LAW OF PROPERTY
(INCLUDING MORTGAGE AND PLEDGE)
C G
A LEGISLATION
DEEDS REGISTRY
Catchment Areas
The Mountain Catchment Areas Amendment Act 41 of 1976
provides for the erection of beacons on the authority of the Minister
for the purpose of defining mountain catchment areas (s 1 inserting
s 2A in the principal Act, the Mountain Catchment Areas Act 63
of 1970). A right of entry and a right of way over land to such
beacons (subject to prior notification of the landowner in question)
in order to perform certain authorized activities (eg repairs) in
connection with the beacons are further granted (s 2, adding ss (3)
to s 11 of the principal Act). Section 5, substituting a new s 17 for
the old in the principal Act, provides that powers conferred by the
Act in connection with the above-mentioned beacons may not be
delegated by the Minister or Secretary.
Forests
The Forest Amendment Act 58 of 1976 amends the Forest Act
72 of 1968 by conferring on honorary forest officers certain powers
in respect of the national hiking way system (s 1, amending s 3 of
the principal Act). Section 2 amends s 4A of the principal Act by
giving a more detailed description of land which may not be
* BA LLB (UOFS) BA (Hons) BCL (Oxon) LLD (SA), Advocate of the
Supreme Court of South Africa, Professor of Law in the University of Stellenbosch.
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entry into and residence in a park, while s 23 states the purpose for
which permission to enter or reside in a park may be granted. By
s 22 the rights of certain owners and occupiers of land riparian to
public streams included in a park are regulated. Section 30 provides that the Sea-shore Act 21 of 1935 shall not apply in or in
respect of any area which forms part of a park.
National parks can, it is submitted, be classified as res publicae,
namely things belonging to the State, while the use and enjoyment
thereof is open to the general public. National parks thus fall into
the same category as public streams, public roads and harbours.
It is further submitted that, although the Act prohibits the hunting
(s 21(1)(c)) and removal (s 21(l)(h)) of any wild animal from the
park under penalty of a fine or imprisonment, this will not deprive
the hunter of ownership of the res nullius he has taken into possession.
Ribbon Development
Section 2 of the Advertising on Roads and Ribbon Development
Amendment Act 6 of 1976 amends the Advertising on Roads and
Ribbon Development Act 21 of 1940 by the insertion of s 9A. This
section prohibits (subject to certain exceptions) the erection of any
new structures on or underneath the surface, or any alteration or
addition to any existing structure within 500 metres from an
intersection of two building restriction roads. The principal Act
does not deal with intersections but merely prohibits the abovementioned operations within 95 metres from a building restriction
road.
EXPROPRIATION
SQUATTING
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B CASE LAW
ACCESSORY
Limitations on Ownership
Two recent decisions deal with limitations on ownership. The
first deals with a limitation under the rules of private law relating
to the natural flow of water, while the second concerns a limitation
imposed by public law.
In Redelinghuis v Bazzoni 1976 (1) SA 110 (T) the rights and
obligations of owners of neighbouring land with regard to the
natural flow of water received special attention. The plaintiff
averred that by building walls on two boundaries of his property
the defendant had increased the flow of percolating water to his
property. The plaintiff therefore asked the court to order the defendant to halt this flow and to pay compensation for damage caused.
A plea for absolution from the instance was filed on behalf of the
defendant. F S Steyn J analysed the pleadings and found that the
plaintiff's primary claim was based on the actio aquae pluviae arcendae,
while an alternative claim for damages would be either delictual in
nature or based on the interdictum quod vi aut clam.
The general principle underlying the actio aquae pluviae arcendae
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Zub
to further such function. Van Winsen AJP remarked that the court
should not promote the perpetuation of outdated standards. He
was not surprised that health requirements had become more
exacting over the last 33 years. This is only one of the many recent
decisions which sound a warning to owners of municipal plots that
it is a myth that their ownership includes a so-called ius abutendi.
Proof of Ownership
In S v Sikwane 1976 (2) SA 896 (T), an appeal from a conviction
of illegal squatting, it was contended, inter alia, that the State had
failed to prove that the Bantu affairs administration board was the
owner of the land on which the accused had squatted. The State
had produced neither the title deed nor an extract from the register
certified by the Registrar of Deeds as permitted by s 261 of the
Criminal Procedure Act 56 of 1955 as evidence of its ownership. It
appeared, however, that the assets and liabilities of the municipalities in question had by virtue of the Bantu Affairs Administration
Act 45 of 1971 and GN 1947 of 1973 become vested in the board.
Since these enactments were not challenged, the board was recognized as owner of the land. This case illustrates what is meant by a
negative system of registration. The board had become owner of the
land by statute although the land may still have been registered in
the name of someone else. See also S v Peter 1976 (2) SA 513 (C), in
which case remarks were made on the circumstances in which the
Bantu affairs administration board could be considered owner or
lawful occupier of land on which a shanty stood (at 516-17).
Meaning of 'Owner'
Two recent decisions deal with the effect of being registered
owner of a vehicle in terms of the Road Traffic Ordinances. In
S v Levitt 1976 (3) SA 476 (AD) the accused purchased a motor car
under a hire-purchase agreement on the condition that ownership
remained with the seller until the full purchase price had been
paid. The vehicle was thereupon registered in the name of the
purchaser's wife. The accused was convicted under the Insolvency
Act 24 of 1936 in that, being insolvent, he had removed or made a
disposition of an asset to the prejudice of his creditors. On appeal
it was, however, held that registration in the name of the wife had
conferred neither ownership of the car nor contingent rights in
terms of the hire-purchase agreement. Ownership had remained
with the seller at all material times. Since the appellant had not
been owner of the car except for purposes of registration, he had
not been in a position to make any disposition in the sense of transferring ownership from himself to his wife.
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third party who paid R2 000 in cash to him, the balance to be paid
in instalments under a hire-purchase agreement. A cheque drawn
by the motor dealer for the full purchase price was given to the
applicant but dishonoured on presentation. An application for an
order authorizing the deputy sheriff to remove the vehicle frcm
the possession of the third party was refused on the ground that the
applicant was estopped from vindicating the vehicle from a bona
fide purchaser. By giving up the vehicle to the motor dealer for the
purpose of selling it, the applicant must have contemplated that
the vehicle would be exhibited for sale at the business premises with
the other stock-in-trade. Thereby he had represented that the
dominium and power of disposal was vested in the motor dealer. He
could not now rely on his private instructions to the motor dealer,
namely, not to deliver the vehicle until the full purchase price had
been paid.
With regard to the registration certificate and the effect of delivery
thereof Nicholas J said (at 442):
'The belief of the applicant that he was protecting himself by
retaining the possession of the registration certificate and annual
licence issued under the Road Traffic Ordinance 21 of 1966 (T)
was illusory. Such documents do not constitute documents of
title to the motor vehicle. Delivery of them to another does not
constitute an implied representation of a power to dispose of the
vehicle: it takes the matter no further than the delivery of the
vehicle itself. . . . And, conversely, the fact that a person disposing
of a motor vehicle is not in possession of these documents is not
inconsistent with his power to dispose. Compliance with the provisions of s 42(3) (a) of the ordinance, in terms of which a transferor of a motor vehicle is required to deliver to the new owner a
notice of transfer of ownership, together with a registration
certificate and a licence, is not a prerequisite to the passing of the
ownership in the vehicle, which is governed by the common law.'
On circumstances in which a plea of estoppel can be raised
against the owner of a movable see also Oakland Nominees (PtY) Ltd v
Gelria Mining & Investment Co (Ply) Ltd 1976 (1) SA 441 (AD). This
case deals with the ownership of shares, and is discussed in the
section on Company Law below.
POSSESSION
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criminal law coincides to a great extent with its meaning in the law
of property, those decisions are also of interest to the property
lawyer.
On a charge of being in unlawful possession of dagga it was held
in S v Williams 1976 (1) PH H101 (C) that, since the definition of
possession under the Abuse of Dependence-producing Substances
and Rehabilitation Centres Act 41 of 1971 includes 'keeping, storing
or having in custody or under control or supervision', the accused
could not effectively plead that he had not been in physical (personal)
possession of the dagga. As far as the animus was concerned it was
held that once possession was established it made no difference
whether the appellant ultimately intended to return the dagga to its
true owner, use it for his own purposes, or even get rid of it.
On a similar charge in S v Job 1976 (1) SA 207 (NC) it was clear
that the accused had had physical control (detentio) over the receptacle in which the dagga had been found. It was, however, argued
that she had had no animus with regard to the dagga because she
had only known of food kept in the receptacle; it had been found
that the dagga had been deposited in the receptacle without her
knowledge. In these circumstances it was held that the State had
failed to prove animus with regard to the dagga. Jacobs AJP was
careful to point out that the circumstances of the present case
differed from those in S v Smith 1965 (4) SA 166 (C) and S v
Mofokeng 1973 (2) SA 89 (0). In support of his decision he quoted
the following passage from the judgment of Corbett J in Smith's
case (at 173):
'It might have been different had he [the accused], for example,
thought the bag was empty because a person can hardly be
regarded as having an animus of this nature towards an article of
whose presence he is totally unaware.'
The strong reliance placed on subjective animus in the form of
definite knowledge of the dagga may be explained by the close link
which exists between the animus in possession and the mens rea that
has to be proved on the part of the accused. However, such a strong
subjective proof of animus is not always required in the sphere of the
law of property. A person is taken to be possessor of a letter which
is dropped into his post-box or the wild animal caught in his trap
even though he has no knowledge of it at the relevant time (see
D 41.1.55, Voet 41.1.4). This animus is sometimes explained as being
a so-called projected animus, ie the person putting up a post-box
or setting a trap already has the intention at that stage of becoming
possessor of everything or certain specified things which happen to
find themselves in his post-box or trap.
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ANNUAL
SURVEY OF SA LAW
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on the merits of the case. Her second contention was that the
mandament van spolie had no application where husband and wife
were concerned. Relying on Hamman v Hamman 1949 (1) SA 1191
(W) at 1194, where it was held that since a wife had a right to
possession of her property she was entitled to eject her husband, it
was argued that a wife's right of possession should also be a valid
defence to a spoliation order. LeonJ pointed out that ejectment cases
differ from spoliation proceedings inasmuch as the former rest upon
a right of possession (a ius possidendi) whereas the latter are solely
linked to the actual enjoyment of possession (possessio). He also
pointed out that in the light of Badenhorst v Badenhorst 1964 (2) SA
676 (T) at 679, the ratio in Hamman's case was perhaps too widely
stated. According to Leon J there was in any event no conceptual
or logical reason why the courts should exclude cases between
husband and wife from the general rule. He also referred to
Rosenbuch v Rosenbuch 1975 (1) SA 181 (W), in which a husband
married out community of property applied for a spoliation order
against his wife, who had left the joint household taking with her
certain furniture. The court held that a joint possessor should be
entitled to a mandament van spolie where one of the two joint
possessors unlawfully takes exclusive possession of something held in
joint possession against the will of his co-possessor.
Since the ratio underlying a spoliation order is to prevent people
from taking the law into their own hands and to restore possession
ante omnia before considering the merits of the case, it is submitted
that there is no reason why a close relationship between the parties
in spoliation proceedings should render the remedy inapplicable.
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him a fiduciary duty. It was held that, since the plaintiff had failed
to establish that the defendant was in breach of the servitude as it
was registered, the merits of the defendant's plea did not require
further consideration and absolution from the instance was accordingly granted.
It is interesting to note that this servitude was constituted by a
so-called deductio servitutis, i e a reservation in the deed of transfer in
accordance with s 76(1) of the Deeds Registries Act 47 of 1937. This
is probably the most common manner in which servitudes have
always been constituted in South Africa. To the writer's knowledge
this is also the first time that an attempt has been made to register
a servitude of prospectus. There is no reason why future attempts to
create such a servitude should be unsuccessful. As South African
law does not recognize a numerus clausus of praedial servitudes (or
personal servitudes), a servitude need not necessarily be linked to a
well-recognized name but can be created in any terms and of whatever content the parties wish. Since a servitude would, however,
always be narrowly construed in the light of the presumption against
limitation of ownership a person wishing to create an extensive
servitude in favour of himself would be well advised to circumscribe
the contents thereof carefully or to latch it on to a known servitude
the content of which has sufficiently crystallized. The construction
of the terms of the servitude should not be left in the hands of a
person who has no knowledge of the different possibilities and their
legal effect. It may also be noted that the translation of Voet
accepted by Margo J may create the impression that a servitude of
prospectus can only be created in favour of higher-lying ground.
There exists, however, no reason why a servitude of outlook on
Table Mountain cannot be constituted in favour of a lower-lying
tenement as against a higher-lying tenement.
In Eichelgruen v Two Nine Eight South Ridge Road (Pty) Ltd 1976
(2) SA 678 (D) the extinction of a servitude by merger and its
subsequent revival were discussed. The facts of the case were as
follows: Mrs Fannin became registered owner of the remainder of
lot 12 in 1931 and owner of subdivision G by deed of transfer in
1938. Both deeds made direct reference to a servitude of road over
subdivision G in favour of the remainder and recorded that the
servitude was as shown on the diagram of subdivision G, the servitude having been created in the deed of transfer of 1931. In 1956
Mrs Fannin sold and transferred subdivision G to one Jackson.
The power of attorney authorizing the transfer set out that subdivision G was held by Mrs Fannin under the deed of transfer of
1938 and that the servitude of road was incorporated in the same
manner as it had appeared in the deed of transfer of 1938. Since no
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copy of the deed of sale between Mrs Fannin and Jackson could be
traced it was uncertain whether the servitude was actually mentioned
therein. Jackson, however, testified that Mrs Fannin's husband had
drawn his attention to the servitude of road and that he had bought
the land on the assumption that it would be transferred subject to
the servitude. Jackson then sold to one L, and once again the servitude was recorded in the deed of transfer. Thereafter L sold the
property to Eichelgruen, the plaintiff, in 1968. The deed of transfer
also made reference to the servitude. In 1974 Mrs Fannin sold the
remainder to the defendant, it being a term of the deed of transfer
that the property enjoyed the benefit of the servitude of road.
In denying that a servitude existed over his property the plaintiff
contended that the merging of the two properties in the ownership
of one person had served to extinguish the road servitude and that,
since Jackson and Mrs Fannin had only referred to the servitude,
proper steps to create and register a new servitude had not been
taken.
The court side-stepped discussion on possible extinction of the
servitude and held that the registration of a servitude in a deed of
transfer is prima facie proof of the existence of the servitude described
in the deed and that the deed as such remains the record of the
transaction until rectified. The court also expressed the opinion that
a deed of transfer can only be rectified on very limited grounds.
There was little likelihood, in view of the oral evidence given by
Jackson, that as between Mrs Fannin and Jackson Mrs Fannin
could successfully have applied for rectification. The position of the
defendant was even worse since both he and his predecessor in title
had bought the property on the assumption that a servitude of
road existed thereon. Inasmuch as the plaintiff could not in these
circumstances have applied for rectification of the defendant's deed
of transfer or of her own, this was considered sufficient reason why
the plaintiff could not succeed.
Though it was not strictly necessary to consider the contention as
to the non-revival of the servitude, the court relied strongly on
Du Toit v Visser 1950 (2) SA 93 (C) at 102 in holding that the servitude had in fact been revived. Having regard to the negotiations
surrounding the sale of the servient tenement to Jackson, the court
found that it was clearly established that Jackson had been aware
that Mrs Fannin required him to recognize the existence of the
servitude which then appeared in the title deeds of subdivision G and
on the subdivisional diagram, and that he had agreed to do so.
According to the court this was strong evidence that both parties
had intended the servitude to be reflected in the deed of transfer.
When the servitude had in fact been incorporated in the deed of
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transfer, this had had the legal effect of reviving it. Judgment was
therefore given for the defendant with costs.
It is respectfully submitted that this decision does not pay sufficient attention to a cardinal principle of the law of property, namely
the principle nulli res sua servit. According to this principle a servitude
is extinguished when ownership of the dominant and servient
properties merges. The servitude which thus remained registered
against the title deeds of subdivision G from 1938 till 1956 was
evidence of a legal nullity, and application for its cancellation could
have been instituted at any time. It is submitted that reference to a
mistake in the title deeds (ie the registered servitude) cannot be
accepted as prima facie proof that such a servitude still exists. South
African law is still considered to have a negative and not a positive
system of registration. Notwithstanding the decision in Du Toit v
Visser 1950 (2) SA 93 (C), it is further submitted that a mere
reference should not be interpreted too readily as a revival of a
servitude that has been extinguished by merger. Such a trend is in
conflict with D 8.2.30 pr and Van der Keessel Dictata ad Grotium
2.36.6, in which the words nominatim and expresse are used to describe
the way in which a servitude that has become extinguished by
merger can be revived. A relaxation of the application of the principle nulli res sua servit is, it is submitted, in conflict with the presumption against servitudes and the presumed unfettered boundaries
of ownership.
MINERAL RIGHTS
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In Muller & another NNO v Bryant & Flanagan (Py) Ltd 1976 (3)
SA 210 (D) a building company claimed a debtor-and-creditor
lien in respect of work done on a certain building. The company
on whose behalf the building had been erected went into liquidation.
Some months prior to the liquidation the builder had left the building
site for three months while awaiting instructions from the architect.
He had left certain building materials and tools in a locked storeroom on the site. Both the builder and the company in liquidation
had retained keys to the storeroom. Shortly before the liquidation,
the builder had returned to the building site, resumed work on the
building and barricaded certain portions of the building.
The court held, first, that the builder had not exercised sufficient
physical control over the building site to ground a debtor-andcreditor lien. By keeping certain property locked up in the storeroom a certain measure of control had indeed been exercised, but
the fact that the company in liquidation had also had a key to the
storeroom rendered this control merely symbolic.
It was held secondly that, even if the builder had exercised
sufficient control over the portion of the building, this did not constitute an effective ius retentionis with regard to a claim for a global
sum for the building as a whole. The balance of the contract price
outstanding could not be specifically allocated to the portions over
which the respondent claimed a lien.
In holding thirdly that the original lien had been destroyed when
the builder left the site for three months the court relied on the
following remarks in Scholtz v Faifer 1910 TPD 243 at 248:
'But where work is suspended for a considerable time, then it
seems to me that if the builder desires to preserve his possession
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It was therefore held in conclusion that the builder had lost the lien
when he left the site and that the lien had not revived on his return
to the property in the absence of a further tacit or express agreement.
In Lendalease Finance (Pty) Ltd v Corporacion de Mercadeo Agricola
1976 (4) SA 464 (AD) (discussed above 207), interesting remarks are
made on the question whether the holding of a bill of lading can
operate as a quasi-lien in South African law (at 498).
LEASE
In Bristow v Coleman 1976 (2) SA 252 (R) the petitioner and the
respondent had, prior to the promulgation of the Parks and Wild
Life Act 14 of 1975 (R), entered into a lease in terms of which the
sole hunting rights on a ranch were leased to the respondent for
five years. When the respondent purported to cull and hunt game in
the capacity of an 'appropriate authority' in terms of the abovementioned statute the petitioner applied for an interdict restraining
the respondent from so doing. It was held that, since the hunting
rights had been leased at a time when the Act had not yet been
promulgated, the petitioner being ignorant of the scope and intention of its provisions, the lease agreement could not be construed to
amount to the appointment of an 'appropriate authority'. It was
further held that the lease did not constitute a permit in terms of
the Act. An interdict was therefore granted since alternative remedies were found unsuitable. It was held to be inappropriate for the
petitioner to sue for damages on each occasion when the respondent
and his clients killed game. A prosecution would have to wait until
the petitioner's rights had been infringed.
In First Consolidated Leasing Corporation Ltd v Theron 1976 (4) SA
type that regenerate themselves after felling. It was held that the
agreements did not confer a ius abutendi on the tenant and accordingly constituted leases and not sales. The duty of the landlord to
renew the plantations at his own cost was held not to be in itself
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