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Case summaries for propertyCharacteristic and definition of thingsClassification of thingsFredericks v Stellenbosch Divisional councilFacts: Two applicants, Frederick and Cyster whom are both labourers in the bulldog industry lived in kraaifontein in Stellenbosch. Both are married and have children,...

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Case summaries for property

Characteristic and definition of things Classification of things

Fredericks v Stellenbosch Divisional council Facts: Two applicants, Frederick and Cyster whom are both labourers in the bulldog industry lived in kraaifontein in Stellenbosch. Both are married and have children, Fredericks has lived there for 2 years, Cyster 1 year. Both arrived home on the 14th feb 1977 to find their homes of corrugated iron demolished by employees of the respondent. All their personal possessions were lost and they without shelter. They both didn’t receive a notice of eviction, and both didn’t have permission to live there. The Court a quo didn’t want to grant relief as applicants had acted unlawfully by trespassing and erecting houses that didn’t comply with respondents building regulations. Therefore to permit occupation of buildings would be a contravention to the prevention of illegal squatting Act. Issues: Demolition of premises without legal process Judgment: ● The squatting Act, gives little protection to these unfortunate people without a home s 3b(2) states “a building/structure referred to in sub.sec (1) may be demolished only after 7 days of written notice of the intention to demolish has been given to the person who has erected the building if his/her whereabouts are known and such a period has expired” This was a ruthless disregard for the rights of the applicant. ● A “mandament Van Spoilie” Fundamental principle which states that no one is allowed to take the law into their own hands. ● The principle that a person in possession of property however unlawful his possession may be, however exposed to ejectment proceedings cant be interfered with in his possession except by due process of law. ● A“Mandament Van Spolie” may order something to be done in addition to putting a person spoiliated back in possession of the thing spoiliated i.e restore it to its former date. ● Respondent is to immediately restore to the applicants and put them back in possession of all their possessions and building materials removed by the respondent on the 18 th feb, and thus directing them to immediately to re-erect the homes of the applicants. ● Spoiliation

Rikhotso v Northclif Ceramics (Pty) Ltd and others [1996] 4 All SA 524 (W) Facts: Applicant and others settled in an informal settlement on land owned by the respondent. Some of the dwellings were made of combustible material, and others were made of iron sheets. On the 1st FEB 1996, respondent distributed notice to the occupants, warning them orally to vacate the property with the next 6 days. Applicant and others applied for a mandamant van Spoilie. Applicant and others applied for a spoliation order as he had been dispossessed of his dwellings. He stated that the swelling was set alight and burnt to the ground, causing dispossession. According to respondent,

dwellings were dismantled and iron sheets removed before the remaining combustible material was burnt. Issues: Dispossession of property and whether or not its lawful Judgment: ● Manner in which they were disposed is what is in dispute. Relying on S 38(1)(a)n of the prevention of illegal squatting ACT. “Owner of the land may without an order of the court demolish any building/structure erected or occupied on the land without his consent and remove material from the land.” ● However it clashes with the common law, to avoid breaches of peace; if you want to enforce a right, one must get officers of the law to assist in the attainment of rights. Therefore, to invoke such an action, one needs to show that he acted strictly within the terms, it is a fundamental principle that one may only act in a manner which is authorised by law; be it common/statute law. ● Respondent only entitled to demolish in the sense of pulling/tearing down without causing unnecessary damage. Therefore, court held that the dispossession and burning down of those dwellings was unlawful. However, those whose shacks were pulled down was lawful. ● Applicants stated they had tacit consent to erect the structures; settlement originated in NOV 95. ● Respondent gave a notice in Feb 1996 after various oral warnings, ther4 respondent hadn’t consented to them. Accordingly, with those dwellings dismantled, the respondent hadn’t acted unlawfully . ● Relief appealed for is that the dwellings which were burnt; not to be reassembled but new dwellings to replace them. The Mandament van spolie operates as a preliminary order for the restoration of the status quo. The assumption is that the property exists and that it may be awarded in due course to party entitled to it. Remedy is inappropriate if property has been destroyed as no possessory entitlement is left. ● “NB the Moment an applicant asks for return of an article or its value, he no longer claims a mandament van spolie but is relying on a VINDICATORY action”. ● Therefore one who takes the law into his own hands must be ordered to make a reparation. (# fredericks case). ● Therefore weight of authority supports that a spoiliation order cant be granted if the property in issue has ceased to exist, it’s a remedy for the restoration of possessions, not for the making of reparation ther4 application dismissed. VERY NB.

Tswelopele non-profit organisation and others v city of Tshwane metropolitan municipality and others Facts:100 individuals were evicted on a vacant piece of land in Pretoria. Officials from 3 joint govt agencies in a joint operation, expelled them from the rudimentary shelters that they had erected. Material such as plastics were used to construct their homes were torched. 16 illegal immigrants without sa documentation were caught and also evicted. Furthermore they wasn’t even a court order for their eviction=unlawful. Violation of const. Tswelopele sought an order for the respondent to restore the possession of occupiers before all else and in the interim to provide them with shelter under the mandament van spoile.. They also invoked pie s 25 and s 26(3) of BOR.Court a quo

dismissed application because mandament van spoilie is a remedy for restoration of possessions not reperation. Issues: Unlawful eviction, constitutional remedies, unnecessary to develop mandament van spolie Judgment: ● Occupiers went back to site after court order as officials had stated that they hadn’t been evicted, again their dwelling were demolished in may 2006. The settlement agreement would be granted @ the police station and then they would be moved to a homeless shelter. ● Gov agencies violated the warrant against unauthorised eviction, therefore occupiers right to personal security, occupier’s rights and their belonging and dignity. ● Historically police action had a racial trajectory, even with disappearance of racial trajectorybut what didn’t change was the exposure of the most vulnerable in society to police power and abuse. ● Ito Damages-respondent liable for damages1- scraps of building and waste materials occupiers used to construct their dwellings which =small damages. 2-Some may sue for an inijuria, invasion of privacy, the dignity sufered in the eviction. 3-criminal charges-respondents action controversial S8)(1) of pie; protection will have both instructional and and inhibitory efect, but provide no material benefit to the occupiers. ● The mandament ofered occupiers the relief they crave, its principle that the illicit deprivation must be remedied before courts will decide competing claim to the property. ● Remedy to be granted, should aim to instil recognition on the part of govt. ● Court held that respondent must reconstruct their shelters with material that aford habitable shelters, but because they are unlawful occupiers who are vulnerable to a properly obtained eviction under pie-the structures to be re=-erected must be capable of being dismantled. Rights The difference between real rights and personal rights Ex Parte Geldenhuys Facts: Case concerned a dispute about registrability of rights created in a will. Will stated that the land in the estate would be divided into = parts among the children, when the oldest one came of age. Will also contained a provision whereby the child who drew the portion that included the homestead would be obliged to pay an amount to the other children Issues: Servitude, what rights are registrable, personal and real rights Judgment: ● The direction in regard to time of the partition(divider) as to the drawing of the lots were real burdens on each undivided hare. Not merely an obligation on the person of each child.since the time made of each partition directly afected amd adhered to the ownership of the undivided shares that they must almost necessarily be regarded as forming a real burden on ownership. Since the title was registered against these shares. ● The obligaton was bidning on person in personal capacity not as the owner. ● The direction ito payment of 200 pounds though it was a jus in personam(personal right) and not per se registrable was connected with the registrable directions that the entire clause of the will should be registered against the title deeds.

● Grounds for objection was that the conditions of transfer created “a personal right”, that even if registered, would only be binding on the legatees and not on any transferees to whom the legatees might transfer their undivided share before partition(divider/division). ● Some servitudes are personal, because they r constituted in favour of a particular individual without reference to him being owner of the land. Others are praedial since they are constituted in favour of particular piece of land. However, all(limited rea; right) servitude =real rights. And burdens upon them are subject to them. ● NB with personal rights, they are binding on the present owner of the land and they don’t bind successors in title of the present land. Therefore personal rights against successors aren’t registrable against owner. ● Personal servitude(limited real rights) rights which are assignable ought to be registered against the title of the land which is burdened. ● One has to look at 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-the corresponding right=a personal right. Ther4 as a rule cant be registered. ● Common law each owner of an undivided share has the right to claim partition(division of share of property) at any time, and the claim of partition shall be efected either by agreement or the court. ● Therefore, the will modifies common law right and it limits it. ”an owner of an undivided share can by will be deprived for a specified time of his right to claim partition”. ● Held that the will is registrable against the title deeds of undivided shares. Lorentz v Melle Facts: V and L executed a notarial deed whereby they agreed to a division of part of the property, so that V would receive transfer of portion of “B” of the middle portion of the farm and that L would receive transfer of the contagious portion “A” b4 acquiring farm in co-ownership. If L lays township on his farm on his portion, V shall have half of the net profits arising from the sale of the township payable from time to time as each lot is sold. But V shall not be entitled to any share in such profits until L has reimbursed himself for al expenses of such township out of proceeds of stands sold.Deed provided that V and his “heirs, executors” should have certain rights over portion A. The first respondent applied for an order declaring that the rights created by the township clause were personal rights which were only communicable to their heirs, executors. Issues: Servitude(limited real right)- whether certain conditions which were registered against the title of the land created real or personal rights only? Judgment: ● Rights created by the deed were personal ones dealing with money and couldn’t be equated to a praedial servitude sanctity of the deeds register had to yield to the need for deleting the incorrect registration of a contingent personal. ● The township clause conferred only personal rights which even on their incorrect registration, were not capable of becoming and didn’t become a praedial servitude ● Principles relating to the creation and nature of servitudes restated. Main object was to give to the respective party’s certain rights to or over that portion owned by the other. ● Question is was they a servitude and did it create a real or personal right? 1- A servitude =’s (limited real right) -a right to one person in the property of another, entitling the former either to exercise some right or benefit in the property or to

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prohibit the latter from exercising one of his normal rights of ownership. Its an eg of jus in re aliena it diminishes an owners dominium in a thing. If the right is in favour of a certain individual without ref to his ownership of land, then 1 has personal servitude, can exist over immovable/moveable. If right is contributed in favour of the owner of another piece of land in his capacity as as such, then the servitude is a praedial or a real one. It can exist only over land and isn’t transferrable. It is the essence of a praedial servitude that it burdens the land to which it related, that it provides some permanent advantage to the dominant land. Furthermore court stated that the profit clause =’s a subtraction from the dominium principle-there4 does not make it on registration a real servitude. Therefere no real right is in existence, since there is no indicator that of no real right having been attached to the land, its only attached to the owner. **Nb test that was applied:” whether a contractual right amounts in any given case to a servitude depends upon the intention of the parties to be gathered from the terms of the contract, construed in the light of the relevant circumstances” in case of doubt, presumption will always be against a servitude. Onus is upon the person affirming the existence of one to prove it. ** Court held that a personal obligation even if registered doesn’t become binding upon a transferee of the land from debtor unless the transferee takes over obligation.

Pearly beach trust v Registrar of deeds(Subtract from dominium test) Facts: The applicant seeks an order that a certain condition embodied in an agreement of sale of immovable property is capable of being registered ito s 3(1) of deeds registry ACT. However deeds registry declined to register it, based on s63(1)- “which stated that no condition in a deed creating a personal right or which doesn’t restrict exercise of right of ownership in relation to immovable property shall be capable of registration”. Another condition was that 3rd party entitled to certain benefits, to receive from transferee or its successors in title 1/3 of net consideration received for rights to prospect for minerals on the property. 1/3 of net compensation received 4 expropriation of property, 1/3 of net considerations upon the disposal of the property to any authority who is vested with power of expropriation. Issues: deeds registry- contracts registrable-restriction on owners jus dispondendi Judgment: ● Applicant succeeded ● The test of registrability has been whether the correlative obligation is binding on the successors in title of the person, which the obligation rests. ● An obligation to pay money imposed on the owner of land quo owner out of the proceeds of the land may well regarded as a diminution of the ownership as creating real rights ● One of the rights of ownership=jus disponendi, or right of alienation. If the right is limited in the sense that the owner is precluded from obtaining the full fruits of the disposition, it can be said that one of his rights of ownership is restricted.

● The obligations in this case are binding on successors in title ther4 owners are not terminable (not able to be terminated) at will.`

Cape explosives v Denel pty ltd 2001 SCA Facts: The first appellant sold and transferred two pieces of land (a larger and smaller piece) to the 2nd respondent. Sale was subject to certain restrictions by the use of successor. First condition- land was to be used only for manufacturing weapons , 2nd condition armscor would give a first right of repurchase to the appellant when land was no longer needed for this purpose. The land was transferred to denel (1st respondent) subject to both conditions, however condition 2 was omitted, whilst 1st condition still applied. Denel south a declaratory order ito them being to owners of the land irrespective of condition 2. Issue: Whether conditions 1 and 2 are capable of being registered and what is the efect of them was in the subsequent title deed. Judgment ● Armscor intended to receive transfer of the property subject to condition 1 and 2, and they at no point disputed the condition and the wording of the deed of transfer. As well as the notarial agreement. ● Ito of s3 of deed registries Act all real rights are registrable in respect of Immoveable property. But two requirements must be met: 1. The intention of the person who creates real right must be to bind both the present owner as well as successors in title. 2. The nature of the right or condition must be such that the registration of it results in a ‘subtraction from dominium” of land its registered against. ● Council for contended that condition 2 was a personal right(in form of an option) to repurchase which could not be converted in2 a real right by registration. ● The two conditions formed a composite since they weren’t independent of one another and there4 couldn’t be separated.Ther4 specifically binding on the transferee and its successors. Furthermore they created a burden upon the land(subtraction of dominum) in that the use of the and by the owner was restricted. ● Held that conditions 1 and 2 constituted a real right which could be registered in terms of DRA. So since their real right was registered=maintainable against the whole world. Therefore Denel has no claim. There4 application dismissed.

General principles of ownership Content of ownership Gien v Gien 1979 (T)(case in Afrikaans, info from casebook note) Facts: Applicant instituted proceedings against the respondent for erecting an apparatus which caused a nuisance to him by means of it producing explosive noises which scare of baboons and other wild animals, but at the same breath it also functions day and night, in a somewhat rural area. Respondent could control the apparatus, however insisted that it’s his, since it’s on his own property, and it’s in protecting his own property. Applicant approached court ito instituting an interdict against respondent.

Issues: Can an interdict be instituted against nuisance? Judgment: ● A resident in a town or residential area is entitled to their ordinary comfort, as such there is a legal remedy for a neighbour if he is subjected to annoyance or inconvenience which a normal person must be expected to submit to. There4 standard is that of an objective reasonableness one which is ‘would a reasonable man one who according to ordinary standards of comfort and convenience and without any particular noise, would find it quite intolerable to the reasonable enjoyment of his property”. ● The requirements for an interdict: 1. The applicant must prove a clear right. 2. Respondent must intrude or threaten to intrude that right. 3. No other remedy must provide satisfactory protection of that right.

● What is the ‘right’ on which the applicant relies? It is the right to protect your rights of ownership (the right to peaceful and undisturbed enjoyment of a thing) against an unreasonable exercise by a neighbour of their rights of ownership. In Gien there was no dispute over (1) or (3). Instead the litigation turned on (2), whether the respondent had infringed the applicant’s right. ● s an owner has a duty not to exceed that limit, not to use the property in a way that infringes the rights of a neighbour. If the limit is exceeded, it is unlawful conduct that can be stopped by an interdict.’ ● Factors taken in2 ccount. ● Nb ito ownership, it is the most complete real right an individual possesses. An owner may...