n South African Journal on Human Rights - The constitutionality of the lessor's hypothec : attachment of a third party's goods

Volume 27, Issue 2
  • ISSN : 0258-7203



The lessor's tacit right of hypothec is a speedy remedy which allows lessors suffering defaulting lessees to recover any outstanding amounts owed to them. The procedure for the recovery of these monies, provided for in the Magistrates' Court Act and the Supreme Court Act, allows the movable goods belonging to the lessee to be judicially attached and sold in execution. During such attachments, ownership of goods is mostly disregarded and goods belonging to third parties that are found on the premises are subject to the same treatment. The common law provides four well-entrenched requirements that need to be fulfilled in order to attach goods belonging to a third party. The theoretical justifications of these requirements are that the third party has consented to their goods being used as security for the lessee's debts or that the third party is estopped from having their goods protected because they created an impression in the lessor's mind that the goods belonged to the lessee. Herein lies the problem: since there is no nexus between the third party's goods and the debt of the lessee, the theoretical justifications of consent or estoppel become questionable and, because of this, the attachment and sale of a third party's goods is potentially an unconstitutional and an arbitrary deprivation of property. Recent analogous case law suggests that such deprivations of property are in fact arbitrary and unconstitutional and it is now appropriate that the lessor's tacit right of hypothec be contemporised to reflect the current constitutional values in South Africa.

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