Property Law 2007 – Transparencies, Part II Property - Protection

					Property Law 2007 – Transparencies, Part II

Property - „Protection of ownership‟:

Transfer of ownership founded on owner‟s entitlement to alienate - nemo plus iuris
transferre potest quam ipse habet. („No one can transfer to another more rights than he
himself has.‟)

Silberberg criticises, however, in that „the law as it stands‟ might cast „too heavy a
burden‟ on bona fide third parties acquiring things from persons whom the owner has
trusted with his or her property so that they are able to deal with it without his
supervision or control.

       Marcus v Stamper and Zoutendijk 1910 AD 58
       Courts determine the question of whether or not an owner had the requisite
       intention to transfer ownership ... by looking at transferor/ee‟s conduct as
       Commissioner of Customs and Excise v Randles, Brothers and Hudson               1941
       AD 369 411
       Probative value of such statements will depend on extent to which they‟re
       consistent with other facts proved and the actions of the parties.
       Edward L Bateman Ltd v Liquidator, Eric Reed Ltd                 1960(4)151(SR)
       In each case the court will be left to „infer the intention of the parties from the
       contract itself as it fits into the surrounding circumstances‟.

Rei vindicatio:


The owner is entitled to recover from any person who retains a thing without his consent.
      Chetty v Naidoo         1974(3)13(A)20B
      Jansen JA: one of the incidents of ownership is the entitlement of „exclusive
      possession of the res, with the necessary corollary that the owner may claim his
      property, wherever found, from whomsoever holding it.‟

The applicable action is the rei vindicatio, which is a real action (actio in rem). The
owner must prove:
(a)    that he is the owner of the thing;
(b)    that the thing was in the possession of the dfndnt at commencement of the action;
(c)    that the thing which is vindicated is still in existence and clearly identifiable.

The burden rests on the vindicator.
Dfndnt may raise defence that owner is not the owner of the thing concerned or that the
dfndnt was not in possession at commencement of action. Dfndnt may also prove
existence of some or other right to possession (ius possidendi) ito a contract.

As a general rule, an owner deprived of his property is entitled to vindicate it from any
person in possession of it. However, there are exceptions to the owner‟s entitlement to the
rei vindicatio.

What has to be restored is the thing along with its fruits.

The rei vindicatio is primarily aimed at the recovery of lost possession, but a dfndnt who
has fraudulently ceased to possess may nevertheless be ordered to make good the value of
the thing as at the date of trial or judgment.

Immovable property:

Two major dvlpments: (i) the Constitution, esp. s26(3); (ii) Prevention of Illegal Eviction
and Unlawful Occupation of Land Act 19/1998. [“PIE”] ...

S26 provides for a right of access to housing. S26(3) provides that no person may be
evicted from his home without a court order and only after all the relevant circumstances
have been considered. S4 of PIE prescribes the application of this Act in the case of
illegal occupation of land and eviction, irrespective of the common law procedures and
remedies available for the protection of property.

~      When is the common law (rei vindicatio) applicable and when does one use the
~      What is the impact of s26(3) on the application of the rei vindicatio?
~      Which relevant circumstances have to be considered and whose responsibility to

Suggested modus operandi:
      First determine when the provisions of PIE are applicable. If PIE, and other
      legislation dealing w‟ eviction, are not applicable, the common law will apply.
      Then determine whether the application of the rei vindicatio has been affected by
      s26(3) of the Con or whether the rei v wd be used as in the decades before the

The PIE:
An illegal occupant is a person occupying land without the express/tacit permission of the
owner or person in charge to occupy, or without a right in law to do so.
       ABSA Bank v Amod                             [1999] 2 All SA 423 (W)
       In deciding whether PIE or rei v applicable, Schwartzman J laid down guidelines:
               ~     Re def of „illegal occupant‟, court decided it was not PIE‟s aim to
                     interfere with normal „landlord and tenant‟ cases.
               ~     The PIE wd not apply in any instance where permission or consent
                     of some kind (precario) was involved.
               ~     PIE is only applicable to vacant land.
               ~     PIE is focused on unlawful or illegal occupants.

       Bekker v Jika                 [2001] 4 All SA 563 (LCC)
       Plasket J: ABSA case restricted PIE‟s ambit unduly

       Nelson Mandela Metropolitan Municipality v Various Occupiers of Stands in
       Mnyanda Street, Qaqawuli Phase 2, New Brighton [2001] 4 All SA 485 (LCC)
       Liebenberg J supported the ABSA case and concluded PIE not applicable to these

So it seems the rei v will be applicable:
~       where there was some form of consent (precarium) or agreement. Wd also
        include cases where occupation was lawful but became unlawful.
~       in built-up areas where constructions/buildings have been erected in accordance
        with planning reg‟s.

       Ndlovu v Ngcobo and Bekker v Jika              [2002] 4 All SA 384 (SCA)
       Harms JA: “... (textually) PIE applies to all unlawful occupiers, irrespective of
       whether the possession was at an earlier stage lawful.”

Business and commercial properties are specifically excluded from PIE‟s ambit.

S26(3) Con:
Lease agreements for trade/commercial purposes not affected by s26(3).

Ross v South Peninsula Municipality                   2000 (2) SA 589 (C)
Josman J: “It is the conclusion of this court therefore that s26(3) of the Con has indeed
modified the common law ... To the extent that a pltff seeking to evict a person from his
home is now required to allege relevant circs which entitle the court to issue such an

Betta Eiendomme v Ekple-Epoh                2000 (4) SA 468 (W)
Flemming J: s26(3) not applicable in cases of “trespass, whether in the form of squatting
or holding over or otherwise”. Court concluded that the substance of ownership has not
been affected by the Con and there were no grounds for the protection of unlawful
occupation to the detriment of the owner.
Ellis v Viljoen           2001 (5) BCLR 487 (C)
Thring J: “ ... it‟s right and proper the owner shd be granted an ejectment order ... If there
are other relevant circs ... the onus must [rest on the alleger] to prove them.”

Brisley v Drotsky      2002 (4) SA 1 (SCA)
Appeal court underlined fact that s26(3) did not prescribe which circs had to be
considered ... and did not confer a discretion on the court to refuse an eviction order ...
        Factors such as the personal circs of the occupant and whether there was alt
        accomm available were not relevant.

So Ndlovu and Bekker prescribe that the PIE is applicable in cases of holding over ...
what about Brisley, where the rei v was used?


Following Ndlovu and Bekker, the PIE is applicable to: lease agreements, sales in
execution, and any other instances where a person is being evicted from a home ... be it
on vacant land or in built-up property. Ambit of the Act has therefore been expanded to
include almost any form of illegal occupation. Act is not applicable to business premises
- the rei v wd have to be used.
The onus referred to in Ndlovu and Bekker resembles the common law onus. It‟s doubtful
whether the legislature‟s intention was to have the PIE applicable to cases where
agreements formed the basis of occupation. But the decision has far-reaching
implications for both owners/occupants. Owners now have to deal with new procedural
req‟s and new notice req‟s. Success of an eviction application might depend on circs.

       Shoprite Checkers (Pty) Ltd v Jardim                        2004(1)502(O)
       Van Coppenhagen J:
       “The [PIE] is not applicable to ejectment from non-residential property.”

       Baartman and Others v Port Elizabeth Municipality               2004(1)560(SCA)
                                                                        (26 Sep 2003)
       Mpati DP:
       “A court is enjoined to have regard to the factors mentioned in s6(3) when
       considering whether it is just and equitable to grant an eviction order. But the
       section does not state that those are the only factors to be considered. ... it is
       imperative in this case, as will probably be the position in the majority of cases of
       eviction, that the question whether it is in the public interest to grant such an order
       also be considered.”
Minister of Housing:
Draft Prevention of Illegal Eviction from and Unlawful
Occupation of Land Amendment Bill 2003 (27 August
The Draft Bill aims, among other things, to limit the
application of PIE by narrowing the definition of
'unlawful occupier' to exclude defaulting tenants and
    Section 4(2) of PIE stipulates that, at least 14 days prior to
eviction proceedings, the unlawful occupiers and the
municipality in whose jurisdiction they fall must be informed
of the eviction proceedings.
The substantive provisions of PIE compel the courts to
consider the broader socio-economic context in which each
application for eviction is made. Section 4(6) of PIE stipulates
that in reaching a "just and equitable decision" in respect of
granting an eviction order, courts are compelled to consider
relevant circumstances including "the rights and needs of the
elderly, children, disabled persons and households headed by
women". In addition to these factors, section 4(7) enjoins
courts to determine "whether land has been made available or
can reasonably be made available by a municipality or an
organ of state or another landowner," where the unlawful
occupiers have occupied the land for more than six months.

If passed, the effect of the amendment will be that it will
deprive vulnerable ex-tenants and ex-mortgagees of the
protection of PIE irrespective of whether, upon eviction, they
will be "people living in crisis situations, with no access to
land, or roofs over their heads". Thus, while PIE will continue
to protect occupiers who unlawfully took occupation of land,
the same protection would be denied to those occupiers whose
initial occupation was not unlawful.

Annette Christmas
5 March 2003
Amendment of the definition of "unlawful occupier" in the
Prevention of Illegal Eviction from an Unlawful
Occupation Land Act. In support of her legislative proposal, Ms Semple noted
that the proposal to amend the definition of "unlawful
occupier" is based on the fact that it could not have been
the legislature‟‟s intentions in passing this Act to regulate
the relations between landlords and their tenants. So the
Act was intended to apply only to squatters and not to
bond defaulters or tenants who fail to pay their rent. .This
amendment would provide protection for the rights of
landlords and bond grantors.
To amend the definition of "unlawful occupier" in the
Prevention of Illegal Eviction From and Unlawful
Occupation of Land Act, No 19 of 1998 so as to leave no
doubt that the Act applies to squatters only and not to bond
defaulters or tenants who fail to pay their rent.
1. The definition of "unlawful occupier" is amended by the
insertion after the words "person who", where they appear
in line 14 of the Act, of the words "initially occupied and
Thus the full, amended definition reads:
(xi) "unlawful occupier" means a person who initially occupied and still occupies land
without the express or tacit consent of the owner or person in charge, or without any
other right in law to occupy such land, ...
„Dodgy tenants' days numbered‟
Oct 11 2005 09:47:12:980AM
By: Philip de Bruin

Johannesburg _ The end is in sight for the woes of thousands of owners of fixed
properties who, in accordance with an Appeal Court ruling, have to follow an involved
and costly procedure to get rid of tenants who do not pay.
Zou Kota, chairperson of the parliamentary portfolio committee on housing, said on
Monday after the Appeal Court ruling three years ago "we realised the Act had to be
revised to exclude bona fide landlords from the squatter clauses".
"I can now say to landlords to be patient for just a little bit longer."
Kota's committee is meeting on Tuesday to discuss measures that will help landlords out
of their misery.
The Appeal Court ruled three years ago that the provisions of the Act on the Prevention
of Illegal Evictions (PIE) are applicable to tenants as well as squatters.
This meant that owners had to go through the so_called "squatter court process" before
being able to evict such tenants.
In accordance with the Appeal Court judgement landlords who want to evict tenants have
to serve a notice of intent of a High Court application on the tenant.
After that the court will decide on the application. If the application is allowed all the
legal requirements have to be complied with.
The court has to be convinced that the eviction is fair in cases where a woman with
children or senior citizens is the tenant. Alternative accommodation has to be
recommended in such cases.
Kota said: "We regret that it has taken so long, but we had to get inputs from as many
role players as possible. It is now merely a question of time."
She did not want to commit herself to dates, but according to political sources January
has been set as target date to submit the amendment to the Act to parliament.
Restrictions on application of rei vindicatio:

~ Estoppel:

Although in RD law an owner cannot, as a general rule, be deprived of his property
without consent, he will in certain circs be estopped from vindicating it - mov/immovable
- when he has placed it into the hands of another person in circs which may lead 3rd p‟s to
believe such other person is in fact the owner of the thing that has been entursted to him,
or that he has been duly authorised to dispose of on the owner‟s behalf.

~      Rep by owner, by conduct even, that person who disposed of property was owner
       or was entitled to dispose of it.
~      rep must‟ve been negligent in circs.
~      rep must‟ve been relied on by person raising the estoppel.
~      reliance on rep must‟ve been the cause of his acting to his detriment.

Morum Bros Ltd v Nepgen                               1916 CPD 393
United Cape Fisheries (Pty) Ltd v Silverman           1951 (2) SA 612 (T)
Grosvenor Motors (Potchefstroom) Ltd v Douglas        1956 (3) SA 420 (A)
Johaadien v Stanley Porter (Paarl) (Pty) Ltd          1970 (1) SA 394 (A)
Kajee v HM Gough (Edms) Bpk                           1971 (3) SA 99 (N)

The mere entrusting of possession insufficient - must be entrusted with the „indicia of the
dominium or jus disponendi‟.

Electrolux (Pty) Ltd v Khota                 1961 (4) SA 244 (W) at 247G
       “To create the effective representation the dealer or trader must, in addition, deal
       with the goods with the owner‟s consent or connivance in such a manner as to
       proclaim that the dominium or jus disponendi is vested in him ...”

It seems clear that an owner must have acted negligently when entrusting thing to a
person who subsequently disposed of it to a 3rd p. Q is whether a reasonable person wd,
in these circs, have foreseen harm and have guarded against it. Negligence must usually
be alleged/proved by the dfdnt.

Johaadien v Stanley Porter (Paarl) (Pty) Ltd         1970 (1) SA 394 (A)
      This case provides the „high-water mark‟ of SA courts‟ protection of the owner‟s
      right of vindication. Steyn CJ did indicate that it might be possible to find a case
      where estoppel wd arise without fault on grounds of fairness, but ...

Application of the requirements for estoppel always depend on the facts of each case.

It has been suggested that estoppel, as a defence to the rei v, has led or may lead to the
recognition of bona fide acquisition of ownership in our law. In terms of this approach,
the owner who is estopped from vindicating his or her property ipso facto loses the right
of ownership and the bona fide purchaser acquires it. But not yet settled law.

In applying the principles of estoppel, the court has to balance the interests of two
opposing parties. Our courts currently favour the rights of the true owner by insisting on
the requirement of negligence: ie: it is not prepared to strip the true owner of his rights of
ownership unless he was negligent, no matter how unfair this may be to the 3rd p, and no
matter how careful the 3rd p may have been.
This is in keeping with the general idea behind our law of property that the right of
ownership is the strongest of all rights and must be protected at virtually any cost.

~ Statutory restrictions:

PIE prohibits the application of the rei v when the Act is applicable.

~ Other restrictions:

(a)    Stolen money and negotiable instruments payable to bearer (or their proceeds)
       can‟t be vindicated from a person who has acquired them in good faith ...
       Woodhead Plant & Co v Gunn          (1894) 11 SC 4

       Arguably, this is not a limitation of the owner‟s rei vindicatio, as the recipient in
       fact acquires ownership in the notes and coins.

(b)    Property sold at judicial sales can‟t, after delivery in case of movables or
       registration in the case of immovables, be vindicated from a bona fide purchaser.
       S70 of Mag Courts Act.
       Jubb v Sheriff, Magistrate’s Court, Inanda District 1999 (4) SA 596 (D)

       Sales by trustees of insolvent estates/co liquidators treated likewise.
       Voet: purchaser from the fiscus is not liable to an action from owner.
       Kotze v Prins           (1903) 20 SC

It might be argued that these cases are not really limitations of the rei v as the prejudiced
party usually loses the right of ownership while the purchaser acquires it.

(c)    If a court has already awarded property to one party, he can raise the plea of
       matter adjudged (exceptio rei iudicatae).
       Cohn v Rand Rietfontein Estates Limited      1939 TPD 319.

(d)    Common law writers have mentioned several exceptions, relating to various
       professions (eg: gold and silversmiths, moneylenders, etc), but were divided on q
       of whether this restriction (on owner‟s entitlement to vindicate his property) was
       of local or general application.
~ Actio ad exhibendum:

Personal action usually, but not necessarily, instituted in conjunction with the rei v to
compel the possessor of a thing which is to be vindicated, to produce it.
The action could also be brought against a defendant who had fraudulently ceased to
possess, to recover the value of the property.

For liability under the actio ad exhibendum to lie, the dfndnt must have ceased to possess
fraudulently. The following must be proved:
        ~       plaintiff was owner when dfndnt disposed of thing;
                ~       dispossession was an intentional act;
                ~       an element of mala fides was present;
                ~       damage was suffered.

Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T)
RMS Transport v Psicon Holdings (Pty) Ltd           1996 (2) SA 176 (T)

The actio ae is available only to the owner, and not to a non-owner with a special interest
in the thing.
Alderson & Flitton (Tzaneen(Pty)Ltd v EG Duffey Spares(Pty)Ltd 1975 (3)S A 41 (T)
Gore v Saficon Industrial (Pty) Ltd 1994 (4) SA 536 (W)
        Zulman J: mala fides in the limited sense of the word is unnecessary.

Frankel Pollak Vinderine Inc v Stanton   2000 (1) SA 425(W)
      Wunsh J rejected Zulman J‟s statement as wrong.

The measure of damages is the value of the article to the owner, on the date when the
thing was disposed of.

~ Condictio furtiva:

When a theft occurs, the owner may bring this action against the thief or his heirs to
recover the stolen thing, together with its fruits/its highest value since the commission of
the theft. If the thief/heirs is still in possession, the rei v and the c furtiva are available in
the alternative
Minister van Verdediging v Van Wyk                 1976 (1) SA 397 (T)

The con f is not restricted to a fraudulent loss of stolen property, but may also be brought
where the stolen thing has been destroyed by chance or further theft.

The claimant must have been the owner at all relevant times: the time of theft and the
time of bringing of the action.
First National Bank of SA Ltd v East Coast Design CC 2000 (4) SA137 (D)
Clifford v Farinha      1988(1)SA315(W)
        it was held that the action is, however, not restricted to the owner but is also
        available to other parties with an interest -for eg: a lessee.
The wider sense of „theft‟ is used ... so the con f will lie in the case where a person
merely wrongfully withdraws a thing from the possession of another and uses it while
intending to restore possession after the use thereof.

~ Actio legis Aquiliae:

Owner can bring against a dfndnt who‟s damaged/destroyed a thing negligently. Owner
may claim compensation for patrimonial damage suffered as a result of the dfndnt‟s
wrongful act.

       Hefer v Van Greuning         1979(4)SA952(A)
       Correct approach is to determine in each case whether the owner has suffered any
       patrimonial damage. This need not necessarily be damage to the property itself.
       (Eg: „holding over‟, etc)

        Clifford v Farinha             1988 (1) SA 315 (W)
        Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A)
A claim for damages under the alA does not lie against a bona fide possessor as his good
faith protects him against a claim ex delicto.

~ Actio negatoria:

A landowner may bring this real action against any person who seeks to exercise a
servitude which he doesn‟t have, or who exceeds the bounds of his servitude.
        Moller v SAR&H       1969 (3) SA 374 (N)

~ Enrichment actions:

A bona fide possessor need not account to the owner for the value of a thing which he‟s
ceased to possess prior to vindication, ... but will an enrichment action lie against him iro
any profits made in the case of a resale or where he has consumed the thing?
Depends on whether he has acquired for consideration (ex causa onerosa) or without (ex
causa lucrativa). In former case, no action lies ... in latter, the condictio sine causa will
apparently be available to the owner.

~ Recovery of disputed property (res litigiosa):

Where ownership has passed from transferor to transferee, but transferor is entitled to
recover ...

The position in SA law is that the fact that a thing is disputed property does not preclude
or prevent it from being alienated - so long as the rights of the non-alienating litigant in
the res are protected.
~ Loss of ownership:


Ownership is lost when owner abandons property with intention that it shd become an
unowned thing (res nullius).
Salvage Association of London v SA Salvage Syndicate Ltd (1906) 23 SC 169
Underwater Construction & Salvage Co (Pty) Ltd v Bell 1968 (4) SA 190 (C)
Achterberg v Glenister              1903 TS 330

Dealers, etc often advertise that goods will be sold “to defray expenses unless collected”.
It‟s submitted that the owners of such goods will subsequently be entitled to recover their
full value unless clear that they have in fact been abandoned.
An owner does not lose ownership when he makes it clear that they‟ve not been
abandoned by him, even though he may deal with them in a manner likely to lead to a
more or less permanent loss of possession.

        ~ Expropriation:
        ~ Forfeiture of property to the state:
        ~ Destruction of property in the public interest:


A compound of a physical situation and a mental state involving the physical control
(corpus) of a thing by a person, and that person‟s mental attitude (animus) towards the

The right of possession (ius possessionis) must be distinguished from the entitlement to
demand control over a thing (the ius possidendi).

Before a person is regarded as a possessor, (i) the person needs to be in effective physical
control of the thing; and (ii) needs to have the intention to derive some benefit from the
Possession of both movable and immovable things may be acquired by either delivery
(traditio) or occupation (occupatio).
Underwater Construction and Salvage Co (Pty) Ltd v Bell                1968 (4) SA 190 (C)
Reck v Mills 1990 (1) SA 751 (A)
Cape Tex Engineering Works (Pty) Ltd v SAB Lines                       1968 (2) SA 528 (c)

The test for initial acquisition of control is stricter than for the continuation of control.

        Nienaber v Stuckey              1946 AD 1049
        Scholtz v Faifer                1919 TS 243
Difference between the two cases can be accounted for by the difference in the „nature‟
of the thing possessed and in the „type of use‟ to which it was put, respectively.

Proof of exclusive possession isn‟t required. Partners can possess things jointly. Not
necessary that the possessor has physical control of the thing concerned, as an agent may
be used.

       Rosenbuch v Rosenbuch and Another                    1975 (1) SA 181 (W)
       Manga v Manga                                        1992 (4) SA 502 (ZS)
       Ex parte Van der Horst: In re Estate Herold          1978 (1) SA 299 (T)

There must also be the mental element:

The traditional view is that possession can only be acquired corpore at animo - ie: by
exercising physical control with a particular state of mind.

Impossible to give a definition of the mental element of possession.

       Marais v Engler Earthworks (Pty) Ltd                 1998 (2) SA 450 (E)

Wd consider things such as:
              ~      Possession might lead to acquisition of ownership.
              ~      Rebuttable presumption that possessor of a movable is the owner.
              ~      Diff between possessors in good/bad faith.
              ~      Possession necessary for the inception and continuance of a right
                     of pledge.
              ~      Possession is an element of a number of statutory crimes.
              ~      Possessor is protected by the mandament van spolie.

Usually, the determination of the content of the mental element presents no difficulty.
There‟s agreement that a person who acquires physical control of a thing can qualify as a
possessor for purpose of acquiring ownership thereof only if he has the intention of an
owner (animus domini) also.
Impossible to give a definition comprehensively of possession iro statutory offences, as
each case will depend on the legislature‟s intention. It might be, unlike in the property
law context, that mere physical control is sufficient.

Tricky question of what makes up the mental element required for possession that can be
protected by a spoliation order ... The mental element is regarded as complied with if the
holding by the applicant is with the intention of securing some benefit for himself. This
intention is furthermore interpreted widely.
        Ross v Ross                                   1994 (1) SA 865 (SE)
        Nino Bonino v De Lange                        1906 TS 120
        Meyer v Glendinning                           1939 CPD 84
        Magadi v West Rand Administration Board              1981 (2) SA 352 (T)
Considering that the m van spolie protects possession in order to discourage self-help and
disturbances of the peace, q may arise whether protection shd not perhaps be extended to
any person who exercises witting physical control (ie: corpus + mere animus possidendi).

       Du Randt v Du Randt                          1995 (1) SA 401 (O)

Wild Animals

       Res nullius and the exercise of control.
       Res intra commercium.

       Langley v Miller              1848 3 Menzies 584
             A series of events, rather than one event, resulted in capture.

       Richter v Du Plooy         1921 OPD 117
              Hand-reared wildebeest strayed from a large farm (800m), shot on a
              neighbouring farm.

       Lamont v Heyns             1938 TPD 22
             Blesbok on a 300m farm, defendant came onto land.

       R v Mafohla               1958 (2)(SA 373 (R)
             Wounding versus taking into control.

The Game Theft Act 105/1991
      A person who keeps game on land that is „sufficiently enclosed‟ shall not lose
      ownership if that game escapes.
      Game: „… all game kept or held for commercial or hunting purposes …‟ and
      products of such game.

       Dunn v Bowyer and another              1926 NPD 516
              Illegal capture did not result in ownership.
       S v Frost and S v Noah                 1974 (3) SA 466 (CPD)
              Illegal capture of a res nullius may result in ownership – but depends on
              statutory interpretation.

       Mbhele v Natal Parks, Game and Fish Preservation Board 1980 (4) SA 303 (D)
             No duty to retain control of a wild animal, where this wd be impractical.
Protection and loss of possession

Mandament van spolie (spoliation order)

Roman law history of possessory remedies is to effect that the merits of the case were
never considered. The status quo ante had first to be restored.

Purpose of the mvs is to restore unlawfully deprived possession to prevent law being
taken into own hands. Offers only temporary relief.
        Mopeli v Botha                                              1931 WLD 63

Applicant only has to prove he was in possession of the thing and that he was illicitly
ousted. If applicant succeeds, possession must be restored at once. The rights of the
parties do not enter into question - hence the mvs is only preliminary to the suit on the

However, an order as to costs shd be made - as although the mvs offers only temporary
relief, it is a final court order. So costs must be ordered, applicant must prove case obop,
and an appeal is possible.

It‟s a „robust‟ remedy in sense that it can operate harshly.
         Elastocrete (Pty) Ltd v Dickens                              1953 (2) SA 644 (SR)
         Rosenbuch v Rosenbuch                                        1975 (1) SA 181 (W)
         Parker v Mobil Oil of Southern Africa (Pty) Ltd       1979 (2) SA 250 (NC)

Court does, however, have some discretion, where:
~      return of possession wd be impractical or cause considerable damage;
~      where thing has been so damaged that return is impossible;
~      where a delay in application justifies refusal of order;
~      where „special circs‟ are present so that a costs order shd stand over for eventual

Motion procedure used, rather than trial procedure.

Applicant must prove:
                ~      he was in possession;
                ~      an act of spoliation by respondent.
These two facts must be proved obop; the mvs being a final court order, a prima facie
case isn‟t sufficient.

Possession must have been „peaceful and undisturbed‟.
       Mbangi v Dobsonville City Council                 1991 (2) SA 330 (W)
       Kgosana v Otto                                    1991 (2) SA 113 (W)
       Shoprite Checkers Ltd v Pangbourne Properties Ltd        1994 (1) SA 616 (W)
Other characteristics:
~      Violence in the dispossession is not required.
~      Spoliation implies a deprivation and not a mere disturbance of possession.
~      Spoliation is committed when a possessor is tricked out of possession.
~      Spoliation is committed when a co-possessor unlawfully takes over exclusive

Spoliation can be committed iro movables, immovables and quasi possession of an
incorporeal, ie: a right.
        Bon Quelle (Edms) Bpk v Mun. van Otavi
                1989 (1) SA 508 (A)
        Zulu v Min. of Works, KwaZulu
                1992 (1) SA 181 (N)
        Plaatjie v Olivier
                1993 (2) SA 156 (O)
        Tigon v Bestyet Investments (Pty) Ltd
                2001 (4) SA 634 (N)
        Xsinet (Pty) Ltd v Telkom SA Ltd
                2002 (3) SA 629 (C)

Restoration of status quo ante:
       If application succeeds, spoliator will be ordered to restore position; ie: restitution
       of the whole thing or, in case of quasi possession, that the applicant be permitted
       to exercise his professed right. Restitution might be of only a part of thing.

       Fredericks v Stellenbosch Divisional Council
       1977 (3) SA 113 (C)
       Rikhotso v Northcliff Ceramics (Pty) Ltd
       1997 (1) SA 526 (W)
Defences to the mvs:

Inadmissible to argue that the spoliator has a ius possidendi; that the spoliator is owner;
that the spoliator believed in good faith that he was acting lawfully; that applicant‟s
possession was unlawful.

Admissible defences are:

~      That spoliation was not committed.
~      That restoration is impossible.
~      That the applicant did not act within a reasonable time.
       Jivan v National Housing Commission              1977 (3) SA 890 (W)
~      That there was counter-spoliation. This might happen if the recovery is forthwith
       (instanter) in sense of being still a part of the act of spoliation.
       Mans v Loxton Municipality                       1948 (1) SA 966 (C)
       De Beer v Firs Investments Ltd                   1980 (3) SA 1087(W)
       Bosman NO v Tworeck                              2000 (3) SA 590 (C)
~      The exceptio spolii. This can be raised by the respondent against a pltff‟s civil
       action in a case where the pltff had previously committed spoliation against the

Prohibitory interdict:

The mvs is aimed only at recovery and does not lie where there is a threat of
dispossession or a mere disturbance. In these cases, a prohibitory interdict may be applied
for. May be final or pendente lite.

Possessory action:

Where circs are not appropriate for an mvs, dispossessed person may still institute a
possessory action to recover the lost thing, or damages, or both.


Possessor may defend himself, if necessary by means of reasonable force, against any
person who seeks to deprive him of a thing in his possession or who disturbs or threatens
to disturb him in that possession.
Delictual claim:

A “possessor” may in an appropriate case institute a delictual claim for damages under
the actio lA provided that the usual requirements (eg: wrongfulness and fault) are present.
But the remedy is denied to a mala fide possessor/occupier.
Can a lawful/bona fide occupier (holder) claim?
        Smit v Saipem                  1974 (4) SA 918 (A)

Compensation for improvements:

               ~       Necessary:     for protection/preservation of the property.
               ~       Useful:        must be an actual, tangible improvement - not just a
                                      market value increase.
               ~       Luxurious:     neither necessary nor useful, although market value
                                      might increase.

A bona fide possessor can certainly claim for necessary and useful expenses. On the
basis, too, of enrichment. The bfp will have an enrichment lien.

Necessary expenses may be recovered in full; useful expenses: either amount by which
property‟s value has been increased or actual expenditure, whichever is the lesser. In
appropriate circs, court might disallow a claim for useful expenses if satisfied the owner
wd not have installed it himself, or if he cd not have afforded it.

Removal may be allowed, in certain circs.

A mala fide possessor has an action for necessary expenses and, maybe (not settled), for
useful expenses.

A bona fide occupier‟s position is similar to that of a bona fide possessor, but an
equitable deduction may be made.

A mala fide occupier‟s right to compensation for necessary/useful expenses has not yet
been settled.

A lawful occupier has been equated by the courts to a bona fide possessor, but an
equitable deduction may be made iro the former.
Loss of possession:

Lost if either the physical or the mental element required to constitute possession ceases
to exist.

Often difficult to decide whether a possessor has lost physical control or not. Each case
depends on its own facts and common sense must determine. Prima facie, it shdn‟t matter
whether possession is lost deliberately or involuntarily.

When the mental element ceases to exist, physical control will usually also be lost.


A servitude is a (limited) real right which burdens a thing ifo another person (a „personal‟
servitude) or other land (a praedial servitude). We talk of „dominant‟ and „servient‟

Praedial servitudes are more important in property law.

~      Praedial servitudes attach to the land; not to a particular person.
~      Praedial servitudes are usually perpetual in duration; personal sv‟s do not extend
       beyond the lifetime of the holder.
~      Praedial sv‟s relate only to immovable property; personal sv‟s to either.
~      Praedial sv‟s are unlimited in number; personal sv‟s are limited.
~      Praedial sv‟s are usually narrow in the entitlements they give; personal sv‟s are

A servitude cannot impose an active duty on the owner of the servient land. This is called
the principle of passivity - it entitles the holder to do something on another‟s land, or
prevents the owner from doing something. The former is a „positive‟ servitude; the latter
a „negative‟ one (so the obligation is to refrain from doing something).

Exception: a servitude oneris ferendi is a positive duty imposed on a person to maintain a
wall that supports a structure on a neighbour‟s property.

The requirement of utilitatis: means the dominant land must obtain some benefit.
~      Vicinitas: Properties must be close enough to each other.
       Bisschop v Stafford 1974 (3) SA 1 (A)
~      Use/enjoyment of dominant land must be enhanced, not merely the pleasure of the
       Stephens v De Wet              1920 OPD 78
~      Perpetual causa: use must be based on some permanent feature of the servient
~      Servitus servitutis non potest: not possible to have a servitude over a servitude.
       Engelbrecht v Brits            1920 TS 274
~      Nulla res sua servit: Can‟t have a servitude over your own property, so a
       servitude will be extinguished by merger.
       Eichelgruen v 298 South Ridge Road (Pty) Ltd           1976 (2) SA 678 (D)
~      Servitude must be exercised civiliter modo: Due regard must be given to rights
       and interests of the servient owner.
       Kakamas Bestuursraad v Louw            1960 (2) SA 202 (A)
       Pieterse v Du Plessis                  1972 (2) SA 597 (A)
~      Servitudes are construed strictly, so as to impose the least possible burden on the
       servient tenement.
                               ~      If any doubt as to its existence, it‟s presumed
                                      not to exist.
                               ~      If any doubt as to whether it‟s personal or
                                      praedial, it‟s presumed personal.
                               ~      If any doubt as to extent, least burdensome
                                      interpretation is followed.
~      The servitude is indivisible and so attaches to every part of both the dominant and
       the servient land.
                               ~      Co-owner can‟t abandon/acquire a servitude
                                      only iro his share.
                               ~      If dominant land is subdivided, each portion
                                      retains the benefit of the servitude.
                               ~      If servient land is subdivided, each portion
                                      remains burdened by the obligation imposed by
                                      the servitude unless it‟s a localised servitude.

Only an owner of a property may burden it with a praedial servitude. To be effectively
created, the servitude needs to be registered in the Deeds Registry. If not registered, a
servitude will only bind successors in title if:
~       they are gratuitous successors;
~       they are onerous successors with knowledge of the servitude.
        Van der Berg v Van Tonder                1963 (3) SA 558 (T)
        Ridler v Gartner                         1920 TPD 249
        Grant v Stonestreet                      1968 (4) SA 1 (A)
~       the servitude is acquired by prescription.


Creation of a public servitude by virtue of use for „time immemorial‟.
Differs from prescription:
~       Iro vetustas, there‟s a presumption of a lawful origin; prescription is based on
        adverse user.
~       Vetustas depends on general public use; prescription is personal by claimant.
~       Adverse use is nto a requirement for vetustas.
~       Vetustas is regulated by the common law only.
~       Vetustas applies to acquisition of public rights; prescription to acquisition of
        ownership or servitudes.

       De Beer v Van der Merwe                1923 AD 378
       Van Niekerk v Du Toit                  1957 (2) SA 226 (N)
       Nesbitt v Clayton                      1957 (1) SA 382 (SR)

Via necessitatis:

A way of necessity - granted ifo land without access to public roads, etc.

       Trautman NO v Poole                            1951 (3) SA 200 (C)
       Van Rensburg v Coetzee                         1979 (4) SA 655 (A)
       Wynne v Pope                                   1960 (3) SA 37 (C)
       Bekker v Van Wyk                               1956 (3) SA 13 (T)

Restrictive conditions:

Found in township developments. Regulations, in a sense. Usually ifo all of the other
owners in the township.
       Alexander v Johns                           1912 AD 431
       Ex parte Evenwell                           1937 WLD 1
       Ex parte Millsite                           1965 (2) SA 582 (T)
       Swiss Hotels v Pedersen                     1966 (1) SA 197 (C)

Personal servitudes:

               ~       Usufruct:      entails use and enjoyment of property and fruits
                                      without impairing substance.
               ~       Usus:          gives person the right to use a property, but he
                                      may not take fruits beyond family‟s daily needs.
               ~       Habitatio:     right to dwell in a house with the right to let or

An infringement of a right of personality (right of neighbour to have unimpeded
enjoyment of her land), or infringement of the right of ownership itself?

Distinct form of harm affecting both a proprietary interest and an interest of personality.
Classification obscure.

The test is of reasonableness.

       Holland v Scott                                 1882 EDC 307 at 332

       Buchanan J: “The Plaintiff must show that the inconvenience complained of is
       in fact more than fanciful, more than one of mere delicacy or fastidiousness; that
       it was inconvenience materially interfering with the ordinary comfort, physically,
       of human existence, not merely according to elegant or dainty modes and habits
       of living, but according to plain and sober and simple notions.”

But the test isn‟t that of the „reasonable man‟ – it involves a look objectively at the

       Mayor of Bradford v Pickles                   [1895] AC 587 (HL)
       Regal v African Superslate (Pty) Ltd          1963(1)SA102(A)
       Rejection of the English doctrine of nuisance (in which it is not necessary to
       prove dolus or culpa in order to succeed on a claim based on nuisance.)
       Culpa not a requirement for an interdict; but is culpa a requirement for damages?
       Obiter, but probably not.

       Gien v Gien                                  1979(2)SA1113(T)
       Spoelstra AJ: “An owner‟s right of ownership then extend[s] only so far as there
       rests an obligation on his neighbour to endure the exercise of that right.”

       Bingham v City Council of Jhb                   1934 WLD 180
       Malherbe v Ceres Municipality                   1951(4)SA510(A)
       Vogel v Crewe                                   2003(4)SA509(T)

               ~       The harm suffered must be substantial. The „normal person
                       in the locality.‟
                       Duration, time, duty to mitigate, special sensitivity.
               ~       In determining reasonableness, can look to utility. Motive?
                       Public policy?
               ~       Particular nuisances: odour, sound, smoke, animals, plants,
                       water pollution, morality, etc.
               ~       Remedies: in principle, only the landowner has locus standi
                       in judicio. Self-help occasionally allowed. Abatement
                       orders, interdicts, damages actions, etc.
       ~       Defences: statutory authority, servitude, „coming to the

Rademeyer v Western Districts Council                 1998(3)SA1011(SE)
Harris v Williams                                     1998(2)SA263(W)
Garden Cities Incorp Assoc Not For Gain v Northpine Islamic Society
Nelson Mandela Metropolitan Municipality v Greyvenouw cc
(Noise pollution.)
„… on a robust and common-sense approach to the facts, that the sounds
emanating from the CZ [restaurant and bar] constituted an offence under the
regulations and that that the unlawfulness of the respondents‟ conduct had thus
been established …‟

Hichange Investments (Pty) Ltd v Cape Produce Co (Pty) Ltd
2004 (2) SA 393 (E)
(Atmospheric pollution: noxious gases.)
„If the Court has power to make an order, the exercise thereof has to be
determined largely by proof of the level and severity of the offending pollution.
One wd be far more inclined to direct closure of a factory where there was
evidence of persistent, serious and ongoing pollution than in a case where, even if
there was a degree of pollution, it cd neither be regarded as particularly serious,
nor likely to persist indefinitely in the future.‟

Minister of Health & Welfare v Woodcarb (Pty) Ltd
1999 (3) SA 155 (N)
(Atmospheric pollution: smoke, no certificate.)
„… the generation of smoke in these circumstances, in the teeth of the law as it
were, is an infringement of the rights of the respondent‟s neighbours to “an
environment which is not detrimental to their health or well-being” enshrined in
the [interim] Constitution.‟


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Description: Property Law 2007 – Transparencies, Part II Property - Protection