CODeL ASSIGNMENT COVER

2022 ACADEMIC YEAR

Student Name IHEMBA JOHANNES
Student number 221049886
Email address [email protected]
Cell/Tel no 0818349902
CODeL Centre Windhoek
Programme of LAW HONOURS
study

Course/Module Name Course/Module

Code
LAW OF PROPERTY

3
QUESTION 1.1

INTRODUCTION

Ownership is the most comprehensive real right in that the holder thereof, the owner,
theoretically, has the greatest powers with respect to a thing, but it must be kept in mind
that ownership may occasionally be constrained by another (limited) real right, such as
usufruct held by a person who is not the owner of the thing. According to Namibian law,
joint ownership, often referred to as co-ownership or ownership in common, is the
possession of a property by multiple people, each of whom has an undivided interest in
it, whether their shares are equal or unequal. The majority of the time, it results from a
will, private agreement, partnership, or joint acquisition.

According to Silberberg1, the term "co-ownership," "joint ownership," or "ownership in

common" "means that two or more persons own a thing at the same time in undivided
shares or equal portions, that is to say, each co-owner has the right to a share in the
entire thing," be it either land or developed property. However, the various shares do not
have to be equal. Since the members of an unincorporated association (other than a
university)2 and business partners are also co-owners of the property claimed to be
owned by the partnership or the unincorporated association, joint ownership
encompasses a variety of legal arrangements, regardless of the circumstances and
connection.

According to the definition given above, co-characteristics of ownership's can be

summed up as follows:

(a) One or more people own the property in indivisible co-ownership shares.
(b) There exists only one ownership that distributes to various parties in ideal
undivided shares.
(c) A co-owner could potentially encumber or alienate his entire co-ownership as
it is possible.

1
Badenhorst et al (as above)133.
2
A universitatis is a legal person that is distinct from the members that make it up. It has rights and obligations
that are separate from those of the members, and it has the ability to bring and receive lawsuits on its own behalf.
 (d) The co-owners must use their combined rights in accordance with their
undivided shares even though the entitlements to the thing are not
subdivided.

Co-ownership is known as binding common ownership when the rights of co-owners to

their shared property are frequently governed by an agreement between the parties.3
The extent to which co-owners may use and dispose of partnership property, for
instance, will often be specified or distributed in the partnership agreement if the co-
owners are members of a partnership. In the absence of a special agreement, in a free
co-ownership, the law accords each co-owner the typical rights of an owner to the
possession, enjoyment, and disposal of the joint property, proportionate to his or her
share in it. These rights, as well as the limitations that the law imposes on them in the
interests of the other owners, are as follows:

1. Right of possession
2. Right of use and enjoyment

Right of possession

The degree to which co-owners are permitted to use their shared property relies in part
on their understanding of the terms of the co-ownership, which is inheritance by
bequeaths of an testator and in part on the type of property. A farm, for instance, may
be occupied jointly by a number of co-owners, but a common asset, like a motorcycle,
may only be owned, in the sense of being in the control of one person at a time.
However, a co-owner is allowed access to any area of the jointly owned property,
subject to any such agreements and the property's nature.4

Right to use and enjoyment

We've seen that a co-owner has the right to reasonable use of jointly held property for
the objectives of which the property is designated, but only to the extent of his or her
part of the property. The following issues emerge in relation to that:

3
Van der Walt and Pienaar (as above) 50‐51
4
Ammo, S.K. (2014). Property law in Namibia. Pretoria University Law Press.((PULP),
(p. 66)
 (a) If the other co-owners haven't given their verbal or implied consent, no co-
owner may divide up their share of the property for personal use. In
Oosthuysen v. Muller,5 it was decided that a co-owner could not exploit
common soil to build bricks without the approval of each of the other co-
owners, even when the bricks were intended to be utilized on the common
land.
(b) Except with the approval of all other co-owners, a co-owner may not modify
the property to be utilised for objectives other than the ones that it was
originally intended for. He is not permitted to put it to alternative uses or alter
its nature; as a result, he is not permitted to construct on pasture land,
convert it to arable use, or clear-cut trees without regard for their species. In
the case of Erasmus v. Afrikander Proprietary Mines Ltd,6 it was stated that in
the event of any disagreement regarding the behaviour of a co-owner and the
way he has used the joint property, the court was required to consider
whether the behaviour complained of constituted an unreasonable use
incoherent with the use of which the property was bound and determined, to
the detriment of the rights of the other co-owner. Unless the behaviour of the
former co-owner can be described, the court would also have
(c) Any gains or losses related to the common property must be distributed fairly
among the owners, and any joint owner may bring a claim for profits derived
from or be held liable for costs related to the property; the owners inherently
have a right of recourse against one another. Land was rented out by one of
the co-owners in Sauerman v. Schultz,7 without the other co-owners' consent.
The co-owner who received the rent had to distribute it to the other co-owners
in proportion to their ownership interest in the joint property.
(d) If there hasn't been a prior agreement among the co-owners that the
majority's opinions should take precedence, the majority of co-owners cannot
force the minority over how the property is ought to be used. The minority has

5
(1877) 7 Buch 129.
6
1976 1 SA 950 (W)
7
1950 4 SA 455 (O)
 the right to veto the majority's decision in such cases. These situations may
result in the co-ownership being terminated or in a request to the court for a
declaratory order, prohibitive interdict, or to judge if the co-owners are
reasonable.8

The other co-owners must act quickly to prevent a co-owner from using the common
property in excess of their proportionate part; else, their inaction will be viewed as a tacit
permission.

QUESTION 1.2

The causal theory states, in plain English, that if the cause of the transfer of ownership
is flawed, ownership will not pass, regardless of whether delivery in the case of
movables or registration in the case of immovable property has taken place. This
unfavorable outcome results in the cancellation of a registered deed of transfer and a
subsequent transfer to the real owner.9

On the matter of Rose selling the house which her and her brothers co-owned without
their knowledge to her boyfriend John for a not so subsequent amount for a house, at $
40 000. It is most likely for the court to rule against the tranfer of the common property,
as the cause that prompted Mary to sell the house to her boyfriend at such a low price,
is an attempt to remove her brothers out of the equation as they have undivided
ownership of the house.

The two brothers have a strong claim against the transfer of the property, on top of that,
the Registrar of Deeds is still obligated and behooved with the noble task of providing
an unrestricted and skillful deeds registration service that ensures security of title, even
though case law authoritatively modifies and redefines the established trite principles
and procedures of Deeds Registration Law from time to time.

8
Pretorius v Nefdt and Glas 1908 TS 854
9
www.ghostdigest.com/articles/causal-or-abstract/52809
This work entails the essential elements of a perfect system of deeds scrutiny that
assures that each transaction conforms fully with pertinent legal standards, with non-
compliance leading to the rejection of a specific transaction.

The idea of a valid causa, or the cause of transfer as the core of a legitimate agreement
between the two parties transferring property in a transaction, is the one crucial element
and, as such, the pivot of the Registrars' obligation to register a deed, and in this case
the cause of transfer is one that is contrary of the law and it should have not taken place
to begin with, as for a property that is co-owned by different individuals one needs to get
the concern of the other co-owners, before anything can be done on that immovable
property let alone sell it. Even when the co-owners of said property have agreed to sell
the common property, the proceeds from the sell have to be shared among the co-
owners equally, therefore the sale of the co-owned house by Rose to John is invalid.

In order to solve this kind of issues, the courts have created their own strategy. In the
case of Cape Explosive Works Ltd. v. Denel (Pty) Ltd. & Others,10 the following
standards or requirements were established.

Real rights must be created with the goal to bind not just the current owner of the land
but also his successors in title. They must also be of a kind such that upon registration,
the land against which they are registered is "subtracted from the dominium."

Therefore, the intentions of the parties involved in the transfer is of importance, and this
test was laid down in Lorentz v. Melle & Others,11 Nestadt J. established the following
standard: "Whether a contractual right amount in any given case to a servitude—
whether it is real or only personal—depends upon the intention of the parties to be
ascertained from the terms of the contract as construed in light of the relevant
circumstances." When in question, the presumption is always against slavery; the
burden of proof rests with the person asserting its existence.

10
2001 3 SA 569 at 578.
11
Lorentz v. Melle & Others
The dominium test subtraction was developed in Ex parte:Geldenhuys12. The court has
to take the following into account when formulating this rule:

(1) How a servitude-creating situation affects the dominium right;

(2) the distinction between a real right and a personal right when it comes to the
duty to pay money to someone; and

(3) Determine whether the requirement for establishing a real right is satisfied by
the mere desire to do so.

In this instance, according to the mutual testament of Adriaan Geldenhuys and his
spouse, specific land was left to their children in equal shares, subject to the usufruct of
the living testator or testatrix. The will further stipulated that the survivor of the testators
would be required to divide the said land into equal portions and distribute it among the
children as soon as the first child reached majority. This distribution was to be made by
the survivor and the major child concerned by drawing lots, and the child who by such
lot obtained the portion comprising the homestead of the farm was to pay the other
children £200 within a specified time period.

The testatrix passed away in 1923, and the applicant—the surviving testator and
executor of the deceased testatrix's estate—asked the court to issue an order directing
the Registrar of Deeds to register the aforementioned land in undivided shares in the
names of the children, subject to the terms of their shared will. The Registrar of Deeds
had no issues with a simple transfer of the farm to the kids in undivided shares, but he
objected to the stipulations relating to the subdivision, the drawing of lots, and the
payment of £200 being recorded against the title deed. First, he claimed that the
conditions only constituted "personal rights"; second, he said that even if they were
registered, the conditions would only apply to the legatee and not to any transferees to
whom the legatees might transfer their undivided shares.

12
Ex parte:Geldenhuys
BIBLIOGRAPY

• Badenhorst et al (as above)133.

• A universitatis, is a legal person that is distinct from the members that make it up.
It has rights and obligations that are separate from those of the members, and it
has the ability to bring and receive lawsuits on its own behalf
• Van der Walt and Pienaar (as above) 50‐51
• Ammo, S.K. (2014). Property law in Namibia. Pretoria University Law
Press.(PULP),(p. 66)
• Oosthuysen v. Muller (1877) 7 Buch 129
• Erasmus v. Afrikander Proprietary Mines Ltd 1976 1 SA 950 (W)
• Sauerman v. Schultz 1950 4 SA 455 (O)
• Pretorius v Nefdt and Glas 1908 TS 854
• www.ghostdigest.com/articles/causal-or-abstract/52809
• Cape Explosive Works Ltd. v. Denel (Pty) Ltd. & Others 2001 3 SA 569 at 578
• Lorentz v. Melle & Others
• Ex parte:Geldenhuys