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Case lawProperty
TOPIC 1
1. Coetzee v Coetzee [2016] 4 All SA 404 (WCC)
Facts
The plaintiff and the defendant were co-owners of a farm. The plaintiff owned 90% of the farm, and
the defendant owned 10% of the farm. Both parties had effected renovations on their respective
properties.
This was a free co-ownership in which both parties gained ownership a (non-physical) undivided
share in the property. The plaintiff sought an order for the co-ownership arrangement to be dissolved
and that the defendant do all that is necessary to transfer ownership of his portion to the plaintiff.
The defendant did not want to transfer his ownership: instead, he contended that the co-ownership
arrangement should be dissolved by means of physical subdivision, which would grant him exclusive
ownership of a portion of the farm (which included his cottage), and grant the plaintiff exclusive
ownership of his portion of the farm.
Issue
Is it possible for a court to dissolve a co-ownership agreement when a subsequent subdivision of
agricultural land would require a) consent from the Minister of Agriculture and b) approval from the
local municipality? – and where both owners seemingly cannot agree on this course of action. Both
owners needed to agree in order to obtain the Minister’s consent and the local authority’s approval.
Findings
The court a quo found that it was legally and practically impossible to physically subdivide the farm
due to the absence of the necessary regulatory approval.
Para 13:
• “… The actio communi dividundo has a two-fold purpose, viz. to claim division of joint
property and payment of praestationes personales [personal obligations] relating to profits
enjoyed or expenses incurred in connection with the joint property. Van der Linden, 1.15.15;
Voet, 10.3.3 Van Leeuwen, Censura Forensis, 1.4.27.2,4.
• The basic notion underlying the actio communi dividundo is that no co-owner is normally
obliged to remain such against his will. Van Leeuwen, Censura Forensis, 1.4.27.1. Accordingly
when co-owners are desirous of having their joint property divided and the share of each
allotted to them in severalty, they may agree to the division among themselves without
having recourse to judicial proceedings.
• …. ‘if there is a refusal on the part of one of the co-owners to divide then the other co-owner
can go to Court and ask the Court to order the other to partition. Again, if the parties agree
Ann Bregman
, that there is to be a partition but the parties cannot agree as to the method or mode of
partition, the Court is asked to settle the mode in which the property is to be divided.’”
Paras 28-9:
• “The trial court was bound, in my view, to have attached significant weight to the evidence of
Cornelius van der Walt, an official in the Western Cape Department of Agriculture charged
with making recommendations to the national Department in respect of subdivision
applications, that an application for the subdivision of the farm as proposed by the
defendant enjoyed good prospects of success. Van der Walt testified that he would support
such an application in principle and that the national Department followed his
recommendation in the determination of the vast majority of applications submitted in
terms of s 4 of the Subdivision Act…There was also evidence that the Minister had
historically adopted an indulgent approach to applications for the subdivision of agricultural
land when these sought to effect a division of ownership in cases when undivided co-
ownership had vested in the parties prior to the commencement of the Subdivision Act.
2. Body Corporate of the Laguna Ridge Scheme N.O. 152/1987 v Dorse 1999 (2) SA 512 (D).
(23 October 1998).
In this famous case the scheme’s rules allowed pets on the trustees’ written consent. The trustees
denied consent because they felt Laguna Ridge, consisting of 18 stories and 65 flats, was unsuitable
for pets and therefore their general policy was to deny applications and thereby had created a
precedent. The owner of the miniature Yorkshire terrier in question made a counter-application
requesting permission to keep her pet, which did not cause a nuisance to anyone in the scheme. The
court found that the trustees were motivated by irrelevant considerations (precedent) as opposed to
relevant ones, being that the dog did not form a nuisance. Indeed, it was found that the denial was
so unreasonable as to warrant the inference that the trustees had failed to apply their minds. The
court accordingly granted the owner of the Yorkshire terrier leave to keep her pet subject to certain
conditions. This case emphasised the importance of trustees applying their minds to the individual
circumstances of each case and not merely relying on general principles or precedence.
3. Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal
Authority and Others 2012 (6) SA 32 (CC)
Facts
The applicant, Bak…, is a provincial association which was formed in terms of the Act.
Issue
The matter concerns the proper interpretation and application of section 5 of the Communal
Property Association Act (the Act). The main issues before that court were whether the Association
Ann Bregman
, was properly registered under the Act so as to be able to institute an action before the Court and
whether the Association was entitled to be registered as a permanent association.
TOPIC 2
1. Macdonald v Radin 1915 AD 454
This is the classic case in our law pertaining to accession of a movable to an immovable
(inaedificatio). The court espouses the ‘traditional’ approach and/or view in saying that the intention
of the movable owner must be consulted only if the nature of the particular article and its degree and
manner of attachment do not provide a straightforward solution. In later cases the intention of the
annexor was typically held to be relevant, but perhaps this is simply because this case deals with an
unusual case of third-party annexation. Later cases also depart from this test in that intention is held
to be the primary, rather than subsidiary, enquiry, of which the other two criteria are merely
objective indicia.
The three standards applied by the courts to determine whether a movable thing is attached to an
immovable thing by means of accession in such a fashion that it subsequently becomes part of the
immovable thing, with the result that the right of ownership thereof thereafter vests in the owner of
the immovable thing, will be briefly discussed under the following headings:
(i) Nature and purpose of the attached thing
(ii) Manner and degree of attachment
(iii) Intention of the person annexing it (or the intention with which the attachment was
effected or the intention of the owner of the movable)
If the first 2 criteria are not decisive, the third one is the determining factor. In this case, the third
criteria was described as the intention of the person annexing it and also as the intention with which
it was annexed.
The judge however, subsequently stated that one can only look at the intention of the owner of the
movable. In this particular case and in the question the owner of the movables was also the annexor,
although he acted under the supervision of the non-owner (holder of the land in terms of an
instalment sale).
Facts
The respondent had sold but not yet transferred a building to a buyer. That buyer bought certain
refrigerating equipment from the appellant on hire purchase and installed it in the building by means
of nuts and bolts. When the buyer defaulted on his payment, the respondent resumed possession of
the building and all its improvements. The appellant instituted proceedings to reclaim its
refrigerating equipment. The question then arose whether this equipment had become the property
of the respondent through accession to the immovable.
Legal question
Ann Bregman
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