Authorities

Question 1

Ex parte Geldenhuys

Answer 1

A personal right can be registrable if it is inextricably linked to one or more real rights

The test for real rights is subtraction from dominium and intention to bind successors in title.

Question 2

Schwedhelm v Hauman

Answer 2

A servitude cannot impose a positive obligation on the servant owner. (RULE OF PASSIVITY)

Question 3

Cape Explosive works v Denel

Answer 3

The omission of a real right from the registry does not affect its legal status.

Intention to bind successors in title

Question 4

Lorentz v Melle

Answer 4

Servitudes must relate to permanent feature of servient land - contingent obligations cannot be real.

Question 5

Nino Bonino v De Lange

Answer 5

the law will not allow a man [sic] to take the law into his own hands
Requirements for MVS- peaceful and undisturbed possession and spoliation has occurred
Dont take merits into account

Question 6

Mbangi

Answer 6

phrase “peaceful and undisturbed possession” implies effective physical control = sufficiently firm /established
thus if you cant establish possession you cant institute MvS

Question 7

Sillo

Answer 7

invoking aid of law (in cases like a pound ordinance) is not spoliation

Question 8

George municipality

Answer 8

if you claim to have the authority to dispossess someone ito of a statue you bare onus of proving that your action is covered by statute

if bounds of statute are exceeded, spoliation has occurred and MvS is available

Question 9

Impala Water Users association

Answer 9

Dispossession of water right = spoliation

there is onus of showing that dispossession fell within the ambit of the stature the party is relying on

Question 10

Mans

Answer 10

Counter spoliation must be instanter

Question 11

Ness

Answer 11

action within 11 days = instanter

possession has 2 elements, corpus and animus

Question 12

Tswelopele

Answer 12

Gave rise to constitutional remedy

Prove eviction from home w/o court order, building materials destroyed

Question 13

Schubart Park

Answer 13

Evictions from homes will always
violate s 26(3)

This entitles those evicted to a constitutional remedy (“appropriate relief”) in terms of s 38

mandament van spolie does not do enough
to be considered “appropriate” relief
in the context of violation of constitutional rights

Question 14

Bon Quelle

Answer 14

Don’t need to prove existence / ownership of servitude
Dont consider merits
Water is an incident of possession
Sometimes courts will allow use of MvS to protect use rights arising from contract