PROPERTY LAW
SECTION 6: PROTECTION OF OWNERSHIP
PART I: PROTECTION OF OWNERSHIP
1.1 Introduction
If ownership and any of its entitlements are infringed the owner has several remedies.
These remedies are as follows:
the rei vindicatio;
the actio negatoria;
the actio ad exhibendum;
the condictio furtiva;
the actio legis aquilia; and
the enrichment action.
In this section we are going to consider the rei vindicatio; the actio negatoria; the actio
ad exhibendum; and the condictio furtiva.
1.2 The rei vindicatio
1.2.1 Introduction
The rei vindicatio is available to an owner for the recovery of a movable or immovable
thing – as well as its fruits – from any person who is exercising unlawful physical control
over the thing. The basis of the rei vindicatio was explained in Chetty v Naidoo 1974 (3)
SA 13 (A) at 20. In this case the Jansen JA explained that the one of the entitlements of
ownership is the exclusive control of the thing. This meant, the Court explained further,
that an owner may claim his or her property from whoever is in control of it and from
wherever it is found. The only circumstance in which a person may withhold control of
the thing from the owner is if that person has some right which is enforceable against
the owner:
“It may be difficult to define dominium comprehensively . . . , but there can be little doubt (despite some
reservation expressed in Munsamy v Gengemma 1954 (4) SA 468 (N) at 470H-471E) that one of its
incidents is the right of exclusive possession of the res, with the necessary corollary that the owner may
claim his property wherever found, from whomsoever holding it. It is inherent in the nature of ownership
that possession of the res should normally be with the owner, and it follows that no other person may
withhold it from the owner unless he is vested with some right enforceable against the owner (e.g. a right
of retention or a contractual right).”
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1.2.2 Requirements
Read Siberberg and Schoeman’s The Law of Property at 242-244. You must also read
Chetty v Naidoo 1974 (3) SA 13 (A). Now answer the following questions:
(i) What are the requirements an owner must prove to recover his property under
the rei vindicatio?
(ii) Does the owner have to prove that the defendant=s control of the thing is
unlawful?
(iii) Does it make any difference if the owner concedes that the defendant originally
obtained control of the thing in terms of a valid right?
Tendai Savanhu v Hwange Colliery Company SC 8/2015
1.2.3 Scope
As was pointed out above, an owner who has been deprived of his or her property
against his or her will is entitled to vindicate it from any person who is in possession of
it. This is so irrespective of whether that person is a bona fide or mala fide possessor or
occupier.
In addition, the owner need not compensate the possessor for the value of the thing,
even where the possessor has acquired it for consideration. It is also irrelevant whether
the owner parted with possession voluntarily, for example by lending or leasing it to a
person who subsequently transferred it to the possessor.
1.2.4 Defences against the rei vindicatio
Read Siberberg and Schoeman’s The Law of Property at 245. Now set out the defences
which a defendant can raise against the rei vindicatio.
1.2.5 Exceptions to the rei vindicatio
(a) Estoppel
(i) Introduction
Read Siberberg and Schoeman’s The Law of Property at 255. Now explain what is
meant by estoppel.
(ii) Requirements
Read Siberberg and Schoeman’s The Law of Property at 255-259. Now set out and
discuss the requirements for estoppel.
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(iii) Case law
Read the following cases which illustrate the manner in which the courts have applied
the requirements for estoppel: Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956
(3) SA 420 (A); Quenty=s Motors (Pty) Ltd v Standard Credit Corporation Ltd 1994 (3)
SA 188 (A); Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk 1996 (3) SA
273 (A); and ABSA Bank Ltd t/a Bankfin v Jordasche Auto CC 2003 (1) SA 401 (SCA).
(b) Stolen Money
Stolen money and negotiable instruments payable to the bearer, or their proceeds,
cannot be vindicated from a person who acquired them in good faith and for valuable
consideration.
(c) Property sold at a judicial sale
Property sold at a judicial sale cannot, after delivery or registration, be vindicated from a
bona fide purchaser. This rule applies even when the property sold was mistakenly
thought to belong to the judgment debtor.
(d) Property sold by the trustee of an insolvent estate
Property sold by the trustees of insolvent estates and liquidators of companies in
liquidation cannot, after delivery or registration, be vindicated from a bona fide
purchaser, unless the owner has informed the trustees or the liquidators or the Master
of the High Court that he or she is the owner.
(e) Constitutional and statutory limitations
Section 74of the Constitution provides that no one may be evicted from a home without
a court order, which may not be granted unless all relevant circumstances have been
taken into account.
Apart from the Constitution, delegated legislations has been enacted aimed at
regulating the circumstances in which occupiers may be evicted. See The Rent
regulations, 2007.
1.3 The actio negatoria
This remedy is aimed at protecting the exercise of the owner’s entitlements. In terms of
this action an owner can claim the removal of any structures unlawfully erected on his
land, a declaration of rights, damages, and security against any future disturbances of
his ownership. In modern Zimbabwean law this remedy has largely fallen into disuse
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since the required protection is now provided by the interdict or the declaratory order.
1.4 The actio ad exhibendum
This remedy aimed at claiming compensation from a person who has unlawfully and
intentionally alienated or destroyed the owner=s property. This action is only available
against a mala fide possessor. In other words the possessor must have known that the
property belonged to someone else when he intentionally alienated or destroyed it. The
amount of compensation the owner is entitled to claim is the market value of the
property.
1.5 The condictio furtiva
This remedy is aimed at reclaiming possession of a thing or the value of a thing from a
thief or the thief=s heirs. This remedy can only be used by the owner if he or she has
retained ownership from the date of the theft until the date of the action. In addition, this
remedy can only be instituted against the thief and the thief=s heirs, and not against
subsequent bona fide or mala fide possessors or even accomplices.
If the thief is still in possession of the stolen thing, both the rei vindicatio and the
condictio furtiva are available to the owner. These remedies may, however, only be
claimed in the alternative. If the thing has been alienated or destroyed the rei vindicatio
is no longer available, but the condictio furtiva can still be instituted. In these
circumstances the condictio furtiva and the actio ad exhibendum are available. The
actio ad exhibendum is, however, not available if the thing has been accidentally or
negligently destroyed, whereas the condictio furtiva is.
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PART II: EVICTIONS
2.1 Introduction
The common law allows a landowner to sue for eviction using the rei vindicatio, which is
considered to be the most important real action protecting the right of ownership. If a
landowner wishes to sue for eviction using the rei vindicatio he simply has to prove: (a)
that he is the owner of the land; and (b) that the defendant is occupying or holding the
land.
If the landowner satisfies these requirements, the onus then shifts to the occupier. The
occupier must now prove that he has a valid and enforceable right of occupation against
the landowner. A landowner does not, therefore, have to prove that the occupier is
unlawfully occupying the land in order to obtain an eviction order.
Once the landowner has proved that he is the owner, the landowner is entitled to
possession of the land unless the occupier can prove that he has a right of occupation.
The protection offered to a landowner by the rei vindicatio is accordingly very strong.
This is because the rei vindicatio is based upon the assumption that the landowner is
entitled to exclusive possession of his land.
During the apartheid era, the common law preference for the landowner was extended
dramatically by various apartheid land laws, in particular the Prevention of Illegal
Squatting Act 52 of 1951 and the Group Areas Act 63 of 1966.
The Prevention of Illegal Squatting Act provided for extremely harsh measures by both
private landowners and the state against so-called illegal squatters. In this respect, the
Act not only allowed, but also obliged private landowners and state authorities to
demolish and remove all buildings and structures erected without the consent of the
landowner or in contravention of planning laws and building regulations. In practice,
however, this Act was used only against black occupants of informal settlements.
The Group Areas Act provided for segregated residential areas in urban areas for each
race group. The designation of land as a group area set aside for a particular race
group implied that only people belonging to that race group were allowed to own,
occupy and use land in that area for any purpose. It was practically impossible (because
of registration requirements) to acquire ownership of land in contravention of this Act. In
addition, the occupation or use of land in contravention of this Act was a criminal
offence.
As a result of these two statutes the already powerful common law right to evict was
transformed into an even stronger remedy that not only provided strong protection for
individual landowners, but also sanctioned the arbitrary exercise of state power to
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establish and entrench state control over land occupation by black South Africans.
The legal benefits enjoyed by a landowner also acquired a racial dimension during the
apartheid era. As we have already seen, the common law system of property law is
based on a hierarchy of strong and weak, secure and insecure land rights.
This hierarchy consists of ownership, the strongest and most secure right, at the top;
followed by the limited real rights; followed by creditor’s rights; followed by statutory use
rights and permits with little or no security; followed by customary law rights which were
unrecognised; followed by possession based on no rights at all.
Ownership, limited real rights and creditor’s rights were considered to be strong and
secure because they were recognised, defined and protected by the common law.
Statutory use rights and permits, customary law rights and the occupation of land
without any right at all were considered to be weak and insecure because they were not
recognised, defined or protected by the common law. A distinction was thus drawn
between the occupation of land in terms of a recognised property relations and the
occupation of land in terms of an unrecognised property relation.
This distinction was manipulated by apartheid land laws to favour white occupiers of
land over black occupiers of land. The manner in which this occurred is that on the one
hand, only whites as a general rule could acquire common law rights in land and on the
other hand, blacks could only acquire statutory use rights and permits or customary law
rights in land. There were, in other words, two systems of property law: the common
law system which applied only to whites and which was aimed at protecting the use and
exploitation of land; and the statutory system which applied only to blacks and which
was aimed at establishing racially segregated patterns of land-holding and land use.
Apartheid land laws accordingly allowed the state to evict and forcibly removal millions
of black South Africans and to marginalise and undermine the security of their
occupation of land. Given this background it is not surprising that various sections of
the Constitution, as well as a number of land reform laws are specifically aimed at
promoting security of tenure by, inter alia, subjecting evictions from land to various
controls.
Amongst these are the following: (a) the Restitution of Land Rights Act 22 of 1994; (b)
the Land Reform (Labour Tenants) Act 3 of 1996; (c) the Interim Protection of Informal
Land Rights Act 31 of 1996; (d) the Extension of Security of Tenure Act 62 of 1997; (e)
the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998;
(f) the Rental Housing Act 50 of 1999; and (g) the Communal Land Rights Act.
These statutory controls have undoubtedly affected the landowner=s common law right
to evict.
2.2 The Constitution
The right to housing is guaranteed in section 26 of the Constitution. It provides as
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follows:
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to
achieve the progressive realization of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court
made after considering all the relevant circumstances. No legislation may permit arbitrary
evictions.
In order to give effect to this right, Parliament has passed a number of statutes. One of
these is the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19
of 1998 (the “PIE Act”)
2.3 The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act,
1998 (“PIE”)
2.3.1 Introduction
The PIE Act came into operation on 5 June 1998. As its preamble states, its purpose is
to give effect to the constitutional right to housing by, inter alia, regulating the eviction of
“unlawful occupiers”.
2.3.2 Application
PIE applies to occupiers who satisfy the definition of an unlawful occupier in section 1.
Read section 1 of PIE (the relevant sections of this Act are attached). Now answer the
following questions:
(i) How is the term “unlawful occupier” defined?
(ii) How is the term “building or structure@ defined?
(iii) How is the term “owner@ defined?
(iv) How is the term “person in charge@ defined?
The definition of an “unlawful occupier@ was considered by the Supreme Court of
Appeal in Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA).
Read Ndlovu v Ngcobo; Bekker v Jika 2003 (1) SA 113 (SCA). Now answer the
following questions:
(i) What were the facts of the case?
(ii) How did the SCA interpret the term “unlawful occupier@?
2.3.3 Requirements for Eviction
(a) Introduction
PIE regulates the eviction of unlawful occupiers by setting out certain procedural and
substantive requirements which must be fulfilled before an unlawful occupier may be
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evicted.
In this respect, PIE begins by drawing a distinction between eviction proceedings
instituted by the landowner (s 4) and eviction proceedings instituted by the state (s 6). It
the goes on to set out the procedural and substantive requirements which must be
satisfied before an eviction may be granted in terms of section 4 or section 6.
(b) Procedural Requirements
The procedural requirements for an eviction order for both section 4 and section 6 are
set out in section 4(2) to (5). Insofar as these requirements are concerned, section
begins by providing that an unlawful occupier must be notified of the eviction twice, first
in terms of section 4(3) and second in terms of section 4(2).
Section 4(3) provides that the notice must be served in accordance with the ordinary
rules of the court in question. In Nduna v ABSA Bank Ltd 2004 (4) SA 453 (C), the Cape
High Court held that PIE has endowed magistrates’ courts with the jurisdiction to hear
eviction proceedings either by way of action or by way of application. The section 4(2)
notice may be served on the unlawful occupiers therefore either by way of summons or
by way of notice of application.
Section 4(2), however, has introduced a new form of notice. This section provides that
at least 14 days before the eviction proceedings are heard, the “court must serve written
and effective notice of the proceedings on both the unlawful occupier and the
municipality having jurisdiction”.
In Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA),
the Supreme Court of Appeal explained that section 4(2) does not mean that the court
itself must serve written and effective notice on the unlawful occupier. Instead, it means
that the content and the manner of service of this notice must be authorised and
directed by an order of court.
This order of court, the Supreme Court of Appeal explained further, may be obtained by
way of an ex parte application. This ex parte application, however, can only be brought
after all of the papers have been served in terms of section 4(3). It must also be served
on the unlawful occupier and the municipality having jurisdiction at least 14 days before
the eviction proceeding is heard.
Insofar as the content of the section 4(2) notice is concerned, section 4(5) provides that
the notice must:
(a) state that the proceedings are being instituted for an eviction order;
(b) indicate the date and time at which the court will hear the matter;
(c) set out the grounds for the proposed eviction; and
(d) state that the unlawful occupier is entitled to appear before the court and defend
the case and, where necessary, has the right to apply for legal aid.
Lastly, the section 4(2) notice must also be written and effective.
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(c) Substantive Requirements
The substantive requirements for an eviction in terms of section 4 are set out in section
4(6) and section 4(7), while the substantive requirements for an eviction in terms of
section 6 are set out in section 6(1) and section 6(3).
Insofar as section 4 is concerned, the Act draws a distinction between unlawful
occupiers who have occupied the land for less then six months (s 4(6)) and unlawful
occupiers who have occupied the land for more than six months (s 4(7)). The period of
occupation is calculated from the date the occupation became unlawful.
If the unlawful occupier has occupied the land for less than six months, section 4(6)
provides that a court may grant an eviction order if it is of the opinion that it is just and
equitable to do so and after considering all the relevant circumstances. The relevant
circumstances that must be taken into account include the rights and needs of the
elderly, children, disabled person and households headed by woman.
If the unlawful occupier has occupied the land for more than six months, section 4(7)
provides that a court may grant an eviction order if it is of the opinion that it is just and
equitable to do so and after considering all the relevant circumstances. The relevant
circumstances that must be taken into account include, in addition to those listed above,
whether alternative land has been made available or can reasonably be made available
by a municipality, organ of state or landowner for the relocation of the unlawful occupier
and his or her dependants.
The circumstances expressly listed in section 4(7) do not apply, however, when the land
is sold in a sale of execution pursuant to a mortgage.
Insofar as section 6 is concerned, the Act begins by providing that that an organ of
state may apply for an eviction order: (a) if the consent of that organ of state is
required for the erection of a building or structure on that land or for the occupation
of the land, and the unlawful occupier is occupying a building or structure on that
land without such consent having been obtained; or (b) if it is in the public interest to
grant such an order (s 6(1)).
If these requirements have been satisfied, section 6 goes on to provide a court
may then grant an eviction order but only if it is just and equitable to do so after
considering all the relevant circumstance (s 6(1)). The relevant circumstances
which must be taken into account include (a) the circumstances of the occupation
of the land; (b) the period the unlawful occupier has been there; and (c) the
availability of alternative accommodation (s 6(3)).
Section 6 does not apply, however, when the land is sold in a sale of execution
pursuant to a mortgage.
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2.4 The relationship between the constitutional right to property and the
constitutional right to housing
2.4.1 Introduction
The relationship between the constitutional right to property (and, in particular, the right
to evict an unlawful occupier) and the constitutional right to housing has been
considered by the Constitutional Court on a number of occasions. Amongst its most
significant judgments in this respect are Government of the RSA v Grootboom 2001 (1)
SA 46 (CC), Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); and
President of the RSA v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC).
2.4.2
Read Mavis Marange v Chitungwiza Municipality and Glory to Glory Housing Co-
operative Case No 106/2014 .Now answer the following questions.
(i) What were the facts of this case?
(ii) What did the court decide?
(iii) How did the court arrive at its decision?
2.4.5 State Dwellings
Read Toverengwa Marega v The Officer In Charge Harare Central Prison HH 3-16.
Now answer the following questions.
(i) What were the facts of this case?
(ii) What did the court decide?
(iii) How did the court arrive at its decision?
(iv) What role must the state play in a private eviction?
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