Study Guide Eng 273
Study Guide Eng 273
Study Guide Eng 273
LAW OF PROPERTY
Faculty of Law
No part of this MOD may be reproduced in any form or in any way without the written permission of the publishers.
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Module information
Module code IURI 272 EC
16 Credits
Module credits This implies that you must spend a total of (at least) 160 hours to
master the outcomes of this module successfully.
Additional resources or Access to internet, eFundi, email – as well as access from time to time,
to equipment such as a pc/laptop. You can use the computer labs if
requirements to
needed.
complete module
successfully
Introduction
Purpose of the module:
IURI 272 is an introductory module to the Law of Property. The purpose of this module is to enable
students to master the basic principles of property law and to equip them with the necessary skills
and competencies to analyse and solve the most basic and common property-law problems.
1
The timetables on the different campuses are aligned. Due to each campus’s unique context the
amount of contact sessions may differ. During contact sessions the discussion will focus on the
main aspects of the work in addition to certain very specific problems. You are expected to work
through the prescribed study material that we do not cover in class on your own. Without this
continuous self-study, you will not be able to achieve the required outcomes to pass this module,
and you will also not have a working knowledge of property law. You have to prepare for each
lecture – and be prepared to answer questions and participate in discussions. It is suggested that
you summarise all the work that we are going to cover every week, before coming to class – and
that you supplement this with notes about the specific issues that we do cover in class. Class tests
will be written in designated evaluation periods. You will also be expected to do some problem
statements or assignments from time to time that will be based on the work that you have prepared
for the period. Attendance of classes is mandatory and you will be penalised (by default) if we
do an assessment in class and you were not present. This also applies to any ad hoc
announcements and arrangements that are made during lectures. If you are unable to attend a
lecture, it is your responsibility to find out any pertinent information from the students who did
attend. The lecturer will not repeat this outside of the classroom. This arrangement also applies to
arrangements and announcements made on eFundi. Therefore, if something was announced in
class, posted on eFundi, or is contained in this MOD, the lecturer will not respond to questions
about the matter outside of the classroom – and also not via email. As alluded to above, in this
course the focus is not on knowledge transfer by the lecturer, but rather on active knowledge
acquisition by the student through self-study. Therefore, it is essential that you come to class fully
prepared if you want to get the most from the lectures. This means that you have to read through
the prescribed material (including cases) BEFORE the lecture, and have spent some time thinking
about the work.
Factual knowledge that you can read and master independently in the prescribed textbook, articles
and cases will receive little attention during the lecture periods. The emphasis will rather be on the
application of factual knowledge and the making of syntheses to enable learners (who have
prepared for the lecture period) to apply the study material and be able to apply it in a broader
context. The emphasis will therefore always be on self-study.
COVID19 Restrictions
In adherence to National Lockdown Regulations, face-to-face classes might be replaced with online
classes.
Module outcomes
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• discipline-specific methods and techniques of scientific enquiry and information gathering on
property law and related disciplines of this study year from relevant discipline-related sources,
analyse, evaluate and synthesize the information and apply your conclusions/research to a given
context in the field of property law;
• accurate and coherent written and verbal communication of individual and group tasks and projects
with understanding of and respect for intellectual property conventions, copyright and rules on
plagiarism.
• an understanding of and ability to identify how new technological developments in the field are
shaping the content discussed in this module and how this is being addressed in the courts,
practice and academic discourse.
Assessment administration
The administration of assessment will be discussed by each individual lecturer. General principles
apply across campuses. Sickness letters and other valid excuses regarding tests and / or
assignments must be submitted to the relevant lecturer / secretary within 7 days after a test was
written / assignment must be submitted. Failure to apologize in a timely manner will result in the
apology not being accepted and a mark of 0 being awarded.
Inquiries about marks, requests for the re-marking of tests / assignments must be sent to the
lecturer / secretary concerned or submitted to him / her within 7 days after the test / assignment
has been returned to the students. Failure to act in a timely manner will result in incorrect
calculations / entries not being corrected, or tests / assignments not being re-marked.
Half-year marks are calculated based on the available mid-year marks, and are used by the
university administration to determine if you are showing sufficient progress. Your lecturers cannot
change these marks, and the accompanying half-year mark will not be taken into account when
determining your participation mark or final module mark.
Assessment criteria
Students will have obtained the module outcomes if they can demonstrate that they
can:
1. Define key concepts of Property Law, identify, contrast and critique different normative
theories underlying Property Law; describe how Property Law is related to other fields of Law
and legal practice; and identify and apply legal rules and principles pertaining to Property
Law.
2. Select the relevant provisions of legislation and the common law to solve problems in the field
of Property Law; evaluate and critique legislation and case law relevant to Property Law;
identify and deconstruct legal problems; and apply the principles of Property Law to solve
those problems.
3. Apply relevant constitutional principles to Property Law and find solutions for the development
of Property Law in the light of such constitutional principles.
4. Apply effective learning and monitoring strategies to ensure learning progress towards
outcome attainment; and apply effective time management strategies to complete and submit
assignments on time.
5. Indicate how new technological developments in the field are shaping the content of Property
Law and how this is being addressed in the courts, practice and academic discourse.
3
Module plan:
(Always refer to the "lessons" part of eFundi for the updated and applicable plan –
which might be amended from time to time)
Introduction to
Law of Property
Unit Topic the Law of
Casebook & other
Property
Theme I: Introduction
1. Introduction to the law of property Chapter 1 [1]
Chapter: History
of Property Law
2. History of Property Law and Roman
and Roman
Property Law
Property Law
(eFundi)
Bhe and Others v
Magistrate,
Khayelitsha, and
Others; Shibi v Sithole
and Others; South
African Human Rights
Chapter:
Commission and
Indigenous
Another v President
(customary)
3. Indigenous (customary) property law Of The Republic Of
property law
South Africa And
(eFundi); Another 2005 (1) SA
580 (CC)
Madikizela-Mandela v
Executors, Estate
Late Mandela and
Others 2018 (4) SA
86 (SCA)
Things as legal objects; Journal article
4. "Dephysicalisation" and modern objects Chapter 2
of property law (eFundi)
4
13. Termination of ownership Chapter 11
Theme III: Possession and holdership
20. Real security rights: pledge and [55] [63] [66] [68] [71]
Chapter 18
mortgage [75] [76]
Chapter 19 [56] [58] [61] [62] [71]
21. Real security rights created my law
[76]
22. Other property rights Chapter 20 [60] [75] [79] [80]
Theme V: Constitutional property law and the future of property law
23. Introduction to constitutional property law Chapter 21 [77]
24. Property rights: section 25 Chapter 22 [65] [66] [67] [70] [77]
Assessment
Requirements for successful completion of the module
• Participation mark: minimum 40% to obtain admission to examination
• All practical tasks must have been completed and a minimum of 50% obtained for every task.
• Examination sub minimum: 45%
You need a final module mark of at least 50% to pass the module
Assessment plan
A) Formative assessment:
Scheduled tests, class tests and assignments
Shorter questions, which may include multiple choice questions regarding preparation of
specific study material, shall be taken without notice during an ordinary contact session.
Longer questions to test your insight shall normally be asked after a study section has been
finalised.
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B) Summative assessment:
Examination:
Shorter questions, which may also include multiple-choice questions, to test your knowledge
of the relevant legal principles, points of view of authors and case law. Your insight into and
application of these principles will normally be tested by means of longer problem questions,
where systematic thinking and correct formulation are of the utmost importance. (1x 3hr
Exam paper)
C) Informal assessment
Informal assessment will be done throughout the year by means of (amongst others) peer
evaluation, class discussions, student presentations, participation in tutorials and quizzes on
eFundi.
A) Participation mark:
The participation mark will be determined as follows:
There will be 5 marks for this course used to determine 4 final marks for participation purposes.
It will consist out of 3 scheduled tests and one research assignment, together with additional
class tests, assignments and other assessments that contribute to your fifth mark.
Of the main assessment marks (3 tests and 1 Research assignment), the worst (or absent)
mark will fall away.
The calculation looks like this:
Mark 1: Test 1 (50 marks), (test week)
Mark 2: Test 2, (50 marks), (semester exam)
Mark 3: Research Assignment (50 Marks), (second semester)
Mark 4: Test 3, (50 Marks), (test week)
Mark 5: (Average of all of the other assessments)
Total will be calculated out of 100.
NB: There are NO sick-tests in this module, and also NO second opportunity during
the mid-year assessment period.
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Calculation of final mark
Participation mark: 50%
Examination mark: 50%
TOTAL: 100%
Study material
Compulsory study material
• Horn JG, Knobel IM and Wiese M Introduction to the Law of Property 8th ed (Cape Town: Juta & Co)
Additional material in the form of journal articles, newspaper reports, legislation. Multimedia and
extracts from other textbooks and materials will be announced throughout the year and where
applicable, made available on eFundi.
Time management
Module administration Example: Hours per year
Weeks per year 28
Duration of lecture period 50 min = 0.83 hrs.
Lectures per week 2 periods per week 46
Tutorials per week 2 periods per week 46
Other non-contact time per year; therefore 56
preparation and study time (h)
Writing tests and examination 12
Total hours per year 160
7
Study units
This is only an overview of the themes/topics with their outcomes. Activities/assessment and study
material will be available on eFundi.
1 Theme I – Introduction
Theme I deals with various preliminary topics, on completion of this study unit you should be able
to have sufficient theoretical knowledge of the background, sources and development of property
law, as well as the concepts and legal relationships being used. The effect of Roman law on the
South African law of property and the evolution of property law over time are also discussed. The
origin and legal operation of indigenous (customary) property law in South Africa forms part of this
theme. The characteristics of a ‘thing’ for purposes of property law are discussed and a distinction
is drawn between real and personal rights. After completion of this theme you will be able to apply
this knowledge to practical case studies and case law.
Textbook Chapter 1
Casebook [1] Pearly Beach Trust v Registrar of Deeds 1990 4 SA 614 (C)
8
Unit 2 History of property law and Roman property law
Case law Bhe and Others v Magistrate, Khayelitsha, and Others; Shibi v
Sithole and Others; South African Human Rights Commission and
Another v President Of The Republic Of South Africa And Another
2005 (1) SA 580 (CC)
Madikizela-Mandela v Executors, Estate Late Mandela and Others
2018 (4) SA 86 (SCA)
Textbook Chapter 2
Journal articles Erlank, W ‘Finding property in new places – property in cyber and
outer space’ (2015) 5 PER 1760
(eFundi)
Gray, K ‘Property in Thin Air’ 1991 50(2) Cambridge Law Journal
252-307
9
• Distinguish between things, accessory things, auxiliary things and
fruits and apply this distinction in practice.
• Apply the knowledge gained to solve real-life problem scenarios.
• Understand, describe and discuss how property law is constantly
evolving and how the fundamentals of property law can be
applied to solve new legal problems.
• Understand and discuss the concept of dephysicalization of
property.
Textbook Chapter 3
[4] Cape Explosive Works Ltd and Another v Denel (Pty) Ltd and
Others 2001 3 SA 569 (SCA)
10
2 Theme II – Ownership
Ownership can be defined as the right to control, use and protect your own property. According to
section 25 of the Constitution other forms of control and use are also protected, but ownership
remains one of the most important relationships between a legal subject and his/her property. The
content of ownership is often defined in terms of the entitlements of the owner, but it is limited by
common law principles, case law and legislation. Although ownership is the most complete real
right that a person can have over his or her thing, the right is not unrestricted. Limitations are
imposed on ownership in terms of the Constitution, statutory limitations, personal rights of third
parties, limited real rights of third parties, neighbour law principles. More than one person can be
exercising co-ownership rights to the same thing simultaneously. The relationship between the co-
owners is determined by common law principles and case law. Ownership can be acquired by
means of the original method of acquisition of ownership (no transfer of ownership) or the
derivative method of acquisition of ownership (transfer of ownership). Statutory use of land
includes sectional title schemes, shareblock schemes, time sharing schemes and housing
development schemes for retired persons. There are different remedies available to an owner to
protect his or her right of ownership, such as real remedies and delictual remedies. Ownership can
be terminated by various ways, including the death of the owner, the thing no longer exists and
termination of a legal relationship.
Textbook Chapter 4
11
UNIT 7 Co-ownership
Textbook Chapter 5
Textbook Chapter 6
Textbook Chapter 7
12
[81] Expropriation Act 63 of 1975
[84] Restitution of Land Rights Act 22 of 1994
Time to master unit 12 hours
After engaging with the materials and activities in this study unit you
Learning outcomes
should be able to:
• Explain how the Constitution could restrict an owner’s right of
ownership.
• Explain how statutory limitations could restrict an owner’s right of
ownership.
• Explain how personal rights of third parties could restrict an
owner’s right of ownership.
• Explain how limited real rights of third parties could restrict an
owner’s right of ownership.
• Illustrate how neighbour law principles could restrict an owner’s
right of ownership, with specific reference to:
a. nuisance
b. lateral and surface support
c. encroachments
d. interference with natural flow of water
e. elimination of danger
f. party walls and fences
• Apply the knowledge gained to solve real-life problems.
13
UNIT 10 Original acquisition of ownership
Textbook Chapter 8
14
UNIT 11 Derivative acquisition of ownership
Textbook Chapter 9
[4] Cape Explosive Works Ltd and Another v Denel (Pty) Ltd and
Casebook Others 2001 3 SA 569 (SCA)
[24] Info Plus v Scheelke and Another 1998 3 SA 184 (SCA)
[25] Groenewald v Van der Merwe 1917 AD 233
[26] Eskom v Rollomatic Engineering (Edms) Bpk 1992 2 SA 725 (A)
[33] Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd
1994 3 SA 188 (A)
[75] Deeds Registries Act 47 of 1937
15
UNIT 12 Protection of ownership
Textbook Chapter 10
217 (CC)
Textbook Chapter 11
16
3 Theme III – Possession and holdership
It is imperative to understand that the term ‘possession’ can be used in different contexts. The
meaning of the term as used in the Law of Property often differs from the meaning attributed to the
term in lay-man’s language. On the one hand the word denotes that someone has physical control
over a thing. Sometimes possession is however used in a context to indicate the opposite of
ownership – it is used to denote that someone unlawfully controls a thing. A possessor is thus
regarded as a person who controls a thing as if he is the owner of the thing while he is not. He
unlawfully controls the thing and it might be because he thinks he is the owner, or thinks that he
has another right to control the thing or that he knows he is not the owner or has no right to control
the thing but do so as if he is the owner or has the right to control the thing. When the issue of
control is on the table we thus have to distinguish between lawful and unlawful control. Ownership
and lawful holdership are the terms used to denote categories of lawful control with (unlawful)
possession and unlawful holdership indicating to categories of unlawful control. Possession and
holdership are protected by various remedies, including
Textbook Chapter 12
Textbook Chapter 13
17
UNIT 16 Protection of possession and holdership
Textbook Chapter 14
Textbook Chapter 15
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4 Theme IV – Limited real rights
Limited real rights are rights over another person’s thing. These rights limit the ownership of
another person’s ownership and are therefore referred to as limited real rights. There are different
categories of limited real rights. The most important limited real rights are servitudes, restrictive
conditions and real security rights. Other rights in property are rights acquired in terms of a lease
agreement, common law land-use rights and mineral rights. Servitudes are divided in two
categories, namely praedial (land/real) servitudes and personal servitudes. Real security rights are
divided in to express (conventional) and ex lege (by means of legal operation) real security rights.
Textbook Chapter 17
[1] Pearly Beach Trust v Registrar of Deeds 1990 4 SA 614 (C)
Casebook
[32] Hendricks v Hendricks and Others 2016 1 SA 511 (SCA)
[49A] Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd
1913 AD 267
[49B] Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1918
AD 1
[52] Grant and Another v Stonestreet and Others 1968 4 SA 1 (A)
[75] Deeds Registries Act 47 of 1937
19
UNIT 20 Real security rights: pledge and mortgage
Textbook Chapter 18
20
UNIT 21 Real security rights created my law
Textbook Chapter 19
21
UNIT 22 Other property rights
Textbook Chapter 20
22
UNIT 23 Introduction to constitutional property law
Textbook Chapter 21
Learning outcomes • Determine what role the Constitution plays in private law.
• Discuss the values entrenched in the Constitution.
• Explain when the rights in chapter 2 of the Constitution can be
limited.
Textbook Chapter 22
Textbook Chapter 22
Casebook [36] Ndlovu v Ngcobo; Bekker & Another v Jika 2003 1 SA 113
(SCA)
217 (CC)
23
[72] Prevention of Illegal Eviction from and Unlawful Occupation
Learning outcomes • Explain what land reform is and indicate why land reform is
necessary.
• Distinguish between the three main categories of land reform.
• Discuss the purpose of the following acts:
a. Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998
b. Spatial Planning and Land Use Management Act 16 of 2013
c. Expropriation Act 63 of 1975
d. Land Reform (Labour Tenants) Act 3 of 1996
e. Extension of Security of Tenure Act 62 of 1997
f. Restitution of Land Rights Act 22 of 1994
• Apply the legal principles to solve real-life problems.
Textbook Chapter 24
Learning outcomes • Understand and discuss how the concept of ‘property’ developed.
• Discuss the role that the Constitution played in the development
of property law.
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