Browsing by Author "Siphuma, Nzumbululo Silas"

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    The doctrine of notice in property law
    (Stellenbosch : Stellenbosch University, 2020-03) Siphuma, Nzumbululo Silas; Van der Merwe, C. G.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: Since its reception in the 1880s, the doctrine of notice has caused many controversies in South African private law. The doctrine provides that if an acquirer of ownership was aware or foresaw the possibility of the existence of a prior personal right aimed at acquisition of ownership over the land when he or she accepted transfer (by registration), the holder of a prior personal right is entitled to have the sale and the subsequent transfer set aside, and have registration of ownership effected in his or her name. In case of an unregistered limited real right, the grantee is entitled to compel the subsequent owner to cooperate in the registration of the limited real right in the land in the deed office in his or her favour. This outcome appears to conflict with several basic principles of South African private law. Consequently, the doctrine of notice has caused several doctrinal problems in both the South African system of property law and in the basics of the South African law of contract. Early South African case law and academic literature show that discourse regarding the doctrine of notice was centered on its doctrinal bases and scope of application. As a result, various doctrinal bases were developed in case law and academic literature in an attempt to justify and explain why under the doctrine a prior weaker personal right trumps a subsequent stronger real right. The main doctrinal bases advanced are equity, delictual liability, fraud, wrongfulness and fiction or recognition that the doctrine is an anomaly. However, recent case law and academic discourse has shown that there is a distinct lack of judicial and academic consensus regarding the doctrine’s dogmatic basis. The absence of clear doctrinal basis caused considerable ambiguity regarding the true scope of application of the doctrine of notice. Pertinently, the question is whether the doctrine should only protect prior personal rights to acquire real rights (iura in personam ad rem adquirendam) or should be extended to protect other rights, including rights that are purely personal in nature. Accordingly, this dissertation examines the doctrinal basis, scope and application of the common law doctrine of notice in South African property law. Drawing from the insights gained from scrutinising the two most recent comparative contributions, I conclude that explanations in terms of the derivative acquisition model and fraud in its modern appearance as mala fides are the two most persuasive bases for the doctrine because they demonstrate that the doctrine is rooted in South African property law. Furthermore, the dissertation concludes that the doctrine should not be extended to the scenarios of sales in execution, options, rights of pre-emption, sales subject to approval by a third person, and other rights purely personal in nature, since these right operates outside of the two-stage derivative acquisition model. Therefore, the application of the doctrine should be restricted to the classic scenarios of double and successive sales, and personal rights which will become real on registration (iura in personam ad rem adquirendam) acquired by the prior purchaser or grantee of certain limited real rights because holders of these rights are operating within the domain of the two-stage derivative acquisition model.
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    Extending the lessors tacit hypothec to third parties property
    (Juta Law, 2015-01) Van Der Walt, A. J.; Siphuma, Nzumbululo Silas
    In case law the lessor’s tacit hypothec has been extended to cover movable property belonging to a third party. This extension of the hypothec is reasonably well established, but there is some uncertainty about the reasons or justifications for it. Two seemingly contradictory explanations for the extension have been raised in the literature, namely implied consent and estoppel. Upon closer scrutiny the former reason appears in fact to refer to (judicially) imputed rather than implied consent. Provided that the consent is judicially attributed to the third-party owner of the movables on the ground that she should have been aware of the whereabouts of her property and should have taken the necessary and reasonable steps to protect it against the landlord’s hypothec (for example by informing the landlord of her right in the property), this seems to be an acceptable explanation for the extension of the hypothec. The same can be said for estoppel in cases where the requirements for estoppel are actually proved, particularly if fault (negligence) is required and if it is proven that the owner of the movables could have disabused the landlord of the false impression that the movables belonged to the tenant, but failed to do so. From a policy perspective, it can therefore be said that the extension of the hypothec to movables that belong to a third party is justified, provided that the reasons for the extension (either imputed consent or estoppel) are understood correctly, and the accompanying requirements are applied correctly and strictly. From a constitutional property perspective, the deprivation of property that extension of the hypothec brings about when a third party’s property is affected by the landlord’s right to attach and sell the movables would be constitutionally unassailable (not arbitrary in terms of s 25(1) of the Constitution) if there is sufficient reason for the deprivation. Provided the requirements are applied correctly and strictly, in line with the policy explanations (imputed consent or estoppel) that explain the extension satisfactorily, the deprivation of a third party’s property that results from extension of the hypothec should generally speaking not be arbitrary, and thus should be constitutionally uncontroversial. This conclusion contradicts views to the contrary that have been expressed in the academic literature.
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    The lessor’s tacit hypothec : a constitutional analysis
    (Stellenbosch : Stellenbosch University, 2013-12) Siphuma, Nzumbululo Silas; Van der Walt, A. J.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The lessor's tacit hypothec improves the chances of the lessor to recover rent in arrears. This real security right arises by operation of law and attaches to the lessee's movable property found on the leased premises when rent is due but not paid. The extension of the lessor‟s tacit hypothec to third parties' property is the remedy's most controversial feature. The extension is supposedly based on one of two theoretical justifications, namely implied consent and the doctrine of estoppel. According to the implied-consent theory, the extension is based on the premise that the third party consented (explicitly or by implication) that his property can serve as security for the payment of the lessee's arrear rent. The basis of the second theory, the doctrine of estoppel, operates as a limitation on the rei vindicatio of the third party. Over the years discourse has shown that there are uncertainties surrounding these justifications. Recent debate has also shown that if constitutionally challenged, the extension of the lessor's tacit hypothec could amount to arbitrary deprivation of third parties' property. The aim of this thesis is to establish whether and how the existing common law principles that provide for the extension of the lessor's tacit hypothec over property belonging to third parties are affected by section 25(1) of the Constitution. Consequently, the thesis describes, analyses and scrutinises the general principles regulating the lessor's tacit hypothec, and more specifically the extension of the lessor's tacit hypothec to third parties' property, in view of section 25(1) of the Constitution. Taking into considering the recent statutory protection of third parties' property, the thesis concludes that the extension of the lessor's tacit hypothec does not constitute an arbitrary deprivation of third parties' property because correct application of the common law principles that provide for the extension and the statutory protection that has been introduced to exclude a large number of cases from the reach of the extension adequately protect third parties' property interests. Therefore, the requirements of section 25(1) are satisfied.