PROPERTY LAW

Question 1

An object does not have to be corporeal to be a thing.

Answer 1

Most things are corporeal, but corporeality is not a requirement to be a thing. It is
not an essential characteristic; it is a common characteristic. (1)
- Examples of incorporeal things: Lease, usufruct, rights attached or mineral rights

Question 2

Sectional title schemes and share block schemes are different from conventional
forms of ownership.

Answer 2

Conventional forms of ownership are mostly recognised under the common law.
Alternative forms of title are recognised under legislation. (1)
- Sectional title ownership varies common law principles of superficies solo cedit
(buildings form part of the land) or omne quod inaedificatur solo cedit (everything
built on the soil belongs to the soil) and cuius est solum eius est caelum solo cedit
(the owner of the soil is the owner of the sky above it). (1)
- Share block title consists of a combination of common-law possession and
company law rules, governed by the Share Blocks Control Act. (1)
- However, if the share block company owns the building, it has a real right of
ownership of the building. (1)
- Alternatively, for descriptions of sectional title schemes and share block schemes

Question 3

South African property law is a mixed legal system.

Answer 3

South African common law originates from Roman-Dutch law, and is influenced
significantly by English common law. (1)
- However, there is only one system of law. It is shaped by the Constitution which is
the supreme law, and all law, including the common law and African customary law, derives its force from the Constitution and is subject to constitutional control

Question 4

Bryony thinks this is unfair as she paid for the laptop first, and the last laptop left
should have therefore been delivered to her. She consequently approaches you, a
well-known property lawyer, and seeks advice about whether Sameera is the
legitimate owner of the laptop.

Answer 4

• Doctrine of successive sales (1)
• Three parties: Takealot.com (seller), Bryony (first purchaser), and Sameera
  (second purchaser) (1)
• Ownership will be acquired by the purchaser who first obtains transfer of the thing
  sold – here transfer is effected by delivery. (1)
• Second purchaser’s knowledge at the time when taking delivery must be
  determined, if Sameera knew nothing about Bryony’s purchase, her ownership
  right will be unassailable.

Question 5

Bryony later finds out that Sameera works for Takealot.com and knew that Bryony had
already placed an order, and paid, for the last MacBook. However, there was a glitch on Takealot.com and Sameera decided to take advantage of the glitch to place an
order and pay for the laptop. Bryony wants to know if this impacts on whether Sameera is the legitimate owner of the laptop.

Answer 5

Application of the doctrine of notice is triggered by the acquisition of the real right
with the required knowledge: (4)
1. A prior personal right that gives rise to the acquisition of the thing – Bryony’s
contractual right with Takealot.com that gives rise to the acquisition of the laptop
2. The subsequent acquirer of the real right must infringe upon the pre-existing personal right - Sameera’s acquisition of the ownership of the laptop infringes Bryony’s contractual right
3. The acquirer of the real right must know of the existence of the prior personal right - Sameera knew that Bryony had paid for the laptop and had a contract of sale with Takealot.com
4. Doctrine may only be applied where real right was acquired against payment of consideration. Where a real right is acquired gratuitously, acquirer has to
observe the undertakings of their predecessor with regard to the thing, even
in the absence of knowledge on their part – Bryony had already paid for the
laptop.
- The law does not allow people to benefit from their wrongdoing and hence, Bryony
is the legitimate owner of the laptop and has an unassailable right

Question 6

The various interpretations of the subtraction from the dominium test across different
judgments has meant that there is no indisputable binding precedent on the test, ccriticalllly discuss it by Analysing how the court in Lorentz v Melle 1978 (3) SA 1044 (T) interpreted the
subtraction from dominium test more restrictively than in Geldenhuys 1926 OPD 155;
and

Answer 6

Geldenhuys provides the most authoritative case for the ‘subtraction from
dominium’ test which states that “One must look not at the right itself but at the
correlative obligation, and determine whether it binds successors in title in such a
way that it can be said to subtract from the land’s dominium.” (1)
- Lorentz is most significant for its restriction of the subtraction from dominium test
so as to require curtailment of the enjoyment of the land “in the physical sense”.
(1)
- It requires the imposition upon the land to be an immediate and actual
interference with the owner’s entitlements of use and enjoyment. (1)
- This narrower test compels the court to declare that obligations sounding in
money are typically personal in nature.

Question 7

Discussing the facts of Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 (3) SA 569
(SCA), and how the Supreme Court of Appeal (SCA) applied the subtraction from
dominium test in this case. In your answer, you should also critique the SCA’s approach
in Cape Explosives, and whether you agree with the judgment.

Answer 7

In 1973, Capex sold two pieces of land to Armscor. In the deed of sale, it was
stipulated that (1) the properties would be used only for the manufacture of arms,
and (2) if the properties were no longer used as such Capex would have the first
right of repurchase. Armscor agreed to the registration of these rights in the Deeds
Office. (2)
- Through various alienations and consolidations, a significant portion of the land
came under the ownership of Denel completely unencumbered by condition 2 and
mostly unencumbered by condition 1, ostensibly due to a clerical error in transfer.
This was concerned with the test for registrability:
- It was declared that the intention of the person creating a real right must be to
bind present and future owners of the land. (1)
- The nature of the right must also be a subtraction from the dominium. (1)
Bladsy / Page 6 of 6
- Because of the nature of a real right, being enforceable against anyone and in
perpetuity, they do not cease to exist simply by their erroneous omission from
subsequent title deeds. Hence, the registry cannot be absolutely relied upon as an
accurate reflection of the true state of affairs. Thus, omission from the registry
does not affect its legal status. (1)
- Your opinion on the judgment

Question 8

. Going forward, how do you think the Supreme Court of Appeal will approach the
subtraction from the dominium test? In your answer you may consider all the above
three cases as well as Pearly Beach Trust v Registrar of Deeds 1990 (4) SA 614 (C) and
Willow Waters Homeowners Association (Pty) Ltd v Koka NO others 2015 (5) SA 304
(SCA).

Answer 8

Pearly Beach Trust v Registrar of Deeds 1990 (4) SA 614 (C) – Facts and ratio (2)
- Willow Waters Homeowners Association (Pty) Ltd v Koka NO others 2015 (5) SA
304 (SCA) – Facts and ratio (2)
- Willow Waters Homeowners Association (Pty) Ltd v Koka NO others 2015 (5) SA
304 (SCA) and Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 (3) SA 569 (SCA) –
SCA cases with Willow most recent so precedent applies (2)
- SCA will probably keep steering clear from Lorentz physical requirement [or any
other viable explanation