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Summary Property Law 272 Second Semester Case Summaries
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Comprehensive Case Summaries of the prescribed cases of the Second Semester 2022.
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TOPIC 7: POSSESSION: DEFINITION, VESTING, PROTECTION, TERMINATION7.1 Definition & Acquisition
Reck v Mills 1990 1 SA 751 (A)
FACTS:
Note: Before Wreck and Salvage Act (1996) and National Heritage Act (1999) =
Common Law applies! = POD: SHIPWRECKS = RES DERELICTAE
• Mills salvaging large condenser - tied a rope with a buoy to a condenser,
while condenser still attached to the shipwreck
• Mills then left premises and returned later
• Reck also attempted to salvage the same parts of the shipwreck – had special
equipment to remove condenser & salvaged the condenser
• Dispute over condenser
LEGAL QUESTION:
Who is owner? Did Mills/Reck acquire ownership of the condenser by way of
occupatio?
Court a quo: Mills = original salvor (enjoys preference)
Reck Appeals.
JUDGEMENT:
REQUIREMENTS FOR OCCUPATIO – main focus of the case!
1st requirement: Common cause that shipwreck (Antipolis) is res derelictae (res
nullius). = first requirement is met!
Other requirements for possession established? (corpus & animus)
2nd requirement
Theory: Physical control? – sufficient and effective physical control
Application: attachment of rope to buoy to condenser does not constitute sufficient
and effective control – requirement not met.
Mills did not acquire ownership. Should have removed condenser from the shipwreck
and then marked it with rope and buoy.
Reck = owner then!
3rd requirement
Theory: Animus? – animus domini. Intention of the owner.
Application: Not discussed by the court.
Criticizes high court – do not consider who got to the property first. Look at person
who had sufficient and effective control!
,De Beer v Zimbali Estate Management 2007 (3) SA 254 (N)
Elements of possession
FACTS
• APPLICANT – estate agent (Casandav), business on Coast of KZN
• RESPONDENTS:
o 1st respondent – S21 company
o 2nd respondent – company responsible for development of Zimbali
estate
• ZIMBALI
o Property– upmarket, gates residential & resort development
o Condition of registration – managed by homeowner’s association = 1ST
RESPONDENT = controls & restricts access to Zimbali
• APPLICATION?
o 1st R controlled access to Zimbali – boom gates
o 2003:Issued APPLICANT disc = unrestricted access to all areas of
Zimbali
o Disc = automatically disabled & applicant had it reprogrammed
o 2005: disc reprogrammed but disabled = could not gain access to any
part of Zimbali
o Applicant exercised peaceful & undisturbed access for 2 ½ years @
the time
o Applicant’s attorneys demanded access to be restored but failed
o Urgent matter – lose sale of property in Z worth R15mill
• RELIEF
o Spoliation order:
▪ 1st R – restore to applicant unrestricted access to Z
▪ 1st or 2nd R who oppose application – ordered to pay costs
• RESPONSE
o 1st R opposed application & affidavit
o Standard sale bw 2nd R as seller & purchasers of property:
▪ If owners wanted to disposed of property, had to use estate
agents appointed by 2nd R
o Applicant not accredited to sell properties
o All owners of properties in Z = members of 1st R & bound by its rules
o 2nd R – denies that applicant was entitled to access to any part of Z
other than the Beach Estate = trespasser
o 2nd R – alleges that applicant using disc to secure access to all parts to
gain access to clients in order to effect sales & recover commission
LEGAL ISSUES
• Application: Causa of dispute = irrelevant & relying on fact that she had been
despoiled of possession of the remainder of the estate
• Applicant seeks spoliation order & merits are not relevant
• HAS THE APPLICANT MADE OUT A CASE FOR A SPOLIATION ORDER?
• DID THE APPLICANT HAVE POSSESSION OF THE WHOLE ESTATE?
,JUDGEMENT
REQUIREMENTS FOR OBTAINING MANDAMENT VAN SPOLIE:
a) Person must exercise peaceful and undisturbed possession
- Prove the 2 elements – corpus & animus
b) A person has been deprived unlawfully of the whole or part of his
possession of movables or immovables; and also
c) A person has been deprived unlawfully of his quasi-possession of a movable
or immovable incorporeal
DEFINITION: Spoliation is any illicit deprivation of another of the right of
possession which he has, whether in regard to movable or immovable property or
even in regard to a legal right
(origins & developments of the mandament – pg. 7-12)
In case: boom = effectively locked & disc = key which makes access to whole estate
possible = amounts to locking a gate which despoils possession
DID THE APPLICANT HAVE POSSESSION OF THE WHOLE ESTATE?
• Had disc which allowed access to the whole estate
• Academics & precedent:
• Mandament employed to prevent people from taking law into own hands &
requires the property despoiled to be restored as preliminary to any
investigation on the merits of the dispute
• Court asks – “in possession of designated area at a relevant time?”
• Control element of possession = more NB in case of acquisition of
possession by occupation > transfer
• Possession where person has a key: key to one room does not = physical
control of building as a whole
• Physical control over a building is exercised by person who occupies it & by
person who holds the key to the building
• Mechanism of access: Holding of key = sufficient for control over the contents
of the building
• For someone to exercise physical control – key must be the only key to the
building!
• Para 42 – applicant not in same position as a visitor – cannot bring spoliation
order as needs to come in with permission
• Mandament of spolie = available for the restoration of lost possession of a
right of servitude – servitude does not have to be proved, status quo has to be
restored by mandament until it is determined whether the servitude exists
• Summary of cases dealing with a spoliation order:
• Spoliation order: inquire into whether the applicant had established, on
basis of undisputed facts, that it was in possession of the designated
area at the relevant time. the mere right to use the property does not
amount to possession.
• Mandament protects possession not access
• Possession = exclusive, to exclusion of others
• Possession of keys by many people = waters down possession &
, • In casu it is not the sort of possession that is required to achieve the
protected of the mandament
• Real purpose of mandament = prevent breaches of peace
o Someone w/ exclusive possession who is deprived thereof = breach of
peace
o Breach will NOT take place where may people have access to property
o ZIMBALI:
▪ Individual owners = possession of houses & possession of
communal areas as a group of owners
▪ Persons w/ access (frequent or habitual) = not in possession
of the units or communal areas
ORDER
Respondents do not object to applicant having access to beach estate =
entitled to & can be accessed w/out applicant being able to gain access to
other parts
• Applicant wants unrestricted access to the whole estate?
• APPLICANT DOES NOT ESTABLISH SORT OF POSSESSION
REQUIRED FOR A MANDAMENT FOR THE REMAINING PARTS
o Corpus element not complied with! Para 54!
• APPLICATION DISMISSED W/ COSTS
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