Property Law

• Author: van der Sijde, E.
• Published date: 28 March 2022
• Date: 28 March 2022
• Citation: 2020/2021 YSAL 1052
• Pages: 1052-1095

1052

1. INTRODUCTION

In South Africa, propert y law functions as part of a single, democratic legal

system.1 Specifically, that system is based on the foundational values of

freedom, equality and dignity.2 The common-law rules and principles that

make up the body of property law exist within this framework. Property

law doctrine is therefore cont inually being evaluated by the courts to ensure

that it is responsive to social, economic, tec hnological and political changes

in soc ie ty.

For the period under review, some of the trends previously identified3

remain important. For example, the mandament van spolie continues to

be widely relied on in a variety of contexts. Consequently, the courts are

experiencing significant pressure to clarify how the requirements for

the mandament apply in newly developing contexts, and in particular in

relation to quasi possession. Additionally, the interplay between potential

constitutional remedie s and the development of the mandament has remained

prevalent. These trends highlight the role of the courts in developing

property law rules and pri nciples to be fully in line with the demand s of the

Constitution of the Republic of South Afr ica, 1996.

* LLB LLD (Stell) LLM (UP); Research fellow at the Department of Public Law, Stellenbosch

University and fellow at the South African Research Chair in Property Law (SARCPL). The

SARCPL is hosted by Stellenbosch University, funded by the Department of Science and

Technology, and administered by the National Research Foundation. The financial support of

the National Research Foundation is gratefully acknowledged. Thank you to Camilla Johnson

for research assistance and to the editors for editorial review and assistance. ORCID: https://

orcid.org/0000-0002-9022-5961.

1The single-system-of-law principle stems from the dictum of Chaskalson P in

Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South

Africa2000 (2) SA 674 (CC) para 44, which is based on s2 of the Constitution of the Republic of

South Africa, 1996. See AJ van der Walt Property and Constitution (2012) 19–24 for a discussion

of the implications of this dictum for property law.

2See s1(1) of the Constitution.

3See ZT Boggenpoel ‘Property Law’ (2020) 1 Yearbook of South African Law 1064.

Property LawProperty Law

Elsabé van der Sijde*

2020/2021 YSAL 1052

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propertY LAW1053

This chapter is structured as follows. Section 3.1 focuses on interesting

and important developments in relation to the m andament van spolie. Section

3.1.1 considers the decision of the Supreme Court of Appeal (SCA) in Blendr ite

(Pty) Ltd v Moonisami4regarding the applicability of the mandament to the

restoration of access to a company email address and ser ver. The discussion

focuses on the ty pe of possession that is requ ired for successful rel iance on the

mandament. Section 3.1.2 examines the cas e of Wilrus Trading CC v Dey Street

Properties (Pty) Ltd5 more closely, where the court was asked to determine

whether the loading of contested outstanding debts on prepaid electricity

meters interfered with the applica nts’ peaceful and undisturbed posses sion

of property. Turning from the possession requirement of the mandament to

the requirement of unlawful deprivation, section 3.1.3 considers whether a

letter could constitute an act of spoliation, which was the question before

the SCA in Bisschoff v Welbeplan Boerdery (Pty) Ltd.6Finally, in section 3.1.4,

the interplay between the development of the mandament van spolie and

a constitutional remedy to restore possession temporarily is revisited. In

Mtshingana v City of Cape Town,7 the Western Cape High Court was faced

with the difficult decision of how to protect possession in a case where t he

requirements for the successf ul reliance on the mandament had not been met,

but a remedy was due because the court found that there was a bre ach of the

occupiers’ con stitutional rig hts.

Section 3.2 considers the interest ing case of Seale v Minister of Public Works,8

where an unenforceable agreement to agre e affected a (purported) servitude

agreement almost a hundred years after the fact. While the enforceability

of agreements to agree (or agreements to negotiate in good fa ith) is debated

mainly in the realm of contract law, the impact of these legal developments

in the context of servitude law is worth ex ploring in closer det ail.

Section 3.3 highlights remaining questions regarding the procedural

requirements to declare immovable property specially executable. In

Nedbank Limited v Bestbier (Scholtz Intervening),9 the scope of application

of rule 46A of the High Court Ruleswas considered in relation to trust

property. The case also considered the po sition of farmworkers and whether

4Unreported, [2021] ZASCA 77, 10 June 2021, available online at http://www.saflii.org/

za/cases/ZASCA/2021/77.html (Blendrite).

5Unreported, [2021] ZAGPPHC 42, 9 February 2021, available online at http://www.

saflii.org/za/cases/ZAGPPHC/2021/42 html (Wilrus Trading).

6Unreported, [2021] ZASCA 81, 15 June 2021, available online at http://www.saflii.org/

za/cases/ZASCA/2021/81.html (Bisschoff).

7Unreported, [2020] ZAWCHC 156, 13 November 2020, available online at http://www.

saflii.org/za/cases/ZAWCHC/2020/156.html (Mtshingana).

8Unreported, [2020] ZASCA 130, 15 October 2020, available online at http://www.saflii.

org/za/cases/ZASCA/2020/130.html (Seale).

9Unreported, [2020] ZAWCHC 107, 17 September 2020, available online at http://www.

saflii.org/za/cases/ZAWCHC/2020/107.html (Nedbank v Bestbier).

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YeArbooK oF south AFrICAN LAW

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they have a right to be joined to proceedings of this nature. The case set

out the widespread uncertainty about and different judicial approaches to

the interpretation of rule 46A and proposed a solution for a harmonious

interpretation of rule 46A.

Finally, in section 3.4, the focus turns to co-ownership, and specifically

the test for when a co-owner can approach the court to have co-owned

property divided. In Municipal Employees’ Pension Fund v Chrisal Investments

(Pty) Ltd,10 the SCA examined when a co-owner’s reliance on the actio

communi dividundo is competent.11 This decision provided a clear test

for distinguishing between free co-ownership (where the actio communi

dividundo is readily available) and bound co-ownership (where the actio

communi dividundo is not available). Moreover, the SCA clarified th at in any

particular case, the type of co-ownership must be characterised properly

and at the outset, before a claim for the division of co-owned assets can be

considered.

The selected cases a re examples of the key legal developments of the past

year in property law. It should be noted that to avoid overlap with other

property-related chapters in this collection, this chapter does not discuss

matters primarily related to land reform12 or constitutional property law,13

as these topics are expertly addressed by colleagues. For a comprehensive

perspective on the state of property law i n South Africa, this chapter should

be read in conjunction with the chapters on ‘Constitutional Property Law’

and ‘Land Reform’, since all three chapters reflect important developments

in property law.

2. LEGISLATION

No relevant legislation was promulgated during the period u nder review.

3. CASE LAW

3.1 SPOLIATION

The mandament van spolie is fre quently sought in property law disputes, and

it crops up in a wide variety of cases, rang ing from the housing and eviction

context to the possession of incorporeals such as electricity and email

addresses. Interestingly, while the requirements for successful reliance

on the mandament are apparently simple, these requirements often need to

10 Unreported, [2020] ZASCA 116, 1 October 2020, available online at http://www.saflii.

org/za/cases/ZASCA/2020/116.html (MEPF v Chrisal Investments).

11The cases discussed in section 3 below represent a selection of the cases discussed in JQR

Property 2020 (3), JQR Property 2020 (4), JQR Property 2021 (1) and JQR Property 2021 (2).

12See J Pienaar ‘Land Reform’ in this volume.

13See N Sibanda ‘Constitutional Property Law’ in this volume.

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