Property Law
Jurisdiction | South Africa |
DOI | https://doi.org/10.47348/YSAL/v1/i1a19 |
Pages | 1064-1110 |
Published date | 10 March 2021 |
Citation | 2019/2020 YSAL 1064 |
Date | 10 March 2021 |
Author | Boggenpoel, Z. |
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1. INTRODUCTION
Property law is a dynam ic field of law,1 although much of what can be
viewed as the crux of propert y law are fundamental pri nciples essentially
grounded in the common law, as influenced by either Roma n-Dutch law or
English law.2 In a very real and practical sense, case law tests the extent to
which extant (uncodified) common-law rule s are still acceptable in modern
South African law.3 It is therefore unsurprising t hat there have been several
interesting judgments ha nded down in the last year deali ng with various
topics in property law, specifically testi ng how existing property law
principles should be applied and/or developed correctly.4
It is the purpose of thi s chapter to provide an overview of some of the
debates in property law, essentially in so far as t hese debates have resulted
in changes to the law brought about by court deci sions in the period under
* B Com LLB LLD (Stell); South African Research Chair in Property Law (SARCPL),
hosted by Stellenbosch University, funded by the Department of Science and Technology and
administered by the National Research Foundation (NRF). ORCID: https://orcid.org/0000-
0001-7816-3393. The financial assistance of the NRF is hereby acknowledged. Opinions
expressed are those of the author and are not attributable to the NRF. Thanks to Sameera
Mahomedy and Mpho Tlale for research assistance.
1 See for instance Gustav Muller, Reghard Brits, Juanita M Pienaar and Zsa-Zsa Boggenpoel
Silberberg and Schoeman’s The Law of Property 6 ed (2019) 5, where the authors explain that
‘[t]he ever-proliferating range of restrictions on property results in a continuous redefinition of
the idea and functions of property, thus contributing to the emergence of a new property law
framework and the broadening of the source base of the law of property’.
2 CG van der Merwe Sakereg 2 ed (1989) 7; Muller et al Silberberg and Schoeman’s The Law of
Property 6 ed (2019) 5.
3 In this regard, it should be noted that the extent to which legislation, the common law,
case law and customary law are applicable in any given dispute should be determined by the
supremacy of the Constitution. Various constitutional provisions provide the impetus for this
point of departure. See for instance, ss 8(1) and 172(1)(a) of the Constitution of the Republic
of South Africa, 1996 (hereinafter the Constitution). See also AJ van der Walt Property and
Constitution (2012) 20; Muller et al Silberberg and Schoeman’s The Law of Property 6 ed (2019) 8.
4 This section is limited to a discussion of relevant case law as no relevant legislation was
promulgated during the period under review.
Property LawProperty Law
Zsa-Zsa Boggenpoel*
2019/2020 YSAL 1064
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ProPerty Law 1065
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review. The sections of the chapter are desig ned in such a way that they
first set out the issue th at the cases address after whic h the judgments are
scrutinis ed in order to determine whether t hey confirm a basic pri nciple
of property law or add to the debate about the extent to which property
law should be developed for a particular reason. Ba sed on this design, the
chapter is divided into differe nt property law issues and the sec tions are
primarily based on t he cases under evaluation.
In section 2.1, acquisition and transfer of ownersh ip is placed in the
spotlight. Here, one of the age-old principles of property law is con firmed,
namely ownership cannot be t ransferred un less a real agreement is
established. Although this a rea of property law appears to be engrai ned,
it is clear from the case u nder discussion that determ ining when a r eal
agreement is established, remai ns difficult.
Section 2.2 provides a summa ry of recent developments in the application
of the spoliation remedy. This remedy is especial ly attractive because of its
speediness in e nsuring restoration. Yet, as will be revealed i n this part of
the chapter, several cases confir m that there are numerous bar riers to the
application of this remedy. It is primarily in the context of the supply of
services where some importa nt strides have been made in the application of
the mandament van spolie in t he last year.
Section 2.3 considers a part of proper ty law that arguably results in t he
most disputes, namely neighbour law.5 Some t hought- provoki ng adva nces
have taken place in the context of neighbour law in the p eriod under review.
This section of t he chapter will reveal that the ambit of what one neighbour
can do in relation to another is a con stant source of disagr eement, whether
the conduct falls under nuisa nce law, encroaching structure s or the duty of
lateral support that is purported ly owed to a neighbour. Moreover, the cases
discussed i n these three categories of neigh bour law reveal an interesting
trend in the context of the i nterplay between the existi ng statutory
framework governing building works by neighbours a nd the background
common law principles of neighbour law.
In the final pa rt of the chapter, section 2.4 reflects o n some pronouncements
made the context of servitudes. Thi s part of the chapter is espec ially
interesting consideri ng the discussion about the extent to which ownership
is limited if a ser vitude is granted in respect of property. Overall, it is hoped
that the chapter sheds light on the r ecent developments in property law and
provides some insights into whether the developments should be welcomed.
5 See AJ van der Walt The Law of Neighbours (2010) 237, where Van der Walt notes that
‘[n]uisance probably produces more litigation than any other category of neighbour law’.
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2. CASES
2.1 ACQUISITION AND TRANSFER OF OWNERSHIP
The judgment of Uniting Presbyterian Church in SA v Reformed Presbyterian
Church in SA6 was handed down on 30 September 2019 and confirms, i n
line with established pr inciples of property law that in terms of the abstract
theory of transfer of owner ship, no ownership of property wil l pass if there
is a defect in the real ag reement to transfer and receive ownersh ip. More
specifically, if there is no consen sus between the par ties as to the identity
of the transferee, thi s impacts on the intention to transfer ownership, which
in turn, prevents the passi ng of ownership through derivative acquisition of
ownership. In this regard, the judgme nt is valuable as it reiterates the basic
principles of property law and high lights the interplay between t he law of
contract and the law of property.
The facts that gave rise to the dispute es sentially centres on the question
of whether ownership of a plot of land was validly transfer red from the
City of Cape Town (the second respondent) to the first respondent. The
first appellant, a voluntary asso ciation under the name of the Uniti ng
Presbyterian Churc h in South Africa (the UPCSA),7 asserted that the first
respondent (acting under the name of the Reformed Pr esbyterian Church in
Southern Africa (the RPCSA)) did not have the authority to act under such
name and to represent the entit y.8 The City of Cape Town had transferred Erf
546 to the first respondent af ter the respondent had submitted an application
to the City to purchase the prope rty.9 The property was transferred to the
first respondent and regist ered in its name on 17 July 2007.
It was only when the first respondent attempted to purc hase another
property (Erf 547) from the Cit y that the Langa Congregation objec ted to
the application.10 The objection centred o n the fact that the first re spondent
did not constitute or represent the RPCSA. The appella nts became aware
of the objections and f iled an application to the Western Cape Division of
the High Court for an order sett ing aside the transfer of Erf 546 to the first
respondent.11
The court a quo dismi ssed the application, but granted leave to appeal.
The current Supreme Court of Appeal (SCA) decision is therefore an appea l
6 Uniting Presbyterian Church in SA v Reformed Presbyterian Church in Southern Africa
(unreported, referred to as [2019] ZASCA 129, 30 September 2019; available online at http://
www.saflii.org/za/cases/ZASCA/2019/129.html).
7 In para 26 of the judgment, the court held that the appellants did have standing to obtain
the relief it sought. In this regard, the court mentioned that ‘[t]he UPCSA therefore has a direct
and substantial interest in the sale and transfer of the properties’.
8 Para 1.
9 Para 4.
10 Para 5.
11 Para 6.
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