Property Law Syllabus. 2021. 1st semester PDF

Preview

Summary

Download Property Law Syllabus. 2021. 1st semester PDF

Description

LAW OF PROPERTY PVL2002H First semester lecturer: Amanda Barratt

PROPERTY LAW SYLLABUS FIRST SEMESTER 2021 INTRODUCTION TO PROPERTY LAW

INTRODUCTION TO PROPERTY LAW [RDL2002H 1st SEMESTER 2021] What does this module cover and what are its objectives? The first term is a general introduction to the Law of Property in a South African context. The main objectives of this part of the course are: — To provide a general overview and introduction to Property Law To introduce foundational common law concepts and principles in Property Law. We will focus on the following during the first semester: o The difference between real rights and personal rights o Limited real rights (focus on servitudes) o What is a “thing”? o Possession o Mandament van Spolie To begin an examination of the mechanisms for transformation of South African property law. We will examine the following during the first semester: o Constitutional imperatives requiring transformation of South African property law o The Restitution of Land Rights Act 22 of 1994 o Political and socio-economic issues connected to Land Reform and Gentrification o PIE and the implications for illegal evictions and the mandament van spolie

As a foundational law course, the course also has the following general pedagogical objectives. You should learn:— How to read a case. We will focus on “close reading.” How to research and find the law. Where are the specific rules you need to resolve an issue? How to use rules when solving particular factual problems How to produce a convincing legal argument based on legal authority, and informed by a general understanding of how the law works and what it seeks to accomplish. .

Prescribed Reading for the 1st semester (marked as

)

Mosert and Pope The Principles of The Law of Property (Oxford, 2020) is the prescribed textbook for the this course. Note that the full text is available electronically through the Library catalogue Aleph Prescribed reading must be read. You will be examined on it, and you will be expected to know and understand it thoroughly. All the material marked in this course syllabus is prescribed. Additional reading may be prescribed during the course of the 1st semester.

Recommended Reading (marked as ●) All the material marked ● in this course outline is recommended. You are not obliged to read this material, but it is highly recommended that you do. This reading will increase your understanding of the subject matter. It may clarify or expand a point that is not clear to you from the prescribed reading or from your lecture notes. Most importantly, some of the recommended reading (especially the cases and legislation) will be discussed in lectures. You are expected to know everything that is discussed in lectures. The recommended readings are not in the course reader. Most of them are on the Property Law Vula site. Otherwise, you can find the cases and journal articles in the online databases and in print in the Law Library. The books are on short loan in the Law Library.

Useful Books All these books are in the Law Library Most students find it helpful to read beyond the prescribed and recommended reading, and you might want to read unlisted parts of the textbooks too. It is also useful to read the cases mentioned and discussed in the textbooks and in lectures, even if they are not on your prescribed or recommended reading lists. All the cases are available from the online databases, and in print in the Law Library. Mosert and Pope The Principles of The Law of Property (2nd ed Oxford, 2020) is the prescribed textbook for the this course [Also available as an e-book

from the UCT Library catalogue Aleph]. For much of the first semester, the first edition of the book will be adequate. Du Bois et al Wille’s Principles of South African Law (2007). Van der Walt & Pienaar Introduction to the Law of Property (Juta, 2016). Van der Walt Constitutional Property Law (Juta, 2011). Badenhorst, Pienaar & Mostert (eds) Silberberg and Schoemans’s The Law of Property (any edition is useful for an introduction to foundational common law principles).

Course Syllabus Introduction to Property Law First Semester 2021

1.

Introduction to the module: Setting the scene—Property Law in Constitutional South Africa

We begin the course by setting a context for the study of Property Law in constitutional South Africa. What are the objectives of Property Law in the contemporary context? What are the sources of Property Law? How does Property Law fit into the legal system as a whole? Constitution of the Republic of South Africa. Bill of Rights [course reader] Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) paras 1‒ 23 [course reader] Mostert & Pope Principles of the Law of Property Chapter 1. ●

2.

Van der Walt and Pienaar Introduction to the Law of Property pp 359‒375 [Vula]

Introduction to “subjective rights”

This lecture serves as a very first introduction to the more complex lectures on real rights and personal rights. Mostert and Pope Principles section 3.2.2.

3.

Servitudes

Servitudes are very important limited real rights in property that belongs to someone else. In this part of the course we will examine typical examples of praedial and personal servitudes. Mostert and Pope Principles sections 9.1 to 9.3.3 ●

Schwedhelm v Hauman 1947 (1) SA 127 (E) [course reader]

4. How to identify real rights What is the difference between a real right and a personal right? Why does this matter?

Mostert and Pope Principles Chapter Three Deeds Registries Act 47 of 1937 s 63 [course reader] Ex Parte Geldenhuys 1926 OPD 155 [course reader] Cape Explosive Works v Denel 2001 (3) SA 569 (SCA) [course reader] Schwedhelm v Hauman 1947 (1) SA 127 (E) [course reader] Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) [course reader] Wahloo Sand Bk v Trustees, Hambly Parker Trust Headnote only [Vula]

5.

2002 (2) SA 776 (SCA)

Introduction to Land Reform in South Africa

Land reform is an important part of contemporary South African Property Law. Some of the parameters for land reform are provided by the Constitution. The Restitution of Land Rights Act puts some of the constitutional imperatives into operation. ●

Van der Walt & Pienaar. Introduction to the Law of Property. Land Reform pp 359‒368 [Vula] Bill of Rights. Section 25 (Property) [course reader]

6.

●

Restitution of Land Rights Act (selected sections) [Vula].

●

Makuleke Community re: Pafuri Area of the Kruger National Park and Environs, Soutpansberg District, Northern Province 1999 JDR 0132 (LCC) [course reader]

●

Alexkor Ltd v The Richtersveld Community 2004 (5) SA 460 (CC) [Vula]

●

Kepe, Thembela ‘Land and justice in South Africa: exploring the ambiguous role of the State in the land claims process’ (2012) 11 African & Asian Studies 392 [Vula]

●

Ramutsindela & Shabangu ‘Conditioned by neoliberalism: a reassessment of land claims resolutions in the Kruger National Park’ (2013) 31 J of Contemporary African Studies 441 [Vula]

●

Office of the President. Land Claims. Media Statement May 2016 [Vula]

●

Cousins ‘Land reform – the solution to rural poverty?’ Rural Focus 21 (2016) [Vula]

What is a “thing”?

Property Law is about the ownership and possession of “things”. Sometimes this involves entitlements to use a thing which belongs to someone else – or to claim some sort of control over a thing which you don’t control at present. The question “what is a thing?” is foundational for the study of Property Law. This section provides an opportunity for further exploration of some common law concepts and principles.

Mostert and Pope Principles Chapter Two Khan v Minister of Law and Order [course reader]

7. Gentrification and Reclaiming the City This section is a case-study focusing on some recent cases and campaigns brought by Ndifuna Ukwazi. This presents an opportunity for us to consider Property Law in a broader social, economic and political context. ●

Please see the reading in the folder called Gentrification on Vula.

8. Possession and the mandament van spolie In this part of the course we examine possession as a legal concept. How is possession protected? We will look at remedies that protect possession, with particular emphasis on the mandament van spolie

Mostert and Pope Principles Chapter Four. Nino Bonino v De Lange 1906 TS 120 Impala Water Users’ Association v Lourens NO 2008 (2) SA 495 (SCA) [course reader]

9. Evictions, PIE and the mandament van spolie This part of the course focuses on security of tenure. What are the rights of informal or illegal occupiers of land? Can occupiers use the mandament van spolie to protect their possession of their homes? What is the legal relationship between common law institutions like the mandament van spolie, statutes like the Prevention of Illegal Evictions Act, and the Constitution? How can transformative constitutionalism drive development of South African common law so that it furthers the goals and objectives of the Constitution? Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 [course reader]. Bill of Rights [course reader] Tswelopele Non-profit Organisation v City of Tshwane Metropolitan Municipality 2007 (6) SA 511 (SCA) [course reader] City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents’ Association (025/2011) [2011] ZASCA 227 [course reader]

Schubart Park Residents’ Association v City of Tshwane Metropolitan Municipality 2013 (1) SA 323 (CC) [course reader] ●

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) [course reader].

●

Boggenpoel & Pienaar ‘The continued relevance of the mandament van spolie: recent developments relating to dispossession and eviction’ [2013] De Jure 50 [Vula] Ngomane v City of Johannesburg Metropolitan Municipality 2020 (1) SA 52 (SCA) [course reader]

●

Boggenpoel ‘Revisiting the Tswelopele remedy: a critical analysis of Ngomane v City of Johannesburg Metropolitan Municipality (2020) 137 SALJ 424

10. Incorporeal things We are now ready to conclude Lecture Three [on Things]. In this part of the course we look briefly at the idea that limited real rights (such as servitudes) can function as the object of other real rights. In this way, they perform the function of a “thing”. Mostert and Pope Principles pp 20‒40 [this time, please concentrate on the discussion of incorporeal things]

11 Quasi possession and the mandament van spolie This part of the course continues our examination of the mandament van spolie by examining its application in the context of incorporeal things. Impala Water Users’ Association v Lourens NO 2008 (2) SA 495 (SCA) [course reader Bon Quelle v Munisipaliteit van Otavi 1989 (1) SA 508 (A) [Translation] [Vula] City of Cape Town v Strümpher 2012 (4) SA 207 (SCA) [Vula] Naidoo v Moodley 1982 (4) SA 82 (T) [Vula] Mostert and Pope Principles pp 78-89 ●

Kleyn ‘The protection of quasi-possession in South African Law’ 2013 Studia Universitatis Babes-Bolyai Jurisprudentia 142 [Vula]

●

Freedman ‘The application of the mandament van spolie to constitutional and statutory rights’ [2015] TSAR 197 [Vula]

●

Boggenpoel ‘Applying the mandament van spolie in the case of incorporeals’ [2015] TSAR 76 [Vula]...