Case Summaries for Property Law from 2020 PDF

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CASE NAME

SIGNIFICANC E

FACTS

Cape Explosive Works L Another v Denel (Pty) L Others Supreme Court of Appea JA, Olivier JA, Zulman Streicher JA, Mthiyane AJ February 22; March This case provides the locus It exhibits a simple This case makes clear tha Deeds Registry is not determination of the principal classicus for the ‘subtraction from dominium’ test: one must look not absolutely reliable: an om thing in a composite, ultimately applying common at the right itself but at the of a real right therefrom do correlative obligation, and sense. It suggests that the extinguish it. The judgmen determine whether it binds principal thing in a car is the provides a clear illustration successors in title in such a way chassis. application of the two-fold that it can be said to subtract from Finally, the Court ruled tha restriction and repurchas the land’s dominium. The ratio confirms that a personal right can be were inextricable and for registrable when it is inextricably composite whole. linked to one or more real rights. This principle was later enshrined in s 63(1) of the Deeds Registries Act. The judgment is also useful in that it suggests that neither the paying of money nor conditional obligations can easily be considered real rights.  Applicant had his BMW  A testatrix died, survived by her  In 1973, Capex (the Khan v Minister of Law and Order Transvaal Provincial Division Du Plessis J 1990 August 29; September 5

Ex parte Geldenhuys Orange Free State Provincial Division De Villiers JP 1926. April 15; May 20

seized by a policeman. Applies for an order to reclaim it.  It was found that almost the entire body of the car is that of a stolen 1988 BMW. The engine and inner front portion of the car are from a 1985 BMW legitimately bought by the applicant 

husband and five minor children. In terms of the joint will of the married couple, as soon as the eldest child reaches majority the survivor must divide up their farmland in equal portions by the drawing of lots and distribute it among the children.  The child who gets the portion comprising the homestead of the farm shall pay £200 to the other children. The applicant (the surviving father) applied for an order inter alia instructing the Registrar of Deeds to register transfer of the undivided shares of the land to the children subject to these conditions.

appellant) sold two p land to Armscor (the respondent).  In the deed of sale it stipulated that (1) th properties would be only for the manufac arms, and (2) if the properties were no lo used as such Capex have the first right of repurchase. Armscor to the registration of rights in the Deeds O  A significant portion o land in question cam the ownership of Den first respondent) com unencumbered by c 2 and mostly unencumbered by co 1, due to a clerical e transfer.  Denel brought an ap to the court a quo de its ownership of the l be legitimately

LEGAL QUESTION REASONING

How does one determine which is the principal thing after accession to form a composite thing?  Where one movable is joined to another so as to form an entity  the owner of the principal thing becomes the owner also of the thing joined to it. It is therefore imperative in this case to determine what the principal thing is.  Various tests have been

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

unencumbered by co 2  Capex brought a cou application for the reinstatement of the conditions in title.  The court found in fa Denel on the ground condition 2 was not registrable. Capex a to the present court. Does the omission of a rea from the registry affect its status?

 Can the conditions of the will be considered real rights, i.e. ones which burden the land, and constitute a deduction from the dominium. This was the explanation given in Hollins v Registrar of Deeds and is still accurate for the purposes of the present case.  The key is that the correlative obligation which arises from a real right must survive a transfer

 The intention with w transfer was given a received is a key de of whether conditions 2 were transferred in  Since Capex sold an Armscor bought the property subject to th conditions and witho complaint, the transf presumptively compl with the intention to t

used over the years: the bulk test; the character, form and function test; and the pure value test.  But these things are really a matter of common sense; the tests are of use primarily in cases of doubt

of ownership and continue to burden the land; it must be an obligation binding not just on one person or other but on anyone. It seems that the provisions of the will ‘so directly affect and adhere to the ownership of the undivided shares’ that they need to be regarded as real. The paying of the £200 by the owner of the homestead, is a personal rightcannot easily be held to be a real right, and the obligation is uncertain and conditional upon the outcome of the drawing of lots.  Therefore not a registrable right per se. However, it is so closely related to a right which is registrable that it must also be regarded as such. Otherwise it would be a misrepresentation of testamentary direction, especially to strangers who wished to purchase one of the undivided shares

those conditions. Oth circumstantial eviden confirms this. Does t condition result in a ‘subtraction from the dominium’ of the land question?  Counsel for Denel ar that condition 2 could a real right because imposed a positive o on the transferee to the transferor when t properties were no lo required for arms manufacture. But the of notice is as much as an obligation, bec Denel does not do so land is useless to it. Conditions 1 and 2, a composite whole, pa constitute a subtract the dominium. Beca the nature of a real r being enforceable ag anyone and in perpe

ANSWER TO QUESTION OUTCOME

CASE NAME

The principal thing is the one which gives the composite thing its identity; or its character, form and function. The ultimate car is therefore the stolen 1988 BMW and the applicant accordingly has no right to reclaim it.

Lorentz v Melle

Yes, a personal right be registrable if it is inextricably linked to one or more real rights.

they do not cease to simply by their erron omission from subse title deeds. As follow law and the ‘negative system’ which is in p registry cannot be ab relied upon as an ac reflection of the true affairs. No, such omission from th registry does not affect its status

The applicant’s prayer for the registering of the entire clause in the will is granted.

The appeal is upheld with the judgment of the court a dismissed. The title deed m rectified so as to register conditions 1 and 2, and D interdicted from using the properties contrary to thos conditions.

Nel NO v Commissioner of

Schwedhelm v Hauman

Transvaal Provincial Division Viljoen J, Human J, Nestadt J 1978. April 5, 6; June 15.

SIGNIFICANCE

FACTS

This ‘watershed judgment’ is most significant for its restriction of the subtraction from dominium test so as to require curtailment of the enjoyment of the land “in the physical sense” – a narrower test compels the court to declare that obligations sounding in money are typically personal in nature.

 Mr van Boeschoten, the father of the respondent, and Mr Lorentz, the father of the appellant, were about to acquire coownership of a piece of land.

Inland Revenue Appellate Division Steyn CJ, Beyers JA, Malan JA, Van Blerk JA, Ramsbottom JA 1959. November 12, 18. The question of whether an annuity right is a real right is raised. The court does not reach a firm verdict, but suggests in a frequentlyreferenced dictum that it could be if the payment derives from the land. This suggestion was, it could be argued, later endorsed by Barclays Bank v Comfy Hotels.

 A father donated a piece of property to his minor son, accepting the donation on the son’s behalf as his natural guardian.  The donation was subject to certain

Eastern Districts Local Division Pittman JP, Lewis 1946. November 27. 1947 February 3 It argues that errors in the Deeds Registry imply very little about the legal status o the relevant rights (specifically, it states that a right is not made real merely by its registration) Finally, the judgment makes clear that personal rights ca be transferred to successor in title by (express or implie agreement; in this they can behave in practice somewh like real rights.  The excipient (defendant) came to own a portion of farmland across which the respondent (plaint has a right to draw water.  The plaintiff claimed th

 They registered a notarial deed against the title deed agreeing to subdivide the land such that if either subdivision had a township laid out upon it the owner of the other portion would be entitled to half the proceeds of this development.  Earlier in the deed it was stated that the owners’ “heirs, executors and assigns” acquire the stipulated rights over the subdivisions.  The provisions of the deed were registered against the title deeds of all subsequent owners, including now the appellant and respondent. The respondent applied for

conditions, namely that the father retain a life usufruct over the property, and that once he dies his wife shall be granted a life usufruct and will be the beneficiary of a notarial deed executed by the son to pay £20 a month to her.  The father died and was survived by his wife and son, the former of whom was appointed executrix and is the appellant in this case.  She contended inter alia that the annuity of £20 was a usufructuary-like interest and therefore must have its value deducted from the donor’s estate in terms of the Death Duties Act. The Commissioner rejected this.

the defendant was under an additional obligation to provide and maintain the windmill and piping necessary for the plaintiff to exercise his right, and was suing o the grounds that the defendant had failed t meet this obligation.  The defendant had excepted to this claim because it has no leg basis; it constitutes an unlawful attempt to impose a praedial servitude

LEGAL QUESTION REASONING

an order declaring inter alia that the rights created by the township clause were personal rights. A single judge granted the application, and the matter is now brought before a full bench; the appellant contends that the rights are real. Can an obligation sounding in money be a real right?  To decide whether the township clause is a praedial servitude, as alleged, we must ask whether (1) it is of such a type of right as to be capable of being a praedial servitude, and (2) whether the parties intended it to be such. The second point arises only if the first question is answered in the

 The executrix applied to the Cape Provincial Division, but the court ruled that the obligation imposed by the annuity was personal to the son, and therefore not registrable in terms of the Act. The wife appeals to the present court Is an annuity right a real Can a servitude impose a right? positive obligation on the servient owner?  Counsel for the  It is common cause th appellant argued that the servitude of the annuity right would aquaehaustus is valid ‘run with the land’ and But the additional bind successive owners maintenance of the property, and requirement cannot b should therefore be a praedial servitude considered a real right. because a well-known  The question was then rule of Roman law raised whether this sort makes clear that no of obligation to pay servitude can cast up money, that will bind the owner of the successors in title, can servient tenement a

affirmative, because intention of the parties alone turn a personal right = real right. The fact that the right was registered does not make it real.  The dictum in Nel NO tentatively suggests that an annuity right could be real if the money comes from the land. Also, it was submitted that the right of a person to take natural fruits from the land is real in nature, so the right to take the civil fruits may be too. This is particularly so because the township clause would raise the value of the dominant tenement. Regardless, this is a conditional obligation to pay money by one person. His rights are

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in South African law be imposed upon land and registered as title. Lower courts had answered this question in the affirmative, as did counsel for both sides. However, the present court has never had to rule on this matter and there is no need to do so here. The important question is actually the more basic one of whether the donor had intended to impose the annuity condition as a personal obligation on his son, or rather as a real right which burdens the land. The relevant section of the transfer deed makes it abundantly clear that the donor intended it to be a personal obligation on his son.

positive duty such as this one.  The Registrar of Deed registered the servitud in its entirety. But it is quite possible that the Registrar of Deeds wa simply wrong to regist this right. Since the maintenance right doe not appear to satisfy t exception identified in  Ex parte Geldenhuys, and its registration contradicts the fundamental principle law that no personal rights are registrable, the fact that it was granted by the Regist of Deeds is ignored. The respondent countered that the intention of the parties created a genuine servitude. But the intention of the parties

curtailed, but not in relation to ‘the enjoyment of the land in the physical sense’. The cases referred to by counsel involving mineral rights provide a dubious analogy for the present matter, and should therefore be ignored. Ultimately the first leg of the test is not passed, and so this is indeed a mere personal right

cannot override the fundamental principle of law any more than can the Registrar of Deeds’ intentions.  This is independent o the question of wheth a personal obligation could have been imposed upon Els (the owner before the defendant) to compel him to provide maintenance. In fact, such an obligation wa imposed upon Els, an a reading of the deed transfer between Els and the defendant suggests that the defendant did indeed undertake to fulfill the maintenance obligatio While this is quite different to recognition of a real right to maintenance, and cou

ANSWER TO LEGAL QUESTION

No, it is typically a personal right.

OUTCOME

The appeal is dismissed

be rebutted in the late court proceedings, it i sufficient to fault the present exception. No verdict is reach. It is No, a servitude cannot tentatively suggested, though, impose a positive obligation that an annuity right could be on the servient owner. real if the payment derives from the land itself. The exception is dismissed Since the annuity right is not real, it does not entitle the with costs appellant to claim a deduction in terms of the Death Duties Act. The appeal is dismissed with costs.

CASE NAME

Nino Bonino v De Lange 1906 TS 120

SIGNIFICANCE

This case provides the locus classicus for mandemant van spoile

FACTS

Deals with a lessor and lesse. There was a clause in the lease in which the lessor could cancel the lease without referring to the law. There was a dispute about a potential breach of contract. Lessor referred to clause, without recourse to law and barricaded and took the keys thus

Telkom SA Ltd v Xsinet 2003 (5) SA 309 (SCA)

Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another 2020 (1) SA 52 (SCA) It is a case that uses a constitutional remedy instead of a possessional remedy Telkom provided a range The City of Johannesburg of services to Xsinet. Metropolitan Municipality Xsinet fell into arrears with payment for certain (the City) had a clean-up operation conducted in services – Telkom terms of its Public Health terminated all services By-Laws from a road telephone, bandwidth traffic island which systems which resulted in the effectively bringing destruction and removal Xsinet’s business to a halt. Xsinet successfully of the homeless applicants’ possessions applied for a spoliation order in the high court

LEGAL QUESTION REASONING

-A fundamental principle Xsinet argued that it has that no man is allowed to a right to the continuous

SCA held that mandament van spolie

take the law into his own hands (rule of law) -One must not revert to self-help -Used mandemant van spoilie -Appellant proved they were in peaceful and undisturbed possession of the accommodation when access to it was taken away

connection of the telephone and bandwidth systems, that it was in quasipossession of the systems by making use of the services and that it has discharged the onus of proving that the disconnection amounted to unlawful interference with its quasi-possession

or the substitution of the destroyed property thereof with similar goods, which the applicants sought, was not permissible. However, the SCA found that the destruction of the applicants’ property violated their rights to dignity and privacy, which included the right no to have their possessions seized. In the SCA’s view, a claim for damages would not be an appropriate remedy as it was unlikely that the applicants would be able to prove the market value of the property destroyed and the unwieldy was likely to fail or, at best, result in a nominal award of damages.

ANSWER TO LEGAL QUESTION OUTCOME

Case Name

Appeal was upheld

Eskom Holdings Soc Limited v Masinda 2019 (5) SA 386 (SCA)

Courts ordered Telkom to reconnect and restore to Xsinet the use and possession of the telephone lines and the bandwidth lines at its premises

The Courts ruled the removal of possession in this case as unconstitutional and unlawful and ordered the City to compensate the applicants in the sum of R 1500 each for the loss of their property.

Tswelopele Non-Profit Organisation v City of Tshwane 2007 (6) SA 511 (SCA)

Significance

Facts

The appellant in this matter, Eskom Holdings SOC Limited (Eskom), disconnected the supply of electricity to a property owned by the respondent and in her possession. The respondent proceeded to successfully apply to the high court in Mthatha as a matter of urgency for a spoliation order. Eskom then appealed to the Supreme Court of Appeal against that decision. It was Eskom’s case that the connection made from its grid to the respondent’s property was illegal and a danger to the public. For this reason it contended that it had acted lawfully in

three governmental agencies unlawfully evicted a group of squatters from an open piece of land in Moreleta Park/Garsfontein, Pretoria on 31 March 2006 and destroyed their homes. The eviction was carried out without a court order. Officials from the Tshwane Metropolitan Council, the Department of Home Affairs and the South African Police Services burnt down the shacks of about 100 squatters, who had been living on the land for about 18 months

disconnecting the supply. The respondent, however, argued that this was irrelevant and that, as she sought a spoliation order, the lawfulness or otherwise of the dispute was not an issue, and that the supply had to be reconnected whereafter the parties could determine its legality.

Legal Question

Reasoning

In order to justify a spoliation order the right must be of such nature that it vests in the person in possession of the property. Rights that flow from a contractual tie between the parties are insufficient for that purpose. Applying these principles

the SCA found that the officials’ wanton destructi...