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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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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