CHAPTER ONE

Ownership and the Rights of the Owner Ownership A ceramic brick (the product) is a non-metal inorganic product manufactured from clay (kaolin), soil, water, ash and labour. The first four materials are corporeal things and furthermore res in commercio, as such they are capable of being privately owned. Inasmuch as stone is protectable as property1 it is therefore submitted that the same follows in relation the first three materials because they form part of the genus of natural resources. Property rights have long been recognized as legally protectable rights in many jurisdictions; Naturalists have enumerated the property rights as part of the rubric of natural rights.2 The most wholesome right to property is ownership; all the rights inherent in property are combined under one mother right and are held as title to the property. The concept of ownership in property law denotes that the person in whom it is vested has the most complete right any person can ever have in property3. Ownership is a real right which encompasses all other rights a person can be vested with in relation to property. Ownership was defined in the case of Gien v Gien4 as:
The right of ownership is the most comprehensive real right that a person can have in respect of a thing. The point of departure is that a person can, in respect of immovable property, do with and on his property as he pleases. This apparently unfettered freedom
1

Kaplan M, Much Ado About Stone, 1976 South African Law Journal vol. 93 p 139 Lord Lloyd of Hamstead, Jurisprudence, Oxford 1987, p. 319

Badenhorst, P.J. et al, Silberberg and Schoemans The Law of Property, 5th ed. 2006, Butterworths, p 92
4

1979 (2) SA 1113 at 1120 per Spoelstra AJ

is, however, a half-truth. The absolute power of an owner is limited by the restrictions imposed thereupon by the law.

Where the holder of the ownership right enjoys all the rights entailed therein his title is termed dominium. Where he has permitted another person to enjoy one or some of the rights his ownership to the property is limited to the exercise of the rights which he still retains. In Pearly Beach Trust v Registrar of Deeds5 it was held that where the owner is precluded from obtaining the full fruits of the disposition one of his rights of ownership (jus disponendi) could be said to have been restricted. The owner is at liberty to vest one, some or all of his rights in certain property to a third person but this implies a restriction on his part in the exercise of those rights, to the point that he may exercise none in the event of disposal either by inter alia destruction, abandonment, donation or sale of the property.

Rights of the Owner This part of the discussion deals with the rights which make up the mother right of ownership. As mentioned above these rights may be vested in another person or another property but the owner retains those not vested in that other person (bare dominium). Ownership comprises of other rights, an owner of property has the following in the property they own (the list is limited in accordance with relevance to the study):
(a) The right to possess the property (jus possidendi)
5

1990 (4) SA 614 (C) at 617I

(b) The right to use the property (jus utendi) (c) The right to enjoy the fruits of the property (jus fruendi) (d) The right to dispose of the property (jus disponendi) (e) The right to vindicate their property against whoever is in possession (jus vindicandi) (f) The right to resist any unlawful invasion (jus negandi)

(g) The right to burden the property The foregoing are some of the rights that make up the complete right of ownership however the list is not exhaustive. A concise account of these rights shall be discussed seriatim immediately below.

(a) The right of possession

This limited real right comprises of two elements: detentio and animus possidendi. The former connotes the physical detention of the thing; the possessor must be in physical control of the thing. However this does not mean that she must be with the subject matter all the time. In the case of Nienaber v Stuckey6 Nienaber had acquired cultivation rights in some portion of Stuckeys land; he ploughed it and removed his implements from it. After two months he could not gain access inasmuch as Stuckey had created a barrier for him. When sued for spoliation Stuckey contended that Nienaber had abandoned the land. It was held that although in between the ploughing and planting seasons Nienaber had no use of the land, he was nevertheless still in physical control.
6

1946 AD 1049

The possessor must also have the mental element viz, animus possidendi. The possessor must intend to possess the thing for herself. Without this element a person cannot be held to be in possession. For a person to possess property they must physically control and have intention to possess the subject matter.7

(b) The right of use

The possessor may use the property and derive a certain benefit from it. The user of land for instance may cultivate, build, prospect for natural resources and live on it to mention a few. The right of use is said to be subject to certain restrictions though; the user must use property in a manner reasonably contemplated in relation to such property e.g. a user of a car is expected to drive it on roads and not go astray ramming into buildings belonging to other persons. A user of property must not use it in a way that is detrimental to third parties. 8 The user can keep the fruits for their daily needs only and nothing in excess thereof, The right of use however does not entail entitlement to sell the fruits of the yielded from or by the property as a result of the use.

(c) The right to enjoy the fruits of the thing This right refers to any economic gain a person derives from the property and includes the progeny of animals. The fruits of the property belong to the owner unless the contrary is agreed upon. Even in the event of theft the owner can claim the return of the subject matter plus the

Oosthuizen, A.J., The Law of Property, 1st ed. 1981, Juta, p Badenhorst, P.J. et al op. cit. at 111

fruits thereof from the thief. This right entitles the holder to consume the fruits and not the thing itself.

The two rights immediately above (in (b) and (c) supra) form what is referred to as a usufruct.9 This means that the person vested with those rights in solidum is able to use the property and also enjoy its fruits although it does not belong to her. The word originates from the maxim usus et fructus (use and enjoy). The usufructuary has conferred on her the right to use the thing to which the usufruct relates and enjoy the fruits yielded from the thing in such use.

(d) The right to dispose of the thing

Only the owner and/or a person duly authorised by her may exercise this right inasmuch as any other person would be taking the law into their own hands. The disposal of the thing may be to the detriment of the owner that is why his permission is necessary in this regard. It includes the right to alienate the property and a non-owner cannot pass ownership; the nemo dat quod non habet maxim protects the owner against such unauthorised conduct. This means that even a bona fide third party does not acquire ownership in such circumstances unless the owner is induced to transfer the real right of ownership directly to the buyer10

(e) The right to vindicate the thing

Ibid at p339 Ibid at p73

10

An owner of property has the right to claim his property from whoever is in possession of it. The property must be identifiable in the sense that it should not have changed i.e. it should still be the property of the owner and not something else. Where a procedure is necessary before identification, so be it. However where the thing is transformed into an irreversible res nova the owner can only acquire compensation.

(f) The right to resist unlawful invasion Trespassing, encroachment and intrusion are some of the ways in which a person can invade anothers property rights. A non-owner of property cannot purport to enforce the protection of the right she does not have; she would not have any locus standi in judicio in the first place. The right to resist invasion is also contemporaneous with vacua possessio in that the owner has better title than any person in the property. When she grants possession to another she impliedly undertakes to help the possessor to defend unlawful eviction by others or else a right of recourse would be available against her because she would have professed to be owner.

(g) The right to burden the thing

Here the owner is entitled inter alia to encumber the property in relation to a loan or burden it with servitude. The owner limits their ownership to the property by vesting some rights to the property in a third party e.g. a personal servitude of usus in which a certain person has a right to use property and the right attaches to that person only and no other person may use the property without his consent.

The parties in the discussion are Maseru City Council (MCC) which owns the natural resources and the ceramist (manufacturer) who owns the ash and labour used in making of the product. MCC has in relation to the clay, soil and water used in the manufacture of the product the foregoing rights as holder of title to the lakeshore and the Maqalika reservoir. The manufacturer on the other hand enjoys these rights in respect of the ash and labour involved in the manufacturing process. The manufacturer produces bricks by processing these materials without the consent of MCC. In this regard several issues arise: who owns the end product; does the manufacturer have the right to sell the product; and in such purported sale does he pass ownership to third parties; has MCC granted him a servitude in respect of its materials; has MCC waived its rights in relation to such materials; or has the right to institute a claim in relation to those materials prescribed such that MCC cannot reclaim them from the manufacturer and ultimately third parties in whose possession they are? These issues will be considered in the light of essential elements of real rights, modes of acquisition of ownership and the remedies available to the party whose rights are infringed in the transaction as well as applicable defences.

The second chapter of the research will discuss how each party involved in the making of the product acquires rights in the product. In relation to MCC rights in the product are acquired by the sole fact that it owns some of the (essential) materials. It cannot be deprived of the possession of such materials without its consent otherwise it will amount to spoliation. On the other hand there are modes of acquisition of property that bestow rights to the product in the manufacturer to a point that it can be argued that they own it.

In the third chapter essential elements of transfer of real rights, remedies available to MCC in the sale of the product and defences that are likely to be pleaded by the manufacturer will be examined. Ubi jus ibi remedium (where there is a right there is also a remedy); to protect its ownership right the following remedies may avail MCC: rei vindicatio, condictio furtiva, Actio ad exhibendum, Actio legis Aquiliae. The manufacturer also has the option to raise the issue of waiver against MCC as well as that of prescription of the right to sue the manufacturer. It will also deal with the question whether or not MCC should be compensated by the manufacturer. The last chapter will deal with the law as administered in other jurisdictions in the same circumstances. The jurisdictions to be discussed consist of Botswana, South Africa, Swaziland and Philippines. The juxtaposition of Lesothos and those jurisdictions will be done to suggest whether there is a need for reform of the law in this field.

LELAPA TSOSANE 200401025 Dissertation L585

A Legal Dilemma in the Ownership of Ceramic Bricks in Maseru