Introduction - Terms and Conditions​

Definition and scope

Concept of a thing

Classification of things

Masedza v Gospel of God Church (HH 164 of 2003) [2003]

Facts
●​ The respondent is a church which was founded by the applicant’s late father.
●​ Before his death, the deceased indicated his wish to be buried in a hill in Gandazara, which
spot would become the Church’s shrine, it being the burial place of the Church’s founder and
prophet.
●​ The respondent church was tasked with the administration of the deceased’s estate,
including his burial and leadership of the Church
●​ The respondent refused the applicant visitation rights to his father’s burial site citing doctrinal
dispute and subsequent division as the reason why the applicant’s faction and the
respondent could not worship together

Issue
●​ Whether the applicant sufficiently established ius in re aliena (a right in the property of
another)bghy shrine and can thus be granted iter ad sepulcrum?

Held
●​ No

Reasoning
●​ Before a person can be recognised as a holder of any right in another person’s property,that
person ought to demonstrate that he holds some recognized real right in that immovable
property, ius in re aliena.
●​ The overriding real right in this case was servitudes. Voet describes these as, “a right
belonging to one person, in the property of another, entitling the former either to exercise
some right or benefit in the property, or to prohibit the latter from exercising one or other of
his normal rights of ownership
Khan v Minister of Law and Order 1991 (3) SA 439 (T)

Facts: A rebuilt vehicle was seized by police as being a stolen vehicle. The applicant alleges that
the rebuilt version became his through accession and that he is entitled to the recovery thereof.

Courts Findings/HELD:
The court found that it is a general rule that where one movable is joined to another movable, the
owner of the principle thing is also the owner of the thing joined to it. The court found that in
answering the question of whether the rebuilt vehicle became the property of the applicant, the
answer could be determined by way of common sense.

The court applied the character, form and function test in terms of which it must be established what
the identity of the thing is. In doing so, the component that gives the thing its identity will be the
principle thing while the other component(s) will have acceded to the principle thing

Real and personal rights

Pearly Beach Trust v Registrar of Deeds 1990(4) SA 614
Facts - An obligation was imposed on the owner of land to give up a portion of the proceeds he
receives from either a grant of mineral rights ( which he had to voluntarily do ) or alienation by way
of expropriation or treaty in place of it, a circumstance beyond his control. He is obligated quo (in his
capacity as), owner, of the land, and the obligation was to pay over part of the proceeds he receives
on giving up the land. The clause in the will states that if any minerals are found on a farm, their
profits would be divided between the deceased five children or their children should they be
deceased. The condition would lapse upon the death of all five of the children. The applicant sought
to have this condition embodied within the agreement of the sale of the immovable property
registered in terms of s 3(1) of the deeds registry act 1937 which the Registrar of Deeds declined to
do. The basis of the objection was that in order to qualify for registration the right must be
such as to amount to a subtraction from the dominium (sovereignty or control) of the land and
that here the right of successive owners of the land to grant mineral rights to or sell the land
is not per se restricted in any manner; there is merely an obligation to pay over to the third
party a share in the proceeds of such grant, sale or expropriation

Issues
Whether a certain clause in a will created real rights which were accordingly registrable against the
title deeds of the properties concerned

Decision - Yes

Ratio
one of the rights of ownership was that ius disponendi ( the right of disposing of a thing ) and if this
right was limited in the sense that the owner was precluded from obtaining the full fruits of the
disposition it could be said that one of the rights of ownership was restricted.

When an owner's rights to full benefit upon disposal, the condition creating such limitation was
capable of registration in an application for a declaratory order

The test of registrability is whether the correlative obligation is binding on the successors in title of
the person upon whom the obligation rests

When the obligations are binding on successors in title quo owner and are not terminable ayo bring
to an end) at will, a charge of such a nature that qualifies the right of an owner to the enjoyment of
the right to the disposal of a thing - the jus disponendi - is capable of registration
Cape Explosive Works v Denel Pty Ltd, Armaments Corporation of South Africa limited &
Registrar of deeds, cape town (Pty) Ltd 2001 (3) SA 569 (SCA) - A
Facts
An initial deed was registered from the government to Capex which had several conditions. The key
conditions were that the land could only be used for armaments and if they no longer wanted to use
the land for armaments they needed to advise Capex.

The land went from the state to Capex and then transferred to Denel with the conditions omitted. I.e
the conditions in the initial transfer was no longer present

The state questioned the sale to deal on real rights and to enforce their real rights firstly being their
use of the land and secondly their right of preemption - if the land was no longer being used for
armaments it needs to be sold back to the state. The state

Issues
Whether certain conditions registered in a title deed and erroneously omitted from subsequent title
deeds are binding on the present owner of the relevant property

I.e Does omission change the character of real rights?

Decision Yes

Held
The conditions of preemption is intended to provide the state and its successors in title with a
mechanism for termination once the property was of no use to the state. Although framed as an
obligation, the giving of notice was as much a right as an obligation

The right to use of the land and preemption were dependent on each other forming a composite.
They were specifically stated to be binding on the transferee and its successors in title, constituting
a burden upon the land or a subtraction from the dominium off the land in that the use of the
property by the owner was restricted

The two rights embodied read together constituted a real right that could be registered in terms of
the Deeds Registries act

Ratio

A real right is adequately protected by its registration in the Deeds Office and once a right is
registered they are maintainable against the whole world . They are not extinguished by their
erroneous omission from subsequent title deeds

Registration is a negative system in which the deeds registry does not necessarily reflect the true
state of affairs and third parties cannot place absolute reliance on. In the case of a negative
registration system, it is not guaranteed that the information contained in the register is correct.

If a bona fide third party, therefore, relies on the registers, he does so at his own risk and becomes
the victim of false information in the register.
To determine whether a particular right or condition in respect of land is real, two requirements must
be satisfied:

1.​ The intention of the person who creates the real right must be to bind not only the present
owner of the land, but also his successors in title;
2.​ The nature of the right or condition must be such that the registration of it results in a
‘subtraction from the dominium (ownership and control of the property) of the land when
it is registered

N.b a real rights legal facts not factual in nature

The true owner loses in no way circumstances in favour of the bona fide acquirer. This system
therefore offers greater security to the true owner than to the bona fide third who may become the
victim of an erroneous entry”
Breitenbach 1977 (1) SA 151 (T) “
Ex Parte Geldenhuys 1926 OPD 1 - LE

Facts:.A testator died and survived husband and children. The married couple made a joint will for
their children and It had two conditions.The Registrar of Deeds has no objection to a mere transfer
to the children in undivided shares; his objection is to the proposal to embody in the transfer the
conditions as to the subdivision, viz., as to the drawing of lots and as to the payment of £200 by the
child who obtains the homestead on Jakkalskop. The applicant applied for an inter alia instructing
the Registrar of Deeds to register transfer of the undivided shares of shares of the land to the
children subject to these conditions.

Issue: Can a personal right be registrable by virtue of its close relationship with a real right?

Law
The court stated that only real rights can be registered against the title deed of land, i.e., such rights
as constitute a burden upon the servient land and are a deduction from the dominium. Further that
Deeds Registries Act of 1918 seems to make no appreciable change in regard to the nature of rights
registrable. The court also stated that one has to look not so much to the right, but to the correlative
obligation. If that obligation is a burden upon the land, a subtraction from the dominium, the
corresponding right is real and registrable; if it is not such an obligation, but merely an obligation
binding on some person or other, the corresponding right is a personal right, or right in personam,
and it cannot as a rule be registered.The court held, on application, that the direction in regard to the
time of the partition and as to the drawing of lots were real burdens on each undivided share and not
merely an obligation on the person of each child, as the time and mode of partition so directly
affected and adhered to the ownership of the undivided shares that they must almost necessarily be
regarded as forming a real burden or encumbrance on that ownership, and that these directions
were registrable against the title of the undivided shares.

court held: further, that the direction in regard to the payment of £200, though a jus in personam
and not per se registrable was so intimately connected with the registrable directions that the entire
clause of the will should be registered against the title deeds.

PRINCIPLE: A PERSONAL RIGHT CAN BE REGISTRABLE WHEN IT IS INEXTRICABLY LINKED

TO ONE OR MORE REAL RIGHTS.
Intention can’t override the principals of law, but is an important clue to whether a
real/personal right was created

NB: Condition 1&2: Time and Manner resulted in an SFD as this did not allow co-owners to claim
division at any time they wished (PR only activated when corresponding RR did).Condition 3:
Payment of money was registrable as it was so closely connected toa real right, needed to give
proper effect to will which contained RR

Ratio decidendi: 2 stage process of Subtraction in dominium:

1. Look at the obligation created by the right.
2. What is the effect of the obligation?
a. If it creates an obligation on the land and any subsequent owners=real right.
i. Concerned with land.
ii. Accompanies land.
b. If it creates an obligation upon a specific person and not to subsequent owners=personal
right
.i. Concerns person.
ii. Accompanies person.

1st condition diminished their right to subdivide and was therefore an obligation on the
land.2nd condition was a burden upon 1 child only and was intended to restore the balance,
therefore a personal right.

Judgement:1st condition was to be registered because it was a real right.

2nd condition was a personal right but was to be registered because it was so closely
connected with the 1st.
This was an exception.Didn’t convert it into a real right.Intention can’t override the principals
of law, but is an important clue to whether a real/personal right was created

Odendaalsrus Ltd v Registrar of Deeds 1990 (4) 614 - LA​

Facts
●​ The appellant is the registered owner of the freehold of certain farms in the district of
Odendaalsrus. All these farms are subject to the reservation of all mineral rights in favour of
Free State Development and Investment Corporation Ltd.
●​ The farms were acquired by the applicant for the purpose of laying out a township and the
Township Board granted the applicant permission for the layout for an area known as the
‘Corridor’
●​ The applicant thus proceeded to lay out the first township
●​ A portion of the aforementioned ‘Corridor’ was proclaimed as public diggings for precious
metals by a Proclamation and is registered in the office of the Registrar of Mining Titles,
Johannesburg
●​ As owner of the surface rights of this land, the applicant has been receiving an owner’s
share as per his entitlement.
●​ The owner had prepared a deed of transfer of certain erven reserving to itself and its
successors in title, inter alia, the owner's share of the claim licence moneys payable under
section 42 of Act 35 of 1908 (T) as applied to the Orange Free State, and the Registrar of
Deeds had rejected the deed on the ground, inter alia, that the reservation constituted
a personal right not registrable in terms of section 63 of Act 47 of 1937

Issues

Whether this reservation to the transferor of land of the owner’s share of the licence moneys is a
registrable right?

Or Whether the appellant has a registrable right?

Decision
The applicant’s right to the claim licence moneys is not a contingent right because the area has
already been proclaimed and the claim licence moneys are actually already being paid to the owner.
Therefore the order was granted as prayed.

Held

That the reservation constituted a real right and was registrable

Ratio
Requirements for a real and registrable right
●​ Whether the right to claim licence moneys in the present case constitutes a right in the land
of another and,
●​ Whether the right if and when registered would be binding on the owner of the land and all
his successors and creditors

If it confirms to these two requirements then it would be a registrable right

Fine wool Products vs Director of Valuations 1950 (4) SA 490

Facts

A condition was attached by the municipality to the land owned by the plaintiff that was registered in
respective of their textile business. It stipulated that any additional erections would be subject to the
approval of the municipality and the sale of the property would not exceed 29 pounds. At valuation
the restriction on sale price was not considered when separating the value of the land from the value
of the buildings, this was upheld by the valuation court. On appeal, it was argued that this was the
lower court erred in it’s judgment because the municipalities condition had subtracted from the jus
disponenedi - the right of disposal of property

Issues
1, whether registration of the conditions in itself makes the conditions a real burden or deduction
from dominium and precludes certain rights from being referred to as only personal rights

2, Whether the municipality had carved away the ownership of the appellant as through the
subtraction of the jus disponendi to give rise to a higher valuation

Decision
1, No 2, No

Held
The restrictive clause does not entirely do away with the jus disponendi even if it is given the very
widest meaning. It allows and gives a jus disponendi,

There is no reason to hold that the restriction applies to anyone but the appellant as it is a personal
to the appellant and the fact that it is registered against the title deed cannot alter its nature as it
‘runs with the appellant’ alone and does ‘ run with the land’.

Ratio

Restrictions unless otherwise worded, are binding on the first generation only

The basis of valuation of land is the ordinary price which it is estimated a buyer would be willing to
give and a seller would be willing to accept if the land to be valued were brought to a voluntary sale
at the time of valuation

There are a plethora of factors that can operate in the mind of an ordinary purchaser and seller but
generally relate to the land and to the use to which it can be put

While only real rights can be registered, mere registration can not change the nature of a condition
to a contract

​
Kain v Khan 1986 (4) SA 251 (K)

FACTS: Kain had sold immovable property to Khan. Clause 7 of the contract of sale provided that
Kain would have the right to remain in occupation of one room in what is described as the main
building on the property provided that she paid a ‘monthly rental’ of R10. The property was
transferred to Khan in 1980 and Kain lived in the room and paid her rental timeously

ISSUE:The Registrar of Deeds contended that the clause was not registrable, for it simply conferred
a right to occupy a portion of the building and as such did not restrict the exercise of the right of
ownership in respect of the property as contemplated in S63 of the Deeds Registries Act.

COURT DECISION: The court granted the application and cited two reasons: Rose Innes J stated.
The clause had all the essential elements of a lease. It was a long lease falling within the definition
of immovable property’ in the Deeds Registries Act and furthermore was registrable in terms of the
formalities in respect of the leases of Land Act.The second reason was that, although the contract of
lease gives rise only to personal right however it became a RR once she occupied the room as
there was a SFD.
Case law: nuisance in the wide sense: ( i found this online - A )... thanks - La
• Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A): large quantities of slate waste from an
upstream quarry had been washed downstream and deposited on the neighbour‟s land
– The court held that the failure by the owner of the upstream property to take costly preventative
measure to prevent further harm was reasonable in the circumstances, given that the harm suffered
by the neighbour was not great.
• Malherbe v Ceres Municipality 1951 (4) SA 510 (A): oak trees had been planted along the streets
of the town. Their leaves would fall into and block the gutters of a house, causing inconvenience and
some damage
– The court held the planting of the trees along the streets of the town in that part of the country was
putting trees to their ordinary and natural use, which was reasonable and should be tolerated by
neighbours.
• Kirsh v Pincus 1927 TPD 199: willow trees were planted alongside the boundary of a malt
manufacturer, causing willow leave to fall on to the wheat which was being dried on cement
floors, thus adulterating the malt ingredients. The evidence showed that the willow trees had been
planted primarily to annoy the neighbour. Thus, the use of the land was held not to be reasonable in
the circumstances.
• Dorland v Smits 2002 (5) 374 (C): An owner erected an electrified fence on a boundary wall. A
neighbour alleged that the fence was ugly and dangerous.
– The court held that purely aesthetic considerations are irrelevant in the common law relating to
nuisance and neighbours, as aesthetics are inherently subjective and personal
– The court also held that danger can be a nuisance, but whether or not it is such is a matter of
degree
– The court ultimately held that the erection of the electric fence was reasonable, as the area was
one where housebreaking was known threat.
2 Aquisition of ownership
Ownership
Definition and content

“Ownership is the real right that potentially confers the most complete or comprehensive control
over a thing, which means that the right of ownership entitles the owner to do with his or her thing as
he or she deems fit, subject to the limitations of the law”

Ownership is often described with reference to the different entitlements or powers of ownership as
well as with respect to certain specific characteristics thereof which purport to distinguish it from
limited real rights.

As it is impossible to compile a list of an exhaustive list of entitlements of ownership and seeing that
some of the characteristics are usually ascribed to ownership only, these methods do not serve to
define ownership. They do, however, cast light upon the fact that ownership potentially confers the
most comprehensive control over a thing.

Some of the entitlements usually listed are the following: the entitlement to

Use a thing (ius utendi)

The fruits; including income from a thing (ius fruendi)
Consume and destroy the thing (ius abutendi)
Possess the thing (ius possidendi)
Claim the thing from unlawfull possessor (ius vindicandi)
Johannesburg Municipal COuncil vs Rand Township Registrar 1910 TPD 1314 LA

Facts
●​ The township of Judith Paarl in Johannesburg has leased land to various parties for over ten
years.
●​ These contracts allow the landowners to cancel the lease if the lessee fails to pay rent for a
certain period.
●​ As some lessees have not paid rent, the landowners have issued a notice of cancellation
and applied to the Registrar of Townships and to Court to record the termination of these
leases. However, the Johannesburg Municipal Council has objected to the cancellation,
arguing that the lessees owe the council rates based on the value of the leases, and until the
lessees produce a receipt or certificate showing that they have paid these rates, the
cancellation cannot take place.
●​ The municipality claims that no “transfer” of the lease can occur without proof of payment of
said rates by the lessees, and therefore, the leases cannot be cancelled as requested by the
township owners.
●​ Counsel for the appellants argued that leases exceeding ten years are considered long-term
leases, which involve the transfer of property ownership from the lessor to the lessee upon
registration. To transfer ownership back to the lessor, a legal transfer must take place. The
cancellation of such a lease is considered a transfer, and therefore cannot occur unless it is
done in accordance with the law and with the town clerk's approval.
●​ However, counsel for the respondents argue that the relationship between the lessor and
lessee is the same in both long-term and short-term leases. They view it as a simple
contractual agreement that ends when certain conditions, which trigger forfeiture, are not
fulfilled by the lessee.
●​ They further state that the lessee has no ownership rights over the land, and therefore, when
the lease ends due to non-payment of rent and cancellation notice, there is nothing left to
transfer to the lessor or anyone else. Consequently, the town council has no authority to
interfere with the cancellation of the lease on the registry in such circumstances.
●​ The judge in the initial court ruling agreed that the lease had ended due to non-payment of
rent, and thus, there were no transferable rights.
●​ The appellants are appealing this decision.

Issues
●​ Whether registration of a lease constitutes legal transfer of the property thereby conferring
dominium on the lessee?
Held
●​ A lease transfers no dominium on the lessee. The registration of the cancellation of the lease
is merely the registration of the fact that the contractual relationship between the lessor and
the lessee has ceased to exist.

Ratio
A duly registered lease in longum tempus (long-term lease), although in the nature of
immovable property, confers no dominium on the leasee, but merely gives him a
contractual jus in rem (a right enforceable against anyone in the world interfering with
that right founded on some specific relationship, status, or particular property
accorded legal protection from interference by anyone) to the land, which ceases at
the termination of the lease.

“The registration of such a lease is merely for the purposes of protecting purchasers,
creditors and lessees, but not for the purpose of altering a right depending on
contract into a right of ownership.”

Savigny’s definition of ownership (accepted as of high authority)

“Dominium is the unrestricted and exclusive control which a person has over a thing”

“Inasmuch as the owner has the full control, he also has the power to part with so
much of his control as he pleases. Once the owner, however, he remains such until he
has parted with all his rights of ownership over the thing.
One of the ways in which an owner can part with a certain measure of his control is to
grant the use of the thing to another for a certain time in return for the periodical
payment of money. In other words, the owner may, if he chooses, let his property to
another.”

N.B

The case of Johannesburg Municipal Council v Rand Township Registrar 1910 TPD
13 14 defines ownership as the most complete control over a thing, allowing the
owner to do as they please with it, within the limits of the law.

Ownership includes various entitlements such as

1.​ the right to use,
2.​ enjoy the fruits or income,
3.​ consume or destroy,
4.​ possess, and
5.​ claim the thing from any unlawful possessor.
To

Gien v Gien 1979 (2) SA 1113 (T) • LE

Facts Respondent set up an apparatus on his farm which made loud explosive noises at regular
intervals throughout the day and night in order to keep baboons away from his garden and shop.
The noise could be heard from the neighbouring farm and made the animals restless and disturbed
the sleep of the inhabitants of the farm. The respondent could have muffled the sound and turned
the device of at night however, the respondent held that he was merely exercising his right to his
property and acting in the interests of protecting his property. The applicant sought an interdict to
compel the applicant to stop the explosive noise

DECISION?HELD
The court reiterated the fact that ownership is the most complete right a person may have in respect
of a thing. The premise is that the owner may do what he likes with and on his property, however,
this premise is flawed in so far as these ‘entitlements’ a owner has, may only exist within the limits of
the law. These limitations can arise from the objective law or restrictions based on the rights of
others.
The court held that when determining when the rights of neighbours will conflict with other
rights, correlative obligations must be created between the two in terms of which each owner
must endure the normal exercise of his neighbours rights. In addition, each owner must also
exercise his rights in such a manner so as to not transgress the boundary between his rights
and those of his neighbour’s. The court accordingly found that the respondents conduct
infringed upon the rights of the applicant and the interim interdict was declared final
Victoria & Alfred Waterfront (Pty) Ltd and Another v Police Commissioner, Western Cape,
and Others (Legal Resources Centre as Amicus Curiae) 2004 (4) SA 444 (C) LE

Facts:The applicants applied for a permanent interdict prohibiting respondents from entering and
engaging in certain conduct on the premises.Respondents (being homeless), assaulted, harassed,
interfered and threatened some of the employees and visitors on the premises of applicant (mainly
for food).The applicants, as private landowners, relied on their common law (absolute) right to
exclude non-owners from their premises, therefore exercising control over the use of their property
which is at the core of the entitlements of private ownership.Additionally, applicants claimed that
ownership is protected against arbitrary deprivation in terms of section 25 of the Constitution.

Legal Question:Are applicants in casu entitled to a permanent interdict?

Judgement/HELD:1. Permanent interdict was not granted but

,2. an order prohibiting respondents from behaving in certain specified ways on the premises
was.

Ratio Decidendi:
-The matter before the court was the applicants rights to property vs the right to freedom of
movement of the respondents.
-A property owner may claim the right to exclude non-owners from their premises, but this
right is not absolute.
-A property owner must exercise this right only in accordance with the law (statutory and
common law). Regard must be had to the nature of the property, and in casu applicant’s
property was used as a mall, making it a public space. As the premises is a public area, the
owner’s right to restrict access becomes more restricted and less absolute, placing more
limitations on such a right. Therefore, a commercial property owner’s right is less absolute,
especially considering our racially divisive past.On this basis the permanent interdict was
not granted but a specific interdict was given preventing respondents from misbehaving on
the applicant’s property.
Eskom v Fourie 1988 (2) SA 627 (T) • P - A

Facts
Land owned by the first respondent (Fourie) while the other respondents (Maatla/te collective
enterprise) held prospecting and mining rights pertaining to coal deposits in the land. In terms an
agreement between them and the applicant (ESKOM), who was the public authority responsible for
the provision of electricity in South Africa, all coal mined on land would be supplied to the applicant
for the operation of a power station. In order to produce sufficient coal for that purpose,
unconventional high-recovery mining methods would have to be applied. This would have disturbed
the surface of Fouries land. The prospecting and mining agreements between Maatla/the collective
enterprise provided that the mining operation should leave the surface of the land intact. ESKOM
offered to purchase the right of lateral and surface support from Fourie. The latter, however, refused
to sell these rights separately and offered, instead, to his lad to ESKOM. As the parties could not
agree on a price, ESKOM subsequently purported to expropriate the owner's right to
lateral, surface and subterranean support.

N.b Lateral support involves the relationship between neighbouring owners of land, whilst surface
support involves the relationship between a holder of mineral (or mining) rights and
the landowner in respect of the same land1.

In a nutshell, the purchaser of coal (as an outsider) intended to expropriate the

right to surface support held by the owner of land to enable the miners of
coal on the land, as sellers, to supply their purchaser with enough coal.

Issues
Whether the right of a landowner to the lateral and surface support of the land is a real right

Decision Yes

Held
Kriegler J held that the so-called right to lateral, surface, and subterranean
support was an entitlement arising from ownership or an incident of
Ownership. ………..The owner’s right to surface support may exist apart from the
owner’s relationship to a subject having an interest in the land is notionally
untenable and capable of rejection. According to the court, this would
postulate a “right” without any economic substance and which is
unenforceable and inalienable.4

Ratio
The right of support is a right to have the surface kept at its ancient and natural level. It is not an
easement but a natural right incident to theownership of the soil.'...........the surface owner of land in
its natural state has the right to have the surface supported, and that by the grant of the right to work
the minerals he does not lose that right of support, unless there is something in the instrument
containing the grant inconsistent with the continuance

1
https://journals.co.za/doi/pdf/10.10520/EJC85201​
Pretorius v Nefdt and Glas 1908 TS 854 •

FactsThe applicant (Pretorius) was the usufructuary of an undivided half of a farm (Leeuwkloof).The
respondent (Glas) was the registered owner of the other undivided half of the farm. A Road was
made over the property as to allow for the transportation of lime from an adjoining
property. The second respondent (Nefdt) with the consent of Glas, began to transport his
lime through the road. The applicant objected to this which resulted in negotiations taking place to
give Nefdt a right of way. These negotiations failed which then resulted in a contract between Nefdt
and Glas whereby the latter agreed to transport thelime to the market and thereby used the
road which was constructed. The applicant therefore seeks an interdict against Glas using the
road for this purpose. Furthermore, theapplicant contends that Nefdt’s passage across the farm
should be interdicted. The affidavits suggest that there has been no damage done to the
property by the use which is complained of, however, the applicant would be entitled to an
interdict if she could clearly show that a right of hers had been infringed and a right which she was
entitled to enforce by interdict.

Legal issues
1. Can Glas be interdicted from using the existing road on the joint farm for the purpose of
transporting lime from the adjoining property?
2. Can Nefdt use the road with the consent of Glas to transport his lime?

Applicable law Oosthuyzen v Plesis and Another (5 SC 69) - one co-owner sold a share on
condition that she could retain for life the possession of certain premises occupied by her with the
full consent of the other co-owners the right of the pasturing of a certain number of cattle and
usingwood and water on the farm and this was an alienation of a portion of a right with the
reservation of another portion which was held to be valid
.De Beers Consolidated Mines, Ltd. V McKay (16 CLJ 121) - Each co-owner was said, could use the
common property in accordance with the use to which it was intended to be put but must refrain
from any acts by which the like right of use of the others might be infringed.

Court’s reasoning:
Rights of co-partnerships are the same as those of partners in partnership property. Each partner
may use the partnership property for the purposes for which it is intended and provided that he does
not hinder his co-partners from a like use in their turn. The applicant believes that a co-owner had
an absolute right of veto (rejection) on any use of the farmciting Voet (10, 3, 7). However, the court
rejected this as it believes that this passage refers to the right that a co-owner has to prevent any
innovation or change in the nature of the occupation of the land. There is nothing to
suggest that Glas used the road for transportation of the lime in such a way that would
interfere with a similar use of the road by the applicant. The applicant contends that Glas
cannot use the road because he is transporting things from another farm and not for the
purposes of this farm. The court rejected this argument, as there is no authority to justify limiting a
co-owner in so far as the right of passage is concerned. The court uses various examples to justify
its rejection such as by giving the example of if Glas was a transport rider and needed to transport
cattle to the joint farm would he not be able to because he was carrying goods for somebody who
lived somewhere else. For these reasons the first portion of the claim (legal issue 1) failed. The
second portion of the claim related to whether a co-owner could give strangers leave to use a road
across a joint farm. It was contended that Glas had done no more in giving license to Nefdt to cross
the farm. The main matter that the court had to ascertain was whetherGlas had alienated only a
portion of his rights (as was done in the Oosthuyzen case) or whether he had substantially, as far as
his right of passage is concerned, imposed another co-owner on the other joint owners. The court
reasoned that if the sole test was whether a license of this kind injures the other proprietors or
impedes in any way their use of the property, this could result in a situation whereby one co-owner
could allow the whole world to use any of his rights and the other co-owners would have no redress
unless they could show some actual prejudice. This would result in an intolerable burden being
placed upon persons who wish to have the farm reserved for really joint use. By granting a license
to somebody that is not a co-owner to use the road, this is comparable to that of imposing another
co-owner on the joint owners. Therefore, Glas cannot confer these rights upon another (Nefdt)
whilst he is at the same time exercising them for himself. Thus the facts seem to suggest that there
is a clear infringement of the rights of the applicant and that she should therefore be entitled to an
interdict in respect of Nefdt.

Conclusion
With regards to legal issue 1, Glas cannot be interdicted from using the existing road on the joint
farm to transport lime from the adjoining property as there is no authority to justify limiting a
co-owner in so far as the right of passage is concerned. However, in relation to legal issue 2, the
applicant is entitled to an interdict to prevent Nefdtfrom using the road as by granting a license to
somebody that is not a co-owner to use the road, this is comparable to that of imposing another
co-owner on the joint owners and for as long as Glas is exercising these rights for himself, he
cannot confer such rights to Nefdt.

ORIGINAL AQUISITION

OCCUPACIO
R vs Mafohla 1958 (2) SA 373 - A

Facts
The accused had been charged with the carcass of one kudu, the property or in the lawful
possession of the complainant to which pleaded guilty to. The complainant had mortally wounded it
the day before but, having been unable to find it, had recommenced the search the next morning
and spoored it down to near a paddock fence on the ranch where he was an assistant found a pool
of blood. The accused were thereafter found in possession of the carcass and they had stated that
their dog had put up the koodoo and that they had killed it and taken the meat.

Issues
Whether by mortally wounding the Koodoo t, the complainant had aquired ownership

Decision No - Conviction set aside

Held
as the wounding of the koodoo had not had the effect of reducing the animal into the possession of
the complainant, for the purpose of acquiring ownership,

The koodoo never lost the character of an animal ferae naturae, as far as the complaiangta was
concerned. On the contrary, it was the accused who prima facie acquired ownership in the animal or
its carcase by occupatio of a res nullius. - Something that has no owner and is not subject to the
jurisdiction of any state, but is susceptible to national appropriation.

Ratio

In determining whether, if you have wounded a wild beast, so that it could be easily taken, it
immediately becomes your property the rule is as follows

a.​ where a wild animal had been reduced into possession it does not upon escape regain its
natural liberty until it has passed from sight or, though still in sight, its pursuit has become
difficult.

b.​ when it has not previously been reduced into possession the wild animal becomes a man's
property only when he actually captures it.

Essentially; A wounded animal becomes the property of the wounder only if they keep up the
pursuit; if not, the animal becomes the
Underwater Construction and Salvage Co (Pty) Ltd v Bell (1968 (4) SA 190 (C) 193E) - A (need
to re do and finish this one up)

Facts
The plaintiff company sued the defendant for an order directing the defendant to return two propeller
blades to him. He alleged that the wreck of the ship Hypatia was which was laying by robben island
was at all times a res a nullias - a property or object that has no owner or has been abandoned.

Two of the plaintiff's employees while carrying out their duties separated four propeller blades from
the wreck, with two of them now in the plaintiff's possession in cape town. They put markers on
them to which the plaintiff asserted that by means of the aforementioned conduct, the two divers
took possession of the four propellors with the intention of making the plaintiff the owner.

The defendant admitted to finding the markers on the remaining blades two days later but stated he
had no knowledge of how they got there. He further contended that two days before the plaintiff had
blasted the blades, he had already begun loosening and separating the said 4 blades so had
lawfully taken possession thereof with the intention of becoming the owner making them the owner.
He asked for the plaintiff's claim to be dismissed and for the recovery of the other two blades

Issues
Whether or not the defendant had taken ownership of the blades

Decision

Held

Ratio

Banks J "... ownership is acquired as soon as there is a seizure with the intention of
becoming owner". Although theoretically there should be an intention to acquire ownership, other
elements, particularly, the physical control element, can be indications (1) of such an intention.

​
S vs Frost; S vs Noah 1974(3) SA 466 - LA

Facts
●​ These two matters are appeals and are dealt with simultaneously as the facts are similar
enough to be dealt wit as such.
●​ The appellants caught snoek during the closed season.
●​ Both appellants were duly fined.
●​ They are, however, appealing not against the fines but because the magistrate ordered the
confiscation of the fish. Frost had caught snoek in the quantity of 18 325 kilograms… for
some context.
●​ With regards to both the cases, it is unlawful to catch this species of fish during the closed
season in terms of the Regulations.

Issue
●​ Whether the capture of a wild animal or a fish which is res nullius can have legally
recognizable and enforceable consequences such as ownership, even though its capture
may be controlled or prohibited by legislative enactment?

Held
●​ The owner of the vessel through the acts of its servants acquired ownership of the fish even
though they were captured in contravention of the provisions of the Proclamation.

The Judge commented that the above issue must depend on the construction of the
legislation concerned.
Accordingly, it was noted that the Sea Fisheries Act did not intend to exclude the ordinary
consequences which flow from occupacio or to reserve ownership in favour of the state

Decision
The appeals succeeded to the extent that the orders declaring the snoek to be forfeited in each case
were set aside

Ratio
●​ With respect to res nullius, common law purports that they become the property of the first
captor or occupier, therefore such game and fish, although illegally captured, become the
property of the captor, for otherwise they would continue to be res nullius and belong to no
one.

ACCESSIO
Accession

An original method of acquiring ownership which takes place when an accessory thing becomes
merged with a principal thing, with the result that the 2 things form 1 entity. The accessory thing
loses its independence and becomes part of the principle thing. The owner of the principle thing is
the owner of the composite thing

Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk 1996 (3) SA 273 (LE)

This case takes note of the fact that there are two different approaches to accession in South
African law, but because it was not argued, the court did not make a judgement on the issue.
o This case also examines whether the intention of the annexor or the intention of the owner is
relevant for deciding accession. This court seems to apply the traditional approach, but this will have
to be checked with the Popemeister.

Facts: The respondent (a wholesaler) sold goods to a retailer on the condition that the respondent
would retain ownership of the goods until they had been paid for in full. The
retailer subsequently sold and installed the goods, in the form of an irrigation system, on the farm of
the appellant. The appellant paid the retailer for the goods in full but the retailer failed to pay the
respondent. The respondent approached the court for an order to allow them to remove the goods
from the appellant’s farm. The court a quo granted the order.

Legal Question: Whether the equipment had become part of the appellants property through
‘accessio’ and if the respondent was entitled to remove the equipment from the appellants farm and
whether the attachment was permanent?
Whether the respondent was precluded by estoppel from invoking its reservation of ownership?
The trial court decided both issues in favour of the respondent and ordered the appellant to remove
the equipment in question.

HELD:
The court followed the approach in previous decisions in terms of which the intention with which the
attachment was made is decisive.
> In this case, the court held that it was inconclusive whether the installed system
constituted an economic or functional unit.
o Intention therefore had to be examined. The court noted the fact that it was mostly
unnecessary for the court to decide whether the intention of the owner or the annexor was
decisive, as they were usually the same person.
Only in MacDonald was it expressly stated that the intention of the owner was decisive.This
is not dogmatically correct, but as this approach has been followed in subsequent
judgments and not arguments were made as to the validity of the approach, the court
decided to assume that the MacDonald approach was correct.
The court further found that the intention of the owner and not the annexor is decisive in this regard.
As such, it is clear that the movables did not become part of the appellants land because the
intention of the respondent to retain ownership until they have been paid for is indicative of this fact.
The court a quo’s decision in this regard was upheld. However, regarding whether the respondent is
entitled to remove the equipment, the court held that the respondent, as a wholesaler, created the
impression that the retailer was entitled to sell the goods and transfer ownership and as such, the
appellant as a bona fide or innocent purchaser, should not be prejudiced in this regard.
o Conclusion > No accession took place, due to the intention of the owner. A defence of
estoppel succeeds, however, and accession therefore does take place.

SIDEOTE- Regarding ‘accessio’ that whether a movable became a fixture by attachment depended
on the circumstances. The ‘new’ approach was that the subjective intention with which the
attachment was made (with the emphasis on whether the intention had been taken that the intention
that the attachment should be permanent) was decided.
The nature of the movable attached and the manner of its attachment were as a matter of degree
merely indicative of the intention with which it was attached.
- Whose intention was the relevant one? That of the owner of the movables, that of the annexor or
that of the owner of the land? The intention of the owner if the moveable was decisive (not the
intention of the annexor). Therefore the intention of the wholesaler (respondent) is given first priority
and he is to remain owner until each and every item has been paid for.
Silverstone (Pty) Ltd and Another v Lobatse Clay Works (Pty) Ltd 1995 BLR 669 (HC) - LA

Facts

●​ The first applicant and the respondent entered into an agreement for the first applicant to
manufacture, supply and install certain equipment for the respondent on the respondent's
premises.
●​ A dispute arose and the matter was referred to arbitration. The applicant applied for an order
for the return of certain equipment.
●​ The respondent contended that the storage tank, support frame and certain gas burners
claimed by the first applicant had been built into the plant and were immovable structures of
the respondent, thus acceding to the respondent's property.
●​ The respondent also contended that it was an implied term of the agreement that to the
extent that the burners and storage tank had not acceded to the respondent's property, the
first applicant would afford the respondent a reasonable time before removing them.
●​ The applicants contended that the agreement contained a non-variation clause that excluded
the alleged implied terms as it was not recorded in writing and signed by the parties as
required by the clause.
●​ The respondent launched a counter-application for an order of attachment of the equipment
to confirm jurisdiction, contending that the first respondent was in breach of the agreement
as a result of which the respondent had suffered substantial damages. (irrelevant fact for
the particular topic )

Issue

●​ Whether an article, originally movable, has become immovable through appropriation by

human agency?

Held

●​ This depends upon the circumstances of each case. The elements to be considered are the
nature of the particular article, the degree and manner of its annexation, and the
intention of the person annexing it. The thing must be in its nature capable of acceding to
reality, there must be some effective attachment (whether by weight or by physical
connection) and there must be an intention that it should remain attached.

Decision

●​ “It is quite clear that the equipment can be moved with relative ease and cannot be said to
have acceded to the immovable property as to warrant the disregard of the intention of
the owner or as applies in this case, also the initial intention of the respondent.”...(all
the property could be removed without causing damage to the respondent’s property)
Therefore the application succeeded.
Relevant findings
“I therefore make the following order:
●​ 1. The applicants are entitled to the restoration of possession of the plant and additional
facilities listed in the applicants' notice of motion.
●​ 2. The respondent is interdicted and restrained from utilising or in any way dealing with any
of the said items or equipments.

Ratio
An article, originally movable, can become immovable through annexation by human
agency to realty. The elements to be considered are the nature of the particular article,
the degree and manner of its annexation, and the intention of the person annexing it
MacDonald vs Radin and Another 1915 AD 454 - A
Facts
The respondent had sold a property, including a dairy factory, to Jacobson. The sales agreement
included a clause that gave the respondent the right to retake possession of the property if
Jacobson failed to make payments.Jacobson also purchased a large fridge from the appellant on
hire purchase which was to be erected on the property purchased from the respondents. The
agreement between the appellants and Jacobson stated that the machinery would remain the
property of the appellants until the full purchase price had been paid. The machinery was erected on
the property, fastened partly to beds of concrete and partly to the wall with bolts and nuts, in such a
way that it could be removed without damaging the property. The agreement stipulated that the
appellant could reclaim the fridge if Jacobson defaulted on payment. However, Jacobson was
eventually declared bankrupt and the respondent reclaimed the property. The appellant then
demanded the return of the fridge. However, the respondents argued that the fridge had become a
fixture of the land and that the appellant no longer had ownership rights. The court of first instance
agreed with the respondents and held that the fridge was immovable.

In short: Jacobson bought a property and a dairy factory from the respondent, with a clause allowing the respondent to
retake ownership of the property if Jacobson failed to make payments. Jacobson also bought a fridge on hire purchase
from the appellant. When Jacobson was declared bankrupt, the appellant demanded the return of the fridge, but the lower
court held that the fridge had become a fixture of the land and was immovable.

Issues
Whether the fridge, which was initially movable personal property, had become immovable through
annexation to the land by human agency. …..(The court needed to determine whether the fridge had
become a fixture of the land and, therefore, was no longer considered movable property that the
appellant could reclaim.)

Decision No

Held
(SOLOMON, J.A., and WESSELS, Act g. A.J.A, dissenting), under all the circumstances of the case
the machinery had not become a fixture but was the property of the appellants subject to the terms
of the hire-purchase agreement. The intentions of both parties were that the machinery would
remain movable property, and this could not be altered by subsequent intentions of either party. The
appeal is therefore allowed.
.
Ratio
An article originally movable becomes immovable through annexation by human agency to
reality depends upon the circumstances of each case.

The elements chiefly to be considered are

1.​ the nature of the particular article,

2.​ the degree and manner of its annexation, and
3.​ the intention of the person annexing it.
Standard-Vacuum Refining Co of SA (Pty) Ltd v Durban City Council 1961 (2) SA 669 (LE)

In enacting the rating provisions of Ordinance 21 of 1942 the legislature did not intend to
limit a city council, when it chose to rate land and buildings separately in terms of section
107, to rate land on the basis of its value as bare land only. If an object immovably attached
to land is not a building its value can be taken into consideration when valuing the land to
which it is attached.

Facts:The appellant owned and operated an oil refinery on land within the municipal territory of the
respondent. The respondent took the value of tanks ,which were part of the refinery, into
consideration when assessing the value of the land for rating purposes. However, the appellant
argued that the tanks were not buildings and therefore not part of the land

.Legal Question:Whether the tanks were so attached to the land as to render it immovable and
therefore part of the land?

Court’s Finding
The court considered three elements in its decision, namely:
-the nature and purpose of the attached thing
-the manner and degree of the attached thing and
-the intention of the annexor.
In examining the matter the court found that the tanks never, at any stage, existed independently
from the land. The erection of the tanks were coincidental to their attachment by their weight, to the
land upon which they were erected. Regarding the manner in which the tanks were attached to the
land, evidence showed that the tanks could not be moved without being cut up and doing so would
cause them to lose their identity as tanksIn terms of the intention of the annexor, the court found that
the intention of the annex or at the time of the attachment is important in arriving at a conclusion in
this regard. The intention of the annexor can be subjective (in terms of a contract/agreement) or it
could be objective(inferences drawn from the physical features). The subjective intention of the
annexor was most important, however, where evidence in this regard is lacking, a
court may draw inferences from the physical features. As such, the court found that the physical
features of the tanks lead to the inference that the attachment of the tanks was to be permanent and
did thus constitute immovable property

Rules and Principles

In deciding whether an object is so attached to the land as to render it immovable the object
of the enquiry, in each case, is to ascertain whether the movable has been attached to the
land or other immovable with the intention that it should remain permanently attached
thereto.
In order to ascertain whether such is the intention, regard must be had to the following
features, viz. the nature of the movable, the method and degree of its attachment to the land
or other immovable and whether it can readily be removed without injury to itself or to the
land or immovable to which it is attached.
If the nature of the movable is such that it is readily capable of acceding to the land or other
immovable and is so securely attached thereto that separation must of necessity involve
substantial injury, either to the movable or to the land or immovable to which it is attached,
then it must be inferred that the movable was attached with the intention of permanency and
for that reason it must be held to have become and be immovable.
If, however, an examination of the physical features produces an equivocal result in the
sense that from an examination of such features, no inference can be drawn that the
attachment was made with an intention of permanency or otherwise, the intention of the
annexor may be decisive.

Theatre Investments (Pty) Ltd and another v Butcher Brothers Ltd 1978 (3) SA 682 (LE)
This case, according to Anne Pope, illustrates the "new approach" to determining whether
accession has taken place.
Facts: o A lessee erected a theatre on property owned by the lessor. In the event of the lease
ending, the lessee agreed that all "buildings and improvements" on the property would be the
property of the lessor.
o At the conclusion of the lease, the lessee claimed that certain property, comprising seats, a
lighting plant and a projector room dimmer board were movable and therefore not covered by the
clause
The respondent (lessor) applied for an interdict restraining the lessee from removing theatre seats,
an emergency lighting plant and a projection room dimmer board due to the fact that according to
the lease agreement concluded by the parties that upon the expiry of the lease,the lessor will
acquire ownership of all buildings and improvements on the property without having to compensate
the lessee. The interdict was granted by the court a quo and thematter went on appeal.

Legal Question: Whether the three items of movable property have become part of the building?
• How should it be determined whether movables have acceded to immovable property? It is done
by establishing the annexor's intention, which is derived on a balance of probabilities from evidence
of the annexor's intention, the nature of the movable and of the immovable, the manner of the
annexation and the cause for and circumstances giving rise to the annexation. If the intention of the
annexor was that the movable would remain permanently attached, then the movable will have
acceded.

HELD: The court followed the approach formulated in the Standard Vacuum case in so far as in
determining whether a movable, which is capable of acceding to and has been attached to an
immovable, becomes part of that immovable is to enquire whether the person who
attached the movable did so with the intention that it should remain permanently attached to the
immovable.
The court held that the sources which the annexor’s intention could be sought include, interalia, the
ipse dixit (subjective will) of the annexor as to his intention, the nature of the
movable/immovable, the manner of the attachment and the cause for and circumstances giving rise
to the attachment. Where the annexor’s intention is not forthcoming, the court must draw
inferences which may legitimately be drawn from the other above mentioned sources. If
the court, after consideration of all the evidence (direct or inferential), were to conclude that the
annexor intended permanent attachment, it would hold that the movable would become part
of the immovable. On the other hand, if the court found that the annexor had not intended
permanent attachment, the attachments would retain their quality of being movable. In
the present matter, the court was constrained to inferential evidence as no evidence was led by
the person who made the annexations.
Accordingly, the court held that on the evidence before it, the manner in which the chairs
were attached to the floor, the fact that they have been designed for the specific theatre, as well the
fact that they would be situated on the property for 50 years (period of lease) raised the
reasonable inference that the annexor intended that they remain there permanently. As
to the lighting plant and the dimmer board, the court held that they were essential features of
a theatre and the same principles as above applied and it could thus be inferred that the annexor
intended that they remain there permanently.

CONCLUSION: All of the items could be removed from the building without damaging the building.
However, the court held that the intention of the annexor was that the chairs were to remain
permanently, as they were stylistically and functionally uniquely designed for the specific building.
o Also, the intention of the contract was that a fully functional theatre should be bequeathed to the
lessor. As such, it can be inferred that the intention was that these items, essential for the running of
a theatre, were intended by the annexor to remain permanently.
The items therefore acceded to the building and are the property of the respondent.The
appeal was dismissed accordingly.

Melcorp SA (Pty) Ltd v Joint Municipal Pension Fund (Transvaal) 1980 (2) SA 214 (W) - LE
This case is a confirmation and clarification of the so-called "new approach"

Facts:The plaintiff had agreed to install a lift in the respondent's building, subject to a contract that
the lift would remain movable and property of the plaintiff, and can be removed, until final payment
was made on the lift.
The Previous owners fell in arrears with payments to the plaintiff. The defendant subsequently
purchased the building from the previous owners and the plaintiff now wishes to remove the lifts.The
plaintiff sought to enforce its right to remove the lift, which could be removed without substantial
damage to the building or the lift.

Legal Question: The question therefore was whether the lift had acceded to the building?
Whether the ipse dixit of the annexor, to retain ownership of the lifts until they had been paid for,
would entitle the annexor of the lifts to remove them from the premises even if the lifts were
attached to the building permanently and formed part of it?

LAW: When there is an apparent conflict between the clearly expressed intention of an
annexor and the intention that can be inferred from the nature of the movable and its
attachment, how does one decide which intention determines whether a movable has
acceded to an immovable? If the intention is one upon which the basis of the installation was
made and not made ex post facto, then the expressed intention should be favoured, unless
the movable could not be easily removed

Reasoning
o Mcwan J first found that the nature of the lift's annexation (it could easily be removed), did not
conclusively establish whether the lift had been annexed.
o The respondent then argued that the lift was an integral part of the building, and that the inferred
intention of the plaintiff was that the lift should remain permanently.
o Drawing on several cases, McEwan J agreed with this argument, due to the fact that the lift was
essential to the functioning of the building as a building, rather than for some other activity.
o The question therefore was whether the express intention outweighed this inferred intention.
o In this case, the expressed intention was clear enough to outweigh the inferred intention.

HELD: In deciding whether the subjective will of the annexor should prevail, the court emphasised
that the weight attached to subjective intention of the annexor would differ on a case-to-case basis
and that in certain instances, it would be necessary to draw inferences from the
objective factors. The court in the matter before it, held that the fact that the subjective intention of
the annexor was expressed clearly from the beginning as well as the fact that the condition was a
decisive factor before the annexor was prepared to install the lifts, the subjective intention must
override the objective considerations. The court ruled in favour of the plaintiff and authorised
him to enter the premises and remove the lift and ordered the payment of damages.
Commixio et Confusio:

Botes vs Toti Development CO (Pty) Ltd 1978 (1) SA 205 - A (Need to review)
Facts
In this case, nine applicants asked the court to:1 Declare that the agreements they made with the
respondent are invalid, and 2 Order the respondent to give back the money they paid as part of
those agreements. The applicant argued that the contract was invalid because it didn't comply with
legislation on selling land. The agreement was for a unit in a building not yet constructed and didn't
meet the requirements for a sectional plan, including insufficient details on the unit's shape and size.
All similar agreements would suffer the same fate.
Issues

1.​ Whether the description of the thing sold (res vendita) was adequate

2.​ whether the applicants are entitled to repayment of what they have respectively paid to the
respondent on account of the purchase price of the units

Decision 1 - No 2 - No
Held
The court agreed with the applicant, as the legislation stated that a unit is considered land and the
agreement was not valid…….An application of the relevant legislation to contracts for the sale of a
unit as it is defined requires a minimum description of what is being sold that, in addition to the
horizontal area of the section, its height, and external shape be adequately specified……..as
regards to prayer (2), that, in the absence of an allegation that the seller was unwilling to or
incapable of performing his side of the invalid agreement, this prayer had to be refused.

Ratio
The basic principle of our common law of property is that there can be no ownership of a building
apart from the land on which it stands. Where buildings are permanently annexed to land the owner
of the land by means of accessio becomes the owner of the buildings; omne quod inaedificatur solo
cedit - : Everything which ls built upon the soil belongs to the soil
…….It is not possible to divide a building into flats each of which was the object of a separate right
of ownership. (Im not sure how this applies to the case need to re do it)
In order to determine whether a sale of land complies with a law or regulation, the key factor is
whether the specific plot of land being sold can be clearly identified on the ground based on the
terms of the contract rather than any additional information or agreements that may have been
made by the parties outside of the contract…….I.e the test for compliance with the statute is
whether the unit sold can be identified by reference to the agreement between the parties and
without reference their negotiations

if a seller, acting in good faith, were willing and able to carry out his part of an inchoate
understanding, on faith of which the money was paid, a buyer has no equity entitling to the
assistance of the Court

I,e If the seller is honest and capable of fulfilling their part of an agreement that was made before the
full deal was completed, and the buyer paid money based on that agreement, then the buyer cannot
go to court for help
Phone-A-Copy Worldwide (Pty) Ltd vs Orkin 1988 (1) SA 729 - LO
(Had problems finding this case only found previous judgements)

In terms of the Sectional Titles Act 95 of 1986, sectional title consists of a unit and joint
ownership in the common property. The owner of a unit can also obtain the right of exclusive
use and enjoyment of a demarketed are of common property.

Held, that a merx is adequately described where it can be indentified from the contract itself
without the need of intrinsic evidence.

Thus, in casu, the description of flats in terms of their falt number before the relevant
sectional title register was opened is adequate and that the joint ownership and exclusive
use and enjoyment of the common areas could be determined with reference to the Act.

Take note, that there has been a lot of criticism regarding this case, especially as regards the
description above being only adequate where one deals with generic sales (which this was
not) and the thing sold exists at the time of conclusion of the contract (which it did not).
Specificatio:

ALDINE TIMBER V HLATSWAYO 1923 TPD 337 - LO

FACTS
-A wood and iron building belonging to S was pulled down by S’s father who then proceeded to
erect a new and larger building out of the materials so obtained together with the new material which
he had bought, and whose value was far in excess of that of the old materials.
-it was not clear that the father’s intention in so doing was merely to improve his son’s property

ISSUE
Whether the new building was the property of the father?

PRINCIPLE
-Unless a new kind or species of thing comes into existence as a result of the mixing of
materials belonging to the maker together with the materials belonging to another person,
the case is not one of specificatio under Roman-Dutch law, but rather one of accesio

-In cases of accesio, where it is doubtful which of the two things, which have been
intermingled to form a new thing, it is the principal thing which is the accession, the rule to
be applied is that the less valuable is taken to accede the more valuable

CONCLUSION
The new building was, therefore, the property of the father
Commixio et Confusio: Andrews vs Rosenbaum 1908 EDC 419 - A
Prescription:
Prescriptions Act Cap 13: 01

Section 3: Acquisitive Prescription

●​ Acquisitive prescription is acquiring ownership of someone else's property or

servitude by possessing it for 30 years without force, stealth, or permission.
●​ After 30 years, the possessor automatically becomes the owner.

Section 5: Application of Two or More Periods

●​ If there are multiple prescription periods for the same claim, the longest period
applies.

Section 7: Interruption of Prescription

●​ Prescription can be interrupted by:

●​ Debtor's acknowledgement through payment, interest, security, or admission
of liability.
●​ Serving legal documents, arbitration, or filing a claim against an insolvent
estate, liquidated company, or deceased person's estate.
●​ Prescription restarts from the interruption date.
●​ An admission of liability extends prescription for a maximum of three years after
the original expiration date.
●​ Interruption against the main debtor also interrupts prescription for the guarantor.
Welgemoed vs Coetzer 1946 TPD 701 - LA
Facts
●​ In this case, the plaintiff claimed to have acquired a portion of a farm adjoining his
own land on the basis that he and his predecessors in title for at least 30 years, had
exercised certain rights of ownership over it.
●​ It transpired; however that sometime during that period, one of the plaintiff’s
predecessors had allowed his son to occupy a portion of his land for the son’s own
account and during that, time the son had also exercised control over the adjoining
farm.
●​ His claim was disputed on the ground that the son’s occupation of the land in
question was neither a consequence of any intention on his part to hold that area for
himself as owner, nor the result of an express or implied mandate from the then
owners to take possession of the area claimed(as their agent). There was also no
evidence that these owners had any knowledge of his “assumption of
possession”, such knowledge being a prerequisite for the commencement of
the running of prescription in favour of a principal. In these circumstances, it was
held that the prescription period of 30 years had not been completed.
●​ The rationale for Prescription: “… The principle that penalties should be imposed on
those who, through their negligence and carelessness about their own affairs and
property, do an injury to the state by introducing an uncertainty as to the ownership
and an endless multiplicity of lawsuits”.

​ ​
MOKELS TRANSPORT V MELROSE FOODS 1972 (2) SA 464 - LE

RATIO: -It is not necessary that the possessor claiming to have acquired ownership by
prescription need have been bona fide either in assuming or in retaining possession. -It is
however necessary for him to prove the subjective element incivil possession, i.e., he must
prove both the factum and the separate element of animus.
No use, occupation or possession is adverse, for the purposes of the law of acquisitive
prescription, unless the owner has a legal right to prevent it

FACTS: The plaintiff claimed an order declaring that it had, by prescription, acquired the ownership
of certain lots in a township in the district of Johannesburg. The action was opposed by a company
as the registered owner of the plots and by the Minister on behalf of the Government which was the
first defendant's immediate predecessor in title and from which the first defendant had obtained
transfer in pursuance of a contract of exchange concluded in 1969.The Court found that the plaintiff
had had possession for 30 years of the disputed ground, sufficiently continuous to support its
claim.It found, further, however, that it had failed to prove, as a fact or a probability,that for the whole
of the requisite period it and its predecessors had occupied otherwise than under precarious tenure;
i.e. it had failed to prove that during the relevant period, or any part of it, it had not occupied under
an express or implied precarious grant from the Government. It also found that the1 plaintiff had
failed to prove that it had the necessary animus possidendi throughout the period; and also that its
possession had been adverse to the rights of the owner.

I.e

The plaintiff claimed ownership of certain lots through prescription, but failed to prove uninterrupted

possession, absence of temporary tenure, intention to possess, and adverse possession against the

owner.

ISSUE

HELD: As the plaintiff had failed to prove civil possession, non-precarious tenure or adverse user,
that absolution from the instance should be granted with costs. It is the idle and slovenly owner, and
not one who is alert but incapable of acting,who may lose his property by prescription.
Malan vs Nabygelegen Estates 1946 AD 562
De Beer vs Van Der Merwe 1923 AD 378 - LA
Facts
●​ A farm was granted in 1847 and divided in 1884. The plaintiff acquired his portion of
the farm in 1920 and the defendant acquired his in 1918. However, between 1887
and 1897 the previous owners of the defendant’s land were also th lessees of the
plaintiff’s land.
●​ Now, a natural watercourse rose on the land above the farm and after an
exceptionally heavy rain ran on to the defendant’s land for some 40 yards and then
ceased to be a watercourse. After leaving the watercourse the water spreads over
the defendant’s and if it is not diverted it flows to the defendant’s homestead.
●​ In order to protect the homestead, at some point after 1847 the owner of the
undivided farm had by means of an embankment of sand diverted the water on to the
portion now belonging to the plaintiff and this embankment was, over time, restored
by the whomever at the time owned the defendant’s lans as and when needed.
●​ In an action by plaintiff for damages and an interdict restraining defendant from
diverting the water on to his land defendant raised the defence that the embankment
upon his land had been in existence for a period far exceeding that of prescription.
●​ The judge in the court below applied the doctrine of vetustas similarly to the Ludolph
v Wegner, deciding that since it was not known when exactly the embankment was
made, then it was made beyond living memory and had immemorial usage thereby
dismissing the current appellant’s case.
●​ This is the appeal on the grounds that the judgment in the court below is not
supported by the evidence and that the finding of law was based on Ludolph v
Wegner which is not applicable to the present case.

Issues
●​ Whether the defendant had acquired a right by prescription to divert the water on to
the plaintiff’s land?
●​ Whether the principle of Vetustas, invoked in the case of Ludolph v Wegner applied
to this case?

Held
●​ It was not impossible to show when the embarkment was originally constructed and
the doctrine of vetustas or immemorial usage had no application. If the facts of a
given case show that the state of things in question place it within living memory, that
is to say if there be probatio or in contrarium, the doctrine of vetustas does not apply.
In Ludolph and Wegner there was nothing to show when the channel was
 constructed, and the Court consequently held that the case fell within the principle of
vetustas.
●​ The defendant is therefore obliged to rely on prescription rather than Vetustas
since it is evident that the embankment was constructed sometime after 1847.
However, as two of his predecessors were also, between the years 1887 and 1897
successively, lessors of the portion of the farm now owned by the plaintiff, there has
been an interruption in the period of prescription. As such, such owner had not
during that period diverted the water adversely and as of right but precario, that there
was therefore clear proof of a usurpatio and that the defence of prescription must fail.

Ratio
●​ Acquisitive prescription is absent if there was an interruption in the period of
prescription. (please confirm, im not sure if this is the ratio)
Derivative Acquisition Introduction and General Principles
Causal or Abstract Theories of Transfer

Commissioner of Customs vs Randles 1941 AD 369 - LO

FACTS

-Prior to 1936 it was the practice of the defendant company to import goods and; then
transfer them under a form prescribed by regulation to a registered manufacturer to be
made up into shirts and pyjamas for the defendant upon the cut, make and trim principle.

-Under the existing regulations, framed under Act 36 of 1925, such goods were imported
under rebate of customs duty.

-In 1936 new regulations were promulgated requiring that, in such circumstances, in order
that the goods might be imported under rebate of duty, the registered manufacturer to
whom the importer transferred the goods should make a declaration that the goods were his
own property.

The defendant, thereupon, with the intention of complying with the new regulations,
changed its procedure and purported to sell the goods to the manufacturer, and at the same
time agreed to purchase the garments at the price of the sum at which the goods had been
sold, plus the cost of making.

-The goods were duly delivered to the manufacturer, who signed the appropriate form
declaring that the goods were his own property. Payments were effected when the
manufacturer delivered the garments he had made, the final result being that the defendant
paid in cash and the manufacturer received the agreed cost of manufacturing the garments.
The Commissioner of Customs contended that, notwithstanding the procedure adopted by,
the defendant, the latter remained at all times the owner of the goods, and that it was liable
to pay full duty upon such goods.
ISSUE(s)

Whether the transaction where fradem legis( in circumvention with the law ?

PRINCIPLE(s)

To the question of whether ownership has passed as a result of the transactions

between the defendant and the manufacturers depends on whether the transaction
were genuine sales or not.The court must be satisfied that:There is a real intention,
definitely ascertainable, which differs from the simulated intention

Court gives transaction the legal effects which the law gives it, no matter what the
parties intended

APPLICATION

In the circumstances there was ample evidence to show that the intention to transfer and to
accept ownership was present when the goods were delivered by the importer to the
manufacturer thus regulations have been complied with.

CONCLUSION

Appeal dismissed with costs

Actual and Constructive Modes of Delivery Marcus vs Stamper & Zoutendyk 1910 AD
58 -LE
Groenewald vs Van Der Merwe 1971 AD 369 – LO

FACTS

-The plaintiff sued the defendant for the delivery of a certain threading machine and
engine which he alleges to be his property and which he states was wrongfully and
unlawfully removed by the defendant from the farm and is still in the patter’s
possession.

-he also makes an alternative claim for the value of the machine and further claims
for damages for the loss of the use of the machine

-the defendant’s plea admits that he has possession of the machine but justifies such
possession by an alleged purchase of the same( in March 27,1914) from one Josias
-from the evidence it appears that the plaintiff’s ownership of the machine also rests
upon an alleged purchase of the same from the same Josias( 31 August 1915)

-both the sale to the plaintiff and to the defendant are based upon a written deed of
sale or what purports to be such
-the defendant appealed

ISSUE(s)

-whether either of these sales was carried into full effect by the delivery of the
machine and the transfer of ownership of the same either to the defendant or to the
plaintiff?
-whether the alleged sale amounted to valid legal delivery?

PRINCIPLE(s)
-possession involves detention and animus, and to the acquisition of
possession, therefore, the physical and mental elements are both necessary.To
constitute delivery, physical pretension is not essential of the subject-matter is
placed in the presence of the would-be possessor in such circumstances that
he and he alone can deal with it at pleasure.On that way physical element is
sufficiently supplied if the mind of the transferee can templates and desires so
to deal with it, the transfer of possession,that is DELIVERY is in law complete
CONCLUSION
Appeal dismissed
Xapa vs Ntsoko 1919 EDL 177 - LA (still looking for the case, this is what i
found online in the meantime)
The court set out these requirements of “pointing out in presence”-I.e. the thing
must be pointed out to the transferee-Ntsoko’s son wished to marry Xapa’s
daughter agreeing to give 5 head of cattle as lobola.-The cattle had to be left
with Ntsoko because there was a government imposed veterinarian prohibition
against the removal of livestock from the area because of a disease in the
area.-A permit was required for removal, subject to inspection of the
livestock.-While the permit was being sought, the cattle increased to 11.-Xapa
therefore sued for delivery of the 11 cattle instead of just the original 5.

So did traditio longa manu take place when there were 5 head of cattle(if so he
would get the 11)?-Looking at the requirements, the court held that it had and
that X was therefore the owner of all 11 cattle.-There was the practice that
lobola could be paid before the civil marriage took place, and when this
happened, the parties intended the transfer of ownership.-Thus the property
would have become property of Mr Xapa-The cattle had been pointed out,
identified, and placed at the disposal of the transferee, who was present at the
negotiations, and visited on 2 separate occasions to check if the cattle were in
good health.-Therefore the court found that Xapa was acting as an owner, and
therefore there was traditio longa manu
 Mientjies vs Wilson 1927 OPD 183 - A

Facts
Goldinger’s Trustee s Whitelaw 1917 AD 66 – LE
Tosas vs Attorney General 1987 BLR - TE
 Protection of Ownership
Chetty v Naidoo 1974 (3) SA 13 – LA
Facts
●​ .

Issues
●​ .

Held
●​ .

Ratio
●​ The principle that an owner cannot be deprived of his property against his will
means that the owner is entitled to recover if from any person who retains
possession of it without his consent.
●​

United Cape Fisheries vs Silverman 1951 (2) SA 612 - LO

FACTS
-One S had entrusted to one T, a dealer in electrical equipment who also did repair work, a
refrigerator for the purpose of sale on the basis that when T received an offer he was to
submit it to him for his decision as to whether or not the offer was to be accepted. -The
refrigerator was exposed for sale as ordinary stock-in-trade in the shop, as S had intended,
but was sold outright by T in the ordinary course of business to a bona fide purchaser.
ALTERNATIVELY THE FACTS CAN ALSO BE ARTICULATED THIS WAY:
-The plaintiff Mr Silverman, bought from a shopkeeper in Pretoria, Tanner, a certain
refrigerator, for an amount of £160. -This refrigerator, at a time of scarcity, was built up by
Tanner from his own material. -In 1949 Silverman, who then lived in Johannesburg, was
desirous of selling this refrigerator. He sent it to an auction mart without result and then he
sent it over to Tunner in order that Turner might sell it on his behalf -He said that he didn’t
give Tunner a general mandate but arranged with him that if he and when he, Tunner
received an offer for this refrigerator Tanner should submit to Silverman and Silverman
would decide whether or not the offer was to be accepted.
Grosvenor Motors vs Douglas 1956 (3) SA 42 –
LE
Akojee vs Sibanyoni 1976 (3) SA 440 – TE
Eriksen Motors vs Protea Motors 1973 (3) SA 685 - LA
Loss of Ownership
Mills Vs Reck 1988 (3) SA 92, Reck vs Mills 1990 (1) SA 751

Case Brief: Mills v. Reck

Facts:

Mills attempted to remove a large condenser from a shipwreck that had been abandoned by
its owners. He tied a rope with a buoy to the condenser, along with its attached pipes and
contents. Reck and Hartman started cutting sections of the condenser to sell them. Mills
sought a spoliation remedy to stop them and had to prove that he was in undisturbed
physical control of the condenser.

Legal Question:

The legal question is whether Mills was entitled to the spoliation remedy (mandament van
spolie) or an interdict. The trial court granted the spoliation order, but Reck appealed
against this decision.

Ratio Decidendi:

In terms of common law (CL), ownership of a thing is terminated by derelictio when the
owner abandons their property with the intention of no longer being the owner. The
spoliation remedy is based on the principle that a person who has been unlawfully deprived
of control must be reinstated in their original state of control before the merits of the case
can be investigated. Mills, as the spoliatus, must prove that he had free and undisturbed
control over the condenser and was unlawfully deprived of such control by Reck. Clear
proof of physical control is required. To succeed with an interdict, Mills had to show that he
had a clear right to the condenser, suffered or faced irretrievable damage, and had no other
effective remedy available.

Application of Finding on Relevant Facts:

It was agreed by both parties that the shipwreck was res derelicta and thus a res nullius.
Therefore, the case had to be decided based on the requirements for spoliation. Even if the
court accepted the evidence that Mills tied a buoy with a rope to the condenser, he failed to
prove that he exercised the necessary control over the condenser to justify the spoliation
order. Additionally, Mills did not demonstrate a clear right to the condenser or that he was
prejudiced by Reck and Hartman's activities. The court also found that there were other
appropriate remedies available to Mills. As a result, the appeal against the trial court's
decision was upheld.

Conclusion: Mills was not entitled to the spoliation remedy or an interdict. He failed to
establish sufficient control over the condenser, a clear right to it, and the absence of
alternative remedies. The appeal was upheld, and the trial court's decision was
overturned.
In short

In Mills v. Reck, Mills attempted to remove an abandoned condenser from a shipwreck.

He sought a spoliation remedy to stop Reck from cutting and selling sections of the
condenser. However, Mills failed to prove sufficient control over the condenser for the
spoliation order. He also did not establish a clear right to the condenser or the absence
of alternative remedies. The appeal was upheld, and the trial court's decision was
overturned.
Underwater Construction vs Bell 1968 (4) SA 190 – LE

FACTS:: *Plaintiff and defendant both held salvage licences under section 12 of the
Customs Act, 91 of 1964. On 14th March, 1967 employees of the plaintiff loosened and
separated four propeller blades from a wreck which was admittedly a res nullius.
*They took two of these ashore, left the other two next to the wreck and marked the spot
by tying a floating rope to a shaft next to which the two blades were lying, intending to
take them ashore at a later date. Defendant, however, removed them first.
*Plaintiff sued for the delivery of these blades. Defendant resisted the claim and
counterclaimed for the delivery of the two blades in the plaintiff's possession on the
ground that he had allegedly commenced loosening and separating the blades prior to
14th March, 1967 and had lawfully taken possession thereof with the intention of
becoming the owner thereof.
*On the evidence the Court found that, although the defendant had applied
unsuccessfully for a blasting permit with a view to blasting off the propellers and although
other work had been done by him on the wreck prior to 14th March, 1967 no actual work
had been done by him on the wreck with a view to taking possession of the blades.

ISSUES:
Whether or not the defendant had taken ownership of the blades

HELD:, as soon as the propeller blades had been blasted loose from the res nullius with a view to
acquiring ownership of them, that there was a sufficient seizure for the purpose of becoming
owner by occupatio , even though they were not taken ashore but left lying next to the wreck
There was a seizure - a taking into possession - as soon as they were forced apart from
the wreck, and this having been done with the intention of acquiring ownership rendered
plaintiff the owner thereof.

Accordingly, the judgement is as follows:

(1) On the claim in convention - judgement for plaintiff.
(2) On the claim in reconvention - judgement for defendant in reconvention
(plaintiff in the action).
(3) Defendant is ordered to pay the costs, including the costs of the interdict
proceedings, and the cost of transcribing those portions of the evidence
transcribed at the request of the Court.

RATIO: -To acquire ownership of a res nullius it is not enough merely to see the thing or
intend to acquire it: there must be a seizure of the thing with E the intention of acquiring
ownership thereof. Once there is a seizure made with such intention, ownership is acquired
and it is not lost by a failure to remain in physical possession.
-ownership is acquired as soon as there is a seizure with the intention of becoming
owner". Although theoretically there should be an intention to acquire ownership,
other elements, particularly, the physical control element, can be indications (1) of
such an intention.
President of the Republic of Botswana and Ors vs Bruwer and Ano 1998 BLR 86

The case involved the acquisition of Molopo Ranch by the government of Botswana. The respondents, who
were negotiating to purchase the farm, challenged the validity of the acquisition notice issued by the
government. They argued that the notice, which included both immovable property (land) and movable
property (livestock), was ultra vires Section 3 of the Acquisition of Property Act and violated their rights
under Section 8 of the Constitution. The government, in its fight against a lung disease threatening the
country's important resources, considered the Molopo Ranch as property that could be acquired and utilized
in the national effort to combat the disease.

Key Elements of the Acquisition of Property Act and the Constitution Applied:

1.​ Acquisition of Property Act - Section 3: The court examined Section 3 of the Acquisition of Property
Act, which grants the power to compulsorily acquire property. It determined that the government's
power was limited to acquiring immovable property only. Including movable property (livestock) in
the acquisition notice exceeded the scope of the Act and rendered it invalid. However, the court
found that the defect could be rectified by severing the reference to livestock from the notice.
2.​ Constitution - Section 8: The court considered Section 8 of the Constitution, which safeguards
individuals from property deprivation. It emphasized that public authorities must exercise their
power in furtherance of the public interest. The respondents argued that the acquisition notice was
actuated by improper motives, aiming to frustrate their purchase of the farm. The court examined
the government's actions to determine if they were consistent with the public interest and
constitutional requirements. The government's justification for acquisition, citing public safety
concerns due to a prevailing lung disease, played a role in assessing the public interest aspect.

Outcome:The appellate court allowed the appeal and upheld the validity of the acquisition notice after
severing the reference to livestock. It held that the respondents had the legal standing to challenge the
notice under Section 9 of the Acquisition of Property Act. The court applied Section 3 of the Act to limit the
government's power to acquiring immovable property. It also considered the respondents' rights under
Section 8 of the Constitution, protecting against property deprivation and requiring public power to be
exercised in the public interest. The court acknowledged the government's reasons related to public safety
concerns and the prevailing lung disease as factors contributing to the public interest analysis.

Summary:

The government sought to acquire Molopo Ranch due to public safety concerns regarding a lung disease.
The respondents challenged the notice, arguing it violated Section 3 of the Acquisition of Property Act
(limited to immovable property) and their rights under Section 8 of the Constitution (property protection).
The court allowed the appeal, severing the reference to livestock, upheld the notice's validity, and considered
public interest in light of the disease threat.
Quarries of Botswana vs Gamalete Development Trust and 4 Ors ( Court of
Appeal judgement) – LA
Acquisition of Property Act

Constitution of Botswana
Joint Ownership
Sectional Ownership

Botes vs Toti Development CO (Pty) Ltd -

Supra - LO
Phone-A-Copy Worldwide (Pty) Ltd vs Orkin – Supra – LE
Sectional Titles Act

3. POSSESSION Definition and Elements

Physical Control – The Objective element R Vs Mafohla – Supra

Underwater Construction Vs Bell – supra Melrose Transport vs Melrose Foods
– supra

The mental Element

S vs R 1971 (3) SA 798 - TE

Svs Brick 1973 (2) SA 571 – LA
S vs Adams 1986 (4) SA 882 - LO
Mokgetse vs Manthe 2003 (1) BLR 42 - LE
Protection of Possession – Mandament Van Spolie Definition
Nino Bonino vs De Lange 1906 TS 120 - A
Extent of Remedy
Murima vs Kweneng Land Board - LA
O’Reilly vs Gibbons and another 2003 (1) BLR 225 – LO
Mothusi Seretse vs Kelatlhegile Begwe 1990 BLR 559 – LE
Qà
Fredericks vs Stellenbosch Div Council 1977 (3) SA 113 – TE
Potgieter vs Davy 1966 (3) SA 555 – LA
Ntswaqela vs Chairman Western Cape 1990 (1) SA 705 – LO
Mbangi & Ors vs Dobsonville City Council 1991 (2) SA 330 - LE
Counter- Spoliation
Mans vs Loxton Municipality 1948 (1) SA 966 – A
De Beers vs Firs Investments 1980 (3) SA 1087 – TE
Ness vs Greet 1985 (4) SA 641 – LO
SETLOGELO V SETLOGELO

Facts: The petitioner sought an interdict to restrain the respondents from trespassing and
ploughing a portion of the petitioner's farm. The petitioner claimed bona fide occupation
and possession of the land, without asserting ownership or a lease. The petitioner argued
that irreparable harm would occur if the respondents were not stopped.

Legal Question: What are the grounds required for granting an interdict?

Ratio: An occupier of land is entitled to undisturbed possession until a party with a

superior right or title emerges. In the absence of evidence showing a better right or title,
the disturbance should be treated as spoliation. The interdict should be granted to restore
the parties to their original positions.

Outcome: The appeal succeeds, and the interdict should be granted.

 Loss of Possession

4. SERVITUDES

Definition and Categories of Servitudes

Van Der Vlugt vs Salvation Army 1932 CPD 56 - A

Facts
Tati Co Ltd vs Ndibo Mongwa – LA
Quarries of Botswana Vs Gamalete Development Trust and 3 Ors (High Court
Judgement) - TE
Creation
Deeds Registry Act Sec 63 -64, Sec 72 -73 - LO
Secs 11 & 26 Water Act
Prescriptions Act

Characteristics, Basic Principles and Termination Manganese Corp vs

Manganese Ltd 1964 92) SA 185 - LE
Texas (SA) Ltd vs Cape Town Municipality 1926 AD 467 - A
Schwedhelm vs Hauman 1947 (1) SA 127 – LA
Du Toit vs Visser 1950 (2) SA 93 – TE
Willoughbys’s Consolidated Co LTD VS Copthall Stores Ltd 1913 AD 267 - LE
5. LEASES

Definition and categories

Long Leases

Shell Rhodesia (Pty) Ltd vs Eliasov 1979 (3) SA 915

Facts

In 1969, the owner of a property agreed to sell it to a company that didn't exist yet.
The agreement required the purchaser to secure mortgage bonds from a leasing
company. Before the sale was completed, the leasing company leased the property
to another company for ten years, with an option to renew for another ten years and
a right to buy the property. The property was eventually transferred to the leasing
company, and the lease was registered against the title of the property. The leasing
company subleased the property to a third party. In 1977, the leasing company went
bankrupt, and the liquidator advertised the property for sale. Two offers were made
for the property without the lease, but the lessee objected and argued that the
property should have been sold with the lease first. The liquidator accepted the
higher offer and instructed the transfer to take place, but the lessee objected again
and claimed that the liquidator couldn't sell the property without the lease. The lessee
tried to renew the lease, but the liquidator refused.

Issue:

Whether the property should be sold free of the lease or subject to the lease.

Decision:

The court held that the property should not be sold free of the lease. The petitioner
had secured a firm offer to purchase the property subject to the lease at a price
substantially in excess of the amount due under both mortgage bonds. The court
determined that the petitioner had not met the burden of proof to show that either
offeror would not have made an acceptable offer subject to the lease had they
believed that the property could only be purchased encumbered.

Reasoning:

The court considered the test to be applied as that laid down by SAMPSON AJ,
which required the petitioner to show that if the property were put up again subject to
the lease, the claim of the first mortgagee would be satisfied. The court found that
the petitioner had met this test.

However, the court expressed doubt over whether the onus should have been placed
on the lessee to show that the property could only be purchased encumbered. It
suggested that the respondent should bear the burden of proof, as their failure to
offer the property for sale in the recognized manner caused the uncertainty.
 The court ultimately found that the petitioner had not met the burden of proof to show
that either offeror would not have made an acceptable offer subject to the lease had
they believed that the property could only be purchased encumbered. Therefore, the
court was unable to sanction a sale of the property free of the lease. The court
concluded that the case was one in which it was appropriate to issue an interdict.

A long lease meant to be followed by future owners and creditors of the landlord
must be registered with the property's title. If a new owner is not aware of the lease
agreement, it is still valid for up to 10 years if the tenant was living in the property
when it was sold. However, the lease is always valid between the tenant and the
original landlord and any new owners who were aware of the lease agreement.

To protect the lessee's interests when there's a mortgage on a property, the

property must first be offered for sale provisionally subject to the lease. If the sale
offer is inadequate to satisfy the mortgagee's claim, the property may be sold free
of the lease. This balances the interests of the lessee and the mortgagee.
 Hitzeroth vsBrooks 1965 (3) SA 444

Facts:

Alexander Hitzeroth, who was married to the appellant in community of property, granted
Mrs. Rodkey a lease for the premises in question.

Both appellant and her husband were bound by the lease during their marriage, including
the rights of assignment and renewal.

After the dissolution of the marriage due to the death of Alexander Hitzeroth, the
appellant and the joint estate remained bound by the lease terms.

Appellant argues that she should be considered a third party regarding the cession of the
lease from Mrs. Rodkey to the respondent.

Issues:

Whether the appellant remains bound by the terms of the lease, including the rights of
assignment and renewal, despite not being a signatory.

Whether the appellant can be regarded as a third party in relation to the lease cession.

Decision:

The conclusions reached in the lower courts were correct, except for the renewal issue.

Reasoning:

During the marriage, appellant and her husband were bound by the lease, including the
rights of assignment and renewal, as recorded in the lease.

Even after the dissolution of the marriage, the appellant and the joint estate remained
bound by the lease terms, following elementary principles and the observations of
MURRAY, C.J. in Costain and Partners v Godden, N.O. and Another.

The cases referred to by the appellant, relating to the distribution of the net residue of the
joint estate, do not affect the appellant's binding obligations under the lease.

Appellant, having been bound by the original lease and its terms, cannot be considered a
third party regarding the cession of the lease to the respondent.

The Legislature would not have intended to allow a person in the appellant's position to
invoke the provisions of Section 2 of Act 50 of 1956.
Additionally, there are additional reasons for rejecting appellant's contention, including her
awareness of the lease and cession, ratification of the cession, and her recognition and
adoption of respondent as a tenant under the lease.

Disposition:

The appeal is allowed with costs in this Court, excluding costs for pages 13 to 30 of the
record.

The magistrate's judgment is altered to grant an order of ejectment with costs, requiring
the defendant to vacate the premises known as lot 102 Cannonville before 30th June
[year].

No order for costs is made for the costs incurred in the Eastern Cape Division.

gratuitous successors are not "third parties.

 Short Leases
“Huur Gaat Voor Koop”Maxim -

In Roman Dutch law, which forms the basis of most South African legislation, including
that which pertains to property, the principle of “huur gaat voor koop” is honoured and
accepted. The “huur gaat voor koop” principle ensures that any contract with a tenant,
whose lease has not yet expired must be honoured if and when the property is sold. This
applies whether or not there is a bond on the home and whether or not the purchaser
knew of the lease when he signed the deed of sale. Even if a lease is signed after the
conclusion of the sale, this, in most lawyers’ opinions, still has to be honoured.

It often happens that when a home is sold in execution, it will still have significant
outstanding payments owing. It is accepted in these situations, says Wayne Albutt,
National Manager for Rawson Rentals, that the bank has first claim on the sale money
but, again, the lease has to remain in place. If, however, the sum raised by the sale or by
an auction in execution is too small to cover the amount owing to the bank, the lease in
South African law can then become invalid and the home can be resold or re-auctioned.
Without the lease, it will probably achieve a higher price.

Albutt said that it does frequently happen that homes, on which the sum owing to the
bond issuer is not realised, are sold and in these situations the tenant has to be
‘sacrificed’ to ensure that the bank is better compensated. The new owner of the
property may well then be faced with the challenge of evicting the tenant, who, if he has
had his lease cancelled against his will, may dig in and resist this for some time.
Alternatively, the new owner can, of course, draw up a new lease with the tenant.

There are always many detailed factors which can dictate the ongoing validity of a lease if
a property is sold in execution. The most important point to note, however, is that there
are exceptions of the kind I have described and the phrase “huur gaat voor koop” should
therefore not always be relied upon,” says Albutt.
Boshoff vs Theron 1940 TPD 299 – A

Facts:

●​ The lessor (Theron) leased land to the lessee (Boshoff) that could only be irrigated
through a state irrigation scheme.
●​ The irrigation board would provide water upon the request of the registered owner
of the property or a person authorized by a power of attorney given by the owner.
●​ Theron provided Boshoff with a power of attorney to obtain water for several years.
●​ Subsequently, Theron sold the property to a third party, which invalidated the
power of attorney.
●​ As a result, Boshoff was unable to obtain water for his crops for several months
and sued Theron for the resulting loss.

Issue:

Whether the original lessor (Theron) can be held liable for damages suffered by the
lessee (Boshoff) due to the lack of water supply after the property was transferred to
a third party.

Decision:

The court held that the original lessor, Theron, had relinquished his rights and
obligations as the landlord once the property was sold to the third party. Therefore,
the lessee, Boshoff, could not claim damages from the original lessor.

Reasoning:

Upon the sale of the property, the original lessor (Theron) transferred his rights and
obligations as a landlord to the new owner. Until the transfer of ownership occurs, the
original lessor retains the right to claim rent from the lessee unless this right has
been assigned to the purchaser.

If rent has been paid in advance, the obligation to pay it has been fulfilled, and the
purchaser cannot claim it from the lessee.

Disposition:
The court ruled in favor of the defendant (Theron), holding that the original lessor
cannot be held liable for damages suffered by the lessee due to the lack of water
supply after the property was transferred to a third party.
 Garvin & Ors vs Sonec Properties Gardens Ltd 1996 (1) SA 463

Facts:

The defendant, SOREC Properties Gardens Ltd, sold a shopping center to the plaintiffs,
Garvin and others. The shopping center consisted of various commercial units that were
leased to different tenants. Each lease agreement included a basic rental and an
additional rental called the "turnover commission." The turnover commission was
calculated as 10% of the tenant's net turnover, exceeding the annual basic rental. The
additional rental was payable three months after the end of the financial year.

The sale agreement between the parties stated that the risk and profit of the property would
belong to the plaintiffs "from and including" the date of transfer, which occurred on February
28, 1990. However, the agreement did not specify whether the plaintiffs or the defendant
were entitled to the additional rental for the year ending on February 28, 1990, and payable
three months later.

Issue:

1.​ Who is entitled to the additional rental for the year ending on February 28, 1990?
2.​ Does the principle of "huur gaat voor koop" apply in this case?

Decision:

1.​ The additional rental is considered as additional rent paid to compensate the
landlord for giving up the ongoing use of the property. It is not a fruit of the property
that had not yet been reaped by the transfer date. Therefore, the defendant is entitled
to the additional rental, except for a one-three-hundred-and-sixty-fifth part of it.
2.​ The principle of "huur gaat voor koop" (lease prevails over sale) does not allow the
new owner to retain money that legally belongs to the previous owner. While the
principle regulates the relationship between the landlord and tenant, it does not
permit the new landlord to keep the rental payments that rightfully belong to the
previous owner.

Principle of Huur Gaat Voor Koop:

The principle of "huur gaat voor koop" is a legal concept that applies in South African law. It
states that when leased property is sold or transferred to a new owner, the new owner
automatically becomes the landlord and assumes all the rights and obligations of the
previous landlord. No separate assignment or cession is required. The principle primarily
governs the relationship between the landlord and tenant, ensuring the tenant's obligations
are fulfilled to the new lessor.

However, the principle does not grant the new owner the right to retain payments made to
them that legally belong to the previous owner. The principle facilitates the transfer of rights
and duties from the old owner to the new owner, but it does not allow the new owner to
keep money that is the property of the previous owner.

In the context of this case, the principle of "huur gaat voor koop" means that the plaintiffs,
as the new owners, assumed the role of the landlord and became entitled to the tenants'
rental payments. However, it does not grant them the right to keep the additional rental
payments that legally belonged to the defendant, the previous owner.
 LandLord’s Tacit Hypothec

Eight Kya Sands vs Valley Irrigation Equipment 2003 (2) SA 495 -

Headnote:​
​
The only remaining tacit hypothec from the common law which still exists in South African
law is the tacit hypothec of the landlord over the movables of the tenant on the leased
property for arrear rental. In respect of arrear rental, the tenant is the debtor and the
landlord is the creditor. The lease agreement out of which the debt arises exists between
those two parties. The tacit hypothec affords the creditor/landlord a right of attachment to
establish a real right over the movables of the debtor/tenant as security for payment of
the arrear rental. A third party whose movables are available to the tenant on the leased
property and who thereby creates the appearance that the goods belong to the tenant
exposes those goods to the landlord's tacit hypothec. As soon as the third party makes
his ownership of the goods known to the landlord, the legal relationships change. The
appearance has disappeared. There is no legal obligation between the third party as
owner and the landlord as creditor of the tenant. There can be no justification for the
property of the third party serving as security for the debt of the tenant. The only way in
which that could happen is if the appearance of the tenant's ownership exists until the
goods ostensibly belonging to the tenant are attached by the landlord. If the attachment is
not executed before the appearance disappears, the landlord has to return the goods to
the actual owner.

(In the context of the headnote, "ostensibly" is used to describe the appearance of
ownership or belongingness of the goods to the tenant. The term suggests that the
goods give the outward impression or appearance of being owned by the tenant, creating
a facade of ownership. However, it also implies that this appearance may not accurately
represent the true ownership or legal status of the goods.)

The courts held that

The lessor cannot apply for an attachment order after the pointin which the owner of the
movables has proclaimed her ownership, even if the hypothec comes into existence
earlier

The hypothec gives yhe lessor the right to establish a limited real right through
attachement, but that right has to be exercises before te lessor realises that the movables
belong to another person
TR Services (Pty) Ltd vs Poynton’s Corner Ltd 1961 (1) SA 773 –

Case Name: TR Services (Pty) Ltd v Poynton's Corner Ltd and Others (1961) (1) SA 773 (N)

Court: High Court of South Africa, Natal Provincial Division

Headnote: The owner of goods must provide proper notice to the landlord to avoid placing
the goods under a landlord's hypothec.

Facts:

●​ TR Services (Pty) Ltd (the applicant) owned certain inter-office telephone

communication equipment.
●​ The equipment was leased to Business Services (the third respondent) for a
specified period and an indefinite period thereafter, terminable upon six months'
notice by either party.
●​ The applicant claimed that Business Services failed to pay the rent for the
equipment, allowing the applicant to cancel the lease.
●​ The applicant argued that the equipment did not belong to Business Services and
should not have been attached by the landlord.

Issues:

1.​ Whether the attachment of the equipment was made under a landlord's hypothec.
2.​ Whether the landlord had notice that the equipment belonged to the applicant.

Decision:

The court held that the requisites for a valid attachment under a landlord's hypothec were
fulfilled, and therefore, the rule nisi granted in favor of the applicant was discharged.

Reasoning:

●​ The applicant's attorneys proceeded on the basis that the goods had been attached
under a landlord's hypothec.
●​ Both parties operated under the assumption that the attachment was under a
landlord's hypothec.
●​ The court referred to the case of Bloemfontein Municipality v Jacksons Ltd., which
outlined four requisites for a valid attachment:
●​ (1) the goods must be on the premises with the owner's knowledge,
●​ (2) there must be a degree of permanence,
●​ (3) the goods must be there for the use of the tenant, and
●​ (4) the landlord must have had no notice that the goods belonged to a third party.
●​ The court found that requisites (1) and (3) were fulfilled since the equipment was on
the premises with the owner's knowledge and for the use of the tenant.
●​ The disputed requisites were the degree of permanence and notice.
●​ The court acknowledged the difficulty in determining the basis for a landlord's
hypothec over goods belonging to third parties in the possession of the tenant.
 ●​ It was established that the time factor met the degree of permanence requirement
since the equipment was leased for 15 years and an indefinite period thereafter.
●​ Regarding notice, the court held that the small lettering of the words "property of" on
the equipment was insufficient to provide proper notice to the landlord.
●​ The court concluded that the owner of goods must give proper notice to the landlord
to avoid placing the goods under a landlord's hypothec.
●​ As the applicant failed to provide such notice, the requisites for a valid attachment
were fulfilled, and the rule nisi was discharged.

Conclusion:
The court found that the attachment of the equipment by the landlord under a landlord's
hypothec was valid because the applicant failed to provide proper notice. As a result, the
rule nisi was discharged, and TR Services (Pty) Ltd was ordered to pay the costs.

In this context, a rule nisi is a court order that requires the respondents (in this case,
Poynton's Corner Ltd and others) to show cause or provide reasons why certain actions
should not be taken. It is essentially a provisional or interim order issued by the court.

The effect of the rule nisi in this case was that it initiated the legal proceedings and required
the respondents to present their arguments or justifications for why the inter-office
telephone communication equipment should not be released from attachment and
delivered to the applicant, TR Services (Pty) Ltd). The rule nisi created an opportunity for the
respondents to present their case and provide reasons as to why the court should not grant
the relief sought by the applicant. Ultimately, the court discharged the rule nisi, meaning
that the relief sought by the applicant was denied, and the respondents were not required to
release the equipment or bear the costs of the application.

according to the court's ruling, the equipment was deemed to be subject to the landlord's
hypothec. The court found that the equipment had a sufficient degree of permanence and
met the requirements for being subject to the hypothec. The applicant (TR Services)
failed to provide proper notice to the landlord to avoid placing the equipment under the
hypothec. As a result, the court concluded that the attachment of the equipment by the
landlord under the hypothec was valid.
Subleases, Cessions, Assignments
Termination
6. MORTGAGES, PLEDGES, HYPOTHECS & LIENS
Mortgages
Sec 48 Deeds Registry Act

Section 48 of the Botswana Deeds Registry Act explains the execution of mortgage bonds.
Here's a concise breakdown:

(1) Mortgage bonds must be executed in the presence of the Registrar by the property
owner or an authorized conveyancer, and attested by the Registrar.

(2) Bonds can be registered to secure existing debts, future debts, or both.

(3) Bonds for building purposes are considered as bonds securing existing debts.

(4) If a bond secures a future debt and mentions an existing debt, the existing debt is
included in the total secured amount.

(5) One bond cannot secure debts owed to multiple creditors from different causes, unless
authorized by law or court order.
Thienhaus vs Metje & Ziegler Ltd 1965 (3) SA 25 - A

In the case of Thienhaus v Metje & Ziegler Ltd, the court addressed the validity of a
mortgage bond over immovable property.

Facts

The liquidator of The Batchelors (Pty.) Ltd. appealed a court decision regarding a
mortgage bond held by the first respondent. The bond secured a claim on a suretyship
undertaken by the company. The court dismissed the liquidator's application and
declared the bond to be a valid preference.The liquidator seeks to overturn this decision,
arguing that an error in identifying the principal debtor invalidated the bond's registration.

Or

G owed money to M, the respondent. The debt was secured by a mortgage passed on
property belonging to B in favour of M. The mortgage bond was incorrectly worded to
indicate that the debt was owed by SG (who happened to be the sole shareholder of G).
When B became insolvent, T was appointed liquidator. M sought a preferential right in
terms of the mortgage bond, but this claim was rejected by T on the grounds that, due to
the factual inaccuracy, the mortgage had not come into existence.

Held

1.​ It is not necessary for a mortgage bond to provide a detailed description of the origin
or nature of the obligation to be secured, except in the case of bonds to secure future
debts.
2.​ A defect in the form of a bond as an instrument of debt does not automatically
invalidate the bond as a deed of hypothecation.
3.​ If a defect in the bond renders the obligation to be secured non-existent, then the
hypothecation itself may be affected.
4.​ In this specific case, although there was a mistake in the identity of the debtor
named in the bond, all the essential elements of a valid bond were present. The bond
correctly stated the suretyship obligation of the mortgagor, the total amount, and
was registered against the correct property of the surety company. Therefore, the
bond remained valid, and the mortgagee had a preferent claim on the mortgaged
property in case of insolvency.

Decision of lower court confirmed ( i think )

Iscor Housing vs Chief Registrar of Deeds 1971 (1)1 SA 613

a clause in a mortgage agreement that gives the lender the power to take the property
and sell it without involving the borrower or going to court is not legally enforceable.
However, if the borrower fails to fulfill their obligations, they can give the lender
permission to sell the property to recover the outstanding debt.
 Pactum Parate Executie clauses

In the context of Roman Dutch law, the term "Pactum Parate Executie" refers to a clause
commonly included in contracts. It is a Latin phrase that can be translated as
"agreement for immediate execution." The clause serves as a mechanism to expedite
the enforcement of contractual obligations without the need for lengthy legal
proceedings.

The Pactum Parate Executie clause allows the creditor to take immediate action to enforce
their rights and obtain satisfaction without having to go through the regular legal process
of obtaining a judgment or court order. It grants the creditor the authority to seize the
debtor's assets or take other measures to secure payment or performance of the
obligation specified in the contract.

The purpose of including such a clause is to provide a more efficient and streamlined
process for enforcing contractual rights, particularly in cases where there is a high risk of
non-payment or breach of contract. By including a Pactum Parate Executie clause, the
parties agree in advance that the creditor can take direct action to satisfy their claim
without having to resort to lengthy legal proceedings.

It is important to note that the enforceability and scope of a Pactum Parate Executie
clause may vary depending on the jurisdiction and the specific terms of the contract. The
exact implications and limitations of such a clause would need to be considered within the
framework of the applicable laws and regulations governing contracts in the relevant
jurisdiction.
Pledges
Smith vs Farelley’s Trustee 1904 TS 949 – LO

It is trite law that any immovable property which is a res in commercio can
serve as security under a mortgage bond (see Smith v Farrelly’s Trustee 1904
TS 949)
Zandburg vs Van Zyl 1910 AD 343 – LE
Vasco Dry Cleaners vs Twycross 1979 (1) SA 613

In this case, the court discussed the difference between a contract of sale and a pledge.
According to the law, a contract of sale only creates personal rights and does not
automatically transfer ownership of the sold item to the buyer. In order for ownership to
transfer, further formalities, such as delivery of the item, are required. Similarly, for a valid
pledge to be established, there needs to be an agreement between the parties and actual
possession of the pledged item by the pledgee.

●​ Z sold a dry cleaning business, including machinery, to X.

●​ Ownership of the machinery was suspended until the purchase price was paid in full.
●​ X sought financial assistance from Twycross, his brother-in-law, to prevent
repossession of the machinery.
●​ X and Twycross entered into an agreement where Twycross would pay the remaining
balance to Z.
●​ Upon payment, ownership of the machinery would transfer to Twycross, who agreed
to sell it back to X.
●​ Ownership of the machinery would only pass to X upon full payment to Twycross.
●​ X sold the business, including the machinery, to a new owner, falsely claiming
ownership.
●​ The new owner was unaware of the agreement between X and Twycross.
●​ X failed to pay Twycross, and Twycross seeks to reclaim the machinery.

Legal Question:

Did ownership transfer through constitutum possessorium?

Judgment:

Twycross cannot reclaim the machinery because he is not the owner.

Ratio decidendi (reason for judgment):

Constitutum possessorium, where the transferor retains physical control of the item, does
not constitute valid delivery for creating a pledge. The true intention of the X and Twycross
agreement was to create a pledge, not a sale. As constitutum possessorium allows for
fraud, courts closely scrutinize claims of ownership based on a mere change of intent.
Therefore, Twycross is not the owner of the machinery and cannot reclaim it from the new
owner.
As far as pledge is concerned, you must pay particular attention to the requirement of
delivery as one of the requirements in constituting a pledge. Without actual physical
delivery a pledge cannot be established
Notarial Bonds
Sec 55, 59 Deeds Registry Act

Section 55 of the Deeds Registry Act deals with the substitution of a debtor in relation to a mortgage bond.
Let's break down the section into simpler terms:

1.​ If a person (called the "transferor") who owns land that is pledged as security under a registered
mortgage bond transfers the entire land to someone else (called the "transferee") and does not keep
any rights to the land, the Registrar (the official responsible for registering property) can register the
transfer and replace the transferor with the transferee as the debtor responsible for the mortgage bond.
2.​ When registering the transfer, the Registrar will:
●​ Make entries in the appropriate register to indicate that the debt owed by the transferor under
the bond is canceled and that the transferee has become the debtor under the bond.
●​ Attach one copy of the written consent (in the required form) to the bond and keep the other
copy with the registry.
●​ Endorse certain information on the bond, including the name of the transferee, the date and
number of the transfer, a reference to the written consent, and the fact that the transferee has
replaced the transferor as the debtor under the bond.
●​ Make an endorsement on the transfer deed (document confirming the transfer of ownership)
that includes the date and number of the bond and the amount due under the bond.
3.​ From the date of the transfer deed, the transferor is released from any obligation secured by the bond,
and the transferee becomes the new debtor under the bond. The transferee is bound by the terms of the
bond in the same way as if they had originally entered into the bond and waived all applicable
exceptions.
4.​ This section does not apply if:
●​ The mortgaged land is being transferred to someone who is not legally qualified to mortgage
it.
●​ The land is being transferred to two or more persons, unless they acquire the land as joint
owners and waive the exception de duobus vel pluribus reis debendi (a legal principle limiting
liability to a share of the debt).
●​ (Subsection (c) is omitted from the provided text.)
5.​ The provisions of this section also apply, with necessary changes, to immovable property other than
land that is pledged as security under a registered mortgage bond.

In simpler terms, Section 55 allows for the substitution of a debtor in a mortgage bond
when the owner of the mortgaged property transfers it to someone else. The Registrar can
replace the original debtor with the new owner as long as certain conditions are met. This
provision ensures that the new owner becomes responsible for the mortgage debt and is
bound by the terms of the bond.
Section 59 of the Deeds Registry Act pertains to the registration of notarial bonds. Let's
simplify the section:

1.​ Any notarial bond, whether executed before or after the Act came into effect, must
be submitted for registration in the deeds registry within two months from the date
of its execution. The court may allow an extended period if an application is made.
2.​ If the notarial bond is not tendered for registration within the specified period or if it
is rejected by the Registrar and not resubmitted within that time, it cannot be
registered unless a court order is obtained within a further period determined by the
court. However, if the Registrar suspends or refuses registration pending the
submission of additional information to determine if any person mentioned in the
bond is listed in any register or document in the deeds registry, the suspension or
refusal is not considered a rejection of the bond.
3.​ Every notarial bond must provide the following information:
●​ The place and date of its execution, as well as the location where the notary
practices.
●​ The residence of the debtor and the place(s) where the debtor conducts
business, if applicable.

In simpler terms, Section 59 states that notarial bonds must be registered in the deeds
registry within two months of their execution. Failure to do so or rejection by the Registrar
requires obtaining a court order for registration within a specified time. The notarial bond
should contain details such as the execution date, the notary's practice location, the
debtor's residence, and the places of the debtor's business activities, if any.
Coloured Development Corp vs Sahabodien 1931 91) SA 868

if co-debtors bind themselves jointly and severally or in solidum, the same effect is
achieved if the beneficium de duobus vel pluribus reis debendi clause is
renounced, and therefore it seems unnecessary.

The phrase "in solidum" is derived from Latin and can be translated as "solidary" or
"solidarily." It signifies that the obligation is shared collectively among the co-debtors, but
each debtor is individually liable for the entire debt.

In the given context, it is mentioned that if co-debtors bind themselves jointly and
severally or in solidum, the same effect is achieved as renouncing the "beneficium de
duobus vel pluribus reis debendi" clause. The "beneficium de duobus vel pluribus reis
debendi" is a legal principle that allows co-debtors to limit their liability to their respective
share of the debt. However, if the co-debtors agree to be bound jointly and severally or in
solidum, it renders the "beneficium de duobus vel pluribus reis debendi" clause
unnecessary because each debtor is individually liable for the full debt amount, regardless
of their share.

In summary, "in solidum" refers to joint and several liability, where each debtor is
individually responsible for the entire debt.
Bank of Credit and Commerce Ltd vs Builders Merchants Botswana 1986 BLR
220 -
Hypothecs
Sec 3(4) Hypothication Act

According to Section 3 subsection (4) of the Hypothecation Act, when a deed of

hypothecation is registered, the property being hypothecated, as well as any
offspring or products from it, are considered pledged to the authorized creditor. It is
as if the property was physically given to the creditor and under their control. Any
attempt to dispose of the property by the owner without the written consent of the
creditor is invalid and has no legal effect.

Sec 11 (1) Agricultural Charges Act

Liens

Whitacon (Pty) Ltd vs Botswana Building Society 1995 BLR 537 - LE

United Building Society vs Smooker’s Trustee 1906 TS 623 - A

Enrichment liens are limited real rights which come into existence by operation
of law