Faculty of Law
Law of Property 2011 SAK0000
Course
Law of Property
Lecturer
Dr Elmien du Plessis
Office
A Ring 707
Consulting hours
Monday 15:00 – 17:00 (before the English lecture) Thursday 11:15 – 13:15 (after the Afrikaans lecture) Any other time by appointment
Telephone
011 559 2609
E-mail
[email protected]
Lectures
English:
Monday 17:20 - 19:25 D1 LAB K008
Afrikaans:
Thursday 9:20 – 11:05 CL 310
Tests
1.
Monday 16 May (might move to an earlier date)
2.
Friday 10 June
3.
Monday 22 August
4.
Monday 26 September
Times and venues for tests will be communicated to you in class. Deferred tests
See the rules applicable to deferred tests in Annexure A Essay
The details of the compulsory essay will be handed out in class. The essay must be submitted electronically (via Edulink) by 17 July 2011. Prescribed book th
Van der Walt & Pienaar Introduction to the law of property 6 ed Recommended th
Van der Walt & Pienaar Law of Property Casebook for Students 7 ed
How to pass Property Law:
It is your responsibility to study by yourself. As a lecturer, I am not “the sage on the stage, but the guide by your side”. By using this learning guide as a map, I will guide you through the
prescribed work. That being said, you still need to do a few things to pass, and they are: 1. Attend all the classes. 2. Study the prescribed material, with specific focus on the prescribed cases. 3. Write the four semester tests. Each test will count 25% of the (November) semester mark. 4. Write the essay and hand it in on time. The essay will count 25% of your (November) semester mark. 5. The best 3 marks of your tests will be used at the end of the year, together with your essay mark. THE ESSAY IS COMPULSARY, and will count 25% of your (November) semester mark. 6. Your semester mark will count 60% of your final mark. 7. You need 40%+ semester mark to write the exam. 8. The exam will count 40% of your final mark. a. You must have 50%+ to pass. b. 45% will give you a re-examination. c. 44% and less means that we meet each other again next year.
How to do well in Property law:
So, you are not just happy to pass? You can do well mostly by answering your questions correctly in the test and the exams. You might ask, how do you do that ? Below is a guide on “how to be a good test writer”.
Answering a question correctly mostly depends on you reading and understanding the question well. You will only understand what the question is about, if you know your work well. That being said, here are a few “pointers”:
Motivate
Questions that require you to motivate your answer, simply expect you to explain your view, ie, give me an informed opinion.
Problem-question Problem-type question
/ Problem questions usually involve a set of facts, where you need to apply your legal knowledge to a simulated real-life situation to arrive at an answer. If you get a problem question, there are usually hints in the question itself that will show you what is expected from you in the answer. For example, similar facts or a wording similar to those in prescribed cases. I expect you to answer problem questions in the following way:
INTRODUCTION – identify the problem, what am I asking you to explain to me?
BODY – present the relevant legal position to me – discuss the legislation or customary law rule or cases in a logical manner . This is done by writing in full sentences and in paragraphs.
CONCLUSION – this is where you answer the question that you identified in the introduction, by applying the relevant law discussed in the body.
Multiple choice
These are short questions. You must choose which phrase is correct. This means that you must read your question and the phrases carefully , because sometimes the difference between right and wrong is only a prefix or a suffix.
Define
These are straightforward questions that do not require any discussion or insight. You only need to define; you need not show me everything that you know on the topic. The marks allocation will give you an indication of how much I want you
to write. These types of questions are usually one mark for every element / requirement / description. Compare
Again, the question should give you a hint of what needs to be compared. This means, comparing similarities as well as differences. If A and B must be compared, don’t write
everything you know about A and then everything that you know about B. Focus on the similarities and differences, and discuss them according to those themes. Give your own opinion
Jip, I do want to know what you think. This, however, is not a conversation in a pub or on Radio 702. This is an academic “give your own opinion”, which means, that you must show
that you know the academic debates going on around the subject. When you “give your own opinion”, therefore, you
will first explain the controversy (ie why is it an issue), and then discuss critically the opinions of other authors, before concluding with your opinion (which will usually be: I agree / disagree with author A because...)
MODULE OUTLINE:
INTRODUCTION TO LAW OF PROPERTY 1. Scope, sources and terminology 2. Concepts and classification 3. Real rights
OWNERSHIP 4. 5. 6. 7. 8. 9.
Ownership & co-ownership Statutory land use Limitation on ownership Original acquisition of ownership Derivative acquisition of ownership Protection of ownership
POSSESSION AND HOLDERSHIP 10. Introduction to possession and holdership 11. Acquisition of possession and holdership 12. Protection of possession and holdership 13. Termination of possession and holdership
LIMTED REAL RIGHTS AND OTHER RIGHTS IN PROPERTY 14. Servitudes 15. Restrictive conditions 16. Real security 17. Real security created by law 18. Other property rights
CONSTITUTIONAL PROPERTY LAW 19. Constitutional property law 20. Reform of property law
INTRODUCTION TO LAW OF PROPERTY MODULE 1:
SCOPE, SOURCES AND TERMINOLOGY
OUTCOME:
The basic concepts and classification of things will be explained.
STUDY:
Van der Walt & Pienaar chapter 1; Casebook pp. xviii – xxvii and case 1: Pearly Beach Trust v Registrar of Deeds 1990 4 SA 614 (C) with regard to the structure of a case report.
ASSESSMENT CRITERIA: After studying this module learners are able to:
Explain where the law of property fits into the legal system
Explain where property rules come from
Discuss the scope and content of the law of property
Be familiar with the terminology in the law of property
MODULE 2:
CONCEPT AND CLASSIFICATION OF THINGS
OUTCOME:
The characteristics and classification of things as legal objects are discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 2; Casebook 17 Senekal v Roodt 1983 2 SA 602 (T) Casebook 18 Khan v Minister of Law and Order 1991 3 SA 439 (T)
ASSESSMENT CRITERIA: After studying this module learners are able to:
Define a thing as a legal object
Distinguish between corporeal and incorporeal things and give examples of each
Distinguish between negotiable and non-negotiable things
Distinguish between singular and composite things
Distinguish between movable and immovable things
Distinguish between fungible and non-fungible things
Distinguish between consumable and non-consumable things
Distinguish between things, accessory things, auxiliary things and fruits and be able to identify these in a practical example
MODULE 3:
REAL RIGHTS
OUTCOME:
Real rights will be explained.
STUDY:
Van der Walt & Pienaar chapter 3; Casebook 1 Pearly Beach Trust v Registrar of Deeds 1990 4 SA 614 (C) Casebook 2 Ex parte Geldenhuys 1926 OPD 155 Casebook 3 Lorentz v Melle 1978 3 SA 1044 (T) Casebook 4 Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 3 SA 569 (SCA) Casebook 62E S 63 of the Deeds Registreis Act 47 of 1937
Distinguish between ownership and limited real rights
Briefly explain different theoretical approaches in order to distinguish between real and personal rights
Explain the importance of distinguishing between real and personal rights
Explain, apply and criticise in detail the approach used by the South African courts to distinguish between real and personal rights
Discuss and apply all prescribed case law
Critically apply different approaches (of cases and authors as explained in class)
OWNERSHIP MODULE 4:
OWNERSHIP & CO-OWNERSHIP
OUTCOME:
A basic introduction to the principles of ownership and co-ownership is discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 4 & 5 Casebook 5 Gien v Gien 1979 2 SA 1113 (T) Casebook 6 Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and Others 2008 3 SA 134 (SCA) Casebook 56 President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae) 2005 5 SA 3 (CC)
ASSESSMENT CRITERIA: After studying this module learners are able to:
Explain why it is difficult to give a definition of ownership
Discuss the common law concept of ownership according to its characteristics and the entitlements of owners
Discuss the limitations and social context of ownership with reference to examples and case law
Discuss the content and entitlements of ownership
Distinguish between individual title and co-ownership
Discuss the principles of individual title
Distinguish between common law co-ownership and statutory co-ownership
Distinguish between free and bound co-ownership
Discuss and apply the principles of free co-ownership
Discuss and apply the principles of bound co-ownership
Discuss and apply the principles relating to the undivided co-ownership share
Discuss and apply the principles relating to the commonly owned property
Discuss and apply the remedies available to co-owners
MODULE 5:
STATUTORY LAND USE
OUTCOME:
Forms of title, other than ownership and co-ownership, are discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 6
ASSESSMENT CRITERIA: After studying this module learners are able to:
Discuss and apply the principles of sectional ownership
Discuss and apply the principles of share block schemes
Discuss and apply the principles of time-sharing schemes
Discuss and apply the principles of retirement schemes
MODULE 6:
LIMITATIONS ON OWNERSHIP
OUTCOME:
Limitations on ownership are discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 7 Casebook 5 Gien v Gien 1979 2 SA 1113 (T) Casebook 7 Laskey and Another v Showzoen CC and Others 2007 (2) SA 48 (C) Casebook 8 Malherbe v Ceres Municipality 1951 4 SA 510 (A)
ASSESSMENT CRITERIA: After studying this module learners are able to:
Distinguish between limitations on ownership brought about by constitutional law, private law and public law
Distinguish between “nuisance in the narrow sense” and “nuisance in the wide sense
Discuss and apply the principles of nuisance in order to determine whether a nuisance exists in a factual situation
Discuss and apply the principles of encroachment
Discuss and apply the principles of lateral support
Briefly discuss and apply the principles applicable to party walls and fences, surface water and elimination of dangers
Explain the purpose of planning law
Explain the structure of planning law
Explain the scope of planning law
Distinguish between land use planning and land use management
Discuss the principles of zoning
Discuss the principles of land use management
Explain how planning measures are enforced
Discuss and apply all prescribed case law
MODULE 7:
ORIGINAL ACQUISITION OF OWNERSHIP
OUTCOME:
Original acquisition of ownership is discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 8 Casebook 11 Reck v Mills en ‘n Ander 1990 1 SA 751 (A) Casebook 12 Gore NO v Parvatas (Pty) Ltd 1992 3 SA 363 (C)
Casebook 14 Theatre Investmensts (Pty) Ltd v Butcher Brothers Ltd 1978 3 SA 682 (A) Casebook 15 Melcorp SA (Pty) Ltd v Joint Municipal Pension Fund (Transvaal) 1980 2 SA 214 (W) Casebook 16 Konstanz Properties (Pty) Ltd v WM Spilhaus en Kie (WP) Bpk 1996 3 SA 273 (A) Casebook 60E S 2 Prescription Act 18 of 1943 Casebook 61E S 1-9 Prescription Act 68 of 1969 ASSESSMENT CRITERIA: After studying this module learners are able to:
Distinguish between original and derivative acquisition of ownership
Discuss occupatio as a method of original acquisition of ownership and apply the principles of occupatio to solve problem questions
Discuss and apply the principles applicable to the accession of movable property to other movable property
Discuss and apply the principles of planting and sowing
Discuss and apply the principles of inaedificatio in order to determine whether accessio took place in a factual situation
Briefly discuss the principles of accession of immovable property to immovable property
Discuss and apply the principles of acquisition of fruits
Discuss and apply the principles of specificaio
Discuss and apply the principles of confusio et commixtio
Discuss and apply the principles of acquisitive prescription
Compare the requirements of the Prescription Act 68 of 1969 and the Prescription Act 18 of 1943 and apply the provisions of both these acts to solve problem questions
Explain the requirement of possession for acquisitive prescription
Discuss and apply interruption and suspension in the context of acquisitive prescription
Briefly discuss expropriation as a form of original acquisition of ownership
Discuss and apply all prescribed case law
MODULE 8:
DERIVATIVE ACQUISITION OF OWNERSHIP
OUTCOME:
The principles of derivative acquisition of ownership are discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 9 Casebook 19 Allan & David (Pty) Ltd v Ingram NO 1989 3 SA 333 (C) Casebook 21 Groenewald v Van der Merwe 1917 AD 233
Casebook 23 Barclays Western Bank Ltd v Ernst 1988 1 SA 243 (A) Casebook 25 Concor Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 3 SA 930 (A) Casebook 30 Du Plessis v Prophitius and Another [2009] ZASCA 79 Casebook 62E S 63 of the Deeds Registreis Act 47 of 1937 ASSESSMENT CRITERIA:
After studying this module learners are able to:
Distinguish passing of ownership from transfer of ownership
Explain the nemo plus iuris maxim
Explain what derivative acquisition of ownership is
Distinguish between the causal and abstract systems of transfer of ownership
Explain which of the abovementioned systems of transfer of ownership is applied in South Africa
Discuss and apply the requirements for a valid transfer of ownership according to the derivative method
Discuss and define the real agreement
Explain the rules for the sale of movables and transfer of ownership in case of cash or credit transaction
Explain how the objective physical element of the transfer of ownership differs in case of movables and immovable property
Distinguish between actual and constructive delivery
Discuss and apply the principles of clavium traditio
Discuss and apply the principles of traditio longa manu
Discuss and apply the principles of constitutum possessorium
Discuss and apply the principles of traditio brevi manu
Discuss and apply the principles of attornment
Explain publicity and certainty as objectives of the registration system
Explain the effect of registration
Distinguish between a negative and positive registration system, discuss the consequences of each and explain which system is applied in South Africa
Discuss and apply all prescribed case law.
MODULE 9: OUTCOME:
PROTECTION OF OWNERSHIP The principles of protection of ownership are discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 10 Casebook 27 Chetty v Naido 1974 3 SA 13 (A)
Casebook 28 Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd 1994 3 SA 188 (A) Casebook 31 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) Casebook 32 Concor Holdins (Pty) Ltd t/a Concor Technicrete v Potgieter 2004 6 SA 491 (SCA) Casebook 33 Clifford v Farinha 1988 4 SA 315 (W) ASSESSMENT CRITERIA:
After studying this module learners are able to:
Distinguish between real remedies, delictual remedies and remedies based on unjustified enrichment
Discuss and apply the principles of the rei vindicatio
Discuss and apply the requirements for the rei vindicatio
Discuss and apply the defences against the rei vindicatio
Discuss and apply statutory limitations against the rei vindicatio
Briefly discuss the requirements of estoppel
Briefly discuss the principles of the actio negatoria
Briefly discuss the principles of the condictio furtive
Briefly discuss the principles of the actio as exhibendum
Briefly discuss the principles of the actio legis aquilliae
Briefly discuss the principles of unjustified enrichment
Compare the abovementioned remedies and be able to choose the correct remedy in a factual situation
Discuss and apply all prescribed case law
POSSESSION AND HOLDERSHIP MODULE 10: INTRODUCTION POSSESSION AND HOLDERSHIP
OUTCOME:
The principles of possession are discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 12
ASSESSMENT CRITERIA: After studying this module learners are able to:
Explain the nature of possessory rights
Explain whether possession and holdership of all kinds of property is possible
Explain how control is established over corporeal things
Determine whether control is lawful or unlawful
Draw a distinction between ownership, possession and holdership
MODULE 11: ACQUISTION OF POSSESSION AND HOLDERSHIP
OUTCOME:
The principles of acquisition of possession are discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 13 Casebook 11 Reck v Mills en ‘n ander 1990 1 SA 751 (A)
ASSESSMENT CRITERIA: After studying this module learners are able to:
Distinguish between the ius possidendi and the ius possessionis
Discuss the elements of possession
Apply the principles applicable to the elements of possession to determine whether a person legally has possession
Explain the nature of possessory rights
Distinguish between the ius possidendi and the ius possessionis
Discuss the elements of possession
Apply the principles applicable to the elements of possession to determine whether a person legally has possession
MODULE 12: PROTECTION OF POSSESSION AND HOLDERSHIP
OUTCOME:
The protection of possession and holdership are discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 14 Casebook 34 Setlogelo v Setlogelo 1914 AD 221 Casebook 35 Candid Electronics (Pty) Ltd v Merchandise Buying Syndicate (Pty) Ltd 1992 2 SA 459 (C) Casebook 36 Nino Bonino v De Lange 1906 TS 120
Casebook 37 Yeko v Qana 1973 4 SA 735 (A) Casebook 38 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 5 SA 309 (SCA) Casebook 39 First Rand Ltd t/a Rand Merchant Bank v Scholtz NO 2007 1 All SA 436 (SCA) Casebook 40 ATM Solutions (Pty) Ltd v Olkru Handerlaars CC and Another 2009 4 SA 337 (SCA) Casebook 41 Tswelopele Non-Profit Organisation and 23 Others v City of Tshwane Metropolitan Municipality and Others 2007 6 SA 511 (SCA) ASSESSMENT CRITERIA: After studying this module learners are able to:
Explain why it is necessary to protect possession
Explain the nature of possessory rightS
Distinguish between the ius possidendi and the ius possessionis
Discuss the elements of possession
Apply the principles applicable to the elements of possession to determine whether a person legally has possession
Discuss and apply the mandament van spolie in detail
Explain the requirements for the mandament van spolie
Discuss and apply the application of the mandament van spolie to incorporeal things
Discuss and apply the defences available against the mandament van spolie
Discuss and apply the principles of the possessory action
Discuss and apply the principles of an interdict
Discuss and apply the principles of a delictual remedy
Discuss and apply all prescribed case law
MODULE 13: TERMINATION OF POSSESSION AND HOLDERSHIP
OUTCOME:
The termination of possession and holdership are discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 15;
ASSESSMENT CRITERIA: After studying this module learners are able to:
Indicate the various ways in which possession are terminated
Discuss the consequences of termination of possession
LIMITED REAL RIGHTS AND OTHER RIGHTS IN PROPERTY MODULE 14: SERVITUDES
OUTCOME:
Servitudes as limited real rights are explained and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 16 & 17.1 – 17.8 Casebook 43 Cowley and Another v Hahn 1987 1 SA 440 (EC) Casebook 44 Brink v Van Niekerk en ‘n Ander 1986 3 SA 428 (T) Casebook 45 Grant and another v Stonestreet and others 1968 4 SA 1 (A) Casebook 46 Linvestment CC v Hammersly and Anothe r 2008 3 SA 283 (SCA) Casebook 47 Wahloo Sand BK en Andere v Trustees, Hambly Parker Trust, en Andere 2002 2 SA 776 (SCA) Aventura Ltd v Jackson and Others [2006] SCA 102 Kruger v Joles Eiendomme (Pty) Ltd & Another 2009 3 SA 5 (SCA)
ASSESSMENT CRITERIA: After studying this module learners are able to:
Explain what a limited real right is
Discuss and apply the general principles applicable to servitudes
Distinguish between praedial and personal servitudes
Explain why the Cowley decision is wrong
Discuss and apply the requirements for a praedial servitude Discuss the rights and duties of the parties to a praedial servitude and apply the principles to a factual situation Briefly discuss rural and urban praedial servitudes Discuss and apply the principles of ways of necessity Discuss and apply the general principles of personal servitudes Distinguish between usufructus, usus, and habitatio Discuss and apply the principles of usufructus Discuss and apply the principles applicable to the creation of servitudes Discuss and apply the principles applicable to extinction, termination and enforcement of servitudes Discuss and apply all prescribed case law
MODULE 15: RESTICTIVE CONDITIONS OUTCOME: Restrictive conditions as limited real rights are discussed and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 17.9 & 17.10; Casebook
ASSESSMENT CRITERIA: After studying this module learners are able to:
Understand and explain that restrictive conditions are cl assifies as praedial servitudes
Distinguish between restrictive conditions in the broad sense and restrictive conditions in the narrow sense
Discuss the nature, character and status of restrictive conditions
Discuss the enforcement of restrictive conditions
Discuss defences in the context of restrictive conditions
Discuss how restrictive conditions can be removed or amended
MODULE 16: REAL SECURITY
OUTCOME:
The real security rights pledge and mortgage are explained and demonstrated.
STUDY:
Van der Walt & Pienaar chapter 18 Thienhaus NO v Metje and Ziegler Ltd 1965 3 SA 25 (A) Vasco Dry Cleaners v Twycross 1979 1 SA 603 (A) Casebook 57 Jaftha v Schoeman and Others; Van Rooyen v Stolz and Others 2005 2 SA 140 (CC) Standard Bank of South Africa Ltd v Saunderson and Others 2006 (2) SA 264 (SCA) Campbell v Botha and others [2008] ZASCA 126
ASSESSMENT CRITERIA: After studying this module learners are able to:
Distinguish between personal and real security
Distinguish between three categories of real security
Explain the functions of real security
Explain the accessory nature of real security rights
Briefly discuss the requirements of the security object
Briefly discuss who the parties to real security are
Distinguish between different legal transactions in case of real security
Discuss and apply the principles relating to a special mortgage in i mmovable property
Explain what a pactum antichresos is
Explain and apply the principles of a pactum commissorium and parate executie in the context of a mortgage bond
Explain the operation of a mortgage bond in detail and apply the principles to a factual situation
Explain the relationship between the mortgagee’s entitlement of immediate execution
and the right to housing in section 26(1) of the Constitution
Discuss the rights and duties of the mortgagor and explain the situation if property is transferred without an existing mortgage bond being cancelled
Distinguish between and briefly explain a kustinsbrief , a covering bond, and a participation bond
Discuss how a mortgage bond is terminated
Discuss and apply the principles of pledge
Distinguish between different stages when a pledge is constituted
Explain and apply the principles of a pactum commissorium and parate executie in the context of a pledge
Discuss and apply the requirements of delivery in case of pledge
Discuss and apply “simulated transactions” in the context of pledge
Explain the operation of a pledge in detail and apply the principles to a factual situation;
Explain how a pledge is terminated
Draw a comparison between a special mortgage bond and a pledge
Discuss and apply the principles of notarial bonds
Distinguish between general notarial bonds and special notarial bonds and apply the principles of each
Discuss and apply all prescribed case law
MODULE 17: REAL SECURITY RIGHTS CREATED BY LAW
OUTCOME: Real security rights created by law are discussed and demonstrated. STUDY:
Van der Walt & Pienaar chapter 8; Casebook 49 Bloemfontein Municipality v Jackson Ltd 1929 AD 266 Casebook 50 Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd en ‘n Ander 1996 4 SA 19 (A) Casebook 51 Singh v Santam Insurance Ltd 1997 1 SA 291 (A) Casebook 52 ABSA Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 1 SA 939 (C)
ASSESSMENT CRITERIA: After studying this module learners are able to:
Discuss and apply principles regarding the tacit hypothec of the lessor
Discuss and apply principles regarding the tacit hypothec of a seller under an instalment sale agreement
Discuss and apply the principles of liens
Discuss and apply the requirements for the existence of a lien
Distinguish between different types of liens and apply the principles of each
Briefly discuss how liens are terminated
Discuss and apply the principles of judicial real security
Discuss and apply all prescribed case law
MODULE 18 OTHER PROPERTY RIGHTS OUTCOME: Other rights in property will be discussed and explained
STUDY:
Van der Walt & Pienaar chapter 20 Consult Mostert & Pope Principles of the law of Property chapter 10 as background reading for Minerals
ASSESSMENT CRITERIA: After studying this module learners are able to:
Know what other possibilities there are for creating property rights besides what was done in previous modules
Discuss the tenant’s property rights in land
Discuss other common-law rights that are important
Briefly explain the impact of the Mineral and Petroleum resources Development Act 28 of 2002
Explain in whom ownership of minerals vest under the MPRDA
Explain the meaning of “land”, “mineral” and “ petroleum” in the MPRDA
Discuss the nature of rights to mineral and petroleum under the MPRDA
Briefly explain the content of rights to minerals and petroleum under the MPRDA
Explain how conflicts resulting from competing rights of the mineral right holder and the rights of the surface owner are resolved
Briefly explain the position of the holder of the right regarding transfer and encumbrance of rights under the MPRDA
Explain termination of rights to minerals and petroleum
Briefly explain the social and environmental responsibility provisions of the MP RDA
CONSTITUTIONAL PROPERTY LAW & LAND REFORM MODULE 19
CONSTITUTIONAL PROPERTY LAW
OUTCOME: Section 25 of the Constitution will be explained and discussed STUDY:
Van der Walt & Pienaar chapter 21 & 22 Casebook 55 FNB v Commissioner of SARS 2002 (4) SA 768 (CC) Casebook 58 Dlamini v Joosten 2006 (3) SA 432 (SCA)
ASSESSMENT CRITERIA: After studying this module learners are able to:
Discuss the horizontal application of section 25
Understand the historical background leading to land reform
Understand and explain the contents of the property clause (sec 25)
Explain the provisions pertaining to deprivation and expropriation
Name and discuss the requirements of expropriation
Refer to relevant case law
MODULE 20
REFORM OF PROPERTY LAW
OUTCOME: The land reform programs will be explained and discussed on an introductory level STUDY:
Van der Walt & Pienaar chapter 23 Consult Badenhorst, Pienaar & Mostert Silberberg and Schoeman’s The Law of Property chapter 22 as background reading Casebook 31 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) Casebook 56 President of the RSA v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC) Casebook 58 Dlamini v Joosten 2006 (3) SA 432 (SCA) Casebook 27 Chetty v Naidoo Ndlovu v Ngcobo; Bekker v Jika [2002] 4 ALL SA 384 (SCA) Richtersveld Community v Alexkor 2004 (5) SA 460 (CC)
ASSESSMENT CRITERIA: After studying this module learners are able to:
Set out the constitutional basis for land reform
Identify the three “pillars” of land reform (programmes) and explain their aims in short
Explain the restitution program
Explain the redistribution program
Explain tenure reform
Know the main legislation and the aims of the legislation connected to each “pillar”
Set out the main provisions of PIE and apply them to a practical example
Critically analyse case law on PIE
Determine which act would be applicable in practical examples
ANNEXURE A Rules for deferred tests
1.
In the event of illness the prescribed form “Application for Deferred Tests” must be completed and handed in at the office of the Faculty Officer (not the lecturer ) not later than 96 hours (4 days) after the scheduled test was written. If it cannot be handed in personally, it may be handed in by a friend or relative or sent per facsimile. The particulars of the Faculty Officer are:
2.
Office:
Reception Faculty of Law – A Ring 7
Tel:
011 559 2141
Fax:
011 559 2049
In other cases (not illness), written reasons, together with supporting documents, must be submitted to the Faculty Officer (not the lecturer ) not later than 96 hours (4 days) after the scheduled test was written. If it cannot be handed in personally, it may be handed in by a friend or a relative or sent per facsimile. (See the particulars of the Faculty Officer above)
3.
If the need for a sick test is known before the normal test is written, the student must apply in writing, together with supporting documentation, to the lecturer to write the deferred test before the normal test is written. If a student fails to comply with this, no deferred test will be granted.
4.
The documentation submitted by a student is kept by the Faculty in order to maintain a record of the number of applications for deferred or special tests submitted by a student.
5.
It is the student’s responsibility to establish the date, time and venue o f the deferred
test by contacting the lecturer. 6.
The format of a deferred test will not necessarily be similar to that of the scheduled test. A deferred test may be in the form of an oral test.
7.
A deferred test may cover more work than the scheduled test.
