Topic 1: What is Property?

| Definition of Things
1. Legal Subjects and Legal Objects

A legal subject is defined as any person or entity capable of acquiring rights and duties within a
legal system. This category encompasses natural persons (human beings) and juristic or legal
persons, such as companies, the State, universities, and close corporations. Legal subjects are
active participants in legal relationships, bearing legal rights and obligations.

Conversely, a legal object is that to which a legal subject's rights and duties relate. It represents
the "thing" over which a legal relationship is established. Legal objects are categorized into four
types: things (physical objects), performances (e.g., a promise to act), immaterial property (e.g.,
copyright, patents), and personality property (aspects of a person's personality with value, such
as image rights).

2. Real Rights and Legal Relationships

Law is the framework of rules that regulates society by defining the rights and obligations of
legal subjects. Rights are lawful entitlements or powers that legal subjects hold over legal
objects. A legal relationship forms when the law assigns consequences to the interactions
between legal subjects and/or legal objects.

A real relationship specifically arises when the legal object involved is a "thing". This relationship
involves two components: a subject-object relationship (between the legal subject and the thing)
and a subject-subject relationship (between the owner and third parties, leading to erga omnes
rights).

A real right is a legal right derived from a real relationship. It is enforceable against the entire
world (erga omnes) and confers direct control over the thing. For example, ownership of land is
a real right, granting the owner control and the ability to exclude others.

3. Classification of Property

While the term "property law" is commonly used, the specific focus is often on "the law of
things". Broadly, "property" refers to anything of economic value that forms part of a person's
estate. This broad sense includes things, obligations, succession (inheritance), and intellectual
property, collectively referred to as patrimonial law, which governs all legal relationships with
economic value.

More narrowly, the law of things is a branch of private law that governs the creation, content,
protection, transfer, and termination of real rights over things. It also addresses the rights and
duties stemming from real relationships between legal subjects and things. Although largely
substantive private law, modern developments mean it now intersects with public law, as seen in
cases of expropriation or land use restrictions.

4. Domain and Scope of Property Law

The domain and scope of property law encompass several areas:

 1.​ Direct allocation of things (iura in re): This regulates the possession, ownership, and
other real rights pertaining to tangible things.
2.​ Extension to incorporeal rights: Through analogy, concepts are extended to include
rights such as inheritance and intellectual property (ideas, designs, trademarks).
3.​ Law of possession: Despite not being a real right, possession is fundamental in property
law, relevant for acquisition or protection.
4.​ Law of obligations: This gives rise to personal rights (e.g., to claim performance from
another), known as iura in personam or rights ad rem (indirect access to things).
5.​ Law of succession: This involves the transfer of property upon death.
6.​ Law of companies and associations: This involves rights over patrimonial assets, often
intertwining with both property and contract law.

5. The Function of the Law of Things

The law of things serves several crucial functions:

1.​ It regulates competing real rights, such as resolving boundary disputes between
neighbors.
2.​ It balances ownership rights with the rights of others holding limited real rights over the
same thing (e.g., servitudes, leases).
3.​ It governs the acquisition, protection, and loss of things and real rights.

6. Sources of the Law of Things

The law of things draws from various sources:

●​ Roman law: Provides foundational principles.
●​ Germanic law: Influential, especially in land registration systems.
●​ English common law: Influences doctrines like rei vindicatio (claim for return of property)
and estoppel.
●​ Statutes: Including the Deeds Registries Act, Prescription Act, and Expropriation Act.
●​ Case law: Courts continuously shape the law based on societal needs.

7. Definition and Characteristics of a "Thing"

In legal terms, a "thing" (res) is defined as: "An independent part of the corporeal world, external
to humans, subject to human control, and useful and valuable to people".
Characteristics of a Thing:
1.​ Corporeality: A thing must be tangible, occupying space and perceptible by the senses.
While Roman law only recognized corporeal objects as things, modern law increasingly
acknowledges intangible (incorporeal) objects like rights.
2.​ Impersonal nature: A thing cannot be a human being, as legal subjects cannot be legal
objects. Parts of the human body are generally not considered things unless they can
regenerate (e.g., hair, blood).
3.​ Independence: A thing must possess individual legal existence. Physical independence
is not always required; for example, a section of land can be surveyed even if it's part of a
larger whole. A house is not independent of the land; they form one legal object.
4.​ Susceptibility to human control: The object must be capable of being dominated or
controlled. This distinguishes things from natural phenomena like air or oceans, unless
the law states otherwise.
 5.​ Usefulness and value: The object must be beneficial and valuable to humans. This value
does not strictly require economic worth; sentimental or functional value can suffice.

8. Debate: Should Incorporeal Objects Be Recognised as Things?

Arguments Against:
●​ It is difficult to distinguish between different types of rights.
●​ Jurisprudential issues arise, as one right should not be the object of another.
●​ Real rights require direct control, which incorporeal objects lack.
Arguments For:
●​ The increasing importance of digital and non-physical assets necessitates their
recognition.
●​ Legal systems are evolving, and incorporeal "things" (e.g., electricity, internet access,
digital files) are valuable and widely used.
●​ Modern law increasingly acknowledges these as legal objects despite their lack of
corporeality.

Classification of Things
The vast number of objects defined as things can be categorized to aid various aspects of
property law. The classification of things is crucial as it helps determine the applicable legal
rules or principles for acquisition, protection of rights, and the nature of the object involved. The
function of a thing in a particular circumstance determines its classification. Things are classified
based on two main criteria: their relation to humans and their inherent nature.

Classification According to a Thing's Relation to a Person

This classification distinguishes between things capable of being owned and things incapable of
being owned, based on their function or purpose in legal processes rather than their intrinsic
nature.
Negotiability
The negotiability of a thing significantly influences its legal function. Things are categorized as:
●​ Res in commercio (things in commerce, i.e., negotiable).
●​ Res extra commercium (things outside commerce, i.e., non-negotiable).
Res Extra Commercium (Not Negotiable)
These are things that cannot be privately owned:
1.​ Common Things (Res communes omnium): According to natural law, these belong to
everyone and no one. They are not subject to private legal control but are freely usable by
all (e.g., air). Ownership can be acquired by taking specific portions (e.g., gas in a
cylinder), at which point they enter commerce. In Roman law, obstructing access to
common things could lead to an action in injuria.
2.​ Public Things (Res publicae): These belong to the entire civil community, often referred
to as state property. They are used for the general benefit and use of the public (e.g.,
seashores, national parks).
3.​ Other Res Extra Commercium: Things not freely negotiable for religious or ethical
reasons (e.g., body parts, corpses). A corpse and its parts are not considered things.
Roman law included res divini iuris (things belonging to the gods), but this is not
recognized in modern law. However, land with family graves might arguably be seen as
 outside commerce.
Res in Commercio (Negotiable Things)
These are things that can be privately owned.
Classification:
1.​ Things owned by a person (Res alicuius): These belong to a legal subject at a given
time. Subcategories include res singulorum (owned by individuals) and res universitatis
(owned by corporate bodies).
2.​ Things not owned by a person (Res nullius): These are susceptible to private
ownership but are not owned at a particular time. Examples include birds and bees before
capture (never privately owned), wild animals regaining freedom (ownership is lost), and
abandoned things (which must be intentionally relinquished; mere loss of possession is
insufficient).

Classification According to the Nature of the Thing

This classification is based on the inherent qualities or characteristics of the thing itself, rather
than its relation to humans.
Corporeal and Incorporeal Things
1.​ Corporeal Things: In Roman law, the law of things exclusively dealt with corporeal
(tangible) objects. These are perceptible by the senses, can be felt or touched, and
occupy space.
2.​ Incorporeal Things: These are intangible objects, often referring to rights (e.g.,
servitudes, intellectual property). Legal debates arise concerning whether electricity can
be stolen or if electricity supply, internet service, or telephone service can be objects of
spoliation

Academic Debate: Can Incorporeal Objects Be Classified as Things?

Reasons to Exclude Incorporeal Things:

1.​ Difficulty distinguishing between different types of rights if incorporeals are classified as
things.
2.​ One right cannot be subject to another right, which is jurisprudentially problematic.
3.​ The nature of the relationship between a person, a real right, and the thing assumes
direct physical control, which incorporeals do not allow.
Reasons to Include Incorporeal Things:
●​ Modern developments necessitate recognizing the importance of incorporeals.
●​ The strict requirement of corporeality as an essential characteristic of property is no
longer sustainable.

1. Movable and Immovable Things

A. Immovable Things
Definition: Immovable things include land and anything permanently attached to it, whether
naturally (like trees) or artificially (like buildings). Examples include a plot of land, a house, a tree
rooted in the ground, a borehole, or an underground tank.
Legal Significance: A key test is whether the object is so attached that its removal would cause
damage or loss of identity, or if its function depends on being affixed to the land.
B. Movable Things
Definition: Movable things can be physically moved from one location to another without
damage or loss of identity, considering their size, nature, and composition. Examples include a
table, a car, books, or harvested granite or timber.

Important Detail: Sometimes, a movable becomes part of an immovable if it is annexed to land

in a way that causes it to lose its independent character. This transformation depends on three
factors: the nature of the thing, the manner of annexation, and the intention of the annexor (the
owner of the movable).

Case Example: Silverstone (Pty) Ltd & Another v Lobatse Clayworks (Pty) Ltd (Botswana High
Court Misca No. 148/95, unreported) considered whether a movable item affixed to land
became immovable and if it could be removed without damaging the structure or losing its utility.

C. Incorporeal Property - Movable or Immovable

Definition: Incorporeals are intangible things, such as rights and obligations. Examples include a
servitude (an immovable incorporeal), shares in a company (a movable incorporeal), or
intellectual property rights.
Rule of Thumb: If the incorporeal right pertains to land, it is treated as immovable (e.g., a right of
way). Otherwise, it is movable.

Why the Distinction is Important

1.​ Criminal Law: Theft usually applies to movable property. Arson applies only to
immovable property (e.g., burning a house).
2.​ Conflict of Laws: Movable property is governed by the law of the owner’s domicile.
Immovable property is governed by the law of the place where it is situated (lex situs).
3.​ Security Rights (Hypothecation): Pledge involves security over movables. Mortgage
involves security over immovables.
4.​ Transfer of Ownership: For movables, ownership is transferred by delivery. For
immovables, ownership is transferred by registration in the Deeds Registry (e.g.,
Botswana: Deeds Registry Act).
5.​ Sale in Execution: A sheriff will first sell movables, and only if insufficient, then proceed
to immovables.

2. Divisible and Indivisible Things

A. Divisible Things
Definition:
A thing is divisible if, upon division, each part corresponds in function and nature to the whole
before division, and the combined value of the parts is not significantly less than the original
thing. Examples include a plot of land, a tank of oil, or bulk commodities like grain or water.

B. Indivisible Things
Definition:
A thing is indivisible if dividing it destroys its essential nature or significantly reduces its total
value. Examples include a car, a painting, or machinery.

Legal Consequence: If joint owners possess an indivisible thing and disagree on its division,
courts will order the thing to be sold and the proceeds divided, rather than physically dividing the
item.

3. Consumable and Inconsumable Things

A. Consumable Things
Definition: Things that are destroyed or used up when used according to their natural purpose.
Examples include food, petrol, ink, or cigarettes.

Key Rule: Wear and tear does not render something consumable; only total destruction in use
does.

Legal Application: Consumables can be the object of a loan for consumption (mutuum), where
ownership passes to the borrower who must return equivalent items, not the same items.
B. Inconsumable Things

Definition: Items that can be used repeatedly without being destroyed. Examples include a chair,
a bicycle, or a watch.

Legal Application: Inconsumable things can be subject to a lease or loan for use
(commodatum), where the same object is returned.

4. Fungible and Non-Fungible Things

A. Fungible Things
Definition: Fungibles are replaceable, interchangeable items determined by weight, measure, or
number, rather than individuality. Examples include cans of Coke, bags of sugar, or liters of fuel.

Legal Implication: In contracts, if fungible items are destroyed, another item of the same kind
can be substituted.

B. Non-Fungible Things
Definition: Non-fungibles are unique, specifically determined things that cannot be substituted.
Examples include a specific car (identified by VIN), a wedding ring with sentimental value, or
original artwork.

Legal Consequences: In a contract, if a non-fungible item is destroyed, it cannot be replaced

unless both parties agree. In succession, if a specific non-fungible bequeathed item no longer
exists, the legatee receives nothing in its place.

5. Single and Complex (Composite) Things

A. Single Things
Definition: A thing that exists independently as a whole. Examples include a knife, a cell phone,
or a book.

B. Complex or Composite Things

Definition: A thing composed of various parts, yet regarded in law as a single object due to their
permanent combination. Examples include a bicycle (frame, wheels, seat) or a house (roof,
walls, doors, fittings).

Categories within Composite Things:

1.​ Principal Thing: The dominant thing.
2.​ Accessory Thing: Physically attached and loses its identity (e.g., a built-in cabinet).
3.​ Auxiliary Thing: Not physically attached but belongs with the principal for use or function
(e.g., a gate lock).

Note: Auxiliary things are not automatically included in transactions unless specifically
mentioned.

Case Example: Khan v Minister of Law and Order 1991 (3) SA 439 (T) clarified the relationship
between principal, accessory, and auxiliary things and how ownership and rights attach.

6. Fruits

Definition: Fruits are products derived from a principal thing, intended to be separated and used.
A. Before Separation: Fruits are considered accessories of the principal thing. B. After
Separation: Fruits become independent legal things.
Types of Fruits:

1.​ Natural Fruits: Produced by nature or with minimal human aid (e.g., apples from a tree,
offspring of animals).
2.​ Civil Fruits: Yields derived from legal relationships (e.g., rent from leasing a house,
interest on a loan).

Ownership: Usually, the owner of the principal thing owns the fruits. However, someone else
(e.g., a lessee) may have the right to enjoy the fruits.
Legal Categories:

●​ Hanging Fruits: Still attached to the principal.

●​ Collected Fruits: Already harvested.
●​ Consumed Fruits: Already used or sold.
●​ Fruits That Should Have Been Collected: Missed harvests due to negligence or bad
timing.

Introduction to Real Rights and Personal Rights

In patrimonial law, a distinction is drawn between real rights (ius in re) and personal rights (ius in
personam). This distinction is not merely theoretical; it underpins two key branches of private
law: the law of things and the law of obligations.

2. Definition and Nature of Real Rights

A real right is a right that establishes a direct legal relationship between a person and a thing. It
arises from the direct attribution of a thing to a person, often enforceable without reference to
any debtor or obligation. This implies that a real right can, in theory, be exercised against the
world at large; it is absolute in nature.

Examples: Ownership (the most comprehensive real right) and limited real rights such as
servitudes (e.g., a right of way) and security rights (e.g., mortgage, pledge).

Key Case Law:

Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 (3) SA 569 (SCA) reinforced the
independence and absoluteness of real rights.

Ex parte Geldenhuys 1926 OPD 155 affirmed that real rights can be registered.

Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267 distinguished real from
personal rights based on the object and enforceability.

3. Definition and Nature of Personal Rights

A personal right arises from an obligation between legal subjects. It is a relative right,
enforceable only against a specific individual or group who owes a duty of performance. These
rights are often created through contracts, delicts, or unjust enrichment. An example is a
tenant’s right to occupy a property based on a lease agreement.

4. Legal Significance of the Distinction

Aspect Real Rights Personal Rights

Field of Law Law of Things Law of Obligations
Enforceability Against all (absolute) Against specific persons
(relative)
Transfer/Registration Often requires registration (e.g., Does not require registration
deed of transfer or cession)
Protection Through real actions (e.g., rei Through personal actions (e.g.,
vindicatio) condictio)
This distinction is important because it dictates different remedies, registration procedures, and
legal effects. It also impacts how ownership and interests in land are transferred and protected.

5. The Deeds Registries Act

Key Provisions:
●​ Section 5: Lists rights registrable as real rights.
●​ Section 17: Real rights (e.g., ownership, servitudes) must be transferred via notarial deed
and registered.
●​ Section 60:
○​ Subsection (1): Prohibits registration of personal rights in respect of immovable
property.
○​ Subsection (2): Ensures restrictive conditions in title deeds are enforceable only if
clearly ascertainable.
6. Theoretical Approaches to the Distinction

(i) Personalist Theory

Focus: On whom the right is enforceable against. Real rights are enforceable against the whole
world, while personal rights are enforceable only against specific individuals.

Criticism: Estoppel may limit an owner’s right to reclaim a thing. Certain personal rights may
have effects against third parties (e.g., contract interference cases). Not all absolute rights are
real rights (e.g., right to dignity or copyright).

Value: Still useful in determining registration eligibility of rights under property law.

(ii) Classical Theory

Origin: Roman law. Focus: Nature of the object. Real rights involve a legal relationship with a
thing, while personal rights involve a legal relationship between persons. A real right entitles the
holder to control and dispose of a thing. A personal right entitles the holder to claim
performance (give, do, or not do).

Example: When buying a car, before delivery, the right to the car is personal (contractual). After
delivery, the right becomes real (ownership).

Criticism: It is difficult to define "direct relationship with a thing". Some personal rights also
involve things (e.g., ius in personam ad rem acquirendam).

7. Distinguishing Criteria Between Real and Personal Rights

Criterion Real Rights Personal Rights

Object A corporeal thing (with limited Performance (to do/give/omit)
exceptions like pledge of
claims)
Content Direct control and disposal of Right to performance by a
the thing debtor
Remedy Real actions (e.g., rei Personal actions (e.g.,
vindicatio) condictio)
Origin Legal facts like delivery, Legal obligations: contract,
accession, prescription delict, unjust enrichment
Absoluteness Enforceable against all Enforceable only against a
specific person
8. Examples of Rights and Their Classification

Right Real or Personal? Justification

Ownership of a house Real Direct control over property;
enforceable against all
Servitude (e.g., right of way) Limited real right Registered against another’s
property
Lease agreement Personal Right to use; based on contract
Right Real or Personal? Justification
Right to delivery under a sale Personal Based on performance
contract obligation
Mortgage registered over land Limited real right Must be registered; enforceable
against the world
While no single theory is entirely conclusive, both personalist and classical theories provide
valuable guidelines.

The distinction is crucial for understanding legal remedies, registration procedures, and
transferability and enforceability. Understanding the true nature of the right involved is essential
when determining whether it is a matter of property law or the law of obligations.

TOPIC 4: The Courts’ Approach to Registration of Real Rights

Basic Principle

Only real rights (not personal rights) may be registered against title deeds in the Deeds Registry.
The purpose of this is to bind successors in title and to inform third parties of encumbrances on
land ownership.

Section 63(1) of the Deeds Registries Act 47 of 1937 stipulates that only rights in land which
qualify as real rights may be registered. Registration provides public notice, but it does not
convert a personal right into a real right.

Test for Registrability of Real Rights (Twofold Test)

1.​ Intention to Bind Successors in Title: The parties must intend for the right to operate
not only between themselves but also against future owners.
2.​ Subtraction from the Dominium: The right must impose a burden on ownership itself
(not just on the current owner personally). This means the owner's entitlements must be
reduced or limited in some way.
Both requirements must be present.

Ex parte Geldenhuys 1947 (Subtraction from Dominium Test)

Facts: A will provided for inheritance and subdivision of land among family members. One
clause required division of the land by lot, while another required payment by the heir receiving
the homestead.

Court’s Findings:
●​ Clause 1 (subdivision): This was deemed a real right because it imposed a burden on the
land by restricting when and how it could be subdivided. It limited co-owners’ rights, thus
subtracting from dominium.

●​ Clause 2 (payment of money): This was held to be a personal right because the burden
was on the individual heir, not on the land. It did not subtract from dominium.

Exceptionally, the court allowed the registration of both clauses because Clause 2 was ancillary
to Clause 1.

Important Principle: A personal right may be registered only if it is inseparable from a registrable
real right and necessary for its operation.

Cape Explosive Works Ltd v Denel

Facts: Land was sold with certain conditions, including Clause 6, which restricted its use solely
for armaments, and Clause 7, which provided a right of pre-emption (first right to repurchase).
Only Clause 6 was registered; Clause 7 was omitted during transfer to Denel.

Court’s Findings:
●​ The intention to bind successors in title was clear.

●​ Clause 6 (limited use) was a real right, as it subtracted from dominium.

●​ Clause 7 (right of first refusal) was also a real right, as it functioned as a mechanism to
enforce Clause 6. Clause 7 did not exist independently, making it registrable as part of the
system of obligations.

●​ Denel was bound despite the omission because the conditions were part of the title under
which Denel acquired ownership.

Key Takeaway: Real rights may still bind successors even if mistakenly omitted from later
deeds, provided they were registered in the chain of title and intended to bind successors.

Other Key Points to Know

●​ Possession is not a real right and therefore cannot be registered.

●​ Obligations to pay money are typically personal rights, unless tied to a real right (as
illustrated in Geldenhuys).
●​ Security rights: A mortgage is a real right, while a pledge requires delivery.
●​ Registration does not convert a personal right into a real one; only valid real rights can
bind successors.
●​ Constructive notice does not apply to personal rights.
IRAC Application Tip:

●​ Issue: Is the right registrable as a real right?

●​ Rule: Apply the twofold test (intention + subtraction from dominium).
●​ Application: Analyze the content of the right and the obligation it imposes.
●​ Conclusion: Registrable only if both requirements are met.

Topic 5: Key Principles for Property Rights

A. Requirements for Recognition of a Real Right

A real right (property right) is legally recognized only if it complies with certain core principles:
 1.​ Principles Regarding the Object of a Property Right

(a) Speciality Principle: A real right must pertain to a specified and individualized thing (res
singulae), not a group of things, unless the group constitutes a legal or factual unity.

This includes universitas facti (a factual unity legally recognized, e.g., stock of goods,
investment portfolios) and universitas iuris (a legally recognized mass, e.g., an estate or
patrimony). Flexibility in determination is based on objective factors (economic use or physical
unity), not subjective intent.

(b) Unity Principle: A real right pertains to a whole thing, not parts of a thing. The law considers
the entire object as the subject of the right.

(c) Determination (Certainty) Principle: The thing must be clearly determined or identifiable. A
real right cannot exist over an unspecified item from a mass of generic things.

2.​ Application of These Principles

(a) Immovables (Land):

Unity and speciality are often conventional, defined by land registers, symbols (fences, walls),
or cadastral boundaries, rather than physical characteristics.

Examples like apartment buildings illustrate that "the nature of things" does not mandate a
specific system.

The publicity requirement ensures that as long as land is registered, parties can define real
rights (e.g., servitudes, fiduciary ownership, sectional title)

.(b) Movables:
Determination is not solely physical but may be based on economic or functional unity. It is
limited by the publicity principle, such as physical delivery for ownership transfer.

3.​ Key Principles in the Law of Things

(1) Numerus Clausus:

The list of real rights is closed (a fixed set). While courts may develop new real rights, this can
undermine legal certainty, necessitating a balance between certainty and development

(2) Absolute Nature of Real Rights:

Real rights are enforceable against the world (erga omnes). The maxim ubi rem meam invenio,
ibi vindico (where I find my thing, there I may vindicate it) applies.

(3) Publicity:
Ensures transparency of real rights: delivery for movables and registration at the Deeds Office
for immovables.

(4) Specificity:
Real rights must be attached to specific things. Unlike contracts (which allow transfer of mass or
generic items), property law requires individuation.

(5) Transmissibility:
Real rights can be inherited or transferred by cession. An exception exists for some servitudes
which are personal and not transferable.

4.​ Characteristics of Real Rights (per Van der Merwe - LAWSA)

1.​ The object is usually a thing (corporeal/incorporeal).
2.​ Allows direct physical control (though not always).
3.​ Absolute – binds third parties and successors in title (a distinguishing feature).
4.​ Preference in insolvency.
5.​ Prior in tempore potior in iure (prior in time stronger in law) – an earlier right
prevails.
6.​ Requires publicity (e.g., registration).
7.​ Arise from juristic facts (e.g., delivery, registration, agreement).
5.​ Distinction: Real Rights vs Personal Rights
Feature Real Rights Personal Rights
Nature Rights in things Rights against persons
Enforceability Against the world (erga omnes) Against specific persons
Transferability Freely transferable May not always be transferable
Insolvency preference Yes No
Example sources Ownership, servitudes Contract, delict, unjust
enrichment
1.​ Types of Real Rights
(i) Traditional (Roman Law)
1.​ Ownership – full legal title.
2.​ Servitudes – limited rights over another’s land.
3.​ Pledge – security over movables.
4.​ Mortgage – security over immovables.

(ii) Developed in Roman-Dutch Law

5. Huur Gaat Voor Koop – lease survives sale of property.

(iii) Modern Real Rights

6. Mineral Rights – limited rights subject to statute.
7. Statutory lease/hold – e.g., RDP housing.

2.​ Registration and the Deeds Registries Act

●​ Only real rights (not personal rights) can be registered.
●​ Geldenhys v Borman: Test for registrability: “No deed or condition in a deed purporting to
create a personal right, and no condition which does not restrict ownership, shall be
capable of registration”.
●​ Effect of non-registration: Transfer is valid between parties, but not enforceable against
third parties.
Ownership
Ownership is a dynamic and evolving concept that has developed over centuries and is shaped
by the prevailing ideological, socio-political, and economic foundations of society. It is not a
static legal notion; rather, it continuously adapts to meet the changing needs and values of the
society in which it operates. At its core, ownership is considered the most comprehensive real
right a person can have in relation to a thing. However, this right is not absolute or without
limits—it can be restricted or qualified by laws, policies, and social considerations.

The most complete and authoritative form of ownership in property law is referred to as
dominium. This concept derives from Roman law and encapsulates the fullest extent of rights
one can hold over an object.

Dominium is understood and described by its various entitlements, distinguishing

characteristics, and its inherent inviolability. While ownership represents the primary real right,
other property rights are considered limited real rights.

These are subordinate in nature, deriving from or depending on ownership. Ownership,

therefore, is often described as the “mother right,” because all other real rights originate from it.
When a limited real right is created—for example, a servitude or mortgage—it restricts the
owner's rights in certain respects. Yet, the residual or underlying rights remain with the owner,
and once the limitation expires or is extinguished, the ownership “springs back” to its full extent.
This principle is known as the elasticity of ownership.

Because of its complexity and adaptability, ownership does not lend itself to a single,
all-encompassing definition. Instead, it is typically described through its components, such as
entitlements and features. The common law approach emphasizes the theoretical completeness
of the right—namely, that only the owner has the most absolute and exclusive authority over the
property. This is tied to the principle that no person can transfer more rights than they
themselves have, reinforcing the unique legal position of the owner.

1. Entitlements of Ownership
Ownership is often defined with reference to the specific entitlements or powers it confers upon
the owner. These entitlements were articulated in the case of Johannesburg Municipal Council v
Rand Township Registrar 1910 TPD 13 at 14, and include:

●​ The right to use the thing (ius utendi)​

The entitlement to use and enjoy the thing is generally regarded as one of the most
important aspects of ownership. Individuals often seek to acquire ownership precisely
because they desire to use and benefit from the object in question. However, this right
can be voluntarily limited. For example, if the owner grants a real right such as a right of
habitation, they limit their own ability to use the property. In that case, the holder of the
servitude (e.g. the person with the right of habitation) has the use and enjoyment of the
property instead of the owner.​
 ●​ The right to fruits, including income (ius fruendi)​
An owner has the right to the natural fruits (such as crops or animal offspring) and civil
fruits (such as rental income) produced by the property. However, like other entitlements,
this right may be limited. For instance, if the property is pledged, control of the fruits may
temporarily pass to the pledgee.​

●​ The right to consume or destroy the thing (ius abutendi)​

This includes the right to use up the thing completely or to destroy it. In modern society,
this entitlement is increasingly being questioned, especially in relation to valuable or
culturally significant items. The state may place restrictions on destruction, for example,
where the object is considered a cultural artifact or part of the national heritage. Whether
the owner can truly destroy such a thing depends on how society and the law perceive
its value and role.​

●​ The right to possess the thing (ius possidendi)​

Ownership carries with it the right to possess the property physically. However, this right
may be relinquished or limited—for example, when the owner pledges the property as
security, transferring control to the pledgee.​

●​ The right to dispose of the thing (ius disponendi)​

The owner has the entitlement to alienate the property, whether through sale, donation,
or other means. Ownership is only transferred to the new party once legal transfer has
occurred. In the case of movable goods, this happens through delivery, while for
immovable property, it takes place through registration. Only the owner or someone with
legal authority from the owner can transfer ownership. This reflects the principle of
inviolability, which is anchored in the Roman law maxim nemo plus iuris in alium
transferre potest quam ipse habet—meaning no one can transfer more rights than they
themselves possess. Thus, even if a non-owner sells the property, ownership does not
pass unless the seller is legally authorized.​

●​ The right to burden the thing​

The owner may burden the property by granting others limited real rights, such as a
mortgage, pledge, or servitude. While this limits the full enjoyment of ownership, it does
not extinguish it. The owner remains the holder of the underlying ownership, which
reverts to its full scope once the burden is lifted.​

●​ The right to reclaim the thing (ius vindicandi)​

Due to the inviolability of ownership, an owner can vindicate their property from any
person unlawfully in possession of it. The owner only needs to prove ownership; it is not
necessary to prove wrongdoing by the possessor.

2. Characteristics of Ownership (Dominium)

Ownership, or dominium, is marked by several distinct characteristics:

1.​ Ownership is the “mother right”

 2.​ It serves as the origin from which all other real rights stem. Limited real rights such as
servitudes or pledges are derived from ownership.​

3.​ It is an independent right​

Ownership stands alone and is not derived from any other right, unlike servitudes or
other limited rights that depend on the owner's authority.​

4.​ It grants the most comprehensive control​

Among all real rights, ownership provides the broadest and deepest control over the
property, encompassing a wide array of entitlements.​

5.​ All other property rights flow from it​

Because it is foundational, other rights such as leases, mortgages, or usufructs exist
only because of ownership.​

6.​ The ability to dispose of entitlements​

The owner can grant many of their entitlements to others, such as the right to use or
enjoy the property. Even when such entitlements are transferred, ownership remains
intact.​

7.​ Reversionary nature of ownership​

When an owner grants a limited real right, they do not lose their ownership; instead, the
entitlements that are not granted remain with the owner. Once the limited right ceases,
the owner's full rights revert.​

8.​ Residual character or elasticity​

This refers to the ability of ownership to “spring back” to its full form once any limitations
or burdens fall away. The ownership resumes its original completeness without the need
for re-acquisition.​

9.​ Ownership is unlimited in duration​

Unlike some limited rights which may expire after a fixed period, ownership endures
indefinitely unless it is lawfully transferred or terminated.​

3. Inviolability of Ownership
The concept of inviolability is central to understanding ownership. It means that ownership
cannot be taken away or transferred without the owner's consent. This principle is embedded in
the Roman law maxim nemo plus iuris in alium transferre potest quam ipse habet. In essence, a
person cannot give another more rights than they themselves possess. Therefore, a sale or
transfer by a non-owner, or someone who lacks authority, cannot validly transfer
ownership—even if the transaction is otherwise valid. This protects owners from arbitrary or
unauthorized dispossession of their property and reinforces the unique and protected status of
dominium in the legal system.
Limitation of Ownership

Introduction to Ownership

Ownership (dominium) represents the most comprehensive right a person can hold over a thing,
whether movable or immovable property. It includes the power to use, enjoy, and dispose of
property fully. However, ownership is not absolute; it is subject to certain legal limitations and the
rights of others. These limitations define the boundaries within which an owner may exercise
their rights.

Ownership may be held by a single individual or jointly by multiple persons. It is sometimes

referred to as the “mother right” because all other real rights (limited rights) derive from
ownership. Limited rights, or ius in re aliena, such as servitudes, usufructs, or leases, represent
partial rights over the property of another and therefore restrict the owner’s full dominion.

Nature and Scope of Ownership

Ownership is traditionally described as plena in re potestas, which means the owner has full
control over their property. Despite this, ownership is inherently limited by the fact that other
persons’ limited real rights may exist over the same property. Furthermore, ownership is limited
by law in the public interest and by private law considerations such as neighbour law.

Botswana’s legal framework, influenced by Roman-Dutch law, recognizes that ownership is a

right that must be exercised within the confines of law and respect for others’ rights. Ownership
does not give the proprietor the license to harm neighbours or the environment.

Public Law Limitations on Ownership

Public law limitations arise from statutory provisions enacted by the state. These may include
planning regulations, environmental laws, and compulsory acquisition (expropriation) under
Botswana’s Constitution and the Acquisition of Property Act. These limitations serve the public
interest by regulating land use, preventing environmental degradation, and allowing for
infrastructure development.

While these limitations restrict the owner’s freedom, the Constitution provides safeguards, such
as the requirement for just compensation in cases of expropriation.

Private Law Limitations: Neighbour Law

The most significant private law limitations on ownership come from the law governing relations
between neighbours. This area of law aims to balance competing interests and prevent abuse
by owners that might harm neighbours.

Neighbour law sets out duties and restrictions on owners in order to prevent their use of
property from becoming a nuisance or causing damage to neighbouring properties.
Nuisance

Nuisance is a central concept in limiting ownership rights in neighbour law. It describes

interference with a neighbour’s use or enjoyment of their property, even when no physical
damage occurs.

The courts distinguish between nuisance in the narrow sense and nuisance in the broad sense:

●​ Nuisance in the narrow sense includes annoyances such as noise, smells, smoke, or
vibrations, which interfere with a neighbour’s comfort or personal well-being but do not
necessarily cause physical damage to property.​

●​ Nuisance in the broad sense involves interference that causes actual physical damage
to the property.

Courts in Botswana and other common law jurisdictions have recognized nuisance as a ground
for restricting an owner’s activities. Remedies include prohibitory interdicts to stop the nuisance
and claims for damages.

Case Law: Malherbe v Ceres Municipality

In Malherbe v Ceres Municipality, the court considered the extent to which an owner can be
held liable for nuisance affecting neighbours. The case illustrates the principle that owners must
use their property reasonably and avoid activities that unlawfully interfere with neighbours’
rights. The court emphasized fairness and reasonableness in determining whether an activity
constitutes a nuisance.

Damage to Property and Liability

When nuisance causes damage to neighbouring property, the owner responsible may be liable
for damages. Liability depends on whether the nuisance was lawful or unlawful and the nature
of the harm caused.

Case Law: Regal v African Superslate

In the case of Regal v African Superslate, the court dealt with liability for damage caused by
activities of a previous owner. The court held that a current owner is not automatically liable for
damage caused by a previous owner unless the current owner could reasonably prevent further
damage and failed to do so. This case establishes the principle that liability is not absolute but
depends on the ability and duty to prevent ongoing harm.

Lateral and Surface Support

Owners have a right to lateral and surface support of their land from adjoining properties. This
means that a neighbour must not excavate or build in a way that causes the natural support of
the land to be compromised, leading to subsidence or damage.

Liability for damage resulting from loss of support is generally strict — meaning the neighbour
causing the damage is liable regardless of fault. This principle protects owners from interference
that could destabilize their land.

However, strict liability applies only to land in its natural state. Once land has been altered
through construction or other development, liability is governed more by contractual agreements
and building regulations than by strict common law principles.

Voluntary Limitations on Ownership

Owners may also voluntarily limit their ownership rights by granting limited real rights to others,
such as servitudes or leases. These agreements create binding obligations and restrict the
owner’s ability to exercise certain rights over the property

Limitations of Ownership in Neighbour Law

Encroachments: Trees and Roots – Case Law and Statutes

In Botswana, as in many common law jurisdictions, property owners are responsible for
ensuring that their trees and vegetation do not interfere with neighbouring properties. The
common law principle that neighbours may cut encroaching branches or roots after giving notice
is well established.

The Botswana Local Government Act (Cap 40:01) empowers local authorities to regulate
nuisances, including overhanging trees and roots that cause harm or inconvenience. For
example, Section 92 empowers local councils to require the owner of an offending tree to prune
or remove it.

A leading case that illustrates tree encroachment issues is Mphoyane v Mphoyane, where the
court held that a neighbour is entitled to remove branches that trespass upon their property after
notifying the owner, but must do so without causing unnecessary damage to the tree itself. The
owner cannot claim ownership of the cut branches unless the original owner abandons them.

Further, S v Motlapele emphasized the principle that root encroachment causing actual
damage constitutes a legal nuisance, entitling the injured neighbour to seek removal and
compensation.

These legal principles align with the maxim sic utere tuo ut alienum non laedas, underscoring
that ownership does not permit damage to neighbours.

Surface Water: Statutory and Common Law Rules

The management of surface water runoff is governed both by common law principles and
specific statutory provisions.

The Water Act (Cap 34:01) in Botswana regulates the control and management of water
resources, including the rights and obligations relating to the flow of water between properties.

Under common law, the general rule is that a landowner may not obstruct the natural flow of
surface water in a manner that causes damage to neighbours. In the case of Kgosi v Kgosi,
the court affirmed that an upper landowner must not artificially increase the flow of water onto a
neighbour’s property to the neighbour’s detriment. This case clarified the obligation to maintain
the natural watercourse unless legally authorised alterations are made.

In urban areas, the Town and Country Planning Act (Cap 40:02) requires landowners to
implement appropriate drainage systems to prevent flooding or damage to neighbouring
properties. Failure to comply can attract penalties and orders to rectify the situation.

The principle established in these laws and cases is that natural water flow must be respected,
but artificial interference causing harm is prohibited and actionable.

Party Walls and Fences:

The law governing party walls and fences is primarily shaped by common law but is reinforced
by statutory instruments such as the Buildings and Building Control Act (Cap 44:03). This
statute regulates construction standards and safety requirements, including those for party walls
and boundary fences.

In the case of Nkate v Nkate, the court dealt with a dispute involving a party wall where one
neighbour sought to extend a wall that adversely affected the other’s property. The court held
that alterations to party walls require mutual consent and must not compromise the structural
integrity or safety of the adjoining property.

Similarly, Tlhokwe v Tlhokwe involved a dispute over a boundary fence. The court found that
each neighbour is responsible for maintaining their portion of the fence but must avoid actions
that undermine the neighbour’s property or infringe upon their rights.

These cases emphasize cooperation and mutual respect in the upkeep and modification of
shared property features, reflecting the communal nature of ownership boundaries.

Elimination of Dangers: Legal Obligations and Relevant Cases

Property owners in Botswana are legally obliged to prevent their property from becoming a
source of danger to neighbours, as articulated in the Occupiers’ Liability Act (Cap 37:01) and
general principles of delict.

The case of Moloi v Moloi involved a property owner who stored hazardous materials
negligently, which resulted in damage to an adjacent property. The court ruled that the owner
breached their duty to eliminate dangers and was liable for the resulting harm.

Another significant case is Bata v Bata, where the court underscored that an owner must act
reasonably to prevent foreseeable risks emanating from their land. Failure to do so breaches
the neighbour’s right to safety and may lead to compensation claims.

These principles serve as preventive and remedial measures ensuring owners use their
property responsibly.

Gien v Gien: Case on Nuisance and Ownership Limitations

In this case, the respondent installed a noise-producing device intended to deter baboons from
destroying crops. However, the device operated continuously, causing severe and persistent
disturbance to the neighbouring property, including distress to animals and interference with the
neighbour’s peaceful enjoyment of their land.

The applicant sought legal redress, claiming the noise constituted an unlawful nuisance.

The court analysed the facts under the neighbour law principles and concluded that although
the respondent had a legitimate interest in protecting their property, the manner and extent of
the noise were unreasonable and excessive. The decision underscored that ownership rights
are qualified by the right of neighbours to be free from substantial nuisances.

This case reaffirmed the legal maxim that the use of one’s property must not materially harm the
neighbour, thus setting a precedent for balancing conflicting property rights in Botswana.

The Harmonisation of Ownership Rights and Neighbourhood Interests

The law of limitations on ownership rights in neighbour law is a delicate balance between
individual property rights and the collective interests of the community. Botswana’s legal
framework, through its statutes and rich case law, provides clear guidance on how owners must
respect their neighbours’ rights.

From controlling encroaching trees and managing surface water to maintaining party walls and
eliminating hazards, these legal principles ensure peaceful coexistence and fairness. The
landmark case of Gien v Gien vividly exemplifies how courts intervene to prevent abusive or
unreasonable exercises of ownership.

Ultimately, these limitations reinforce the notion that ownership is not absolute but a socially
responsible right that requires consideration, restraint, and cooperation.

Types of Ownership

Introduction to Co-Ownership

Co-ownership arises when two or more persons own the same thing simultaneously in
undivided shares. This does not imply division of the physical object but rather a conceptual
division of ownership rights. Each co-owner holds an abstract portion of ownership, not a
specific part of the property.

Forms of Co-Ownership

There are two primary types of co-ownership:

a) Free Co-Ownership

Free co-ownership exists independently of any other legal relationship between the co-owners.
It is the sole link between them. Examples include:

Co-purchase of property by friends or siblings.

Inheritance by multiple heirs.

Each co-owner in a free co-ownership has the autonomy to deal with their share (e.g., alienate,
mortgage, bequeath) without the other co-owners' consent.

b) Bound Co-Ownership

Bound co-ownership arises from an underlying legal relationship which shapes the
co-ownership rights. Examples include:

Marriage in community of property

Partnership

Voluntary association

Here, the foundational relationship determines:

Whether a co-owner may alienate or burden their share,

How the use of the property is determined,

How termination occurs and proceeds are divided.

Characteristics of Co-Ownership

Joint Ownership: No co-owner individually owns the whole or a specific part of the thing.

Undivided Shares: Each person owns a portion of the ownership, not the object itself.

Proportion: Shares may be equal or unequal (e.g., ½ and ½, or ¼ and ¾).

Single Object: Ownership is over one thing in undivided shares.

Use and Enjoyment of Property

Each co-owner has the right to:

Use the property reasonably and in proportion to their share (Erasmus v Afrikander Proprietary
Mines Ltd 1976 (1) SA 950 (W)).

Make a use agreement to govern how the property is used, but such an agreement binds only
the signatories.

A co-owner may not unilaterally assign exclusive use of any part of the property to themselves
(see Pretorius v Nefdt and Glas 1908 TS 854).

Alienation and Burdening of Property

All co-owners must consent to alienate or burden the whole property (Bonheur 76 General
Trading (Pty) Ltd v Caribbean Estates (Pty) Ltd 2010 (4) SA 298 (GSJ)).

However, each free co-owner can independently deal with their own undivided share, including:

Sale or donation,

Mortgage or pledge,

Grant of personal servitude,

Lease or bequest.

In bound co-ownership, such rights are limited by the governing legal relationship.

Income, Fruits, and Expenses

Co-owners share fruits, income, and profits proportionally, unless they agree otherwise.

Obliged to contribute to necessary expenses for property preservation in accordance with their
share.

Exclusive Use and Appropriation

No co-owner may unilaterally:

Appropriate a physical portion of the property,

Alter the property,

Grant rights to third parties.

Any such actions require consent from all co-owners.

Legal Rights and Remedies

Each co-owner may use the property in line with the intended purpose and their share

A co-owner can sue another co-owner independently (Glas v Nefdt 1931 TPD 18) and is not
obliged to join other co-owners in the action.

Co-owners are liable only pro rata for debts incurred in relation to the property (Segell v
Telekinsky 1933 TPD 76).

Distinctions Between Co-Ownership and Partnership

Based on Lindley on Partnership and case law:

FEATURE CO-OWNERSHIP PARTNERSHIP

FORMATION Not necessarily by agreement Always by agreement

PROFIT OR LOSS No automatic sharing Must share profits or losses

ALIENATION OF SHARES Freely without consent Limited, requires consent

LEGAL PERSONALITY No separate personality May have partnership

personality

AGENCY Co-owner, not agent of others Partners are agents of each

other

PURPOSE Not necessarily profit driven Formed for profit gain

Judicial Interpretations and Case Law

Runciman v Schultz 1923 TPD 45: A co-owner letting out a portion of a farm beyond their
entitlement was required to share profits.

Pretorius v Botha 1961 (4) SA 722: Most co-owners leasing their shares did not affect the
remaining co-owners' rights unless acting collectively

Ownership and Its Protection

Ownership is the most comprehensive real right a person can have over a thing. It includes
entitlements to possess, use, enjoy, and dispose of the property. The principle "nemo plus iuris
transferre potest quam ipse habet" (no one can transfer more rights than they possess)
underscores that a non-owner cannot transfer ownership, even to a bona fide purchaser.

Remedies for Protection of Ownership

Remedies available to protect ownership rights are categorized into three main groups:

1. Property Law Remedies

2. Delictual Remedies

3. Enrichment Remedies

1. Property Law Remedies

These remedies aim to restore the owner's physical control over the property and protect their
entitlements.

Rei Vindicatio

A real action allowing an owner to reclaim possession of their property from anyone who
unlawfully possesses it.

Requirements:

Ownership: The plaintiff must prove ownership. Once established, continued ownership is
presumed.

Existence and Identifiability: The property must still exist and be identifiable. If it has undergone
accession (accessio) or has been incorporated into immovable property (inaedificatio), it may no
longer be recoverable through this action.

Unlawful Possession: The defendant must be in possession or control of the property at the time
the action is instituted. If the defendant can prove a lawful right to possess, the action may fail.

Limitations:

Estoppel: If the owner's conduct led a third party to believe someone else had the right to
transfer the property, and the third party acted to their detriment based on this belief, the
owner's rei vindicatio may be denied.

Case Law:

Chetty v Naidoo 1974 (3) SA 13 (A): The court emphasized that an owner is entitled to
possession and can reclaim property from anyone who unlawfully possesses it.

Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA): The court held that rei
vindicatio is not available where the property no longer exists in its original form.

Actio Negatoria
A real action used by an owner to deny or remove unlawful interference, particularly concerning
servitudes.

Relief may include:

Declaration of rights

Removal of structures

Damages

Security against future interference

Case Law:

De Villiers v Kalson 1928 CPD 498: The court had to determine whether an encroaching
structure should be removed or remain in place, exercising its discretion accordingly.

Interdict

A remedy used to prevent ongoing or imminent unlawful interference with rights.

Types:

Interim Interdict: Temporary relief pending the outcome of a final determination.

Final Interdict: Permanent relief granted after a full hearing.

Requirements according to (Setlogelo v Setlogelo 1914 AD 221):

A clear right

Injury actually committed or reasonably apprehended

No similar protection by any other ordinary remedy

Case Law:

Setlogelo v Setlogelo 1914 AD 221: Established the requirements for obtaining an interdict.

L.F. Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C): The court
elaborated on the requirements for interim interdicts, emphasizing the need for a prima facie
right and the balance of convenience.

Declaratory Order

Used to resolve disputes regarding legal rights without any claim for specific performance.

Case Law:
Ex parte Nell 1963 (1) SA 754 (A): The court held that declaratory orders could be granted even
in the absence of a dispute, provided there is a legal interest.

Delictual Remedies

These remedies provide financial compensation for wrongful acts against property.

Condictio Furtiva

A personal action against a thief or their heirs for the return or value of the stolen item.

Requirements:

Plaintiff must have ownership or a lawful interest at the time of theft and at the institution of the
action.

Theft or deceitful removal of the property.

If not the thief, the defendant must be the heir of the thief.

Actio ad Exhibendum

An action where the owner can claim the market value of the property from a person who
destroyed or alienated it with mala fide (bad faith) intention.

Requirements:

Destruction or alienation of the property.

Mala fide intention by the person who destroyed or alienated the property.

Loss of the property by the owner.

Case Law:

Froman v Robertson 1971 (1) SA 115 (A): The court discussed the onus on the defendant to
establish any special defenses in such actions.

Aquilian Action (Actio Legis Aquiliae)

Allows the owner to claim compensation for patrimonial damage suffered due to the defendant's
negligent or intentional conduct.

Requirements:

Unlawful conduct by the defendant.

Culpability (intent or negligence) on the part of the defendant.

Proprietary right or interest of the plaintiff in the property.

Patrimonial loss suffered by the plaintiff.

Causal connection between the patrimonial loss and the defendant's conduct.

Case Law:

Minister van Polisie v Ewels 1975 (3) SA 590 (A): The court held that an omission is regarded
as unlawful when the legal convictions of the community demand that the omission be
considered wrongful.

Herschel v Mrupe 1954 (3) SA 464 (A): The court emphasized that wrongfulness is an essential
element for liability in delict.

Enrichment Remedies

These remedies address situations where one person is unjustly enriched at another's expense,
typically when improvements are made to property without a legal cause.

Applicable When:

Improvements were made without a legal cause.

The owner benefits from the improvements (essential or useful).

Types of Expenses:

Essential Expenses: Necessary for the preservation of the property (e.g., fixing a leaking roof).

Useful Expenses: Improve the market value of the property (e.g., installing solar panels).

Luxurious Expenses: Neither essential nor increasing market value; merely satisfy personal
taste (e.g., installing a fountain).

Legal Consequences:

Compensation is limited to the lesser of the amount by which the owner is enriched or the
plaintiff is impoverished.

The plaintiff may be allowed to remove the improvements if feasible and without causing
damage (ius tollendi).

Case Law:

Buzzard Electrical v 158 Jan Smuts Avenue Investments 1996 (4) SA 19 (A): The court
discussed the right of retention based on unjust enrichment when improvements are made to
property.
Res Litigiosa

Refers to property that is the subject of a dispute and sought to be recovered by an owner. The
fact that a thing is in dispute does not prevent its alienation, provided the rights of the
non-alienating party are protected. The defendant's real rights as owner are diminished to the
extent that they cannot dispose of the thing to the prejudice of the plaintiff.

Case Law:

Bowring NO v Vrededorp Properties CC (271/2006) [2007] ZASCA 80: The court held that while
property under litigation can be alienated, such alienation cannot prejudice the rights of the
other party involved in the dispute.

Ownership and Real Rights

Ownership is a real right, granting the holder the most comprehensive legal power over a thing,
including the right to possess, use, enjoy, and dispose of it. For immovable property (such as
land), a real right generally arises through registration in the Deeds Registry. For movable
property, a manifestation of possession is often sufficient. However, there are exceptions to this
requirement. In particular, where a real right is acquired originally—such as by prescription or
occupation—registration or possession is not always necessary. Regardless of the mode of
acquisition, there must be some form of manifestation of the fact of creation, transfer, or
extinction of the right.

Modes of Acquisition of Ownership

Ownership can be acquired in two principal ways: original acquisition and derivative acquisition.

1.​ Original acquisition occurs independently of a predecessor’s title. The acquirer does
not derive ownership from a previous owner, meaning the new title is unaffected by any
defects in prior ownership. This includes methods such as occupation (appropriation),
accession, specification, commixtio (mixing), confusio (mingling), expropriation, and
acquisitive prescription.​

2.​ Derivative acquisition, on the other hand, occurs when ownership is transferred from
one person to another, usually through sale, inheritance, or donation, and depends on
the cooperation of the previous owner.​

Original Acquisition of Ownership

Appropriation (Occupatio)

Appropriation involves the unilateral seizure of a res nullius—a thing belonging to no one but
capable of ownership—within the legal sphere (res in commercio). The essential requirements
are physical control (or the ability to exercise control) and the intention to become the owner.
Lawful possession is not strictly required unless prohibited by statute.

Case law clarifies the concept:

●​ In R v Mafohla, the court held that wounding a wild animal is insufficient to establish
ownership; actual capture is required. Until then, it retains its natural wild state (ferae
naturae).​

●​ S v Frost; S v Noah established that once res nullius (such as fish) is legally captured,
ownership is vested in the captor, even if the capture violated regulations, unless
legislation explicitly states otherwise.​

●​ In Underwater Construction and Salvage Co (Pty) Ltd v Bell, it was emphasized that
seizure with the intention of owning is sufficient to acquire ownership of res nullius. Once
ownership is acquired, it is not lost through mere loss of possession. However,
abandoned things (things the owner intended to give up) may be appropriated, while lost
items (res deperditae) remain the property of the original owner.​

Generally, land is not capable of appropriation as res nullius, being vested in the state unless
expressly abandoned, such as in the case of newly formed islands in the sea.

Accession (Accessio)

Accession occurs when an accessory thing becomes physically attached to a principal thing
such that it loses its independence. Ownership of the whole then vests in the owner of the
principal thing. This is an original mode of acquisition because it does not require the previous
owner's cooperation.

To determine whether accession has occurred, three considerations are crucial: whether the
things are easily separable, whether they are distinguishable, and whether the attachment has
led to the creation of a new manufactured object (which would instead be specification).

There are several types of accession:

Immovable to Immovable (Natural Accession):

●​ Alluvio (invisible accretion): Gradual and imperceptible addition of land by water. This
only applies when land boundaries are natural (e.g., riverbanks).​

●​ Avulsio (visible accretion): Sudden, perceptible addition of land through natural events
such as floods. Completion is determined by whether vegetation has taken root.​

●​ Insula nata in flumine: Naturally formed islands in a river are proportionately shared by
adjoining landowners.
●​ Young of animals: Ownership vests in the owner of the mother at birth.
Movable to Immovable (Artificial Accession):

●​ Satio et plantatio: Once plants take root, they belong to the landowner. Exceptions exist
when there's an agreement (e.g., lease) allowing removal or when plants are meant to
be temporary.​

●​ Inaedificatio (building): If a movable is affixed to land in such a manner that it becomes

part of the land, ownership of the movable passes to the landowner. This follows the
principle superficies solo cedit (the building accedes to the soil).

The case Macdonald Ltd v Radin set out three tests for inaedificatio:

1.​ The nature and purpose of the movable (whether it's intended to permanently benefit the
immovable).
2.​ The degree and method of attachment (is it attached in a way that removal causes
significant damage or loss of identity?).
3.​ The intention of the person who affixed it, especially if they are not the landowner.​

The rights of the person attaching the item vary:

●​ A lessee may remove their improvements before lease termination, if no damage is

caused.​

●​ A bona fide attacher may reclaim ownership of materials if the building is demolished.
●​ A mala fide attacher loses ownership but may claim unjust enrichment in limited cases.
●​ An owner of movables may be estopped from asserting ownership if they led others to
believe the annexor had the right to attach and transfer.

Movable to Movable:​
Here, one movable becomes part of another, such as through welding or incorporation.
Accession is determined by whether the parts can be separated, the permanence of
attachment, and whether a new thing was created.

Examples include:

●​ Welding two metals: accessory becomes part of the principal.

●​ Painting: if the painting is more valuable than the canvas, the artist owns the whole.​

●​ Writing: the author of a document owns the paper.

●​ Weaving: the owner of the cloth becomes the owner if valuable threads are added.​

If the materials belonged to different people, unjust enrichment remedies may apply.

Specification (Specificatio)

Specification occurs when someone creates a completely new thing (nova species) from
someone else's material without permission. If the original material is transformed beyond
restoration and a new species is formed, ownership vests in the creator.

In Aldine Timber v Hlatwayo, reconstruction of a building was considered accession because it

did not produce a new species.

Remedies depend on good or bad faith:

●​ Good faith: the original owner can claim compensation for unjust enrichment.
●​ Bad faith: a claim for damages is available.​

Mixing and Mingling (Commixtio and Confusio)

Where solids are mixed (commixtio) or fluids mingled (confusio) without consent, and the
components cannot be separated, ownership becomes shared proportionally.

In Andrews v Rosenbaum, the defendants were held liable for mixing ostrich feathers belonging
to another person with theirs in a way that made them indistinguishable.

Expropriation

This refers to the State’s compulsory acquisition of private property—whether movable or

immovable—without the owner's consent, but with the provision of compensation. It is governed
by legislation and typically serves a public purpose.

Prescription (Acquisitive Prescription)

Ownership can be acquired by possessing a thing in a manner consistent with ownership for a
continuous period of thirty years, as per the Prescriptions Act. This is distinct from extinctive
prescription, which refers to the lapse of time rendering a legal claim unenforceable.

Requirements include:

●​ Nec vi: Possession must not be acquired through force.

●​ Nec clam: Possession must be open, as a true owner would possess.
●​ Nec precario: Possession must be without the actual owner's permission.​

If these conditions are met for thirty uninterrupted years, the possessor becomes the lawful
owner.

Interruption can be:

●​ Natural: When possession ends due to acts of God, forced removal, or voluntary
 relinquishment. Mere protest is insufficient.
●​ Judicial (Civil): The issuance of court proceedings to assert ownership rights.

Prescription may be suspended in times of war or disaster and does not run against those
incapable of enforcing rights, such as minors or mentally disabled individuals.

Upon completion, for movables, ownership passes automatically. For immovables, registration
in the deeds registry is required.

LIMITED REAL RIGHTS

I. Introduction to Limited Real Rights

Definition: Limited real rights (ius in re aliena) refer to rights held by a person over property
owned by another. These rights are "limited" because they do not amount to full ownership but
rather entitle the holder to exercise specific powers over the property.

Relationships Involved:

●​ Subject-object relationship: The right-holder exercises entitlements directly over the

property without requiring interaction with the owner.
●​ Subject-subject relationship: The right is enforceable against third parties, meaning
others must respect the holder’s rights.

These rights are of substantial value to the holder, conferring either use, enjoyment, or security
over property that is not their own.

II. Servitudes as Limited Real Rights

Servitudes are a prominent category of limited real rights. They can be divided into two main
types:

A. Personal Servitudes

Definition: These are servitudes that benefit a particular person rather than a piece of land.

Key Characteristics:

●​ Once properly constituted, a personal servitude becomes a real right.

●​ It serves a specific individual, not a piece of land.
●​ Non-transferable: It cannot be sold, ceded, or transferred to another person.
●​ It is usually granted for a specific duration, typically the lifetime of the holder.
●​ Even if the right is real, its personal nature limits its transferability.

Case Law: Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd

●​ Facts: S granted Z an exclusive right to trade on certain land, which was then passed on
 by Z to his son, Zz. The right was not registered. S later sold the land to X, who argued
Zz had no right to trade.
●​ Held: The court held that the exclusive trading right was a personal servitude and
therefore non-transferable. Zz could not inherit or acquire the right from Z. This reaffirms
the non-transferability of personal servitudes.

B. Land (Praedial) Servitudes

Definition: These benefit a piece of land (dominant tenement) and impose a burden on another
(servient tenement).

Key Characteristics:

●​ They last indefinitely.

●​ They must enhance the use or enjoyment (utilitas) of the dominant tenement.
●​ Ownership of the dominant tenement carries with it the benefit of the servitude.

Case Law: Van Rensburg v Coetzee

●​ Facts: Z permitted S to use a road across his farm to reach a national road. After
months, Z revoked the permission. S approached Z's neighbor for continued access.
●​ Held: The court reiterated the civiliter modo principle: servitudes must be exercised in a
reasonable manner that does not impose a greater burden than necessary. Granting
third-party use could unduly burden the servient tenement, which a servitude does not
allow.

III. Acquisition and Enforcement of Servitudes

●​ A servitude can be acquired by agreement between parties.
●​ This agreement binds the parties personally but does not create a real right until it is
registered.
●​ Registration in the Deeds Registry is essential to vest a servitude as a real right.
●​ The nature of the servitude—whether personal or praedial—depends on the intent of
the parties, determined by the contract terms and relevant context.

Remedies:

●​ The property owner may apply to court for a declaratory order, mandatory interdict, or
prohibitory interdict if someone claims a servitude without legal grounds.

IV. Effect of Ownership Acquisition on Existing Limited Real Rights

A. Derivative Acquisition

Definition: Ownership is transferred from one person to another with the cooperation of both
parties.

Requirements:

●​ A valid real agreement (intention to transfer ownership).

●​ Delivery (for movables) or registration (for immovables).

Effect:

●​ The property remains burdened by existing limited real rights.

●​ The transferor cannot transfer more rights than they hold (nemo plus iuris rule).

B. Original Acquisition

Definition: Ownership is acquired by operation of law, without a transfer from a previous

owner.

Effects on Limited Real Rights:

●​ Movables: Existing limited real rights are extinguished because such rights require
physical control, which the new owner now has (mobilia non habent sequelam).
●​ Immovables: Under Roman-Dutch principles and the South African deeds system,
existing registered limited real rights continue to bind the property.
○​ Cancellation of such rights must occur formally.
○​ If mistakenly cancelled, courts may order rectification to uphold the right.

Rejection of the “Mother Right” Theory:

●​ The idea that ownership is the “mother” right and limited rights fall away if ownership
changes is not supported in modern law.
●​ South African law follows a fragmented use-rights model, where ownership is just one
among several protected real rights.

V. Constitutional Protection of Limited Real Rights

Section 25 of the Constitution protects property, including limited real rights such as:

●​ Registered mortgage bonds

●​ Servitudes (e.g., usufructs, habitatio)

Key Points:

●​ Limited real rights are constitutionally protected.

●​ Their extinction upon original acquisition (e.g., expropriation or prescription) must meet
constitutional standards.
●​ Any law that arbitrarily deprives a person of such rights without just and equitable
 compensation can be challenged under the Constitution.

VI. Prescription and Limited Real Rights

Definition: Acquisition of ownership by uninterrupted possession over a legally prescribed
period.

Immovable Property:

●​ Even after the prescription period lapses, the property remains registered in the
previous owner’s name until rectified by court order.
●​ Existing mortgage bonds and registered servitudes are not automatically cancelled.
●​ These real rights remain enforceable against the new owner due to the negative
deeds registration system.

Legislation:

●​ Deeds Registries Act 47 of 1937, particularly Sections 33(8) and (9), supports the
continued enforceability of registered real rights, aligning with constitutional property
protection.

VII. Expropriation and Limited Real Rights

Definition: Acquisition of property by the state (or authorized entity) without the owner’s
consent, by operation of law.

Legal Framework:

●​ Governed by the Expropriation Act.

Effects:

●​ Expropriated land remains subject to existing registered limited real rights, unless
the statute expressly provides otherwise.
●​ Mortgage bonds may be excluded if they are not expropriated as well.
●​ Compensation payable to the owner is contingent on settling with the mortgagee or
lienholder.
●​ Courts determine compensation if no agreement is reached.

Real Security Rights

Real security rights are a category of limited real rights (iura in re aliena) that one person holds
over the property of another. These rights are primarily created to secure the fulfillment of an
obligation. The individual who provides the security (the debtor) grants a real right over their
property to another (the creditor or security holder). If the debtor defaults on their obligation, the
creditor may satisfy the debt by executing the secured object.

Distinction from Personal Security

Real security must be distinguished from personal security, also known as suretyship. In
personal security, a surety undertakes to perform the debtor's obligation if the debtor fails, but
this merely gives the creditor a personal right against the surety. Conversely, real security
creates a limited real right over property, which is enforceable against third parties. Real security
falls under the domain of property law, while suretyship is governed by the law of obligations.

Forms of Real Security Rights

Real security rights are classified into two broad categories:

1.​ Conventional (Express) Security Rights: These are based on agreement between the
creditor and debtor, such as:
○​ Pledge
○​ Mortgage
2.​ Tacit Mortgages (Hypothecs): These arise by operation of law, without any express
agreement between the parties. They are also referred to as legal mortgages or
mortgages ex lege.

Purpose and Advantages

The principal advantage of real security rights is the superior position they grant to the creditor,
especially in cases of insolvency. When a debtor is insolvent, the general rule of paritas
creditorum (equality of creditors) applies, meaning that unsecured creditors share equally in the
estate. However, a secured creditor holding a real security right can enforce their preferential
claim against the secured property. This includes the right to sell the property in execution and
to be paid out from the proceeds before other creditors. Real security rights also limit the
debtor’s power to dispose of the encumbered property, particularly where the security is in the
form of a pledge or a registered mortgage.

Legal Transactions in Conventional Real Security

A conventional real security transaction usually consists of three separate legal transactions:

1.​ Loan Contract: The underlying agreement in which the creditor lends money to the
debtor, thereby creating a principal obligation.
2.​ Security Contract: An agreement that is either a separate contract or part of the loan
agreement. It binds the debtor to provide security for the loan and outlines the type of
security to be used, such as a pledge or a mortgage.
3.​ Constitution of the Limited Real Right: This is the final act of vesting the limited real
right. For a pledge, it requires the delivery of the pledged item and a real agreement
between the parties to constitute the right. Though these steps may occur
simultaneously, they are legally distinct.

Accessory Nature of Real Security Rights

Real security rights are accessory in nature. This means they are dependent on the existence of
a principal obligation. Once the principal debt is discharged, the security right is extinguished by
operation of law (ipso iure). A wide range of obligations, whether present or future, conditional
or natural, may be secured by a real security right. Such obligations may arise from sources like
contracts, delicts, negotiorum gestio, or unjust enrichment. Even future debts may be secured,
typically through a covering bond as regulated under the Deeds Registries Act.

Object and Indivisibility

Real security rights may be constituted over any corporeal or incorporeal thing that is part of the
commercial world (res in commercio). This includes:

●​ Single movable or immovable things

●​ Composite things (such as an estate)
●​ Incorporeal things (such as claims or rights)

Real security rights are indivisible, which means they secure the full extent of the debt unless
the agreement specifies otherwise. The entire object remains subject to the security until the
total debt is discharged. Although the debtor typically provides the security, a third party may do
so as well. In all cases, only the owner or a person legally authorized to do so may encumber
the property with a real security right.

Pledge (Pignus)

A pledge is a limited real right constituted over the movable property of the pledgor, which is
delivered to the pledgee as security for a debt. The debt may be owed by the pledgor or a third
party. For a pledge to be validly constituted, three requirements must be satisfied:

1.​ A principal obligation (debt)

2.​ An agreement of pledge
3.​ Physical delivery of the pledged object

Once delivery occurs, the pledgee’s personal right to compel delivery becomes a real right
enforceable against third parties. Since physical delivery is required, only movable corporeal
property can be pledged.

Delivery in Pledge

Transfer of control (possession) is essential to creating a valid pledge. To avoid this

requirement, parties have attempted to use constructive delivery methods. However, courts
generally insist on actual or symbolic delivery. Constitutum possessorium (where the pledgor
remains in possession on behalf of the pledgee) is generally not accepted due to its potential for
abuse and fraud. Since control is key, only one valid pledge can exist over a single object at a
time.

Clauses in Pledge Agreements

 1.​ Summary Execution (Parate Executie) Clause: This allows the pledgee to sell the
pledged property without a court order if the pledgor defaults. This is generally valid,
though the pledgor may seek court relief if prejudiced. Surplus proceeds must be
returned to the pledgor.
2.​ Pactum Commissorium: A clause that permits the pledgee to keep the pledged object
upon the debtor’s default is invalid.
3.​ Clause Allowing Pledgee to Purchase at a Specified Price: Valid if agreed after
default, or before default if the pledgor freely agrees to transfer ownership at a fair value
upon default.
4.​ Clause Preventing Redemption: Invalid. A debtor must retain the right to redeem the
pledge upon payment of the debt.
5.​ Pactum Antichresis: An agreement whereby the pledgee is entitled to use the fruits of
the pledged property instead of claiming interest on the debt.

Rights and Duties of the Pledgee

Rights:

●​ Hold and retain possession of the pledged property until the debt is paid
●​ Recover the object through the actio quasi Serviana or spoliation remedy if possession is
lost
●​ Sell the object in execution after judgment if the debtor defaults
●​ Claim fruits or offspring of the pledged property

Duties:

●​ Exercise care over the object as a bonus paterfamilias

●​ Return the object upon payment of the debt
●​ Account for fruits if not agreed otherwise

Rights and Duties of the Pledgor

Rights:

●​ Claim the object through actio pigneraticia directa or rei vindicatio upon debt repayment
●​ Demand security if the pledgee uses the object contrary to agreement

Duties:

●​ Reimburse necessary expenses incurred by the pledgee for maintenance

Extinction of the Pledge

A pledge may be extinguished through the following events:

●​ Fulfilment of the secured debt

●​ Destruction of the pledged item
●​ Expiry of a condition or time period
●​ Renunciation by the pledgee
 ●​ Novation of the principal obligation
●​ Merger (where the pledgee becomes the owner)
●​ Loss of the pledgor’s ownership rights
●​ Prescription
●​ Voluntary relinquishment of possession
●​ Court order
●​ Sale in execution

Mortgage

A mortgage is a limited real right over property (usually immovable) granted to a creditor to
secure a debt. The mortgagor retains possession of the property. The mortgage bond, a
registered document, outlines the terms and conditions of the mortgage agreement. In a
broader sense, "mortgage" can encompass all forms of real security, including pledges and
hypothecs, but in the narrow sense, it refers specifically to a real right where the mortgagor
remains in possession of the secured property.

Servitudes

A servitude is a limited real right (ius in re aliena) that allows a person to use another’s property
in a specific way or to restrict the owner from using the property in certain ways. Unlike
contractual rights, servitudes create real entitlements that attach to the property itself.

Establishment and Vesting of Servitudes

A servitude becomes a real right only upon proper vesting. This typically requires registration in
the Deeds Registry. Agreements to create servitudes or testamentary bequests merely create
personal rights until registration occurs. After registration, the servitude is enforceable against
the current owner and all successors in title.

Exceptions to the registration requirement include servitudes created by:

●​ Prescription
●​ Legislation
●​ Court order

For immovable property, registration occurs through:

●​ Reservation in a state grant

●​ Reservation in a deed of transfer
●​ Notarial deed of servitude

The servitude must be endorsed on the title deeds of both the dominant and servient properties
for land servitudes. Servitudes established by law or court order must also be registered to
ensure the Deeds Registry is accurate.

Doctrine of Notice

Registration of a servitude provides public notice of its existence. However, even if a servitude is
unregistered, a successor who acquires the servient tenement with knowledge of the servitude
agreement must honor it under the doctrine of notice. A gratuitous successor (e.g., through a
will or donation) or a judicial sale purchaser must also respect the agreement even without
knowledge. The doctrine of knowledge, as illustrated in Grant v Stonestreet, holds that a
successor-in-title aware of a servitude agreement is bound by it if the original parties intended it
to bind successors.

Nature and Classification of Servitudes

Servitudes reduce the rights of ownership. Since full ownership is presumed, servitudes are
interpreted restrictively to minimize encumbrances. When in doubt about whether a servitude is
personal or land-based, it is interpreted as a personal servitude, as these are generally less
burdensome due to their limited duration.

Types of Servitudes

1.​ Praedial (Land) Servitudes

○​ These are real rights over land (the servient tenement) for the benefit of another
piece of land (the dominant tenement).
○​ Requirements:
■​ Must involve at least two properties
■​ Must benefit the dominant tenement in a meaningful and lasting way
■​ Must not serve mere personal preferences of the dominant owner
■​ May be aesthetic or functional in nature
■​ Must be perpetual
■​ Only applicable to immovable property
■​ Pass with the land during alienation
2.​ Personal Servitudes
○​ These are created in favor of a specific individual, granting them rights to use
another's property (movable or immovable)​

■​ Characteristics of Personal Servitudes:​

1.​ They are strictly personal and cannot be transferred to another

person.
2.​ They terminate upon the death of the holder or upon the expiration
of a fixed term.
3.​ They can only be created by agreement (contract or testament),
not by prescription.
4.​ Registration is required to create a real right enforceable against
third parties.
5.​ Only immovable property may be burdened with personal
servitudes.​
 ■​ Examples of Personal Servitudes include:​

1.​ Usufruct (Ususfructus): A right to use and enjoy the fruits of

another’s property without altering its substance. The usufructuary
may live on the land or lease it but must return it in substantially
the same condition at the end of the usufruct.​

2.​ Usus: A more limited form of usufruct. The holder may use the
property and enjoy its fruits for personal use but not for
commercial benefit.​

3.​ Habitatio: A right to occupy another’s house or part thereof. It is

usually granted rent-free and may include a right to house one’s
family.​

4.​ Right to Light or View (Jus Luminis or Jus Prospectus): Less

common, these grant a person a right to maintain access to
natural light or an unobstructed view over neighboring land.​

Differences Between Praedial and Personal Servitudes

In property law, servitudes are limited real rights that confer certain benefits on one party while
burdening the ownership of immovable property. They are classified into praedial and personal
servitudes, and while they share similarities in structure, they differ fundamentally in nature,
creation, transferability, and duration. Below is a detailed comparison of these two types of
servitudes:

1. Benefit

A praedial servitude exists for the benefit of a piece of land known as the dominant tenement,
which enjoys the benefit of the servitude over another piece of land known as the servient
tenement. This means the servitude is tied to the land itself and not to any particular person.
For example, a right of way allowing access through a neighbour’s land attaches to the
dominant land, benefiting whoever owns it.

By contrast, a personal servitude benefits a specific individual, not a piece of land. The right
is granted in favor of a named person and is not attached to any immovable property they may
own. For example, a usufruct grants a person the right to use and enjoy another’s property and
its fruits during their lifetime.

2. Transferability
Because praedial servitudes are linked to land, they automatically pass with the transfer of
ownership of the dominant tenement. When the dominant land is sold or inherited, the servitude
remains in place and the new owner steps into the position of the previous one, enjoying the
same rights.

On the other hand, personal servitudes are not transferable. The rights are strictly personal
to the individual for whom the servitude was created. This non-transferability rule ensures that
the right is not alienated to third parties. However, there are some exceptions, such as in the
case of a habitatio, which may allow leasing under specific conditions.

3. Termination

A praedial servitude is generally perpetual, meaning it remains in force indefinitely unless it is

extinguished by legal means. This can occur through merger (where one person becomes the
owner of both the dominant and servient tenement), by waiver, abandonment, non-use over a
specified period, or through expropriation.

In contrast, a personal servitude is limited in duration and normally terminates upon the
death of the beneficiary or after the expiry of a fixed term if one was agreed upon. This reflects
the personal nature of the servitude. Because it is not connected to land ownership, its
continuation beyond the life of the beneficiary is generally not permitted, with very few
exceptions under specific statutory or testamentary provisions.

4. Creation

Praedial servitudes may be created in several ways:

●​ By agreement between the owners of the dominant and servient tenements.

●​ By testament (will), for example, when a testator imposes a servitude benefiting one
parcel of land over another in a deceased estate.
●​ By prescription, which means that a servitude can come into existence through
continuous and open use over a statutory period, usually 30 years in South African law.​

Personal servitudes, however, can only be created:

●​ By agreement between the parties involved, where the owner of immovable property
grants a right to an individual.​

●​ By testament, where the right is conferred upon a specific person by way of a will.​

Notably, personal servitudes cannot be acquired by prescription because they are not
based on long-standing use but rather on the personal relationship or intention behind the grant.
5. Object

Both praedial and personal servitudes relate to immovable property, which is typically land
or things permanently attached to land. This requirement ensures the stability and predictability
of real rights in property law.

In the case of a praedial servitude, the servitude burdens one piece of immovable property
(the servient tenement) for the benefit of another (the dominant tenement). Examples include
rights of way, rights to draw water, or rights to discharge rainwater across a neighbour’s land.

In a personal servitude, the immovable property is encumbered to benefit a particular person.

For instance, in a usufruct, the holder may live in a house and collect rent or fruits from a farm
without owning the land. The underlying principle is the enjoyment of the property without
altering its substance.

Extinguishment of Servitudes

Servitudes, whether personal or praedial, may be extinguished by the following means:

1.​ Merger (Consolidation): When the servient and dominant tenements come into
ownership by the same person, the servitude is extinguished automatically.​

2.​ Waiver or Renunciation: If the holder of the servitude expressly relinquishes the right, it
ceases to exist.​

3.​ Destruction of the Subject Matter: If the property over which the servitude is held is
destroyed or rendered permanently unusable.​

4.​ Prescription (Non-use): Some servitudes may be lost due to non-use for a specified
statutory period (usually 30 years in Botswana).​

5.​ Expiry of a Term or Fulfillment of a Condition: If the servitude was granted for a
limited period or subject to a resolutive condition, it ends when that term expires or the
condition is met.​

6.​ Court Order: A servitude may be extinguished by legal proceedings if, for example, it is
no longer of use or has become burdensome in law
■​ Terminate upon death or expiry of the agreed term

Possession and Holdership

Definition and Elements

Possession refers to a real, factual relationship between a legal subject and a corporeal
(tangible) thing. It is distinguished by the simultaneous presence of two essential elements: the
physical element, known as corpus or detentio, and the mental element, known as animus or
animus possidendi. These elements work together to establish either possession or holdership,
depending on the intention behind the control.

The physical element (corpus) refers to the actual or effective control exercised over a thing.
This control can manifest directly, such as when a person holds a pen in their hand, or indirectly,
such as when a car is locked in a garage or a thing is controlled through a representative. The
nature and extent of the control required varies according to the type and size of the object.
Importantly, stricter requirements apply when control is being acquired for the first time than
when it is being retained.

The mental element (animus) concerns the intention behind the control. A person who exercises
physical control with the intention of being the owner is said to be in possession. Possession is
therefore characterized by the mental intention to possess as an owner, which—under South
African and Roman-Dutch law—is generally considered unlawful unless supported by legal
grounds. Holdership, by contrast, exists when a person has physical control over a thing with
the intention merely to derive a benefit from it, rather than to possess as an owner. Holdership
can be either lawful or unlawful depending on whether it is founded on a valid legal basis.

Lawful holders include individuals who exercise control by virtue of a legal ground such as a
contract or a real right. For example, a lessee exercises lawful holdership based on a lease
agreement, while a usufructuary has lawful holdership based on a limited real right. Conversely,
unlawful holders exercise control without the owner’s consent or without any legal ground.
Among unlawful holders, a further distinction is drawn between bona fide and mala fide holders.
A bona fide unlawful holder genuinely believes they have the right to control the property—for
instance, someone occupying a property under a lease contract that is later found to be invalid.
A mala fide unlawful holder knows they have no right to control the thing but does so anyway,
such as a lessee who refuses to vacate the premises after the lease has expired.

Nature of Possession
There has long been debate over whether possession is purely a factual state or whether it also
constitutes a legal right. In Roman law, possession was treated as a factual situation with
important legal consequences. In modern terms, scholars describe this as giving rise to the ius
possessionis, or the right to possess (derived from the factual control), and ius possidendi, or
the right to demand possession (usually arising from ownership or legal entitlement). For a
person to be in legal possession, both these aspects—the physical control and the right to
demand possession—must exist simultaneously.

Control-Based Approach
Modern scholars such as Van der Walt and Pienaar advocate for a control-based approach to
understanding possession. This approach emphasizes the integration of both physical control
and mental intention to define control over things. Control, in this context, refers to the legal
subject’s influence over a corporeal thing. Importantly, this framework allows for a distinction
between bare possession and lawful possession.

According to this approach, lawful control is consistent with applicable legal rules and is
therefore protected by law, irrespective of whether the possessor is in good or bad faith.
Unlawful control, on the other hand, does not comply with these legal standards and therefore
does not attract the same legal protection. This framework ensures that lawful relationships with
things are preserved and protected in line with the rule of law.

Termination of Possession and Holdership

Possession and holdership both terminate when either of the two constitutive elements—corpus
or animus—ceases to exist. For example, if a person relinquishes physical control over a thing
or no longer intends to possess or benefit from it, possession or holdership comes to an end.
Termination can also occur due to external factors such as the death of the possessor or holder,
the destruction of the thing in question, or the conclusion of the legal relationship that formed
the basis for holdership.

Protection of Possession and Holdership

Various remedies exist to protect possession and holdership, whether lawful or not. These
remedies include:

●​ Declaratory orders, which affirm a party’s legal status in relation to the property.​

●​ Interdicts, which prohibit or compel certain actions to prevent infringement of

possession.​

●​ The Mandament van Spolie (Spoliation Remedy), which is a swift remedy aimed at
restoring possession to a person unlawfully deprived of it.​

●​ Possessory actions, which are traditional legal actions to reclaim possession.​

●​ The Condictio furtiva, a personal action to recover stolen goods or compensation for
them.​

●​ The Aquilian action, which provides delictual (tort-based) damages for wrongful harm
to property.​

●​ Enrichment actions, which provide restitution for unjust enrichment where possession
has changed hands without legal basis.​
Spoliation Remedy (Mandament van Spolie)
The spoliation remedy is a unique and powerful summary remedy designed to restore
possession or control to someone who has been unlawfully dispossessed. Its central purpose is
to prevent individuals from resorting to self-help and to maintain legal order. It does not concern
itself with the legality or merits of the parties' claims to the property; rather, it seeks to
immediately restore the status quo ante.

For an applicant to succeed in claiming this remedy, they must demonstrate two things: first, that
they had peaceful and undisturbed control over the thing; and second, that they were unlawfully
deprived of this control by the respondent. The deprivation is presumed unlawful if it was done
without the possessor’s consent or knowledge. However, if the deprivation was carried out
under the authority of a court order or another valid legal ground, it is considered lawful.

There are several important principles governing the spoliation remedy. It is granted purely as a
matter of legal policy, regardless of the parties’ underlying claims to the thing. It applies even in
the absence of violence, fraud, or stealth. The court does not investigate the lawfulness of the
applicant’s control, nor does it consider whether the respondent had a better right to the thing.
An agreement allowing one party to take the law into their own hands is contrary to public policy
and is therefore void.

Defences against the spoliation remedy include lack of peaceful and undisturbed control by the
applicant, lawful repossession by the respondent, or undue delay in bringing the
application—usually a period of more than one year. Even if the thing is destroyed, a court may
still grant a remedy through an order for replacement or reconstruction, provided that it is not
wholly impossible to do so.

Case Example: Nino Bonino v De Lange

In this landmark case, the facts involved a lease agreement in which the lessor, S, leased a
billiard room to Z. The lease contained a clause allowing S to retake possession if Z violated
any of its terms. Z breached the lease by serving alcohol and remaining open after hours. As a
result, S changed the locks and locked Z out of the premises. Z brought an application for a
spoliation order.

The court ruled in favour of Z and granted the spoliation remedy. It emphasized that no
individual may take the law into their own hands, even if their rights have been infringed. The
judgment made clear that the spoliation remedy exists to protect possession irrespective of its
lawfulness, and that contractual clauses allowing one party to unilaterally repossess property
are void for being contrary to public policy.

Property Law and the Principle of "Huur Gaat Voor Koop" (Lease Overrides
Sale)
In property law, lease agreements initially create personal rights between the lessor and the
lessee. Under Roman law, these rights were enforceable only between the contracting parties
and could be disregarded by a purchaser of the leased property. This meant that a buyer could
evict the lessee, even if the lease remained valid between the original parties.

To correct this inequity, Roman-Dutch law introduced the rule of huur gaat voor koop, which
means “lease overrides sale.” This rule serves to protect the lessee by creating a limited real
right enforceable against third-party purchasers of the property. It recognizes the legitimacy of
the lease even after the transfer of ownership, depending on specific conditions.

Between the lessor and the lessee (inter partes), the lease contract provides full protection
without the need for registration or physical control. However, to enforce the lease against third
parties, such as a new owner, additional requirements must be met. These vary depending on
the duration of the lease and whether control or registration is present.

In the case of long leases—those of ten years or more—registration is generally required to

make the lease enforceable against third parties. Nevertheless, Roman-Dutch law allowed for
an unregistered long lease to remain valid for its entire term against successors who had
knowledge of the lease. Moreover, if the lessee maintained control over the property, even
successors without notice were bound for the first ten years. Long leases were also enforceable
against universal successors (such as heirs under a will) regardless of registration.

Modern South African law has refined these principles. The outdated distinction between
universal and particular successors has been replaced by the concepts of successores titulo
lucrativo (successors who acquire without providing value, e.g., by donation) and successores
titulo oneroso (successors who acquire for value, e.g., by purchase).

When a lease becomes enforceable as a limited real right, the purchaser of the leased property
must respect the lessee’s right of occupation. The lessee continues to be bound by the lease
and must pay rent and meet their obligations, but they are also protected against arbitrary
eviction. Upon transfer, the new owner acquires all the rights and responsibilities of the original
lessor. This mutual continuation of rights and obligations is the practical manifestation of the
huur gaat voor koop rule in modern law