- Court held: this was a quiet area.
o Special sensitivities must be disregarded i.e. don’t focus on
individuals. The objective assessment of wrongfulness thus
disregards special sensitivities.
- Court held that LCOC would deem the B1’s actions unreasonable. There was
no evidence that the baboons raided during the day. The noise well exceeded
the standard of noise on an objective level.
- Needed to establish that objective wrongfulness did exist.
o [aside]
 Any deliberate or malicious use of property in order to be a nuisance would indicate that
the conduct is wrongful.
 Even a normal use of property will be considered wrongful if that act was done
maliciously i.e. if the intention is malicious then it is also wrongful despite objective normality of
use.
- A malicious motive is automatically considered wrongful.
- In this case maliciousness could not be proved. The court said this did
constitute a misuse of property and it granted the interdict (the neighbour’s
right was clearly being harmed).
o What did the court look at when determining whether the respondent was exercising his
own rights or transgressing the limits of his own rights and intruding upon the applicant?
(4):
1. Was the act of the R reasonable and fair?
2. Did the respondent act in bad faith or with the express and single intention to cause harm
or discomfort for the A?
3. Was the R’s use of property normal or abnormal?
4. Was the R’s action harmful for the A because he is an abnormally sensitive individual or
would they have the same effect upon a normal and not unduly sensitive person?
- Court also spoke of the concept of ownership in this case and reconfirmed
that;
 Ownership is the most complete real right a person can have
regarding a thing.
 A person can do whatever he likes with his immoveable property.
o BUT this freedom only partially true;
 The absolute entitlements that come with ownership must be used within the boundaries of
the law and it is for this reason that no owner ever has an unlimited right to exercise entitlements
in absolute freedom and at his own discretion.

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o NB: owners apparently unrestricted freedom of use exists within the limits of the law and it
is in fact limited by the objective law or the rights of others (sec utere tuo principle).
o NL is all about:
- The principle that every land owner’s right to use and enjoy his property is
restricted by the rights of others. This is the cornerstone of NL. Sic utere tuo ut
alienum non laedas.

 Co-ownership: 48-57 read! Self study!

o Just look at the nature of co-ownership, how you can establish co-
ownership.
o There are 2 types: bound common co-ownership and free co-
ownership.
 See prescribed cases.
o 3 different remedies

 Acquisition of ownership: (NBNBNB)

o Two types:
1. Original modes of acquisition: occurs without the consent, co-operation or involvement of a
predecessor in title. This is because there is no predecessor in title and thus you won’t have to
consider their rights.
2. Derivative modes of acquisition: ownership derives from a predecessor’s ownership and
importantly your title to the thing is only as good as what your predecessor in title had. NB
exception to this rule is Negotiable Instruments.

Original mode of acquisition

o Seven forms of Original Acquisition: AASMAEP
1. Appropriation
2. Accession (NB)
3. Specificatio/Manufacture
4. Mixing and fusing
5. Acquisition of fruits
6. Expropriation (deal with more in semester 2)
7. Prescription (NB)

 Appropriation (occupatio):
- You take possession or control of a thing that can be owned but is not owned by
anyone else, with the intention of becoming an owner.
- As no previous predecessor in title, thus you don’t have to worry.

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- Also known as occupatio.

Requirements for occupation = (1) possession and (2) no owner:

1) Requirements for possession:

 Intention to possess as owner.
 Physical control of the thing.
o If missing either of above then no possession

2) The corporeal thing that you now possess does not belong to anyone else:
 No regard to title of predecessor as there is none.
 Even if there was a past owner they have given up their rights.

 Two types of appropriation:

1. Res derelicta:
a. Predecessor has abandoned the thing with the intention of
abandoning it.
b. If merely lost then not a res derelicta as no intention.
c. Not a very important form of commercial acquisition but exception =
abandoned shipwrecks.
o Reck v Mills (1990):
o Shipwreck seen in tide and thus R saw this shipwreck and went to explore and saw a
valuable machinery which he wanted and thus took a piece of rope and attached one end of
rope to machinery and the other end to a buoy in the sea. He did this to show that he had
taken possession.
o M also sees shipwreck and also wants machinery and thus M unties the rope from the sea
buoy and machinery and he physically takes possession of the thing.
o Issue: what is enough to have physical possession of a thing? How much control do you
actually need to prove possession?
o Court held: R’s method of attaching rope was not an adequate intention of showing physical
control of a thing. Control must place the controller in the position where he can use the
thing as he wishes.
o An indication of physical control = would have been to loosen machinery from shipwreck
and then attach it to the buoy.

2. Res nullius:
- Like the above definition of appropriation, these are things which can
be owned but which are not owned by anyone at any particular
moment.
- In roman law this category dealt with wild animals. Today controlled
by the “Game Theft Act 105 of 1991”

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o “an owner of wild animals held for commercial or hunting purposes on land that has
been fenced in, in accordance with S2(2) of the Act or held in a cage, crawl, or vehicle on
the land, the owner will not lose ownership of these animals should they escape from the
holding device or if they’re removed without owner’s permission.
-The act sort of takes away from res nullius.

 Accession: (extremely NB!!!!)

- Most important form of original mode of acquisition as has a lot of commercial significance.
- Takes place when two corporeal things are combined in such a way that one of the things
loses its independent existence and becomes part of the other thing. Strictly speaking, accession
is not a way in which ownership passes from one owner to another. But rather it is a process by
which the accessory thing loses its independence and the principal thing is extended as a result of
the merger. However since it usually takes place without the cooperation of the owner of the
accessory thing, it is regarded as an original mode of acquisition. So ownership of the accessory
thing is lost and is acquired by the principal thing in 3 ways:
 3 types of accession:
o Moveables to moveables
o Moveables to immoveables (most NB)
o Immoveables to immoveables
 2 ways in which things can accede to land:
o Planting and sowing
o Joining of things to land e.g. buildings. Called inedificatio.

- These things that you’re joining lose their separate identity and become part of the land.
You don’t need anyone’s consent, it occurs by operation of law but the person who has lost the
property may be entitled to compensation e.g. if A plants a tree by mistake on B’s land then it will
be B’s tree but B must compensate A for unjustified enrichment.

[aside]: Unjustified enrichment requirements (x3):

 One party has to be enriched
 Corresponding impoverishment of the other party
 Which is unjustified/ sine causa/ without reason i.e. no contract, delict etc.

- Crucial determination for accession is ATTACHMENT – has the thing become

attached?

o Criteria for determining when and if the thing has become attached:
- When something is permanently attached the owner of the land becomes the owner
of whatever has attached to the land.

o Planting and sowing:

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o Gore NO v Parvatas 1992:

o G owns a nursery and leases land from P and then G decides that he wants to import
expensive bulbs for exotic plants and G plants these bulbs into leased land of P. Lease
expires and G wants to remove plants. P says that the plants have acceded to the soil and
belong to P.
o Court held: plants that are put into soil with the intention that they are to be removed later
cannot be said to have acceded to the soil.
o Critique of case: Accession occurs by operation of law as it is an ORIGINAL mode of
ownership and such a mode is not supposed to be with reference to the intention of the
previous owner – flawed judgement but still precedent. You shouldn’t be looking at the
intention of the previous owner!

o Inedificatio – joining buildings to land:

- Things that are built onto land become part of land
- Dispute in case law as to what this means when things attach to land
- Relative weight given to two sets of factors:
o Intention of annexor – person who does the acceding.
o Physical elements e.g. dug in, how is it attached etc.
- To ascertain whether a moveable which has been attached to an immoveable, 3
things need to be considered (we’ll get these through the cases):

o Macdonald Ltd v Radin NO and The Potchefstroom Diaries and Industries

Co’s Ltd 1915 AD:
o Case sets out beginning of test to determine whether the moveable has attached to land.
o FACTS: Respondents entered into a contract of sale of property to J. In terms of the sale
agreement J would pay the price off in instalments and if he failed to pay an instalment, the
respondents could cancel the sale and be entitled to any improvements made as forfeiture.
o Appellants also entered into a contract of sale with J for machinery. J was to pay the
purchase price in instalments failing which or upon insolvency of J the appellants could repossess
the machinery (Hire lease clause).
o In case a quo:
 Respondents: alleged that they were entitled to forfeiture of the
machinery as it had become a fixture of the property (constituted an
improvement by J) and thus R = owners.
 Appellants: wanted the return of the machinery on the basis that it
did not constitute fixed property and thus A = owners.
o Legal principle: considered requirements for accession/ annexation i.e. fixing
of a moveable to an immoveable:
o Test asks:
1. The nature of the article/ accessory: what is its destiny? Is it capable of serving the land?
“Destiny” is a matter of whether or not the asset can functionally serve to enhance the

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value of the immoveable property in question”. Purpose of attachment must be to be used

on the land on a permanent basis. Objective enquiry.
2. The degree and manner of its annexation. Objective enquiry.
o Two subsections of this second requirement:
a) How integrally is the asset connected to the immoveable property in question?
b) Is the attachment so secure that separation would involve substantially damaging either the
immoveable or the accessory.
o Only if both 2a and 2b are satisfied is enquiry 2 satisfied and considered decisive of the issue
of whether or not attachment has taken place.
3. Intention of the person fixing the asset: Intention must be to attach the accessory thing
permanently to the immoveable. The relevant intention must be assessed at the time of the
accession. i.e. look at intention objectively i.e. look at the surrounding circumstances and try
to deduce parties’ intentions from outside circumstances- objective probability of the
circumstances.
o Whose intention do you look at?
- Originally used to look at the annexor’s intention (also in this case) but since
this case the owner of the accessory/moveable has become paramount.
o Here the seller of the machinery still owned it (at the time of the credit agreement).
Was his intention for it to accede? No, if it did accede then owner of machinery
would lose both ownership and security.
o The trouble with turning it on intention is that it’s wrong as accession is an original
form of acquisition [without a previous owner]. If you make intention paramount
then accession becomes a derivative mode of acquisition.
o Thus 3 should just be a factor but should not be decisive. 1, 2 and 3 should all bear
equal weight to enquiry.

o Standard Vacuum Refining Co v Durban City Council 1961 AD:

- Dispute over the ratings of municipal land. Rate = form of municipal tax.
Indicates levy that you pay. Includes both land and improvements on the land- if
good land and good improvements then higher value and higher rates.
- The municipality was in dispute with S regarding rates of this land.
- Big petroleum tanks on land and thus dispute over whether tankers had
acceded to land. If yes the land more valuable and rates go up.
- Tanks were not built into ground, they sat on big pads and several on land and
were assembled on the land. Because they were so big they stood above
without support.
- If you wanted to move them you have to cut them up and disassemble them and
reassemble them and thus not easy to move.
o Test of MacDonald:

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 Court held both 1 (nature of the accessory-destiny) and 2

(degree and manner of annexation- integrally and damage)
could go either way and thus there was an ambiguous result.
 3 = court said intention is decisive in this case specifically due
to an ambiguous result on the other two factors.
- Looked at intention of the owner of the
assembled object.
- This therefore started to change the test…
- Criticism to case:
o 2 is not really ambiguous as does indicate a permanent nature.
o Also intention has two meanings or associations:
 Objective probability of the circumstances i.e. look at surrounding
circs and deduce intention.
 Ipse dixit: subjective part of intention where you try to find out what
was in their mind by looking at words used, expressed intention etc.
o The court in this case treated intention as number 2 (they looked at ipse dixit
rather than the objective factors).
o The court in MacDonald treated intention as number 1 and objectively.
o If Standard Vacuum Refining Co v Durban City Council sets a precedent where
cases only look at the subjective element then third enquiry from the
MacDonald case takes the form of ipse dixit and no longer the form of
objective probability of the surrounding circumstances. Thus accession
starts to become a derivate mode of acquisition in this case instead of an
original mode due to focus on subjectivity of owner of the accessory.
o Objective enquiry makes more sense for an original mode of acquisition.

Accession continued:
 Planting and sowing:
o Process whereby growing moveable things are attached to the land and
become the property of the landowner. Everything growing in the soil
becomes part of the land as soon as it takes root and gets nourishment from
the soil.
 Inedificatio:
o Things that are built on land become part of land.
o In case of accession of moveables to immoveables, the former will always be
the accessory and the latter the principle.

 Theatre Investments (Pty) Ltd and Another v Butcher Bro’s Ltd 1978 AD:
o Facts: lease agreement with renewal clause. 1st lease entered into in 1931.
Lessee built theatre onto leased land. Clause in lease contract that any

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improvements to land would become the property of the lessor without

compensation.
o Originally built by African Theatre and it ceded its right to another company
namely, Theatre Investments.
o Renewal of lease falls through and thus left but TI wanted to take seats
(joined together and bolted to floor, 1762 in number), lighting generator
plant (bolted to a piece of concrete and metal pipes ran from generator and
situated in concrete) and projection equipment (not really attached, bolted
to floor for security purposes).
 Different modes of attachment.
o Who owned what?
 “the test for accession is to enquire whether the annexor of the
moveables did so with the intention that it should remain
permanently annexed.”
 Evidence as to the intention of the annexor could be found by
looking at the following:
1. Ipse dixit as to intention of annexor (annexor’s own
evidence)
2. Nature of moveable and immoveable
3. Manner of the annexation
4. Circumstances that give rise to annexation (objective
side of intention)
o The above test seems to be a hybrid of Vacuum case and McDonald.
o These factors must be weighed together to determine what in fact the
annexor’s intention was.
o 688D-H, ipse dixit of annexor not in itself conclusive evidence.
o This case lays down a very different case to the MacDonald case as in the
latter enquiry 1, 2 and 3 were equally important and all three elements
were read objectively.
o This case makes INTENTION paramount.
 The test was thus changed significantly to make all 3 elements based
on intention.
 This shouldn’t be the case because accession is an original mode of
acquisition (owners intention is irrelevant).
o A = purely subjective intention (ipse dixit).
o C and B and D also to ascertain intention from an objective side.

o NB: you must look at intention at the time of annexation in case law but
problem is that people from 1931 have long since disappeared.
o B and C are not particularly decisive (manner, purpose and degree) but D
(circs giving rise to annexation) is the important factor in this case as lease

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was intended to create a theatre and the intention of the lease was that
lessor would get back a theatre at the end of a lease – perpetuity in contract.
 Cannot do A because improbable to get ipse dixit.
o Thus to make it a theatre you need the instalments that give it the
characteristics of a theatre and thus lease would suggest that the lighting
etc would be there permanently.
o Indicative of intention was that the lease intended to get a theatre back and
that it would include all of the stuff that made it a theatre.
o Court held: D the circumstances giving rise to the annexation countered the
physical factors, namely that it wasn’t really enfixed and thus circumstances
of intention here was NOT ipse dixit.
o Theoretically speaking: intention should NOT be a major factor at all as
accession is an original mode of acquisition and by focusing on intention
you’re changing the nature of accession.
 Thus the above tests manipulate accession into a derivative mode of
acquisition in practice.

 Melcorp SA v Joint Municipal Pension Fund (Transvaal) 1980 WLD:

 This case turns accession from an original to a derivative mode in practice but in
theory it still remains an original mode of acquisition.
 FACTS: This case sounds like the MacDonald case in re to the facts. R company owns
a building whereby M installs the lift. The finance of the lift comes from a credit
agreement (as he couldn’t afford to pay cash) and security was that M maintains
ownership until last instalment paid.
 Suspensive sale agreement contained the following clause:
o “the purchaser acknowledges and agrees that the plant (lift) is moveable
property and shall so remain notwithstanding the means used to erect it or
install it on the premises or any other property and the purchaser also agrees
that there is no intention nor was there any intention that the plant should
accede to or become permanently attached to the premises or any other
property or asset.”
o This clause was between M and R company.
 [aside: distinguish between property, contract, delict and criminal law which all
have different and separate remedies]
 Court held:
o Lifts are not the type of thing that you move (outside of the building) and are
not built for that intention. However the problem is that the subjective
element of intention (ipse dixit) says something different in this case. Clear
from the ipse dixit of M that they want security and that the lift is not
intended to become annexed (i.e. there is no intention for the lifts to
accede).

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o Thus there is a clash between pure objective physical factors and ipse dixit.
Court also said that although it is true that lifts are usually required to remain
in a building there are other physical factors that could suggest otherwise
(e.g. if they need to be repaired or upgraded they can be removed).
 “It’s not clear from surrounding circumstances (objective intention)
that the lifts should be moved and that it had not acceded.”
 “It’s clear from the subjective intention that the lifts should be moved
and that it had not acceded” and thus court gives intention
paramount importance specifically in relation to ipse dixit.
o Approach in this case is the new approach in comparison with the
MacDonald case in that here the intention is paramount and a great deal of
weight given to ipse dixit.
 But whose intention? Owner or lessor?
o This case really changes accession to a derivative mode of acquisition due to
its reliance on intention as being paramount.

 Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk AD:

o Facts: K owns a farm and irrigation is wanted for the farm. K goes to pumps for Africa to buy
irrigation system. PFA is merely an intermediary which does not have all the requisite parts and
thus PFA goes to S the wholesaler and gets irrigation equipment in bits and pieces. S (as annexor)
assembles these bits and pieces and installs it on K’s farm.
o S retains ownership as the system parts are not yet paid for by PFA and PFA can only pay
once K has paid (and K will only pay once it is installed). Thus S gives P the bits and pieces on
credit on basis that S retains ownership thereof. K pays P once irrigation is installed, but P did
not pay S. S left with nothing and thus S relies on the real right and not contract. S goes after
farmer as enforcing a property right (NB: you can enforce a real right against anyone).
o Here intention is key (based on casuistic treatment of legal development) in determining
whether parts have acceded to irrigation system.
o Need to ask whose intention is paramount?
 In theory it should be the annexor’s intention (not the previous
owner’s intention as accession should be an original mode of
acquisition in theory) but practically accession is no longer an original
mode but rather a derivative mode of acquisition.
o Court looks at authorities and previous cases point to fact that the owner’s
intention was paramount.
 You can criticise this theoretically as its still supposed to be an original
mode of acquisition!
o AD held: that it would consider the issue of original/derivative method of
acquisition at another stage but for now it is the owner’s intention that
counts. In this case S’s intention.

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 Because no conflict with physical aspect (elements – nature, degree,

purpose, manner) everything is moveable and thus look at intention.
In this case intention was to sell movable bits of irrigation equipment,
not a system with the deliberate intention of transferring ownership
(because they want to hold on to ownership).
o The best evidence of intention the court held was ipse dixit (subjectivity).

NB: We have not yet had a case where the physical aspects conflict with the case of the
ipse dixit.

That was accession with movables to immovables…

Accession continued:
 Moveables to moveables:
o NB: intention is not looked at for M to M!
o Main question: which is the principal and which is the accessory?
o Reason = accessory loses its own identity because it attaches to a principle.
Pg 108 of text book:
 “a moveable is attached to another moveable in such a way that a
single thing is formed. The owner of the principle thing acquires
ownership of the composite or entire thing and the owner of the
accessory thing loses ownership of the accessory.”

 Requirements for M to M:
1. The various elements of the composite thing (both P and A together)
must still be recognisable, if not then it’s the category of mixing and
fusing.
2. The composite thing must be difficult to separate.
3. It must not amount to the forming of a new thing using someone
else’s materials as this amounts to specification (specificatio).

o When M attaches to M it is often difficult to determine what attaches to what:

 General principle:
 The biggest, heaviest or most valuable thing = principal thing
 E.g. If one moveable is a decoration it would indicate that it is
an accessory.

Khan v Minister of law and order (1991):

- The police upon suspicion pull over a car that they believe to be stolen and the car
was impounded at the police dept for a long time. Eventually, an order came to
police to have car released. Police said it was not a problem as long as ‘owner’ could

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prove that he lawfully owned the car i.e. that it was not stolen. But K bought the
wreck of a 1985 BMW and arranged it to be joined to a 1988 BMW. Front of car was
1985 BMW and back of car was 1988 BMW. However a new engine and new gear
box was put in the car. The 1988 car was a stolen car and 1985 car was the wrecked
car.
- The law says that you cannot lawfully own a stolen car and thus question was
which car acceded to what? 1985 or 1988 car?
- Court held:
o The principal thing is the thing that gives the character to the combined
thing; i.e:
 Character
 Form
 Function
o Based on the facts of this case, the court found that it was in fact a 1988 car
with some 1985 parts and other parts.
o Thus it was a 1988 car and could not get car back.

End of accession!

Specification:
o Never been owner of new thing i.e. thing has been made anew.
 Def:
o The giving of a new form to, or the manufacture of a new species out of, the
material of another provided that the material used ceased to exist as such and
cannot be restored to its original form and provided further, according to some
authorities, that the manufacturer was under the impression that the material in
question belonged to him or her.
 This is irrespective of whether all or only some of the material from which a new thing is
made belongs to a person other than the manufacturer i.e. the manufacturer who
creates this new product whether by his own labour or by his employees’, becomes the
owner of the thing manufactured. His title is independent of any previous owner.
o If there were any previous owners, they lose the ownership and will only have a
personal right against the manufacturer.

 Requirements for specification:

1. The rules apply only if there is no agreement between the person
who manufactures the new thing and the owner of the materials
that are being used. Why? If there is a contrary intention or a
contract could be inferred then these rules would not apply (the
contract will apply).
No agreement – manufacturer is owner

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Agreement – then ownership depends on terms of contract

2. The meaning of the requirement that a new species has to be
created is perhaps best illustrated by these examples:
a. Grapes to wine
b. Corn to bread
c. Weaving a garment out of someone else’s wool
d. The building of a ship out of another person’s wood
e. Olives into oil
However, as noted above, a product which prima facie appears to
comply with the requirement of a novus species such as a gold cup
or other articles manufactured out of someone else’s gold, if it can
be restored to its original form (e.g. melted down) then it belongs
solely to the owner of the original material.
3. The new product must not be capable of being reduced to its
original form. This requirement, or the requirement of non-
reducibility, is dependent on contemporary technology, expertise
and knowledge. If a new thing can physically be reduced to its
former state then manufacturer is not entitled to its creation.
4. This requirement has not completely been decided. It deals with
GOOD FAITH i.e. undecided whether the manufacturer must act in
good faith before he can claim ownership of the thing.
a. If this is an original mode of acquisition (which it is), then
whether he acted in good or bad faith shouldn’t then be an
issue at all because the previous owner’s intention is
irrelevant. The previous owner will then simply have a
personal right claim against the manufacturer.

 Expropriation:
o Def:
 Through expropriation:
a) The ownership of a thing, moveable or immoveable, vests in
the public interest through the expropriator
b) While the previous owner loses his ownership without
consenting,
c) Usually previous owner will be given a compensation for it.

 Forfeiture:
o Main difference between E and F is that the latter does not entail
compensation.

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o These are things that are used by the owner or with the consent of the
owner to commit a crime. These things that you use to commit a crime can
be declared forfeited to state in terms of statute.
o F takes place without any compensation to the owner and ownership passes
to the state at the moment as soon as the court order of forfeiture is given.

 Prescription: NB
o The statutory passing of ownership. This is an exception to s2 of the
Alienation of Land Act.
o There are 2 forms in SA – exstinctive and acquisitive prescription.
1. Extinctive prescription: (Not dealing with this here)
o The extinction of a right through the passage of time.
o If you do not enforce your rights, they will be extinguished within three years.
o From the moment you serve a summons on someone, prescription is
interrupted. Why have it?
o Protects debtor, provides legal certainty, NIs= 6 years prescription.
2. Acquisitive prescription:
o Allows the acquisition of property through the passage of time
and you can acquire both real rights or limited real rights after
30 years. You can be owner of property that belongs to
another after 30 years. You hold onto these rights as if they
were your own.
o This means that the mistaken situation becomes the
actual situation.
o Rationale:
o If the owner has not acted within 30 years he loses the
right to act.
o Further, this supports legal certainty and the publicity principle:
 Means that the legal position should coincide with the real world. The publicity
principle tries to align the legal and factual positions. To the public everyone believes
that someone else is in fact the owner, but legal position is that it’s not and thus the
publicity principle is required.
o Definition of AP:
o An original mode of acquisition in terms of which a real right or ownership of a limited
real right is acquired in relation to a moveable or immoveable thing by means of the
open and undisturbed possession thereof (ownership) or the exercise of rights in
respect thereof (limited real right) for an uninterrupted period of 30 years.
Prescription is governed by 2 Acts:
o Prescription Act 18 of 1943 (ran until 2nd Act came into operation, 1 Dec 1969)
o Prescription Act 68 of 1969.

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These acts do not apply retrospectively i.e. today 1969 Act will apply. Principles in both acts
are the same the only difference between them lies in the
 Suspension
 Interruption
So you can refer to any of the Act in respect of all other principles except the above 2.

 Statutory requirements for prescription (1943 Act):

a) The possession of someone else’s moveable or immoveable thing (i.e. you intend to
possess). This can also include the exercise of a servitude in respect of the immoveable
thing.
b) The possession must occur continuously for 30 yrs, and must be exercised for 30 yrs without
force (nec vie), openly (nec clam) and without the owner’s consent (nec precario).

 Also Common Law requirements:

o Adverse use.

Now we are going through each of the requirements…

a) Possession;
- For prescription you need possessio civilus
o A physical element:
 The actual control of the thing. Inferred by facts from the case whether there was
actual control or not.
o A subjective element (animusi):
 Relates to the mental attitude of the possessor. The possessor for possessio civilus in
the case of acquiring ownership through prescription must have the intention to
possess the thing as owner. Intention has nothing to do with good or bad faith;
provided intention to hold as owner is there.

b) Nec vie (without force):

- Implies peaceful possession.
- If a possessor has to maintain his possession by using force then
prescription will not run.
- But this does NOT mean that the acquisition of the thing cannot occur
with violence.
c) Nec clam (openly):
- The possessor must possess the thing openly, not in secret.
- The possessor does not have to possess openly in front of the owner,
but the possessor must use and enjoy the thing as openly as the
owner would do and that the owner would be aware or could become

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aware of this had he shown reasonable attentiveness regarding his

property.
- This is determined objectively whether the reasonable man could
have concluded from the possessor’s actions that he possesses it as
if he were the owner. Looking at all the facts and see if using as
owner.
- This requirement only has to be fulfilled during the period of
prescription and not when you acquire the thing.
d) Nec precario (without consent):
- The possessor cannot and must not possess the thing in accordance
with the will or wishes of the owner. If any aspect of the possessor’s
use of the thing indicates that he acquired the right with the consent
or co-operation of the owner, prescription cannot run against the
owner.
- However, the owner may have originally given his consent but if his
consent fell away and the possessor continues to possess the thing it
would be considered nec precario.

e) Adverse use (the common law requirement):

o Malan v Nabygelegen Estates 1946:
o “if you admit the rights of the true owner then you do not possess the thing
with the requisite intention.” Possession must be adverse to the interests of
the owner.

 [Prescription review] In order to acquire property you need to hold land uninterrupted for
30 years.
 E.g. an 85 year old man used a piece of land for 10 years (common law
adverse use) then dies, his 27 year old grandson takes over immediately and
uses the land himself. Prescription does not interrupt – it continues,
therefore the grandson only needs to use it for 20 years before ownership
passes through prescription.
 BUT if the grandfather had accepted the owners intentions then prescription
is interrupted and the grandson has to start prescription all over again (30
years).
 NB: you cannot rely on somebody else’s predecessors-in-title to prove
prescription!

Acts (1943 and 1969 as above) deal merely with suspension and interruption.

READ MORE ON SUSPENSION AND INTERRUPTION in TB!

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The 2 acts differ with regards to suspension and interruption… We deal more with the 1969
Act (therefore more NB)

 Suspension and interruption clarified-

 Interruption:
 Takes place when an event terminates the run of prescription – so the 30
years have to run all over again.
 In the case of natural interruption (not using courts) under the 1943 Act:
o When the possessor loses posession of the thing or gives it up voluntarily, or
loses it because the owner forceably removes it from him.
o Simple protest by the owner is not enough to remove/stop/interrupt
prescription. Real removal or an effort thereof of possession must take place.
In the case of natural interruption under s2 of the 1969 Act: [p120 TB?]
o “the running of prescription shall not...” prescription will not be interrupted if
you can regain property in 6 months through legal action (mandament van
spolie) or if possession is lawfully regained within 1 year (e.g. possessory
remedies) then prescription is not interrupted.
 Mandament van spolie is when somebody lawfully or
unlawfully dispossesses you of your possession, you can use
the MvS to regain possession (even if you unlawfully gained
possesison yourself!).
o If voluntarily gives up possession then prescription is interrupted (similar to 1943
Act).

 In the case of civil interruption (serving of papers) according to 1943 Act;

o Merely serving of process in which the owner’s claim to the ownership is clearly
stated to the possessor, then prescription is interrupted.
o A mere claim for rent because of the occupation is not enough.
In the case of civil interruption according to s4 of the 1969 Act:
o If anyone puts a successful claim for ownership forward there will be
interruption subject to S4(2), and a new period of prescription runs if at all on
the day of judgement [s4(3)].
o S4(2) civil interruption- anytime someone claims ownership and are successful. It
must go to final judgement. If not successful judgement or process not carried
out then no interruption.
o If the case goes over the prescription period (e.g. 35 years) then prescription
only passes after final judgement (if owner unsuccessful).

 Suspension:

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o [look at examples on work sheets- read pg 115 of textbook] TBAU- then 3 yr

grace period. If hindrance finished 3 years before end of prescription the
prescription not suspended. If hindrance exists until, after or three years before
end of prescription then additional 3 years must be added when prescription
finished.
 Suspension occurs when the period of prescription is suspended for a period of time
because of an event or situation, but is thereafter resumed to continue to run for
remaining time of the period of 30 years.
 According to 1943 Act
o Prescription does not run against person who are unable to enforce their rights:
 Minors, people under curatorship, if you are absent, fideicommissereis,
etc.
 According to s3 the 1969 Act: [p121 TB]
o S3- (a) person against whom the prescription is running is a minor, insane or
curatorship or subject to superior force then prescription of 30 years will be
suspended if owner of property is any of the former until hindrance goes away
then three extra years.
 I.e. ONLY if the owner is one of these above things is prescription
suspended.
o (b) person in favour of who prescription is running is outside of Republic, is
married to person against whom prescription operates, member of governing
body of juristic person and
o (c) you would have become owner of it over 30 years if (a) and (b) did not apply
then basically 3 year grace period (see below).
o (d) period of prescription suspended for 3 years.
 An impeding situation is any situation described in (a) and (b) above. If that impeding
situation comes to an end before the period of prescription ends (3 years) then there is
no suspension!
 CHECK THIS: If prescription runs against a minor on or before year 27 of the running of
prescription (3 years before prescription) then suspension does not occur. But if minor
becomes a major in less than 3 years before prescription, then suspension occurs and 3
years is extended to the 30 years (i.e. extends towards 33 years).
 Therefore if the person falls under (a) or (b) then prescription is suspended, even if
more than 30 years has passed. Once the impediment has passed, prescription
continues, and if only 3 years are left (i.e. 27 or more years have passed) or if the 30
years have passed, then prescription is extended to another 3 years.

~If prescription is running in favour of someone outside of the Republic, then it still applies…

Following examinable! NB STUFF!

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Derivative modes of acquisition

 Derivative acquisition of ownership:

 With consent and co-operation of predecessor in title.
 Rules for DAO:
o You can only acquire ownership from someone who is an owner already- nemo
plus iurus principle.
o It is derived from and is dependant on previous ownership. You will then have no
more right than the owner had (e.g. servitudes – you acquire them as well).
Exception is with NI and HIDC. NB you can only give rights that you yourself have.
o You acquire the title from a predecessor along with any defect or defences in
that title that the predecessor had or benefit which owner of property had e.g.
servitude on property acquired with new ownership. Acquire title subject to
equities.
o Forms of derivative acquisition:
o If moveable- delivery [and a real agreement(intention)].
o If immoveable- registration [and a real agreement (intention)].
 The above two deal with how you give the property to the buyer
(transfer ownership).
 Ownership will always transfer through above two forms (delivery or reg) with
exception of:
o Marriage in community of property. Automatic thus no delivery or
negotiation.
o Insolvency- ownership automatically transfers upon this.

ON TOP OF DELIVERY/REG YOU ALSO NEED A REAL AGREEMENT!

 Requirements for transfer of ownership: (pg 125 tb)
1. Thing must be capable of being privately owned.
2. Transferor must have contractual capacity but can have limited contractual
capacity if minor- assisted.
3. The transferor must be the owner of the thing. In terms of nemo plus rule,
no person can transfer more rights than he himself has. Thus owner is the
only person who can transfer ownership. Owner does not have to undertake
transfer himself i.e. can be done through an agent.
4. The transferee must have contractual capacity. However there are
situations where minors enter into contracts without capacity.
5. Ownership must be accepted by the transferee, agent or nominee.
6. Transfer of ownership in the case of moveables takes place only if the thing
is delivered to the transferee in a legally accepted way (tradition). In the
case of immoveables, transfer of ownership takes place in the deeds office
by means of registration in the deeds registry. Objective aspect of

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ownership i.e. delivery or registration and manifestation of the common law

requirement of publicity for transfer of ownership.
7. Delivery or reg must take place with the intention of owner to transfer
ownership and with the intention of transferee to accept ownership. Real
agreement- subjective element.
8. Must be a legal causa for transfer of ownership e.g. sale etc.
9. The cash sales rule applies. This applies if you pay cash for something then
ownership transfers only once full payment was made.
10. A valid causa/reason must exist e.g. sale of car, causa for transfer of
ownership is a contract of sale.
1. Two ways of looking at causa:
o Causal: there must be a valid underlying causa in order
to have a valid transfer of ownership.
o Abstract: you look at the two separately i.e. if cause of
the underlying sale is not valid you can still have
transfer through a real agreement and delivery or reg.
 Publicity principle:
o the objective physical appearance of things must coincide as far as possible
with the legal reality and thus you cannot just transfer with delivery and reg
or only intention but you need both objective and subjective requirements.

 In SA we follow the abstract system: Transfer of ownership is an abstract juristic act,

the validity of which is not dependent on the validity of an underlying causa.
o Preller v Jordaan 1951:
o P a doctor, J a patient and J also farmer. J old and falls ill and goes to see P
and influenced by P. P is worried that when J dies his wife will not be able to
look after his farms so P offers to take care of J, his wife and the farm. P
persuades J to donate all of his farms to P.
o J then recovers and discovers that P the doctor has already transferred two of
the 3 farms to P’s children so J institutes the rei vindicatio.
o Causa = donation contract. Also a valid real agreement and registration
completed. BUT donation to P may be invalid because it’s a relationship of
authority, influence and trust. P caused J to act to his detriment and the
doctrine of undue influence could apply and thus the donation is invalid and
the contract is voidable at the instance of J as no true consensus.
 Under the causal system the transfer would be void due to invalid causa.
 Under the abstract system it is not concerned with any underlying causa only concerned
that there was a real agreement and reg or delivery thus transfer of ownership despite
invalidity of underlying causa.
o The bona fidei recipients are P’s children and they are protected at the
expense of J. J’s only claim against P is one for unjustified enrichment but

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does not mean that ownership is transferred back to J. J cannot institute a

real right of ownership as not owner.
o Very often the causa and the real agreement are the same. But valid causa is
not a requirement for SA legal system.

 Cash sales rule:

o In terms of a cash sales, transfer of ownership only occurs on full payment of purchase
price. In RD law this was so even if delivery had taken place and this is still the case today.
Even if delivery occurs, transfer of ownership only occurs on full payment.
o Exception- credit sales where full ownership passes.
o With a real agreement you have a property transaction with cash sale.
o Real agreement + delivery/registration + payment of cash in full = transfer of
ownership.
o Grosvenor Motors (Potch) Ltd v Douglas 1956:
o D trying to sell his car and P introduces D to K, a potential buyer. K buys the
car and gives D the cheque. D upon receiving cheque (on Friday) leaves K
with his car. D had misplaced the registration papers and so K asked D for a
note indicating that K was now owner of the car. K takes possession of the
car and takes note and sells the car to G2 the second buyer. D goes to bank
on Monday and cheque bounces. K has disappeared. D instituted a rei
vindicatio against G2, the 2nd buyer, to get his car back.
o Issue= who is the owner?
o D is still owner as payment had not been made in terms of cash sales rule.
There was a real agreement and delivery BUT no payment of full purchase
price and thus no transfer of ownership to K or G2 as nemo plus rule.
o G2 argued that he already made payment to K but according to nemo plus
iurus rule K can only transfer those rights he had and thus K could not pass
ownership as he did not receive it.
o G would only be the owner if this was a credit sale (i.e. not a cash sale). K
would have acquired ownership if he had a credit agreement and thus would
be able to transfer to G2, 2nd buyer.
 [aside] AD said that in terms of sales of moveables there is a presumption that they are
cash sales so this will favour the original owner D – because ownership only transfers
when payment is made in full! The presumption can be rebutted by express provision or
intention to grant credit. This was not proved in this case and thus D was winner!
 Cash sales rule is there to protect original owners. Above has been refined by:

 Erikson Motors v Protea Motors:

 E and P were second hand car dealers and co-operated with each other to help each
other’s business. If P takes customers to E’s lot then P gets money and E a cut. Family

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comes to P and P takes them over to E and man buys car so P buys car from E and sells
to B. P’s cheque bounces and E lost possession and no money.
 E seeks to argue that ownership remained with them (E Motors) and could vindicate the
car from B and that B can only acquire ownership from P if ownership has passed to P.
o i.e. he argued cash sales rule.
 AD holds: cash sales rule is not unbreakable. “A principle of law but is a question of
fact in each case whether or not ownership passed”.
 AD asked: “does the totality of the circumstances show an intention to pass ownership
despite the fact that the purchase price has not been paid.”
 In this case the existence of a longstanding relationship between P and E was that they
routinely bought and sold cars from each other and cheques had not always been paid
at the time when this occurred. In this case E had also not worried to cash the chaque
asap because of this relationship.
 Thus court held that totality of circumstances suggests an intention to transfer
ownership despite the fact that the purchase price had not yet been paid. Thus
ownership did transfer and E could not use ownership action against P and would only
have a claim of unjustified enrichment and delict possibly.

 Concord Construction case- (deals with causa) 1993:

 Leased road scraper being driven and damaged when a truck collides with it. Truck
driven by an employee of C who was acting within scope and sphere of authority.
Employer= solely negligent. Santam (bank) takes the view that it is the owner of the
land scrapper and wants to institute a delictual action against C for damage. C disputes
S’s ownership. The court a quo gave judgement in favour of S and C appealed.
 Appeal: Background of ownership of landscraper. Spie= original owner. Marsay= agent of
Spie and acting on Spie’s behalf. Spie wanted to sell landscrapper but used M to do this. M
looks around and finds a company S bank (Santam) who wants to buy it. S bank also uses an
agent, Retief. R and M enter into a contract of sale.
 Real agreement- intention for M to transfer ownership and R to receive ownership. Behind
the scenes there’s a man called Steenkamp who actually wants to buy the landscrapper but
no money and thus goes to S bank for loan and enters into a hire-purchase agreement
(ownership does not pass until full price paid- for security) with Steen.
 S bank gives Steenkamp the machine but Steen is not owner as had not paid full amount.
In actual fact S bank giving money but Steen working through R. Upon S bank purchasing
scrapper it immediately sold the scrapper to Steen in terms of the hire/purchase agreement.
Steen was actually present when scrapper was being delivered by M to S bank. Steen then
leases the scraper to C.
 When scrapper damaged in collision by C on scope of employment, Steen had not yet paid
last instalment of purchase price. As a result, S bank claims they’re the owner.
 Issue- delivery of scraper to S bank.

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o Court found no evidence that Spies OR Rep Marsay intended to deliver and
transfer ownership of scraper to S bank because Steen was there and M
knew that Steen would be the ultimate owner of the scrapper.
o The court said it was probably more likely that M or Spies intended to deliver
scraper to Steen with R acting as rep of bank to finance purchase. Thus no
evidence that S Bank had ever acquired ownership of scraper and thus
ownership likely transferred at time between Steen and Spies (through
Marsay) and not between S bank and Spies.
o Always look at the parties actual intentions.
 You only need a REAL AGREEMENT AND DELIVERY/REGISTRATION but you DONT
need a valid causa in SA law for ownership to pass thus security agreement irrelevant
here.
 Look at who is the original owner and if using representative then still same original
owner.
 Requirements for ownership as taken from this case:
1. Intention to give and receive ownership
2. Delivery (can also be a fictitious as opposed to actual delivery – will discuss
later). Delivery between S Bank and Spies does not apply, and also no intention
by Spie to sell to S bank only to Steen. If S bank wanted to be owner they
should have argued attornment (a type of ficticious delivery – an agreement
between 3 parties).

 Attornment still under above case:

 Old owner, new owner, possessor (the 3 parties).
 New owner signs a form of fictitious delivery
 If S bank structured this deal a little differently they could have been owners. But in
present case S bank could not prove ownership thus lost.
 NB: This case shows the important requirement of transfer of ownership over
moveables, namely there had to be (1) proof that the moveable was delivered by the
seller to the purchaser with the (2) intention of transferring and accepting ownership.
 Mere delivery is not sufficient, must be accompanied by the intention of the seller to
transfer ownership to the purchaser who accepts ownership from owner.
 In this case the seller Spies or its rep M had no intention to deliver and transfer
ownership to Santam Bank or its rep.

 To transfer ownership:
o Always a real agreement
o Delivery or reg
o Cash sales rule if it applies, unless it can be proved otherwise (only where
cash sales). With moveables always a presumption that it’s a cash sale but it’s
a rebuttable presumption- Grosvenor Motors V Douglas.

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DELIVERY

 Delivery can occur in one of 2 ways:

o Actual delivery- moveable actually handed over to transferee in such a way
that the transferee is able to exercise physical control with the intention of
being owner but he can be represented.
o Fictitious/constructive delivery: no actual delivery, no transfer of actual
possession from transferor to transferee. It takes place where the act of
transfer occurs with the change in the intention with which it is controlled
which indicates the intention that ownership has been transferred.
 Courts look at ficticious delivery suspiciously because of the publicity
principle!

 5 categories of constructive/fictitious delivery:

1) clavium traditio p38
2) traditio longi manu p39
3) traditio brevi manu p40
4) constitutum possessorium p42
5) attornment p46

1. Clavium Traditio:
 No delivery possible due to the nature or size of the thing, instead you will give
them an instrument that will enable the transferee to exercise physical control
of the thing. Also referred to as symbolic delivery but not accurate as you give an
instrument of control over. (e.g. a key to a house).

 Lendalease Finance V Corporacion De Mercadeo Agricolo 1976:

o Deals with a particular type of control called a “bill of lading”.
o Facts: L in business of debt collecting. Debts are ceded to L (because L pays off the debts and
goes after the person owing the money). In this case the creditor cedes its claim to L thus CMA
owes money to L now and thus L wants to collect from CMA who have gone back to Venezuela.
CMA- foreign peregrinus so need to either arrest or attach property to found Jurisdiction (Civil
Procedure!). L goes looking for property in SA to attach. L discovers that CMA bought maize which
was now sitting in a harbour in CT. L seeks to attach maize to found Jurisdiction but must prove
that CMA is the owner of the maize. CMA says that maize belongs to maize board and not them
thus ownership dispute.
o Thus have real agreement and delivery taken place? CMA did buy maize from maize board
through a contract providing that delivery of maize would be done on a “Free on Board” contract

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[FOB]: where the obligation of the seller is to deliver the goods over the ship’s rail and the risk
and costs becomes that of the buyer [buyer’s risk].
 Cost Insurance Freight contract [CIF]: the seller is responsible for getting the
consignment on the ship and all the way to the buyer’s hands [seller’s risk].
o L argues that the moment the maize was put on the ship over the rail, the ownership passed
to the CMA.
o Court holds that L is wrong: argument failed to take into account a “bill of lading”
(document, receipt which is an instrument of title which says that goods are owed by such and
such). The person in possession of a BOL can either endorse it to someone else. For FOB contract
the BOL was made out to the buyer. When it reaches the buyer the captain hands it over the
buyer. But in this case the BOL was made to the Maize Board the seller to avoid having a
creditor in SA (and so that the maize cannot be attached).
o Real agreement= FOB contract until such time that it reaches the buyer, seller would
endorse it to the buyer.
o Contract= causa of agreement.
o BOL= instrument of control.
o BOL= instrument of control, made out to seller which means delivery only takes place then.
Thus even though maize already on board (real agreement) but when delivery takes place is
only when BOL reached owner which had not happened thus CMA not owner and property
could not be attached.

2. Traditio Longa Manu:

 Due to nature or size of thing you cannot physically hand it over, instead with
TLM you literally point at the thing that you cannot physically transfer. Pointing
= to indicate to transferee that he can exercise physical control. You need to be
in a vicinity where you can see the object. Type of fictitious delivery as you
don’t hand it over.

o Groenewald v Van der Merwe:

o D has a farm and wants to sell a threshing machine as he needs money. Finds a buyer G, G
goes to D’s farm, pays full purchase price but decided to leave it with D in the meantime
(because it’s broken and D offers to fix it) and even tells D he can keep any profits he makes
from it in the meantime. The machine is capable of being transferred by actual delivery but
as broken can’t actually be taken.
 According to publicity principle, it appears that D is still the owner!
o Then 18 months later D sells that same machine to V. V walks around machine and says it is
his. V also decided to leave it with D (he was also unable to take it due to a lack of capacity
at the time). V comes to get his machine 2 months later from D only to realise that G already
took it. G is technically in a stronger position because of presumption that the possessor is
the owner.

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o Court says: this must be a case of ficticious delivery. In both cases there would also have to
be a real delivery if anyone was going to be the owner. V would have to show that his
delivery took place either by TLM or constitutum possessorium. Court said that both of
these two are in conflict with the publicity principle. They want to align the legal position
with the position in reality. With the case of actual delivery you never conflict with
publicity principle as there is complete convergence. The courts are reluctant to resort to
ficticious delivery as it conflicts with publicity pinciple and thus there’s always a
presumption against constructive delivery/FD.
o The court held that V’s evidence more strongly proves delivery because he walked around
the thing, pointed at it and said he would pick it up soon.
o NB: Don’t confuse causa (reason for sale) with transfer or delivery.
o ALWAYS NEED A REAL AGREEMENT + DELIVERY (fictitious or real) - disputes will arise from
one of these elements.
o Court held: G never really got ownership because he could not prove delivery to the extent
that V did. (First in Time, Stronger in Law – FITSIL)
o TLM is appropriate in transactions owing to the weight, bulk or nature of the thing. Thus if
you resort to TLM for an easily moveable object you’re going to have difficulty getting
around the publicity principle and all of the presumptions it gives rise to.
o An important qualification to “pointing out” is that the point must enable the transferee to
exercise physical control of the thing. If physical control cannot be exercised then delivery
has not taken place- Eskom v Rollomatic Engineering Case below.
o This case sets out the requirements for TLM look at pg 130 of text book.
 Requirements:
o 1) The intention of the parties to effect delivery in this process must
be clear. Especially in the case of things which can be delivered
physically.
o 2) The thing must be pointed out by the transferee to the transferor
in the presence of the movable being transferred. (Or some sort of
valid indication, e.g. walking around it).
o 3) The transferee must be able to exercise physical control.
 Specifically dealt with in Eskom case below.
o 4) The movable must be identified clearly. Pointing out with your eyes
is not sufficient. If it’s mixed with other things it must be separated.

[aside] Real world needs to coincide/dovetail with the legal world – publicity principle. If
this does not happen then the courts will look at delivery strictly.

 Eskom v Rollomatic Engineering 1992 AD:

o [similar to Standard Vacuum case].
o Towers 20 tonnes in weight and supposedly fixed to concrete bases. But prefabricated. At
the time of affixing concrete towers to concrete bases it was thought that they would be

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there indefinitely (court thought they were moveables but not correct as they probably
acceded to the land). Towers supplied power to a mining operation. If the towers had
acceded then they needed to buy the actual land to get access to those towers.
o R buys the towers as scrap metal [as court claimed it was moveable]. Tower fenced in
isolation and not touching boundaries. R bought tower to use as scrap metal thinking it was
moveable and would restore land after removing them. 6 years later towers still there.
o The managing director of R in his personal capacity leases the farm but not the bit that the
towers are on. E bought the land that the towers are on through registration and real
agreement.
o R thinks it owns the towers. R alleges that the towers are moveable. Based on nature, size,
weight and intention – all looked at to decide whether it acceded and all evidence supports
this. Real agreement + delivery.
o If towers immoveable E can argue they have acceded [tie in different parts of course in
this case].
o R argued that mode of delivery = Traditio Longa Manu
o TPD finds in favour of R and E appeals.
o Court of appeal: question of accession was not considered as it did not matter. Court held
that delivery did NOT take place, as R has no control over towers or fenced off area where
they stood. Land leased to someone else. R would have to get permission each and every
time if it wanted to access the tower. Requirement for TLM is that new owner must be
able to exercise control over the property.
o You have to be able to exercise your claim to possession AT WILL in order to have delivery
through TLM.
o R not able to get to towers without permission and thus TLM had not taken place. For
delivery to be complete the transferee must be put in a position where he can deal with
his property at will. He must be able to IN FACT deal with his property.
o Transferee must be able to exercise physical control over the thing.

3. Traditio Brevi Manu:

 Takes place when the transferee is already is in physical control of the thing
(prior to the real agreement), but without the intention of being the owner.
Only later does he intend to become the owner.
 Transfer of ownership takes place because of the real agreement (intentions
change) and NOT because of delivery as you already have possession of the
object.
 Possession prior to real agreement thus transfer of ownership takes place
because of a real agreement between the parties.
 Here you are already in a physical control, possession of the thing, possession
requires intention and thus can have intention to possess but not necessarily
intention to own. Thus although physical control there is no intention to become
owner.

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 Constructive delivery takes place when the intentions of the parties change to
such an extent that the transferee in future exercises physical control with the
intention to be the owner (animus domini) instead of mere possession.
 Form of delivery here is also in conflict with the publicity principle and thus
courts are suspicious and thus need clear evidence of an underlying transaction.
 Info Plus v Scheelke 1998: (NB)
o I wants to buy a vehicle but cannot afford it thus financing agreement for car entered into
by I with Westbank. Credit sales agreement thus W wants to retain ownership until last payment
made for security. I decides to sell car and takes their car (the car owned by W) to Sharmin Motors.
Some employee at Sharmin was fraudulent and sold the car to M (with fraudulent registration
papers). M then sells the car to S in good faith.
o M thought that the car had been paid in full but after M bought and sold it to S he was
informed that car was stolen. M despite not being in possession, paid the last instalment to W and
thus car paid off despite fact that M was not in possession of the car.
o Now I wants his car back and thus I institutes a rei vindicatio against S.
o S admits possession of the car but refutes ownership of I. Problem with I is that rei vindicatio
requires proof of ownership (i.e. prove real agreement, delivery and purchase price paid). But I was
not in possession of the car when the last instalment was paid, S was in possession when the last
instalment paid and thus: TBM?
o Held: When the full purchase price was paid to W, at no stage was I in possession and car
not held by anyone on I’s behalf. Thus TBM could not have taken place and neither could any
other form of delivery as I was never in possession and thus no delivery of car to I (which was
coupled with the agreement between I and W to pass ownership) when M paid W.
o Thus court a quo said W owns the car because there was never delivery (also nemo plus iuris
applies). This is however stupid reasoning as W dropped out of picture as soon as car was paid for
which means S must be owner.
 Therefore when the real agreement occurs (i.e. is fulfilled) then you have to be
in physical control for delivery through TBM to occur.
o SCA held: you don’t need two forms of delivery/you don’t need delivery to occur twice!
The real agreements takes place at the very beginning i.e. between W and I and car already
delivered once to I. Once the last payment is made, delivery has already been made. Thus I is the
owner.
o With TBM you have actual delivery at start but the Real agreement is suspended in
financing schemes. Thus once last payment is made the conditional real agreement simply
becomes an unconditional agreement.
o Good example of TBM as S already had possession, the real agreement was only suspended
until last instalment made to bank. Upon last instalment the bank changes its intention to pass
over ownership and thus real agreement becomes unconditional and ownership passes. Bank will
not release ownership until final credit payment is made and thus suspended real agreement.
[150TB or case book].
 Meintjes v Wilson 1927 OPD 183:

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o A company got into trouble, it owed money to the director in his personla capacity, it could
not pay in cash or shares and so it transferred all the office furniture to him instead. Office furniture
stays where it is (in companies premises). Another company’s creditor turns up (they’re also owed
money) and wants to attach property belonging to the first company. Problem is that things stay
where they are, only the intentions change and thus difficult to overcome presumption against
publicity principle.
o There used to be a thought in credit sale agreements that there was a transfer of ownership
upon the last instalment by traditio brevi manu.
o The director won (M) because they looked at the underlying transaction and saw that there
was a genuine agreement to transfer ownership but this is wrong reasoning due to Info Plus case
(see above).

4. Constitutum Possessorium:
 The transferor parts with ownership but still continues to possess the thing. So the thing
remains in the physical control of the previous owner who exercises the physical control for or on
behalf of the new owner for a valid legal cause- causa detentionis.
 Almost the opposite of TBM.
 Ownership transfers with change in intention of the parties (along with constructive
delivery: CP).
 CP can be confused with TLM. Because TLM you buy thing but due to its size and nature
you have to leave it with owners and thus similar to CP.
 With TLM there is an immediate change of ownership but not an immediate change of
possession.
 Remember: Courts reluctant to resort to constructive delivery as it is in conflict with the
publicity principle.
 The intentions of the parties must be looked at very closely as it is in conflict with the
publicity principle as the item stays physically where it is. Thus person alleging that delivery took
place through CP has to prove the requirements (bears the onus), because there is a presumption
against them.
 The person alleging ownership must prove requirements of ownership i.e. Real Agreement
+ delivery.
 Requirements for CP (5): (check T/B!)
o The transferor (previous owner) must be in control of the thing.
o The previous owner’s intention to be the owner is terminated by
means of a change in intention. The new owner intends to be the owner in relation
to the thing but the previous owner exercises physical control over the thing on
behalf of the new owner on the basis of a valid legal cause to which the new owner
had explicitly consented. This explicit valid legal cause is called a causa detentionis.
 The burden of proof is quite heavy- especially where CP is relied upon
in security transactions. In these transactions you have an underlying obligation

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(debt) and thus you enter into a second transaction known as a security transaction
to secure the debt (mortgage, pledge, surety cession etc.)
o There is no presumption in favour of CP and the parties who rely on
it will have to prove that the intention of the parties was that ownership should be
transferred in spite of the fact that the transferor is still going to be in control or
possession of the thing. The reason for the old owner still being in control is the
causa detentionis.
o The causa detentionis must be explicitly identified. This is meant to
prevent fraud. Must be a legal reason in terms of which old owner holds thing.
 This is completely in conflict with the publicity principle and thus
susceptible to fraud and thus courts are suspicious of CP. Fraud suggests that there is
an intention to defraud but fraud does not require an intention to defraud, i.e. can
merely be impermissible. You have to establish by fact that CP occurred.
 Must not confuse causa detentionis with the underlying transaction (reason for
transfer - causa).
 Must prove CP by showing a clear causa detentionis on facts and thus even
harder to prove than TLM.
 Difference between TLM and CP is the causa detentionis.

 How to distinguish TLM from CP (Groenewald v Van der Merwe)

 CP: possession remains with the former owner while ownership passes to new
owner. The transferor retains possession due to an underlying relationship
between the parties i.e. the causa detentionis (which must be valid).
 TLM: bulky, big, strong nature and hence object can’t be moved.
 CP: you can use it for anything but there is a higher burden of proof (because of
fraud).
 TLM: No causa detentionis. Just deferring possession until a later date.

 Vasco Dry Cleaners v Twycross: (NB!)

o V sells equipment and business to C. In terms of contract V retains ownership. C can’t afford
to pay and thus V sells business and equipment on credit instalments and V retains
ownership as security until completion of payment.
o C goes to brother in law to help him. C would keep possession of equipment but not
ownership. T will do this for security (T= brother in law). V already has security of
ownership. So T can get actual equipment. T is willing to give money to C but wants
security so C gives T the dry-cleaning equipment as security and they define it as a
contract of sale and resale.
o T will buy equipment from C in exchange for money which is equal to money C owes V. T
will then immediately sell it back to C and C will pay instalments to T because his debt
with V will have been discharged. Possession will stay with C the whole time.

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o Problem: someone comes to buy V’s stuff before the last instalment has been paid to V by
C. Then C pays last instalment. V still in possession.
o Court says that there is a security transaction between C and T for the transaction between
C and V. Requirement for pledge (security transaction) = handover of goods to T as
pledgor by C the pledge. T never intends to acquire ownership and C doesn’t handover
equipment to T for it to be a pledge but neither can it be CP as no real agreement. Thus no
real security agreement, only a simulated one. But if C hands over equipment to T then C
would not be able to make money to pay T back.
o You cannot use CP to replace a pledge . Thus a security agreement is NOT a valid causa
detentionis for CP as it goes against requirements for CP i.e. no real agreement and no
valid causa detentionis. With CP you remain in possession. With a pledge you hand over
object and thus pledge can never be a causa detentionis of CP. Both are mutually
exclusive.

 When you transfer ownership you will have a real agreement but problems arise with
delivery.
 With CP the person transferring the ownership keeps the thing which can lead to simulated
transactions [STs].

 STs:
o A ST or contract is concluded when the parties thereto intend to conclude a specific kind of
contract but for fraudulent purposes ostensibly conclude another kind of contract i.e. the
simulated contract. Sometimes this occurs without the intention of transferring ownership.
o A pledge in relation to a moveable thing can be established only by means of transfer of
the physical control of the thing to the pledgee.
o However if an owner of a moveable thing transfers the thing to the creditor as security for
the loan then the thing is removed from the pledgor’s control and in the circumstances where
the pledgor needs to use the thing it makes the pledge impractical as you have to hand it
over.
o To avoid this requirement the parties often conclude a simulated contract of sale which
stipulates that the owner “sells” the thing to the creditor/buyer for the same amount as
what was loaned to him.
o The thing is then re-leased to the “seller” by the creditor and ownership of the thing reverts
to the “seller” as soon as the loan is paid back in full i.e. sale and re-sale agreement (ST). All
these transactions imply that the “seller” never loses physical control of the thing and the
parties allege that delivery took place by way of CP. [but no intention to pass or receive
ownership and thus not a real contract of sale- only simulated to avoid having to use
pledge]
o Pls note that not all re-leasing agreements are simulated.
o In the case of a “lease back agreement” where the owner of a thing sells it to a financing
institution and then leases it from the financing institution, ownership is transferred to the

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financial institution by CP despite the fact that the original owner retains physical control of
the thing. If it is proven that both parties have the ACTUAL intention of transferring
ownership to the financial institution then agreement is valid. If there is no proven actual
intention then ownership is not transferred. This is often the case with the so called “floor
plan agreements of car dealers”
o Intention must be to pass and receive ownership and Not merely to secure a loan.

 Vasco Dry Cleaners again:

o C sold VD Pty Ltd to AC Pty Ltd. One of the terms of the contract of sale in relation to the dry
cleaning machinery is that C retains ownership of VD until price paid in full. In June 1972
R4650 owing. AC goes into financial difficulty and D as MD seeks financial aid from his brother
in law (B) to avoid repossession. B to pay balance to C (R4650) and enters into an agreement
with D for a lease agreement for R4650 by June 1973. Ownership of company does not pass
until purchase price is paid in full. AC then sells business to VD in 1972, but AC fails to Pay (B)
on the instalments. So B institutes a rei vindicatio against VD which is now owned by his
brother in law AC. VD denies that B- owner of machinery is actually the owner.
o Court looked at whether it was a pledge or an actual sale by CP.
o Court held doubtful whether B(Twycross) really intended to acquire ownership of machinery
as price of sale was very low. D did not want to dispose of machinery and B/T did not want
to acquire machinery. D required financial accommodation i.e. security of the loan and thus
purchase price btwn T and D was not a serious one.
o Contract also silent about when transfer would be effected. Not valid transfer of
ownership through CP. B/T also had not discharged burden of proof for CP.

 Quenty’s Motor’s v Standard Credit Corporation: (NB!)

o Q concluded an agreement with Love motors for sale by consignment. In terms of the
agreement Q delivers two cars to L on consignment. L will sell cars on behalf of Q and pay Q
money. Q also gives L registration papers. If L sells cars then Q will pay L money. L will pay Q
only when cars sold. L thus has possession of cars and sells cars on behalf of Q. L will transfer
ownership to the buyers. L goes under liquidation. Q institutes a rei vindicatio to get cars
back. But Stannic Bank has already taken the cars and is holding them at the repossession
centre. S is a bank which finances moveables. S bought all of the cars on L’s showroom floor
and took ownership of them.
o Because L needed money (before liquidation) it contacted S and sold cars to S. Ownership of
the cars taken by bank as security but S does not want possession of cars (as L needs to sell
the cars in order to pay S back) and thus enters into a floor plan agreement with L i.e. FPA= S
buys all the cars and gives L possession of the cars so that L can sell the cars to pay S back.
o The real agreement between transferor and transferee in terms of which the transferor (L)
no longer owns the cars but will continue to possess the cars on behalf of the new owner S
who takes delivery of the cars is apparently done through CP.

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o Causa detentionis for L keeping cars? To sell them so S can keep ownership for security
BUT security for moveables is a pledge and S thus needs to take delivery of cars.
o S never intends to take delivery and L never intends to deliver. Only reason why L has cars
there is to sell them and pay back the Bank and S keeps ownership for security [but security
for moveables is a pledge].
o The security transaction is not a valid causa detentionis for CP because it’s a pledge which
is not valid as a reason for CP as CP and pledge are mutually exclusive and go against each
other.
o NB: thus security transaction is not a valid causa detentionis for constitutum possessorium
and thus floor plan agreements do not create security as they do not work. But courts have
said that time is coming to recognise FPA.
o Quenty’s is currently the law.
o If S has a lease back agreement with L it might work but not necessarily.
o RA + valid CD = CP.

5. Attornment:
 Cures some of the problems with CP.
 Involves 3 parties instead of the usual 2.
 Here you have the transferor, transferee and possessor.
 Attornment takes the form of an agreement or contract between all three parties and this is
known as the “tripartite agreement.” (all 3 parties are aware of each other).
 Attornment states that ownership is transferred from transferor to transferee and that the
possessor agrees that at a certain point they will hold the thing no longer on the transferor’s
behalf but on the transferee’s behalf and for their benefit.
 The possessor keeps possession throughout the entire transaction and has elements of
both TBM and CP in it.

o Commercial significance of Att:

o Practice of discounting agreements (READ p135 T/B)
o All 3 parties must enter into and agree to the transaction.
o You can also discount…
o All 3 parties must be involved in the contract e.g. Q owns cars that they sell.
Buyer 1, 2, 3. Each buyer agrees to buy cars on credit agreement. Q runs out of
money at the end of every month. Q goes to S bank who buys the debts from
him – discounting agreement which is causa.
o For the transfer of ownership – RA + delivery + tripartite agreement.

 Requirements for Att (136TB):

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1. Parties to the transfer- transferor, transferee and person exercising physical control
of the object (possessor) must be in agreement that the physical control of the thing
will be exercised on behalf of transferee in the future. Tripartite agreement.
2. The person in physical control must have been in physical control or had the right
to exercise physical control at the time that transferor and transferee had
intention to transfer ownership.
3. The controller does not have to be in control of the thing when informed that he
must control it on behalf of someone else (as long as he is in control at the time
when the change of intention regarding the transfer of ownership from the
transferor to the transferee took place).

 Barkley’s Western Bank v Ernst 1988 AD: (read discounting agreements on p135 T/B)
o Car lease agreement with no transfer of ownership. Trader (T) leases a car to
VC. T discounts the lease to Barkley’s (B). VC now to pay B every month.
o Problem- lease signed on 21st May. VC takes car and immediately transfers it
to E.
o On the 26th of May discounting agreement entered into.
o Included in DC agreement of attornment between T and B that from time of
conclusion, VC would no longer hold on behalf of T, it would hold on behalf of
B. Thus VC must agree on 26 May but VC transferred vehicle to E before
this. Thus cannot agree to hold on behalf of B as no possession by VC.
o VC (the possessor) must be in control or have the right to control the thing
at the time where the real agreement takes place (the 26 th May) and not at
the time when the change of intention takes place.
o But VC sold it on 21st May and thus delivery in form of attornment could not
take place.

 Caledon v Wentzel:
o M buys 7 cars from D on credit. D gives M car and M gives D money monthly.
D reserves ownership. In credit sale agreement D informs M that they intend
to cede his rights to C including ownership of 7 cars- thus at the time of the
credit agreement M is informed. C then informs M of purchase and M signs
an express acknowledgement that C is the new owner and that M will not pay
D. M signs and returns this notification and thus M aware he is paying to C
and not to D. However in period between cession and discounting
agreement M sells cars to third party (W).
o Issue: has C become owner through attornment?
o AD said ownership has passed to C as if on all terms of the original
declaration between D and M. M agreed to hold vehicles for C. M agreed to
cession before the real agreement. M was in control of the cars at the time
of giving intention that cession was ok. Knowledge by M of the actual date

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of cession thus not necessary at the time of agreement with D. Thus

attornment already taken place. M does not need to know when real
agreement takes place. Delivery i.e. M’s attornment came before real
agreement between D and C. Delivery between M and D. When intention
changes is paramount!
o i.e. the formation of the tripartite agreement does not have to be
simultaneous between all three parties. The possessor can consent in
advance to hold in transferee’s name if and when the transfer takes place.
Present law. [See pg 136-137 Ereal v Bodenstein- you must use words to
that effect to succeed in attornment.]

 Registration can be positive or negative:

o In a positive system rights created and once a right is registered then nothing
can be done as it’s a source of rights.
o In negative system of registration just a record of rights that exists. Here
registering is not guaranteed to be accurate, mistakes can be corrected and
mistaken registered real rights must be struck out of registry.
 In SA we have a negative system. Look at Knysna hotel Case in TB.

 Protection of ownership:
 Will never deal with an original mode ONLY DERIVATIVE MODES (mostly).
 3 types of remedies to protect ownership:
o Real remedies- purpose is to restore physical control of the thing or to
remove any infringement of the owner’s exercise of his entitlements to the
thing.
o Delictual remedies- actions of the owner against a person aimed at
compensation or damages for loss to the owner’s property resulting from the
unlawful and culpable actions of such a person.
o Enrichment remedies- aimed at the payment of compensation by a person
who was enriched at the expense of the owner without a legal ground for the
enrichment.

 REAL REMEDIES:
o Rei vindicatio: Owners action
o Action for the vindication (to get something back) of a thing. Can be instituted against
any person who controls the thing without the owner’s consent.
o 145 TB- RV is the action whereby an owner can recover an existing and identifiable
thing from any person who is exercising unlawful physical control over it.
o Probably most important remedy for an owner. RV is available to owner or co-owner for
the recovery of a moveable or immoveable from whomever happens to be in
possession regardless of whether the person in possession holds the thing in good

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faith or bad faith. If immoveable then RV usually occurs in the form of an eviction
order.
o Powerful remedy that’s designed to protect owner- powerful as you don’t need bad
faith to use it.
 Chetty v Naidoo:
 An eviction order where C kicked out of premises and brought action against N the
respondent.
 Set out the requirements for RV:
1. Plaintiff must prove on a BOP that they are the owner. 51% (RA + delivery/reg)
2. In the case of moveables there is a presumption that the possessor is the
owner. Thus the plaintiff must rebut this presumption. Problem- principle
conflicts with the presumption that ownership is given huge protection in the
law.
3. For immoveables there is not the same presumption as with moveables. If home
there is a statutory regime with specific steps to remove them from home.
Special rules for eviction- (S26 of Const, Pie and Esta). If not home then pretty
easy to prove due to regulations. Assisting the owner is a presumption of
continued ownership. Once plaintiff able to prove ownership then
presumption is that ownership continued and on defendant to rebut this. This
presumption operates in favour of P instituting RV.
4. Plaintiff must also prove that defendant is in possession of the thing or is in a
position to control the thing. Possession means that he is in physical control of
the thing.
5. The plaintiff does not have to prove that the defendant is in unlawful
possession. Often the plaintiff will allege unlawfulness but not necessary to
prove this for RV.
6. The burden of establishing a right to remain in possession lies on the
defendant.
7. The RV is not available for the vindication of money- because of commixio-
ownership passes immediately.

a) Prove ownership by P (RA and delivery or registration) and defendant in

position of possession or control.
b) In order for P to prove ownership he must refute presumption that person
in possession is owner due to publicity principle i.e. he must allege that
constructive delivery took place etc.
c) Once P proves ownership then presumption is that he is still owner and
defendant must disprove this (continued ownership).

 Defences C v N: by defendant to refute RV:

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1. Refute or dispute ownership- no delivery and/or no real agreement or no

registration or owner can also refute real agreement.
2. Refute the fact that def is in possession- e.g. stolen, destroyed in fire.
3. Maybe the thing is no longer separable- i.e. is no longer identifiable or
separable (accession/commixio/Speficifatio)
4. Def has right to possess the thing- lease agreement etc. This will defeat RV
action. Can be contractual agreement or a limited real right e.g. usufruct, or non
payment of your obligation i.e. debtor/creditor link.
5. Estoppel- RV will be limited here . Equitable doctrine.
o Grosvenor Motors v Douglas:
o D wanted to sell car (look at facts of case). GM in possession. D wants ownership back.
Ownership transfers when payment and delivery. D had equipped K with a device to defraud
GM i.e. a note of ownership. Bona fide party is GM. K received assistance from D with his
fraudulent scheme and thus doctrine of estoppel would act as a defence to the rei vindicatio
and D would be estopped from getting back his car.
 With estoppel always three parties- owner, bona fidei 3rd party, bad guy/ mala fide party.
o Estoppel operates when the bad guy has been put in a position by the owner to defraud
the BF third party. The only way you can hold the owner responsible is if the owner did
something wrong.
o In the case above owner D gave bad guy K a note enabling him to defraud GM. The doctrine
of estoppel is a defence when you can show that the owner has done something wrong.
Rei vindicatio is estopped from succeeding. If owner not at fault then you cannot be
estopped from raising RV. In this case the court did not find that D was at fault at best D
was negligent and thus estoppel failed.
o NB: RV only requires proof that plaintiff is owner and that defendant is in possession.

 Requirements for doctrine of estoppel:

1. Representation must have been made by owner: this rep must be to the effect that the bad
guy of the thing is the owner or more importantly that he has the ius dispodendi. This rep
would indicate that bad guy allowed to act on owner’s behalf.
2. This rep must have been relied upon by the BF 3 rd party- usually to their detriment i.e.
usually means patrimonial loss.
3. This rep must be the CAUSE of the BF 3rd party’s loss.
4. Fault is on the part of the owner.

 [also look at TB 149 requirements].

 There must be a negligent misrep by the owner to a BF 3 rd party that the possessor of
the thing (bad guy) is the owner or has ius dispodendi.
 Culpable misrep = negligent misrep.
 Court said that person claiming estoppel has to prove that the misrep by the owner was
the cause of them acting to their detriment.

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 On the facts of this case the court said that the cause of GM acting to their detriment
was not D’s note but rather K’s powers of persuasion. Normal practice for car
dealerships is not to accept notes. If this was common practice then it would probably
succeed on Estoppel against D.
 Court said misplaced confidence in one person is not synonymous with negligence in
another. There was nothing to show that D should have been on his guard regarding K’s
actions and thus the defence of Estoppel will only work if both elements of fault or
causation are present.

 Effect of estoppel:
 You can only raise estoppel as a defence against RV and thus it stops a RV from
operating and thus would stop an owner from getting back/vindicating their thing.
 Estoppel does not actually transfer ownership but because no one else could claim
ownership it would be as good as having ownership. Estoppel when successful is an
exception to the rule but it achieves the same result of a change of ownership without
consent. Estoppel succeeds very rarely because very strict for defendant to be able to
refute causation part.

 Quenty’s Motors v Standard Credit Corporation case again:

 S argues estoppel in the alternative in event of continual ownership by Q as court held
that S and L- simulated transaction [Thus ownership did not pass to S and remained with
Q]. Said that Q made negligent representation that L was owner or at least that L had
ius dispondendi and that S relied on this representation to its detriment.
 Court held: besides the document/registration papers this representation of authority
could also be inferred from the circumstances in that it was sufficient to give rise to a
misrep. Notwithstanding this there was also a rep made by on the paper. L in
circumstances was able to show that it has ius dispondendi. Estoppel shows a transfer
of ownership without consent. Exception to nemo plus iurus rule. Thus Q estopped
from getting cars back from S.
 AREAS OVERLAP NB!

 Rei Vindicatio:
o Most important remedy.
o Ownership action and you need to be owner to get it back.
o Must be an existing and identifiable thing.
 Impact of constitution, anti-eviction legislation and Rei Vindicatio- look at handout!

 Other Remedies- Delictual remedies:

1. Actio Ad Exhibendum: owner recovers value of thing:

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 This remedy is instituted by the owner against the controller/possessor of the thing
who has fraudulently lost physical control of the thing in which case the VALUE of the
thing can be recovered by the owner. The actual thing itself cannot be gotten back.
o RMS Transport v Psicon Holdings (Pty) Ltd 1996:
o A was to deliver drums of power cable to X but instead delivered it to C. C controllers of
plant said leave the cables alone the rightful owner will probably come back for them.
But an employee of C had friends who were unemployed and who came and loaded up
drums and took them away. When C asked where they were the employee lied and said
he did not know.
o Requirements for AAE:
1. Thing must have been destroyed or alienated by the controller on purpose- not
sufficient to prove negligence.
2. Controller no longer in possession. Could have been destroyed, consumed, alienated in
any way.
3. Controller must have been mala fide at the time of destruction/alienation in that she
had knowledge of the owner’s rights at that stage. This includes the thief and any MF
controller of the thing. Thus person who took the thing from the owner must have been
in bad faith at the time of destruction and must have known of owner’s rights to do so
e.g. sale of stolen property even though no longer in possession the original owner can
still claim from you.
4. The remedy is available only to owner (or co-owner) of destroyed or alienated property
and owner is entitled to recover the market value of the thing from the MF controller.

 Condictia Furtiva: owner of thing against thief or heirs for thing or value:
o This action is instituted by the owner of a thing against a thief or a thief’s heirs and
is an action with which the thing or the highest value of the thing since the theft
can be claimed. Allows you to get back either the item or the thing- choice.
o NOTE- if thing still in control of the thief or the thief’s heirs you should rather use
RV. Easier to prove.
o If thing destroyed by thief or his heirs on purpose then use AAE. NB: AAE cannot be
used if thing destroyed by accident or removed from his control against his will.
o Requirements:
1. CF can be used by the owner or the lawful holder (don’t need to be owner) or any other
person with a lawful interest (legal interest) in the thing from the date of the theft until the
date of institution of the action (NB: difference between personal and legal interest).
2. If the thing is destroyed or the owner’s ownership is terminated thereby the previous owner
retains the remedy e.g. owner paying instalments, goes insolvent and ownership reverts to
bank and it can institute the CF as its not exclusively an owner’s action.
3. Action can be instituted only against the thief or his heirs and not against accessories or
later bona or mala fide acquirers and controllers of the thing. For the purposes of this
action the theft does not have to meet all the requirements of criminal liability. Sufficient if

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the claimant can prove that the defendant removed the thing from his physical control
with fraudulent purposes- this is the civil side of it but can still claim a criminal action where
requirements for theft need to be met.
4. If the thing itself can no longer be claimed the claim will be for the highest value of the thing
since the theft.
5. This action cannot be instituted together with the RV. However you can use it in the
alternative.

 Actio Aquilia 156-157:

o If thing has been damaged or destroyed in an unlawful or culpable way the owner can claim
damages with this action for patrimonial loss. Overlaps with AAE and CF. Wrongful action,
fault, causation and loss.

 Enrichment Action:
o With this action the owner of the thing can claim from the controller the
amount by which the controller’s estate has been unduly enriched if that
enrichment was the result of the consumption or alienation of the thing.

 Requirements for an EA:

1. The controller must have been enriched i.e. the controllers estate is larger
than it was before.

2. Owner must have been impoverished i.e. the owner’s estate is less than it
was before it was diminished.

3. The enrichment of the controller must be at the expense of the owner’s

impoverishment.

4. The shift in value must have been caused without a legal reason i.e. sine
causa i.e. there cannot be no legal basis for why this has occurred. No legal
causa.

5. Owner must have transferred the control of the goods to the controller who
must have alienated or consumed them bona fide.

6. Balance of the purchase price for which the controller sold the thing for and
which at the time of institution of the condictio sine causa remained in the
controller’s possession or the value of the goods as at the institution of the
condictio can be claimed.

 NB: if thing is still identifiable (money mixes and thus not identifiable) and can be
recovered by the RV from the person to whom controller alienated it to then the
owner cannot use the enrichment action. VERY IMPORTANT THIS!!!

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 Not possible to use the condictio sine causa against a controller who acquired the
thing for consideration.

 Possession:
o Possession is not a right. It is a factual state of affairs- you either possess
something or you don’t. Either or.
o It exists irrespective of whether the possessor has a right to possess or not.
o Usually you possess something by virtue of a right to possess. But that is not an
essential element for possession.
o Possession is protected regardless of whether you have a legal right to it or not.
o Correlation between ownership and possession which can exist or not. It doesn’t
have to be there. This correlation is however recognised in law by the presumption
that the possessor of a moveable is the owner as well.
o Often ownership and possession go together but this is not necessarily always the
case. You can also lose possession involuntarily. Forget where you put it and
someone else takes it.
o Because possession is a factual situation you can possess something irrespective of
whether you have a right to possess. Thus there is quite a bit of legal protection in
respect of possession.
o Possession is the physical control of corporeal things.
o Physical control is defined as the actual physical holding of a corporeal thing.
Different elements to possession.
o NB: ignore Pg170-193 on control in TB.

o Requirements for the factual state of affairs:

1. Subjective element: animus posidendi- will to possess.
2. Objective element: physical control part. This is the actual physical holding or
domination of a corporeal thing.
3. Ownership is a matter of right but possession is a matter of fact.
4. Possession is protected because you possess not because of why you possess.
Remedies for protecting possession are not the same as remedies for protecting
ownership.
5. Ownership’s primary remedy is the RV. Possessor’s primary remedy is the
mandament van spolie. This does not mean that if you’re an owner you cannot use
the MVS- as long as you have possession. If owner in possession then entitled to
both ownership and possessory remedies. But can’t use MVS if the owner is not in
possession.
o NB: always identify in exam questions which remedy can be used for whom.
Identify who the possessor is and who the owner is.

 Objective element of possession:

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o Physical control is a state of affairs. The degree of control necessary to

possess something depends on the circumstances.
o Three factors to decide whether you control something or not:
1. Nature of thing: big, small, moveable, immoveable, can you actually
possess it?
2. The nature of acquisition of the thing: the method of acquisition.
3. Is the person concerned with acquiring possession or with retaining
possession?

 Nature of the thing:

o Is this thing a portable moveable- i.e. can you move it around. Common
sense enquiry. Law requires extensive physical control of a portable
moveable to protect possession.
o What about a moveable that is less portable- then relatively less physical
control is going to be required e.g. car can be parked in the parking lot.
o Immoveable property- usually exercised by occupying it or making use of it.
o Liens:
 Scholtz v Faifer 1910: builder working on a contracting site, nearly finished. Builder moves
off property, and puts a lien on property i.e. you can’t do anything with the property until
you pay the builder. But the builder still has to prove possession because he is not
occupying the property anymore. The courts in respect of liens in proving possession
thereof said that as long as the builder visits the site from time to time in order to refresh
his possession that would be sufficient. However, if when the work has not gone on for a
long period of time (i.e. job finished a long time ago) then the occasional visiting of property
may be insufficient he might have to go further and hire a guard. It will depend on what the
thing is and what the circs are.
 Method/nature of acquisition of the thing:
o If you get possession through the transfer of ownership then you have the
owner’s consent which probably means that you don’t need to exercise
extensive control of the thing or extensive acquisition as you have the
previous owner’s permission.
o But if you acquire the property without consent then you will need
greater/more extensive physical control.
o This is important for prescription: you must acquire the thing publicly and
have extensive physical control and only the part that you occupy will be
seen as the part that you possess.
 Acquiring versus retaining possession:
o You will need to have more physical control if you are acquiring possession
than when you already have possession/ are retaining possession.
 So you must look at the entire factual/objective situation and see whether enough
control is being exercised to have possession.

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 Subjective element of possession:

o You can only have possession if you have the intention to have possession.
o Example: someone planting drugs on you but you don’t have the intention to be in
possession of the drugs.
o Possession requires knowledge. You cannot possess by accident you have to know that
you’re in possession.

o Subcategories of animus posidendi:

 Animus domini- the will to be the owner. This is the state of mind of an owner or you have
to want to be the owner. In order to invoke a possessory remedy you do not need animus as
strong as this to get a remedy.
 Intention to possess for your own benefit from the thing- prescription is where this has an
effect as with prescription this is not enough. You also need to have animus domini.
However in order to invoke a possessory remedy you only need this second category to
succeed. But to show possession for prescription you need animus domini above.

 Possessory Remedies (4):

1. Interdict
2. MVS
3. Possessory action
4. Delictual action

 Mandament van Spolie:

o Aimed at restoring possession without any reference to a right to possess. Designed to
restore possession quickly and expeditiously. Summary remedy is used- MVS issued on
urgent application aimed at restoring control of property to the applicant from whom it was
taken by unlawful self-help without investigating the merits of the parties’ rights.
o Available when a person is unlawfully deprived of possession of a thing.
o Also available for unlawful deprivation of quasi-possession of a right.
o The deprivation must be unlawful. Unlawful deprivation of possession is called spoliation
 Nino Bonino v De Lange- A guy wanted to lease a billiard room. N leased this billiard
room from D. Had to pay rent. If rent not paid then D would have the right to cancel
the lease in terms of the contract, enter the premises and prevent N from having
access. N goes to court to get a MVS. MVS is available expeditiously and on an urgent
basis.
 Court said that it’s a fundamental principle of the rule of law that no one may take
the law into their own hands. Individuals give up their ability to resort to self-help
provisions to dissolve their legal disputes. Instead such issues must be resolved through
the state supplied legal mechanisms.

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 Principle behind MVS- is that no one including the govt, may unlawfully
dispossess someone of their property. NB possession is a matter of fact thus
doesn’t matter whether you have a right to possess or not. Lawful means recourse
through law. If this does happen the court will immediately by a summary order,
order the restoration of possession to put the person back in the previous position
even if they are a thief. The court does not want people taking the law into their
own hands.
 The MVS is a remedy against self-help which takes the form of spoliation.
Spoliation does not have to consist of acts of violence.
 Spoliation consists of dispossession of a thing without the consent of or will of
the possessor and without recourse for dispossession.
 In this case above, possession was taken away but signed a lease and thus there
was consent BUT the clause does not work as it is contrary to public policy and you
cannot contract out of the law. Contrary to PP as it gives the right to one party to
take the law into their own hands. You have to go through legal mechanisms to
dispossess someone.
 Only a court can dispossess a person of property against their will.
 You can only change possession if you have the consent of the owner or the lawful
possessor or by court order.
 NB if owner and possessor are two different people then owner cannot use MVS to
get possession back he needs to use RV. Even if something has been stolen from
you then you need a court order to get it back or you need the consent of the thief
to get it back.
 Before you were disposed you must have had physical control and the intention to
possess for your own benefit.
 Courts have awarded the MVS to thieves, trustees, borrowers, creditors basically
anyone who can show physical control + intention to possess for own benefit +
unlawfully dispossession.

 Requirements for MVS:

1. The plaintiff must allege that they were in peaceful and undisturbed possession when
2. They were disturbed and unlawfully deprived of possession by the respondent.

1) Physical objective control and degree of control will be looked at which will depend on
the circs. They must have been in possession which will look at physical control and the
animus.
 There is no need for violence for the unlawfulness requirement. It is sufficient for the
dispossession to be without the consent of the applicant. NB you do not need to
show a legal right to possess on the part of the applicant instituting MVS.
 If the applicant does not consent to being deprived of possession then he can get a
court order despite having no right to possession himself.

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 If the respondent doesn’t show up to court or shows up and says nothing then the
court will put back the status quo ante. I.e. the possession will be restored to
applicant- default judgement.
 If the respondent does show up then there are defences:
o The person was not in peaceful and undisturbed possession: i.e. not enough
factual/objective control or possession with the intention to benefit himself
was lacking-subjective element.
o Can dispute that it was not unlawful dispossession: usually amounts to an
argument about consent.
o Restoration of possession impossible: destroyed, lost, object no longer
under the control of the respondent.
 this defence prior to the PIE Act was used to enforce evictions. Now if
there has been destruction post-PIE Act this remedy is still available
but much more difficult in light of the PIE Act- not really used much
anymore.
o Defence of counter spoliation: this will be determined by the facts and it can
be used along with :
 The dispute of peaceful and undisturbed possession.
 Mans v Loxton Municipality 1948-
 M’s sheep found on L’s municipality. L sends employees to capture the sheep and impound
them. M quickly goes to get his sheep back by quickly opening the gate and taking them
back to his own land. Upon doing so L goes to take the sheep back and puts them back in
the impound. M then decides to pay fine to get sheep back but by the time that M has
raised the money to pay fine the sheep have deteriorated in condition.
 M sues L in delict. Issue- did L act unlawfully when depriving M of his sheep the second
time?
 Court held: If someone dispossesses you of your property you must use the legal
mechanisms to get it back. However where the act of dispossession is still occurring or has
just freshly occurred then the owner or possessor (assuming they’re the same person) can
act themselves provided that they act instunter (immediately) i.e. while the incident is still
fresh.
 Counter spoliation is a form of keeping the peace. An act of spoliation is a breach of peace.
If however, that breach of peace is still occurring then the person who lost possession can
act to get the thing back while the peace is still being disturbed.
 So the court in this case held that it was not sufficiently immediate of L to go back and get
the sheep the second time. Thus no counter spoliation occurred as it was not immediate.
Therefore it was a new act of spoliation and thus L had to pay damages in delict.
o In Roman Law they took a more lenient view as to when owners are trying to
regain possession.

 Possession continued:

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 NB you don’t need a right of possession. Can be in unlawful or lawful possession- factual
state of affairs:
 Objective
 Subjective
 Possession is a legally protected state of affairs:
 Some of the remedies are aimed at prohibiting or preventing infringement- interdict/
declaratory order.
 Some of the remedies are aimed at restoring property relations which have been infringed
upon-MVS/possessory order.
 Others are aimed at providing compensation for damages suffered as a result of the
infringements- delict/ condictio furtiva.

 Purpose of the remedies for the protection of possession or holdership are either:
o To protect property rights in the form of lawful holdership against infringement. [would
need to show a possessory right here]
o To protect the community against chaos and anarchy by preventing people from disturbing
existing property relations whether lawful or unlawful by self-help. [don’t need to show a
possessory right here]

 MVS continued:
 Primary remedy to get back your possession without any need to show right of
possession. Aimed at restoring possession pure and simple.
 Available when a person is unlawfully deprived of possession of a thing. Can be used for a
moveable, not really used so much for immoveables because of the PIE ACT.
 Requirements for instituting the MVS:
1. Proof that the applicant was in peaceful and undisturbed control of the
property before it was taken away.
2. Proof that the respondent took control by means of unlawful self help or
spoliation.
 Because the aim is to the restoring of peace and order and discouraging self help, the MVS
does not investigate the merits of any of the parties to possession of the property.
 The court is simply, only interested in the factual situation and not the law. Namely
whether there is in fact proof of existing control whether lawful or not and proof of unlawful
spoliation of that control. [court only interested in proof of the above two requirements].
 If there was in fact 1) existing peaceful and undisturbed control and 2) unlawful
dispossession the court will order the dispossessor to restore the control to the applicant
immediately regardless of whether that control was lawful or unlawful or even illegal- they
don’t care.
 Respondent:
o If the respondent says nothing or does not show up in court then possession
is ordered to be returned immediately.

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o If the respondent does show up then has several defences:

 Dispute peaceful and undisturbed possession- i.e. defendant did not have the
requisite control.
 That it was not the respondent who dispossessed the applicant.
 The deprivation of possession was not unlawful.
 Restoration of possession is impossible as the thing is gone, destroyed etc.
 Defence of counter spoliation.

 Counter-spoliation defence:
o Aimed at keeping the peace.
o If the breach of the peace is still occurring when the person has lost possession then that
person can go and get their thing back while the peace is still being disturbed. As long as
done very timeously/INSTANTER.
o NB: Mans v Loxton Municipality 1948 case for defence of counter-spoliation.

 Quasi-possession [still under possession]:

o All of the remedies that you have for possession you can also use for quasi-possession.
o QP is a type of possession. With normal possession you can physically control a corporeal
but the law also recognises incorporeal rights. With such rights you cannot possess them in
a physical sense. QP deals with incorporeal rights to an extent. And the MVS can also be
used to protect possession of the use of an incorporeal.
o Possession= physical control + subjective intention to possess for own benefit.
o BUT problem with incorporeal is that you cannot physically control it. But also NB that
possession is not about rights is about a state of FACTS.
o QP deals with this; not really possession as you can’t physically control it but it’s like
possession nonetheless.
 Bonquelle v Municipality of Otabi 1989-
o The MVS was used to restore QP of the use of an incorporeal. In this case it dealt with a
servitude. The Municipality had a water servitude that came from a spring on B’s land. B cut
off the supply to the municipality.
o Two ways in which M could have proceeded with this:
 Trial and evaluation of the M’s right to the water [declaratory order] or
 Could use a MVS and ask the court to immediately restore possession.
o But they cannot be in possession of a servitude.
In this case there was a right to supply of the water but remember that the MVS is NOT
concerned with rights.
o So the court in this case was forced to look at QP and to consider QP for incorporeals. Court
said that to say that you possess the right to water is wrong. You cannot say for QP that you
have a right to possess. You must say that you have the QP of a right.

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o Therefore you can use the MVS to immediately restore your QP of a right. QP consists of an
actual use of a right. It’s the use that is being protected by MVS and not the right. You
don’t need to prove the existence of a right for MVS, need to prove that you’re using the
right. Thus peaceful and undisturbed use of right in such a case needs to be proved.
o The reason why it cannot be used to protect the right is that MVS doesn’t concern itself
with rights.
o But protection of the use of the right is the problem. It shows that you are in fact using the
right. Thus if you succeed with an MVS for a QP what is restored to you is not the right itself
but the use of the right.
o This case establishes the protection of QP. You can use the MVS if you have been
unlawfully cut off of your use or exercise of the rights.
o There is a problem that can arise when the MVS starts to be used to restore rights that
are contractual in nature. Usually this will mean that the innocent party is no longer
supplying a service because it’s the defaulting party that’s in a breach.
 If the MVS is available in these circumstances then the party in breach/ the
defaulting party will be able to restore the previous status quo. Thus you cannot
allow the MVS to be used for contractual breaches.

 Zulu v Minster of Works Qwazulu-

o Prince of a royal family lived on a house on property of the royal residence. When the
royal residence was built Zulu the prince installed a water pipe between his place and
the royal residence and thus was allowed to take the water for free so long as the
Municipality had an excess water supply. This went on for 20 years. Then water no more
in excess and M cut off Zulu’s supply. M said that Z had basically been siphoning the
water for all these years.
o Z argued that he had QP of this water right.
o The court did not however award the MVS. However, this is a bad decision. The court
held that no water was awarded but this is an incorrect decision as the court looked at
whether Z had a right to the water [looked to the proviso of surplus] but this is not
what they should have looked at. If the principles were looked at properly the fact that
the water was in fact being used (peaceful and undisturbed use) and was in fact,
unlawfully taken away- then it’s irrelevant whether he had a right to use it or not as
MVS is not concerned with rights to a thing. [just look at two requirements which a
plaintiff has to prove to show possession for MVS-peaceful and undisturbed use,
unlawful dispossession- NOT RIGHT]

 Different types of rights:

 The MVS is available for the actual use or the QP of a property right e.g. a servitudal
right and not a contractual right.
 The remedy of the MVS doesn’t extend to the exercise of rights in the widest sense.

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 Telkom SA v Xsinet 2003-

 T supplied X with service. X fell into arrears. T thus cut off X’s connection to the
internet. X wanted a MVS as fastest way to restore possession so as to save business.
 Court held that MVS cannot be used anywhere because it is a property remedy. X
said it had a right of use of this connection and thus it would constitute a form of QP
and he said that T unlawfully dispossessed him of this use.
 High court said that X was successful on MVS as X dispossessed.
 On appeal the SCA said that this service is not an incident of possession in the same
way that it works for water or electricity. Services like this are contractual rights.
What X really wanted was an order for specific performance. Must keep a
boundary between property and contract.

 Dispossession of use of right= QP.

 Dispossession of property= property right.

 Other possessory remedies:

 Declaratory order: [need to show a right to possession]
o A court order that is given upon application. And you ask the court to set out the rights
and obligations of the parties to a dispute before an actual infringement takes place.
o Once the declaration of rights is given the parties are bound by it.
o Requirements:
1. Have to show proof of an actual existing or future right or obligation
with regard to property.
2. You have to show proof of an existing and real dispute about the
right or obligation in question.
3. You need convincing reasons why the circumstances make it
necessary for the court to issue a declaratory order to solve the
dispute by setting out the rights and obligations of the parties.

 Interdict: [need to show a right]

o A summary court order which is usually issued upon urgent application. In
terms of this order a person is ordered either to do something or to refrain
from doing something or to stop doing something in order to stop, or prevent
an infringement of property rights.
o Requirements:
1. Have to show a clear right with regards to the property.
2. Proof that the respondent infringes upon the right unlawfully and in an
ongoing or a continuing way or that there is a reasonable expectation that
such infringement will occur in the future and that it will cause the applicant
damage.

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3. Reasons why there is no other effective remedy available to the applicant. So

if you can use the MVS or another remedy then you can’t use this, interdict is
your last measure.

 Possessory action: [need to prove a possessory right]

o Based upon the merits of a stronger right to control of a corporeal thing and
used to claim either the thing itself or its value from anyone with a weaker
right. So here you may have five competing parties with a right to possess but
the question is which is the stronger right?
o The court will look at who has a stronger right to possess and this will be
based on your merits to the right to possess.
o Requirements:
1. Proof that the plaintiff has a right in the property and that this right
is stronger than any other right that the defendant/defendants might
have.
2. Proof that the defendant is in control of the property or was
responsible for its unlawful removal from the plaintiff’s control.
3. If the plaintiff wants to claim damages e.g. if property is destroyed,
broken etc. The he will have to prove all the delictual requirements in
order to claim damages.

 Action for delictual damages- Actio legis Acquilia: [can use this with MVS if you
want return AND compensation for loss suffered]
o This action is used to claim compensation-AIM. [always look at what the
parties are trying to achieve and then decide what remedy to use].
o Damages for losses suffered as a result of the defendant’s unlawful actions.
o This is a repairing action.
o The other actions either do something in effect of rights or property, or
aimed at restoring possession. This action or remedy is only used when it is
clear that the infringement cannot be reversed.
o if this remedy is successful, it makes the party who caused the loss pay a sum
of money to compensate the loss suffered by the plaintiff. This remedy is not
protecting possession per se but rather protecting your rights.

o Requirements:
1. Proof of a patrimonial right or interest in the property.
2. Proof of damage suffered as a result of an unlawful and culpable
action of the defendant.
3. Proof of causal connection between the unlawful action of the
defendant and the loss.
4. Loss.

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