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                      OWNERSHIP AND ITS PROTECTION

1.   Having examined the modes by which one acquires real rights, we now move
     on to an examination of the most important of real rights, that of ownership.
     We will examine the entitlements that attach to the holders of this right, as
     well as methods of protection of the right. We will also examine restrictions
     on the right.

     Ownership is the most comprehensive of all real rights. It includes the right to
     possess, to use and enjoy, to alienate or destroy (the ius utendi, fruendi et

     The right is limited in several respects however, and the restrictions have
     grown more numerous in modern law. These restrictions are found in
     legislation (eg town planning and conservation), the common law (eg
     restrictions in the interests of neighbour relationships), and restrictive
     conditions in title deeds (eg servitudes, restrictive covenants).

2.   The right of ownership is protected through the rei vindicatio. This action is
     available to an owner of a thing, and entitles him to recover that thing from
     any person who retains it without the owner's consent.

     Chetty v Naidoo 1974(3) SA 13 A

3.   The rei vindicatio is an action in rem. It is derived from Roman Law where
     the action developed into the form it has in modern times. The action
     changed in the Middle Ages under the influence of Germanic Law. The
     principle of mobilia non habent sequela (translated meaning movables cannot
     be followed up) was applied where the owner had voluntarily parted with
     possession. If the res was either lost or stolen, the principle would not apply.

     The Roman law form was reintroduced in France in the 15th century, then in
     the Netherlands, and through Roman-Dutch law found its way into South
     African law. The Germanic principle thus does not apply in South African law
     in the context of the rei vindicatio. It still finds some limited application in the
     context of pledge only.

4.   Elements of the action:

     The owner wishing to rely on the action must allege and prove:

     4.1    that he is the owner of the res in question. Once his ownership has
            been proven, the continuation thereof is presumed;
     4.2    that the res was in the possession of the defendant at the time of
            commencement of the action;

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     4.3   the res must also be clearly identified.

     The owner does not have to allege or prove anything else. Eg the owner
     does not have
     to allege that he has the right to claim the return of an article in terms of a
     contract of
     lease, which has been cancelled due to the lessee's default, he simply proves
     the above points and it is then up to anyone relying on the contract to retain
     possession to raise the contract as a defence to the action. Should the owner
     make such additional allegations, however, the onus will fall to him to prove

5.   The rei vindicatio may be used in relation to both movables and immovables,
     together with fruits. However, an owner may be met with a defence of
     compensation for improvements,

6.   Limitations on the right to vindicate:

     These situations will prevent an owner from vindicating his property. They
     may be raised as a defence by a defendant to a vindicatory action.

     6.1   Where the owner is estopped from vindicating.

     6.2   Where the owner has given up possession.

           There is some doubt as to whether the rei vindicatio is available to an
           owner who has voluntarily given up possession, eg to a lessee, as the
           rei vindicatio is an action for the recovery of possession. There is
           some opinion that the protection of possession falls to the person who
           is entitled to it, and that the owner may only step in if his reversionary
           right is threatened.

           However, the case of Hefer v Van Greening 1979(4) SA 952 A, the
           court was of the opinion that the rei vindicatio was still available to an
           owner in this situation.

     6.3   Where the owner has never had possession.

           Again, although there is a body of opinion that favours this situation as
           a bar to the rei vindicatio, the AD in Hefer's case supra seemed to
           indicate that this should not be a bar to an action by the owner.

     6.4   Where the plaintiff is not the owner.

           The general idea is that the rei vindicatio is only available to an
           Kaniappen v Govender 1962(1) SA 101 N

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           However, if the person bringing the action has a strong claim to
           possession, and is in a better position than the person who actually has
           possession, the court may not apply this rule.
           Mgoza v Mgoza 1967(2) SA 436 A

     6.5   Where the owner is aware of the defendants right of possession when
           he acquires the property or takes delivery thereof.
           Dhayanandh v Narain 1983(1) SA 565 N

           6.6    Where the defendant is not in actual possession.

           The simple situation here is where the plaintiff has not identified the
           correct defendant, as the chosen defendant does not have possession.
           Moosa v Constantia Motors 1958(2) SA 3')4 E

7.   Possessory remedies, such as the mandament van spolie are also available
     to an owner, as possession is one of the rights of ownership. The owner will
     use these remedies to recover the possession of the article in question.

8.   The owner may also rely on criminal law remedies eg theft, trespass,
     unauthorised borrowing etc to protect his rights of ownership.

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2.                       RESTRICTIONS ON OWNERSHIP

As ownership is the most complete of all real rights, an owner may do as he pleases
with his property. However. this right is now subject to a number of restrictions.
These are:
-imposed by public law. eg conservation legislation, town planning regulations;
-Imposed by the common law in the interests of neighbour relations;
-created by agreement eg servitude.

We will examine restrictions imposed in the interests of neighbour relations in some
detail. There are a number of restrictions under this heading..

1.      Encroachment

        The owner's power to build on his land is limited by both statute eg town
        planning, and the common law of encroachment, In terms of the common
        law, an owner may build where he pleases on his property, provided he does
        not encroach onto neighbouring property, either underground, on the
        ground, or in the air.

        In the event of an encroachment, the aggrieved owner has a number of

        1.1         Removal:

        This may only be effected by a court order, self-help is not permitted. The
        action must be brought within a year and a day of the encroachment arising,
        otherwise the right to bring the action is lost. The courts have a discretion to
        award damages in lieu of removal, and to order, in conjunction with such an
        award, the transfer of the land encroached upon.

        Meyer v Kaiser 1980(3) SA 504 D
        Smith v Basson 1979(1) SA 559 W
        Naude v Bredenkamp 1956(2) SA 448 0

        1.2         Ejectment

        An owner may ask that the encroacher be ejected from the improvement, eg
        where a complete building has been constructed on the owner's property.
        The court has some measure of discretion, and may award damages in lieu
        of ejectment.

        1.3         Transfer of property encroached upon

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     The court may order that the property encroached upon be transferred to the
     encroacher, eg where the encroachment involves a small consistent strip of
     the owner's property, such as a boundary wall that encroaches by 150mm
     along one entire boundary.          The encroacher would have to pay
     compensation including the value of the land, all costs of transfer, and
     solatium for trespass and the involuntary loss of possession.

2.   Overhanging and intruding vegetation

     A common form of encroachment is vegetation that is planted on one
     property, but which overhangs another. At common law, an owner has an
     unrestricted right to plant on his property as he pleases, up to but not on the
     boundaries, subject to any servitude not to obstruct light or view. This right
     has been restricted by statute eg Forest Act 122 of 1984

     The common law also imposes a number of restrictions:

     2.1         Overhanging branches

     The affected owner is entitled to insist on removal, and may obtain an
     interdict to enforce this. Alternatively, the owner may simply remove the
     branches himself, but he must hand over the branches cut off to his

     Malherbe v Ceres Municipality 1951(4) SA 5 1 0 A

     2.2.        Overhanging fruits

     There are conflicting Roman-Dutch authorities as to the rights of the person
     whose property is encroached upon to take the fruits:
     Grotius - they may be picked and kept.
     Groenewegen - they may only be kept once they have fallen to the ground.
     The latter view is probably correct.

     2.3         Intruding roots

     The affected owner may simply remove these. If the root system is
     extensive, the owner may apply for an interdict to compel removal, or can
     rely on the law of nuisance. Damages may also be claimed where the roots
     have caused damage to the owner's property.
     Bingham v City Council of Johannesburg 1934 WLD 180

     2.4         Intruding bushes and shrubs

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     This would cover for eg a hedge. The affected owner may simply remove
     the offending vegetation. An interdict is apparently not available in this
     situation, but the owner may still rely on nuisance, or use a remedy in the
     law of delict.
     Smith V Basson 1979(1) SA 559 W

     2.5.         Plants on the boundary

     These belong equally to the owners of the adjoining plots. These may only
     be planted by agreement, failing which either owner may remove.

3.   Lateral Support

     If one digs a hole in the ground, eventually the sides of the hole will collapse.
     This is because the side, or lateral, support has been withdrawn from the
     ground, causing it to become unstable and eventually collapse. An owner
     has the power to excavate on his property as he pleases, however, he may
     not withdraw lateral support to adjoining properties in so doing. This is
     based on the fact that every owner has a common law right to the integrity of
     his property.

     The term used to describe the collapse of property is subsidence. Our
     courts have given the term a wide meaning, ranging from gradual erosion of
     soil to a sudden total collapse.
     Gijzen v Verrinder 1965(1) SA 806 D

     Liability in this regard is strict, and the action is founded not on fault, but on
     the incidence of damage. This means that one cannot claim for future
     damages, nor can one obtain an interdict on the basis that damage may
     occur in the future.
     Demont v Akal's Investments (Pty) Ltd 1955(2) SA 312 D

     In terms of the common law, the duty to support is limited to the land in its
     natural state. Thus there is no duty to provide support to improvements eg
     buildings, on adjoining property. This would result in chaos in modern urban
     areas, and the rule has been modified by town planning and building
     East London Municipality v South African Railways and Harbours 1 951(4)
     SA 466 E

     Milton 1969 Acta Juridica 199-214
     Van der Merwe 1977 Annual Survey 245-7

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4.   Drainage of surface water

     An owner of property has the right to discharge the natural flow of water onto
     adjoining property, and the owner of the adjoining property is under an
     obligation to receive this flow.
     Thormahlen v Gouws 1956(4) SA 430 A

     This right is limited to the discharge of natural flow in its natural course, so
     the owner may not erect an artificial construction which concentrates or
     increases the natural flow onto adjoining property. Similarly, the owner may
     not discharge 'alien' water onto the property of his neighbour.
     New Heriot Gold Mining Co Ltd v Union Government 1916 AD 41 5

     The owner may discharge more than the natural flow of water in the
     following situations:
                  -under contract
                  -under servitude
                  -through immemorial user
                  -under the authority of statute
                  -in the course of reasonable natural cultivation

     Re 'reasonable natural cultivation' see:
     Benoni Town Council v Meyer 1959(3) SA 97 W

     The aggrieved owner has a number of remedies available:

     These remedies are divided up according to the usage of the property. For
     this purpose property is divided into two usages: rural and urban. The
     classification is based on the size and usage of the property, rather than on
     its location. Thus large property with limited usage will be regarded as rural,
     whereas a smaller property with intense usage would be regarded as urban.

     4.1.        The actio aquae pluviae arcendae

     This is available to an owner of a rural property, and is brought against the
     owner of the property from which the water emenated, for removal of the
     offending works causing the problem., and for compensation for damages
     sustained after litis contestatio.

     4.2.        The interdictum quod vi aut clam

     This action is available to the owner of a rural property, and is brought
     against the person who erected the works causing the problem (as opposed
     to the owner of the property), provided the works were erected secretly or
     with force. Note the special meaning of these terms: 'secretlymeans doing

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     the work knowing that the owner would object , and 'with force' means
     proceeding w ith the works with the above knowledge.
     With this action, the aggrieved owner mav claim damages sustained prior to
     litis contestatio.

     4.3.        The actio negatoria de stillicidio vel flumine

     This action is available to the owner of an urban property. in which the
     aggrieved owner denies that a servitude exists, or if there is, that the bounds
     of the servitude have been exceeded.

5.   Nuisance

     This is a general action, initiallv imported from English Law. and then
     modified by the Appellate Division under the influence of Roman~Dutch law.
     This covers any unreasonable use of land by a person which affects an
     adjoining owner's right to the use and enjoyment of his property. There are
     two branches to the nuisance action: the `narrow' approach covers an
     annoyance, and the remedy is an interdict, directing the offending person to
     cease his activities, and the 'wide' approach, in which the aggrieved owner
     complains that his neighbour has actually caused him damage. The main
     remedy here is damages, and the aggrieved owner may also ask for an

     5.1.   Nuisance in the 'narrow' sense

     The annoyance must not be an isolated incident, unless there is a
     reasonable apprehension that the incident will re-occur.

     The classic example of such a nuisance is the emission of a 'noxious
     escape' eg smoke, smell, fumes, vibrations (from heavy machinery) etc.

     The test to be applied is whether the ordinary reasonable person would
     tolerate the nuisance or not.
     Holland v Scott 1882 EDC 307
     Prinsloo v Shaw 1938 AD 570

     Surrounding factors will also be considered. such as:
     -the situation of the land (eg urban or industrial area?)
     -the class of persons who inhabit (eg chickens, goats more acceptable in a
     poorer area than in an upmarket suburb)

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The nuisance need not be a'harmful escape'. See (Read):

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     Assegay Quarries (Pty) Ltd v Hobbs 1960(4) SA 237 N

     5.2         Nuisance in the wide sense

     This entails the causing of damage to the aggrieved owners property. The
     test is again based on reasonableness, with the question being whether the
     person causing the nuisance went beyond the ordinary and natural use of
     the property. Malherbe v Ceres Municipality 1951(4) SA 5 1 0 A

     Here there is some doubt as to the nature of the nuisance action. It was
     always thought that English law principles applied, and that liability was
     strict. However, this was disputed in the case of: Regal v African
     Superslate (Pty) Ltd 1963(1) SA 102 A.

     In this case the AD said that disputes in neighbour law had to be resolved
     according to Roman-Dutch principles, and that English Law was not
     appropriate. The court, however, did not clearly enunciate the principles
     applicable, thus there is some doubt as to whether liability is indeed still

     It appears that the applicable principles arc as follows:
     -liability for an interdict is strict;
     -damages:there may be appropriate cases where equity demands that fault
     be proven, thus liability is strict, but not absolute.
     -a successor in title will not be held as strictly to account as the original
     creator of the nuisance.

     H Luntz 1963 Annual Survey 304-8.

6.   Abuse of Rights

     This issue often arises in the context of neighbour relations. This falls under
     the law of delict.

     With abuse of rights, a person uses a right that he is entitled to use for the
     sole purpose of annoying or inconveniencing his neighbour. The person's
     motive thus becomes important. Our court's approach can be seen in the
     following cases:
     Kirsh v Pincus 1927 TPD 199
     Gien v Gien 1979(2) SA 1113 T


                                                                            Part IV

                            LIMITED REAL RIGHTS

Having examined the most complete of all real rights, that of ownership, we now
move on to a discussion of limited real rights. These are so named because they
carry less entitlements than the real right of ownership.


1.1    Introduction

Possession, the right to physically control an object, is often equated with ownership,
but the two are separate and distinct concepts in law. A possessor, or someone
entitled to possession, is not necessarily the owner of the object, and only has some
of the rights that an owner has. For example, an possessor can use and enjoy an
object, but he may not alienate or destroy it.

There is some academic debate as to whether possession actually constitutes a right
or not, since its existence is usually a question of fact rather than one of law.
However, it is clear that possession carries with it some legal consequences, and
thus it is not incorrect to deal with possession as a limited real right. This is the
approach we will adopt.

1.2.   The significance of possession

Possession is important in a number of contexts, such as:

-the acquisition of ownership: eg. physical delivery or some substitute is required for
the transfer of ownership.

-proof of ownership: eg in relation to moveables, the possessor is presumed to be
the owner of a thing.

-entitlement to fruits: eg see the discussion under compensation for improvements

-validity of pledge: eg in dealing with moveables as security, one makes use of
pledge, and this requires that the person holding the security must have physical
possession of the object in order to have effective security. Effective security is
security that is recognised in law as giving preference on insolvency.

-criminal liability: eg a lot of crimes are defined in terms of possession ie of drugs,
firearms etc

-entitlements to various remedies, such as the mandament van spolie.

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1.3.      The distinction between possession and ownership

The main distinction as outlined above is that possession carries less entitlements
than ownership. There are other differences as well, such as:

-the proof of the existence of possession and ownership: possession is a question of
fact, whereas there are a number of legal requirements that need to be satisfied to
prove ownership.

-the requisite animus: with ownership, one must intend to hold as if owner, but with
possession, there are several different lesser forms of intention, ranging from an
intention to hold in order to derive some benefit, to an intention to simply hold the
object on behalf of another.

-t he remedies available: the owner and the possessor have differing remedies eg
the vindicatory action is available to an owner, and the mandament van spolie is
available to a possessor - although an owner may also bring the mandamant van
spolie because one of the entitlements of ownership is possession.

1.4.      The elements of possession

Possession comprises two elements, physical control (detentio) and the requisite
intention to possess (animus). We will examine each in turn.

1.4. 1.        Detentio

This means that the possessor must exercise effective physical control, either
personally or through an agent or servant/employee. The degree of control required
is a question of fact.

Re the degree of control required for the acquisition of possession, see:
Hayes v Harding Town Board 1958(2) SA 297 N
Underwater Construction and Salvage Co (Pty) Ltd v Bell 1968(4) SA 190 C
Cf, however, the approach in Reck v Mills 1990(1) SA 751 (A). This approach
seems to be unduly strict, and the approach the Underwater Construction case is
probably better. See Silberberg 3 ed at 115-6.
See also R v Mafohla, Lamont v Heyns and the other cases dealt with under
occupatio above.

Re the degree of control required for the retention of possession, see:
Nienaber v Stuckey 1946 AD 1049
Scholtz v Falfer 1910 TS 243

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This will vary according to the nature of the object possessed, and the type of use to
which the object is put.

Finally, as a good summary, see (READ):
Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977(1) SA 230 E

1.4.2. Animus

Physical control over an object is not enough, it must also be accompanied with the
requisite intention to hold the object. This approach is difficult to apply in practice
because it means that one cannot devise a uniform definition of intention, as the
intention depends on the purpose for which physical control is asserted. For
example, if one wishes to acquire ownership of an object, the physical control of the
object must be accompanied with an intention to hold as if owner, but if one simply
wishes to hold a moveable as security in the form of a pledge, then the intention
accompanying physical control would be the intention to hold the thing in question as
real security for a debt owed. Additionally, the concept of possession has been
defined in a number of statutory criminal offences, and here the intention will take the
form specified in the statute.

As it is not possible to provide a single definition of the animus element of
possession, we have to select one instance of possession and use that to examine
the general principles relating to animus. We will use the possession necessary for
a possessor to claim the most important possessory remedy, the mandament van
spolie as an example.

In this regard, if a person holds an object with the intention to derive some personal
benefit from that object, then they are entitled to bring the mandament eg someone
holds a property with the intent of conducting a business thereon and making a
profit. However, there is some doubt as to whether the remedy is available to
persons who hold the property with the intent to exclude others except the owner eg
a person who looks after the property of others such as a porter or a 'parcel-counter'
attendant, from possession or to those who simply exercise 'witting' physical control.

Roman law principles are unhelpful in this regard as the concept of possession was
widely defined. Roman Law clearly gave the right to claim the remedy to persons
who held with animus domini or the intent to derive some physical benefit, but these
categories have been extended in modern South African law to include persons who
hold with a 'lesser' form of animus.

Bennett Pringle (Pty) Ltd v Adelaide Municipality supra
Matthews 'The Mental Element in Possession' (1962) 79 SALJ 179-188
McCallam v McCallam's Trustees 1916 GWL 414
Muller v Muller 1915 TPD 28
Meyer v Glendinning 1939 CPD 84
Mpunga v Mlaba 1959(1) SA 853 W

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Dlamini v Magi 1982(2) SA 490 W

Finally, the possessor must be capable of forming the intention to possess.

1.5.      The Protection of Possession

1.5. 1.         The Mandament van Spolie

The underlying rationale behind the remedy is that the public peace must be
maintained, and it is impossible to do this if persons simply resort to self-help to
recover property that they claim that they are entitled to. Rather, they must make
use of the correct legal processes to enforce their rights, and to preserve the peace.
If they fail to do so, the person that they have dispossessed is entitled to bring the
mandament for the summary return of the article in question.

This operates according to the principle spoliatus ante omnia restituendus est,
meaning that the court will not examine the merits of the rival claims to the article,
but will simply order its return to the person who was unlawfully dispossessed. The
remedy is thus drastic and far-reaching. The idea is that if you have a grievance and
you do not follow the correct legal process, your claim will not be upheld until the
status quo has been restored.

Yeko v Qana 1973(4) SA 735 A
Nino Bonino v De Lange 1906 TPD 120
Greyling v Estate Pretorius 1947(3) SA 514 W

Elements to be proven by an applicant:

The applicant must prove that:

1)        he was in peaceful and undisturbed possession at the time of the spoliation
          (the unlawful act which deprived him of possession); and

2)        he was unlawfully ousted from possession.

This must be established on a balance of probabilities (the usual level of proof in a
civil action or application).

Re 1), the applicant must show the requisite detentio and animus, and the
continuation thereof. Any illegality attaching to the applicant's possession is
irrelevant, see Yeko v Qana supra.

Re 2), the act of spoliation need no longer involve force, stealth or fraud. The act
should simply be unlawful, and any act which amounts to a dispossession without
following the correct legal process, and which is against the applicant's will, will be
regarded as unlawful. Common examples include the changing of a lock, the

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addition of a new lock, closing a gap in a fence etc. Even removing a name from a
register that signifies that one is no longer a member of an organisation can amount
to an act of spoliation. See Rooibokoord Sitrus Bpk v Louw's Creek Koop Bpk
1964(3) SA 601 T

This also confirms that the mandament can extend to the spoliation of incorporeal
Shapiro v South African Savings and Credit Bank 1949(4) SA 985 W

Once the applicant has established these two elements, he is entitled to the
summary restoration of possession. There will be no examination of the merits of
the rival claimants at this stage. The respondent may subsequently - ie only after the
restoration of possession - bring an action for the return of possession, based on his
better right to possession.

Because of this, it will not avail the respondent to claim as a defence that he has a
better right to possession than the applicant. His defences are limited to the

-that the applicant was not in peaceful and undisturbed possession at the time of the
spoliation. This is usually shown by proving that the applicant did not have either the
requisite detentio or animus.
Reck v Mills supra

-that the respondent's actions did not amount to a spoliation. The respondent could
either deny that he has dispossessed the applicant at all, or he could claim that his
action is not unlawful eg the applicant voluntarily surrendered possession.

The respondent may not claim that:

-he acted as an agent for another;
Painter v Strauss 1951(3) SA 307 0

-he is entitled to self-help in terms of a contract.
Nino Bonino v De Lange 1906 TS 120

The nature of the relief available:

The applicant is entitled to claim:
-the return of possession of the article in question;

-its reconstruction or repair.,
MD Blecher 'Spoliation and the Demolition of Legal Rights (1 978) 95 SALJ 8-16.
Fredericks v Stellenbosch Divisional Council 1977(3) SA 113 C
Potgieter v Davel 1966(3) SA 555 0
De Jager and others v Farah and Nestadt 1947(4) SA 28 W

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-the replacement of the res.

If the respondent has lost possession of the article to a third party, it would seem as
if the mandament should not be available as the respondent has nothing to return.
However, some cases have held that in certain circumstances, the mandament will
still be available.
Painter v Strauss supra
Malan v Dippenaar 1969(2) SA 59 0
Jivan v National Housing Commission 1977(3) SA 890 W
Silberberg prefers the approach in the Painter and Malan cases.

Time limits?

In Roman-Dutch law, the applicant had to bring the action within one year from the
date of the spoliation. In modern times the applicant must bring the action within a
reasonable time and the one year time period is simply a guide in this regard. Thus
a claim brought within a year may be too late in certain circumstances, eg where the
delay in time makes it appear that the applicant has consented to the dispossession.

Counter spoliation

The person who is deprived of possession may not himself resort to self-help to
recover possession. Rather, he must make use of the correct legal proceedings to
recover possession. The exception to this rule is where the applicant has acted
immediately, such that his actions did not amount to a fresh breach of the peace.
This usually means that the actions of respondent and the applicant must be
reasonably contemporaneous.
Mans v Loxton Municipality 1948(1) SA 966 C
De Beer v Firs Investments Ltd 1980(3) SA 1087 W

1.5.2   Prohibitory Interdicts

These may be obtained where there is a mere disturbance of possession or a threat
of such disturbance (before possession has actually been lost). This follows the
normal civil law principles relating to the granting of interdicts. Thus the interdict may
be either final or interim.

For a final interdict, the applicant must establish:
1) a clear right,
2) that injury has been sustained or is reasonably apprehended;
3)that no other remedy will suffice.

For an interim interdict, an applicant must establish:
l) a prima facie established right;

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2)that injury has been sustained or is reasonably apprehended;
3) that the balance of convenience is in his favour.

1.5.3. Possessory actions:

This may be brought by someone who has been deprived of possession in
circumstances where the mandament does not lie, to recover the thing itself or
damages for its loss. Thus an applicant may use this action to recover the thing
itself from a third party to whom it has been sold, or he may use it to claim damages
from the dispossessor who sold the article to the third party.

The key difference between this remedy and the mandament is that the court must
be satisfied as to the merits of the applicant claim before it will grant the action.

1.5.4. A delictual action in terms of the Aquilian Action, and a claim for
       compensation for improvements are also available to a possessor


1.    A servitude is a limited real right imposing a burden on a thing, either movable
      or immovable, restricting the powers of the owner of that thing to some extent,
      in favour of another person (a personal servitude) or in favour of the owner of
      another tenement (a praedial servitude).          Both praedial and personal
      servitudes are limited real rights.

      The word servitude is derived from the Latin word servire meaning `to serve'.
      Thus the servient tenement - the property over which the servitude is
      registered - 'serves' the dominant tenement - the property which enjoys the
      benefit of the servitude.

2.    With the evolution of society, new servitudes have been recognised. In
      Roman law, the content of servitudes dealt with simple issues, such as a right
      of way, to draw water, to pasture etc, in relation to praedial servitudes. In the
      context of personal servitudes forms such as usufruct, usus and habitatio
      were recognised.

      This has been extended in modern times to, for example, restrictive conditions
      in township developments, and implied servitudes in sectional title
      developments. An implied servitude in a sectional title development would for
      example be the right of the owner of the upper unit in a building to run electric
      cables and water pipes in or over the walls of lower units.

                                                                               Part IV

3.   The most important distinction to be made is between praedial and personal
     servitudes. The former are the main concern of the law of property. These
     distinctions are as follows:

     3.1.   A praedial servitude is a limited real right which attaches to a piece of
            land, the servient tenement, in favour of another piece of land, the
            dominant tenement. The right attaches to the land, and exists
            irrespective of the identities of the owners. A person becomes entitled
            to exercise the right, or becomes bound to honour it simply by virtue of
            his ownership of the piece of land. It follows that should the original
            grantor and beneficiary sell their respective properties, the right would
            automatically pass on to the successors in title.

            A personal servitude on the other hand is granted in favour of a
            particular person. This is inseparably attached to the holder of the
            right, and is inalienable. It follows that if the holder of the right dies, the
            right is extinguished with him, and no-one else can claim the exercise
            of the right.

     3.2.   Praedial servitudes are usually perpetual in their duration, but in terms
            of the Deeds Registries Act it is possible to register a praedial servitude
            for a limited period, for example, a servitude to draw water, to terminate
            when a local authority is formed to supply water, ie termination upon
            the occurrence of a certain event.

            Personal servitudes may be shorter in duration; there is no minimum
            period required. However, they cannot extend beyond the lifetime of
            the holder.

     3.3.   Praedial servitudes relate to immovable property only, whereas
            personal servitudes may be granted in respect of both movable and
            immovable property.

     3.4.   There is no numerus clausus of praedial servitudes. As long as the
            servitude complies with the general principles relating to praedial
            servitudes, the parties may create any servitude they please,

            Personal servitudes are, however, limited in number.

     3.5.   Praedial servitudes are usually very narrow in respect of the
            entitlements they give to the person entitled to exercise the right, for
            example, the person is given a single entitlement of ownership to
            exercise, such as a right of way or the right to draw water.

            Personal servitudes are usually much wider in the entitlements they
            confer, eg a usufructuary has most of the entitlements of ownership.

                                                                                   Part IV

4.   The general principles relating to praedial servitudes.

     4.1.   A servitude (hereafter reference to 'a servitude' means a praedial
            servitude only) cannot impose an active or positive duty to do or
            perform something on the owner of the servient land.

            This is known as the principle of passivity: a servitude either entitles its
            holder to do something on the land of another, or compels the owner of
            the servient tenement from doing something on his land. The former is
            known as a positive servitude, and the only obligation that rests on the
            owner of the servient tenement is to permit the owner of the dominant
            tenement to exercise his rights. The latter is known as a negative
            servitude for example to not build beyond a certain height so as to not
            block a neighbour's view. In this case, the only obligation on the owner
            of the servient tenement is to refrain from doing something.

            As we have seen in our discussion on real and personal rights, this
            principle is subject to some conflicting interpretation: see again the
            cases of Schwedhelm v Hauman supra and Van der Merwe v Wiese,

            There is also an exception to this rule in the law of servitudes. A
            servitude oneris
            ferendi is a duty imposed on a person to maintain a wall that supports a
            on a neighbour's property. This imposes on the person a positive duty
            to act to
            maintain the wall. This type of servitude would find extensive
            application in sectional title developments.

     4.2    The requirement of utilitatis. This means that the dominant land must
            obtain some benefit from the servitude. This has a number of

            4.2.1. The two properties must be sufficiently close to each other so
                   that a benefit in the one can reasonably enhance the use and
                   enjoyment of the other, This is sometimes referred to as the
                   requirement of vicinitas.
                   Bisschop v Stafford 1974(3) SA 1AD

            4.2.2. The use or enjoyment of the dominant land itself must be
                   enhanced, and not simply the pleasure or amusement of the
                   Stephens v de Wet 1920 OPD 78

                                                                                Part IV

      4.2.3. The use must be based on some permanent feature of the
             servient land, sometimes referred to as a perpetual causa. For
             example. one cannot have a servitude of a right of way over a
             property only to gain access to a circus, should one visit town.

4.3   Servitus servitutis non potest. This means that it is not possible to
      have a servitude over a servitude. This is best explained by:
      Engelbrecht v Brits 1906 TS 274

4.4   Nulla res sua servit. This means that no-one can have a servitude over
      his own property. Thus a servitude will be extinguished by merger
      when the same person becomes the owner of both tenements. The
      servitude loses its independent existence, and the owner acquires full
      ownership over the servient tenement.
      If there is a subsequent separation of ownership eg the owner sells one
      of the properties to a third party, the servitude will revive automatically,
      if the merger was intended to be of limited duration. However. if the
      merger was intended to be permanent, there should only be a revival if
      the servitude is expressly reconstituted. However it appears to have
      become the practice to regard the servitude as having revived simply
      by incorporating it in the title deed ie no express revival is required.
      Eichelgruen v 298 South Ridge Road (Pty) Ltd 1976(2) SA 678 D

4.5   The servitude must be exercised civiliter modo. This means that due
      regard must be given to the rights and interests of the servient owner.
      This is determined by a reasonable man test ie the servitude must be
      exercised in a reasonable manner.
      Kakamas Bestuursraad v Louw 1960(2) SA 202 AD
      Pieterse v Du Plessis 1972(2) SA 597 AD

4.6   Strict construction. This means that when a court is dealing with a
      dispute involving a servitude, it will interpret the evidence as narrowly
      as possible., so as to place the least burden on the servient tenement.
      This has the following consequences:

      4.6.1 If' there is doubt as to the existence of the servitude, it is
            presumed that there is no servitude.

      4.6.2 If there is doubt as to whether the servitude is personal or
            praedial, it is presumed that the servitude is personal.

      4.6.3 If there is doubt as to the extent of the servitude, the least
            burdensome interpretation is followed.

                                                                          Part IV

       4.7    Indivisibility. The servitude is regarded as indivisible, and thus
              attaches to every part of the dominant land and the servient land. This
              has the following consequences:

              4.7.1 A co-owner cannot abandon or acquire a servitude only in
                    respect of his undivided share,, the servitude must attach to the
                    whole property

              4.7.2 If the dominant land is subdivided between different owners,
                    each portion retains the benefit of a servitude, provided the
                    burden on the servient land is not thereby unreasonably

              4.7.3 If the servient land is subdivided, each portion remains
                    burdened by the obligation imposed by the servitude, unless it is
                    a localised servitude eg a right of' way across a specific part of
                    the property.

5.     The Constitution of Praedial Servitudes
This refers to the creation and registration of praedial servitudes. Only an owner of a
property may burden it with a praedial servitude. If the property is subject to co-
ownership, all the owners must consent. If the property is subject to a mortgage the
written consent of the mortgagee is required because the servitude is a burden on
the property and the security will now be worth less. The State may grant a
servitude over state land, in favour of a private individual, or in favour of the general
public, eg the state may sell state land to a private individual, subject to a servitude
in favour of the general public, such as a right of way.

In order to be effectively created, ie in order for the servitude to be binding on
successors in title it must be registered in the Deeds Registries Office. If the parties
create the servitude at the time of the purchase and sale of the property, the seller
may sell the property to the buyer subject to the reservation of a condition in his (the
seller's) favour. This condition then forms the servitude. For example, the seller
may sell his farm, subject to the reservation of the condition that he can exercise a
right of way over the property. If the parties are already owners of their respective
properties (ie there is no transfer taking place and thus no deed of transfer in which
the condition may be reserved) then the servitude is created by a notarial deed (a
document embodying the servitude agreement prepared by a notary) which is
endorsed on the title deeds of both the dominant and servient tenements.

A servitude diagram may be included, but is not necessary if for example the
servitude follows a single boundary and is of uniform description. This is submitted
to the Surveyor General for confirmation.

                                                                                 Part IV

Note again that when a sectional title deed is registered, implied servitudes are
created, such as subjacent and lateral support, and provision for water, sewage and
drainage services are created.

If a servitude is unregistered ie not endorsed on the title deeds and not recorded in
the Deeds Registries Office, the servitude usually only binds the original parties to
the agreement. Successors in title are not bound, unless:

-they are gratuitous successors; or
-they are onerous successors with a knowledge of the servitude:
Van Der Berg v Van Tonder 1963(3) SA 558 T
1963 Annual Survey 296
Ridler v Gartner 1920 TPD 249
Grant v Stonestreet 1968(4) SA 1 AD
1968 Annual Survey 210
-the servitude is acquired by prescription.

6.     The acquisition of servitudes by prescription

Refer back to the section dealing with prescription for the principles dealing with this
acquisition, The difference between the acquisition of full ownership by prescription,
and of a servitude by prescription is that in the latter case the animus will alter from
holding the property animus domini to a lesser form of animus, namely exercising the
entitlement the servitude grants as of right. The degree of possession would also
alter, the exact nature of possession being dictated by the nature of the servitude.

7.     Vetustas

This involves the creation of a public servitude ie a servitude in favour of the general
public, by virtue of the public's use of the entitlement for 'time immemorial' or for as
long as anyone can remember. It is sometimes said that the origin of the use is 'lost
in the mists of time.'

In this situation, there is a rebuttable presumption that the origin of the practice arose
as a result of a valid title, even though there is no written proof of the validity of title.
This applies to so-called public servitudes. These are not praedial servitudes as
they are not in favour of a particular property, nor are they personal because they
are not in favour of a particular person or persons, rather they are in favour of the
general public.

Vetustas differs from prescription in that:

7.1.   With vetustas there is a presumption of a lawful origin to the possession,
       whereas prescription is based on adverse user which is in a sense unlawful.

                                                                                     Part IV

7.2    Vetustas depends on general use by the public, whereas prescription
       depends on use by the claimant and his predecessors in title.

7.3    Adverse use is not a requirement for vetustas.

7.4    Vetustas is regulated by the common law only (see Section 9 of the
       Prescription Act)

7.5    Vetustas applies to the acquisition of public rights, prescription to the
       acquisition of ownership or servitudes.

The general requirement for vetustas is that the public must have exercised the right
for at least thirty years, but the origin of the use must be uncertain, and not a specific

Public servitudes are not extinguished by non-use, but someone can acquire
prescriptive rights which. defeat the public servitude eg someone ploughs up a road
that forms a right of way for the public, thereby barring their access, and no-one
objects for the prescriptive period.

Vetustas is generally regarded as applying to public servitudes only. There is,
however, some doubt as to whether it should apply to the acquisition of 'private'
servitudes as well.

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

8.     Via Necessitatis

This refers to a way of necessity and is granted in favour of a property that is
landlocked, with no access to a public road, or a very difficult and inconvenient
access. These are established by agreement. or by an order of court, either as a full
or permanent servitude, in which case compensation is payable, or precario ie for
emergencies only. This must be the shortest route causing the least damage.

There is some debate as to the legal basis of the via necessitatis. Some academics
view it as the creation of a servitude by the operation of law, whereas others such as
Silberberg, simply view it as a particular kind of servitude.

The following cases bear out the principles relating to via necessitatis

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

                                                                                  Part IV

9.     Restrictive Conditions

These are found in township developments. When the plan for the township is
drawn up, certain restrictions are imposed on the use of properties in the township,
eg a restriction stating that certain plots may only be used for a residential
development. In a sense they are 'regulations' governing the use of the township
properties, designed to achieve the object of preserving the amenities or character of
the township, but they are a type of servitude. These restrictions are registered
against the title deeds of the properties.

These restrictions are usually in favour of all the other owners of plots in the
township. In this way, the plots are both servient and dominant tenements ie each
plot can claim that the condition be upheld, thus it is the dominant tenement, but at
the same time the condition can be enforced against it, thus it is also the servient

If the restriction is in favour of all the other plots in the township, it is regarded as a
praedial servitude. This may be enforced by any owner of a plot in the township.
However, a restrictive condition may be in favour of the seller or developer, eg a.
condition prohibiting subdivision without seller/developer's consent, in which case the
condition will be regarded as a personal servitude. This may only be enforced by the

There is often a problem as to the construction and interpretation of restrictive
conditions. See:
Alexander v Johns 1912 AD 431
Ex Parte Evenwell 1937 WLD I
Ex Parte Millsite 1965(2) SA 582 T
Swiss Hotels v Pedersen 1966(1) SA 197 C

10.    Personal servitudes

The following are examples of traditionally recognised personal servitudes:

       10.1       Usufruct - entails the use and enjoyment of the property and its
                  fruits without impairing its substance.

       10.2       Usus - this gives the person the right to use a property, but he may
                  not take fruits beyond his families daily needs.

       10.3       Habitatio - is the right to dwell in a house with the right to let or sub-


                                                                                    Part IV

                             ENVIRONMENTAL LAW

1.        The basics of Environmental law
                Which laws are relevant to the environment?
                Why do we need to protect the environment?
                What is sustainable development?

2.        The Constitution

                The environmental right - Section 24
                Who can you enforce your environmental rights against?
                Other rights relevant to the environment
                The Right to Equality - Section 9
                The Right of Access to Information - Section 32
                The Right to Just Administrative Action - Section 33
                What are the requirements of lawfulness, procedural fairness
                and reasonableness?

                The Limitations Clause - Section 36

     3.   General laws that relate to environment
               How can you use these laws?
               National Environmental Management Act 107 of 1998 (NEMA)
               What are the NEMA principles?
               What is covered by NEMA?
               When can you use NEMA to make a complaint?
               What does NEMA allow you to complain about?
               What action can you take under NEMA?
               Conciliation and the right to information under NEMA
               Environment Conservation Act 73 of 1989
               The Promotion of Administrative Justice Act 3 of 2000
               The Promotion of Access to Information Act 2 of 2000Laws relating to
               the Environment

     4. Land, planning and development

                Agricultural resources
                Environmental assessment
                Biodiversity and genetic modification
                The coast
                Protected areas and community based conservation
                Natural and cultural resource use and conservation
                Wild animals, forests and plants

                                                                               Part IV

          Living marine resources
          Mining and energy
          Heritage resources
          Pollution control and waste management
          Water (fresh water, sea water)

5. Environmental Issues
         What rights are infringed?
         Ways to resolve Environmental Disputes
         Substantive environmental justice
         Public participation
         Environmental campaigns
         Environmental organisations

6.   Procedural environmental justice
          Approaching the court for relief
          Legal standing to bring a matter before the court
          Types of legal remedy
          Legislative remedies
          The interdict
          Appeal and review

                                                              Part IV

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