IIE Learn Module Outline LAPR7311 / LAPR7111

LAPR7311 / LAPR7111
MODULE OUTLINE 2024
(First Edition: 2019)

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Company registration number: 1987/004754/07.

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IIE Learn Module Outline LAPR7311 / LAPR7111

Table of Contents

Introduction ...............................................................................................................................................3
Module Outline ..........................................................................................................................................4
This Module on Learn ................................................................................................................................5
Icons Used in this Document and on Learn .............................................................................................6
Module Resources .....................................................................................................................................7
Module Purpose .........................................................................................................................................9
Module Outcomes .....................................................................................................................................9
Assessments ............................................................................................................................................ 10
Module Pacer .......................................................................................................................................... 13
Glossary of Key Terms for this Module ................................................................................................. 30

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IIE Learn Module Outline LAPR7311 / LAPR7111

Introduction
Welcome to the Law of Property! This module is an introductory module to the law of property.
In this module you will learn about the abstract legal relationships between a legal subject (such
as a person) and a legal object (such as a car) controlled by him or her. There are different ways
in which a person can control legal objects, and this will be dealt with during the course.

It is important to remember that the Constitution of the Republic of South Africa, 1996,
had a big impact on property law in that the Constitution prohibits infringements on property
rights by the state.

While this subject is often perceived as difficult because it is more abstract than other subjects,
you should pass well if you make sure that you keep up with the work every week. What you do
in the first few weeks will be the foundations of what you will learn in the last few weeks, which
means that it is important that you stay on top of the work. This cannot be emphasised enough.

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IIE Learn Module Outline LAPR7311 / LAPR7111

Module Outline
This module outline has been developed to support your learning.
Please note that the content of this module is on Learn as well as in the prescribed material.
You will not succeed in this module if you focus on this document alone.

• This document does not reflect all the content on Learn, the links to difference resources,
nor the specific instructions for the group and individual activities.
• Your lecturer will decide when activities are available/open for submission and when these
submissions or contributions are due. Ensure that you take note of announcements made
during lectures and/or posted within Learn in this regard.

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This Module on Learn

Learn is an online space, designed to support and maximise your learning in an active manner.
Its main purpose is to guide and pace you through the module. In addition to the information
provided in this document, you will find the following when you access Learn:

• A list of prescribed material;

• An assessment brief (for the seen examinations);
• A variety of additional online resources (articles, videos, audio, interactive graphics, etc.)
in each learning unit that will further help to explain theoretical concepts;
• Critical questions to guide you through the module’s objectives;
• Collaborative and individual activities (all of which are gradable) with time-on-task
estimates to assist you in managing your time around these;
• Revision questions, or references to revision questions, after each learning unit.

Kindly note:

• Unless you are completing this as a distance module, Learn does not replace your
contact time with your lecturers and/or tutors.
• LAPR7311/LAPR7111 is a Learn module, and as such, you are required to engage
extensively with the content on the Learn platform. Effective use of this tool will
provide you with opportunities to discuss, debate, and consolidate your understanding
of the content presented in this module.
• You are expected to work through the learning units on Learn in your own time –
especially before class.
Any contact sessions will therefore be used to raise and address any questions or
interesting points with your lecturer, and not to cover every aspect of this module.
• Your lecturer will communicate submission dates for specific activities in class and/or
on Learn.

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Icons Used in this Document and on Learn

The following icons are used in all your modules on Learn:

Icon Description

A list of what you should be able to do after working through the learning
unit.

Specific references to sections in the prescribed work.

Questions to help you recognise or think about theoretical concepts to be

covered.

Sections where you get to grapple with the content/ theory. This is mainly
presented in the form of questions which focus your attention and are aimed
at helping you to understand the content better.
You will be presented with online resources to work through (in addition to
the textbook or manual references) and find some of the answers to the
questions posed.

Opportunities to make connections between different chunks of theory in

the module or to real life.

Real life or world of work information or examples of application of theory,

using online resources for self-exploration.

REMEMBER:
You need to log onto Learn to:
• Access online resources such as articles, interactive graphics, explanations, video clips,
etc. which will assist you in mastering the content; and
• View instructions and submit or post your contributions to individual or group
activities which are managed and tracked on Learn.

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Module Resources
Prescribed Material (PM) for Horn, J.G. Knobel, I.M. & Wiese, M. Introduction to the Law
this Module of Property (8th Ed) (2021) Juta: Cape Town. ISBN
9781485137849

Prescribed cases • Allaclas Investments (Pty) Ltd and Another v Milnerton

Golf Club and Others 2008 (3) SA 134 (SCA)
• Bloemfontein Municipality Appellant v Jacksons
Limited Respondent 1929 AD 266
• Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 (3) SA
569 (SCA)
• Clifford v Farinha 1988 (4) SA 315 (W)
• Corium (Pty) Ltd v Myburgh Park Langebaan (Pty) Ltd
1993 (C)
• Diepsloot Residents’ and Landowners’ Association v
Administrator Transvaal 1994 (A)
• Ex parte Geldenhuys 1926 OPD 155
• First National Bank of SA Limited t/a Wesbank v
Commissioner for the South African Revenue Services
and Another; First National Bank of SA Limited t/a
Wesbank v Minister of Finance 2002 (4) SA 768 (CC)
• Gien v Gien 1979 (2) SA 1113 (T)
• Laskey v Showzone CC [2007] 4 All SA 1162 (C)
• Nino Bonino v De Lange 1906 TS 120
• Port Elizabeth Municipality v Various Occupiers 2005
(1) SA 217 (CC)
• Prinsloo v Shaw 1938 AD 570;
• Quenty’s Motors (Pty) Ltd v Standard Credit
Corporation Ltd 1994 3 SA 188 (A)
• Regal v African Superslate (Pty) Ltd 1963 (1) SA 102
(A);
• Rikhotso v Northcliff Ceramics (Pty) Ltd 1997 (W);
• Singh v Santam Insurance Company Ltd. 1997 (1) SA
291 (SCA)
• Tswelopele Non-Profit Organisation and Others v City
of Tshwane Metropolitan Municipality and Others
2007 (6) SA 511 (SCA)
• Ierse Trog CC v Sultra Trading CC 1997 (4) SA 131 (C);

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PLEASE NOTE – where cases are discussed in the

prescribed textbook or in this Learn guide you need to
study them as well.
Prescribed Journal articles • Boggenpoel, Z. and Pienaar, J. 2015. The continued
relevance of the mandament van spolie: recent
developments relating to dispossession and eviction.
De Jure 999.
• Scott, S. 2005. Recent developments in case law
regarding neighbour law and its influence on the
concept of ownership. Stell LR 351 – 377.
• Van Wyk, J. 2011. The role of local government in
evictions. Potchefstroom Electronic Law Journal
50.Hoops, J. 2019. Expropriation without
compensation: A yawning gap in the justification of
expropriation? SALJ 261.
• Viljoen, S. 2020. Expropriation without compensation:
principled decision-making instead if arbitrariness in
the land reform context (part 1) TSAR 35.

Recommended Additional Van der Walt, A.J. 2009. Law of Property Casebook for
Reading Students. 7th ed. Juta & Co Ltd: Cape Town.

Badenhorst, P.J., Pienaar, J.M. and Mostert, H. 2006.

Silberberg and Schoeman's Law of Property. 5th ed.
LexisNexis: Durban.

Module Overview You will find an overview of this module on Learn under the
Module Information link in the Course Menu.
Assessments Find more information on this module’s assessments in this
document and on the Student Portal.

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Module Purpose
The purpose of this module is to provide students with the required level of knowledge, insight
and expertise required of the legal practitioner when dealing with the modern South African
law of Property.
Module Outcomes
Demonstrate a thorough knowledge of concepts, principles, and practices of the
MO1
law of property.
Explain the legal principles relating to the concepts of ownership,
MO2 possession and holdership and apply the various legal remedies available to the
owner, possessor, and holder.
Apply the legal principles relating to limited real rights (including servitudes,
MO3
restrictive conditions, and real security rights) to practical scenarios.
Evaluate the principles of new (legislative and Constitutional) property law
MO4 (including legislation relating to land reform) and compare some with the rule of
our Common Law heritage.

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Assessments
Integrated Curriculum Engagement (ICE)
Minimum number of ICE activities to complete 4
Weighting towards the final module mark 10%

Formatives Test Assignment

Weighting 25% 30%
Duration 1 hour Approximately 10 hours
Write/Submit after LU 2 LU 4
Learning Units covered LUs 1 and 2 LUs 2, 3 and 4
Resources required N/A Additional research required

Summative Seen Examination

Weighting 35%
Duration 2 hours
Total marks 120
Open/Closed book Closed book (more details will be explained in the examination
brief)
Resources required None
Learning Units covered All

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Assessment Preparation Guidelines

Format of the Assessment Preparation Hints
Test
The test for this module will • Ensure that you work through all the relevant activities,
assess your understanding exercises, and revision questions on Learn and in your
of Learning Unit 1 and 2 of textbook.
this module and will include • Brainstorm possible questions based on the learning
a series of short and outcomes and objectives provided. Then complete these
medium-length questions, as practise-tests.
as well as one longer • Engage with your lecturer and your peers on any
question. questions that you may have about the coursework.
You will be expected to • During both your preparation for the test and during the
apply, as well as recall test itself, pay attention to the instruction words (like list,
information as per your apply, describe etc.) and to the mark allocations of each
objectives for these learning question to ensure that you are able to provide the
units. correct depth and detail in your answers.
• Make sure that you have mastered the objectives in
Learning Units 1 and 2.

Assignment
The assignment will assess • Read through the prescribed chapters and content for
your ability integrate and Learning Units 1, 2, 3 and 4 before you proceed with
apply the content in your written analysis.
Learning Units 1, 2, 3 and 4 • Remember to analyse all elements required and ensure
of this module. that your assignment is proofread and polished for style,
language, and syntax.
• Engage with your lecturer and your peers on any
questions that you may have about the coursework.
• Improve the quality of your assignment by using the
provided rubric and addressing any areas of concern
prior to submitting it for marking.

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Seen Examination

The seen examination will • Make sure that you practise answering the sample
assess all learning units in questions in the brief so that you become familiar with
this module and will include the kinds of questions likely to appear in the examination
both theory and application- itself.
type questions. • Ensure that you work through all the activities, exercises,
and revision questions on Learn and in your textbook.
Further details on the types You must have completed close readings of your
of questions that you will prescribed material to ensure that you have prepared
receive in the seen adequately for your examination for this module.
examination will be • Engage with your lecturer and your peers on any
explained more in terms of questions that you may have about the coursework.
the assessment brief that • Pay close attention to the instruction words (like list,
you will receive in this apply, describe, analyse etc.) and to the mark allocations
module. of each question to ensure that you provide the correct
depth and detail in your answers.
• Make sure that you are comfortable in responding to all
the objectives for all learning units.
• Brainstorm possible questions based on the learning
outcomes and objectives provided.

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Module Pacer
Code Programme Contact Credits
Sessions
LAPR7311 LAW3; BLW3 36 15
[150
Notional
Hours]

LAPR7111 BLAW1 36 15
[150
Notional
Hours]

Learning Unit 1 Introduction, terminology and basic concepts

Overview:

When you mention the term “property”, many people will automatically think of a house or a
plot of land. However, the concept of “property” encompasses so much more than this.
From large, immovable property like a farm to the smallest movable property like the pencil
that you use to write your lecture notes, the term “property” is significantly further reaching
than most people realise.

In this learning unit, we will look at basic terminology in the law of property, the categorisation
of things and right relating to property law, and where property law can be found in the South
African legal system.

Please work through Themes 1, 2 and 3 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please also ensure that you complete the following activities on Learn.

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Learning Unit 1: Theme Breakdown

Sessions: 1 – 4 Theme 1: Introduction Prescribed Material (PM)

LO1: Describe the sources of South PM: Chapters 1, 2 and 3.

Related African property law.
Outcomes: LO2: Define the following terminology:
MO001 a) person.
MO002 b) object.
c) property.
d) thing.
e) right.
f) property right / real right.
g) creditor’s right / personal right.
h) lawful.
i) remedy.

LO3: Discuss where property law fits into

the South African legal system.

Theme 2: Property and Things PM: Chapter 2

LO4: Define a thing as a legal object.

LO5: Distinguish between corporeal and
incorporeal things with reference to
practical examples.
LO6: Indicate which principles must be
applied to distinguish between the
following categories:
a) negotiable and non-negotiable
things.
b) singular and composite things.
c) movable and immovable
things.
d) fungible and non-fungible
things.
e) consumable and non-
consumable things.

LO7: Distinguish between principal things,

accessory things, auxiliary things,

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and fruits and apply this distinction

in practice.

Theme 3: Rights PM: Chapter 3

LO8: Distinguish between the different Ex parte Geldenhuys 1926

rights in property by means of OPD 155
examples.
LO9: Discuss the various legal Cape Explosive Works Ltd v
relationships a person may have Denel (Pty) Ltd 2001 (3) SA
with regards to a thing. 569 (SCA)
LO10: Define a real right in terms of the
doctrine of subjective rights.
LO11: Discuss the importance of the
distinction between real and
personal (creditor’s) rights in the
case of corporeal immovable
property.
LO12: Distinguish between personal and
real rights in terms of the
subtraction from the dominium-
test.
LO13: Name the different types of real
rights.

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Learning Unit 2 Ownership

Overview:

William James once said that “[t]he instinct of ownership is fundamental in man’s nature.”
Ownership is a concept that most people understand on at least a basic level; the idea that
this thing belongs to me. However, when it comes to property law, ownership is a very specific
concept that comes with a very specific, albeit broad, set of rights.

In South African law different rights in property are recognised and constitutionally protected,
one of which is ownership as a real right. Even although ownership is the ‘’most’’ complete
type of real right that one can have in respect of property, no right is absolute and even the
entitlements which flow from the right of ownership can be limited in certain instances when
weighed up against the constitutional rights of others or when the limitation of ownership is
in the public interest.

When it comes to limitations on the right of ownership in the public interest, the
constitutionally entrenched rights of owners must be weighed against the interests of the
community as a whole. When it comes to expropriation as a statutory limitation on ownership,
the economic interests of owners must be weighed against the interests of the community,
for example expropriating private property in order to use the land for a purpose that serves
the interest of the general public.

Similarly, in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19
of 1998, the interests of landowners have to be weighed up against the interests of squatters
during eviction applications.

Therefore, in this learning unit, we will look at the characteristics and forms of ownership and
explore various limitations on the right of ownership.

Please work through Themes 1, 2 and 3 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please complete the following activities on Learn.

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Learning Unit 2: Theme Breakdown

Sessions: Theme 1: Characteristics of Ownership Prescribed Material (PM)
5 – 12
LO1: Discuss the common law concept of PM: Chapter 4
Related ownership according to its
Outcomes: characteristics and the entitlements The following cases (only to
MO001 of owners. the extent mentioned in par
MO002 LO2: Discuss the various examples of 4.3.2 of the textbook):
limitations on ownership that are in
the public interest with reference to Corium (Pty) Ltd v Myburgh
relevant case law. Park Langebaan (Pty) Ltd
1993 (1) SA 853 (C)

Diepsloot Residents’ and

Landowners’ Association v
Administrator Transvaal
1994 (A) SA 336 (A)

Port Elizabeth Municipality v

Various Occupiers 2005 (1)
SA 217 (CC)

Theme 2: Forms of ownership and forms PM: Chapter 5 and 6

of alternative title

LO3: Advise either party to a dispute on

the nature of co-ownership with
reference to the rights and duties
of co-owners as well as the
content of co-ownership.
LO4: Distinguish between free co-
ownership and bounded common
ownership with reference to the
entitlements and obligations of co-
owners.
LO5: Critically discuss the various forms of
statutory land use, including how
each form functions as well as the
legal nature thereof, specifically:
a) Sectional Titles.
b) Shareblock schemes.

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c) Time-sharing schemes.
d) Housing development schemes for
retired persons.

Theme 3: Limitations on Ownership PM: Chapter 7

LO6: Discuss the limitations and social Allaclas Investments (Pty)

context of ownership with Ltd and Another v Milnerton
reference to examples from case Golf Club and Others 2008
law. (3) SA 134 (SCA)
LO7: Discuss the limitations on ownership
by statutory measures, the rights Gien v Gien 1979 (2) SA 1113
of other persons and the rights of (T)
neighbours.
LO8: Apply the relevant law to any Laskey v Showzone CC
neighbour law problem. [2007] 4 All SA 1162 (C)
LO9: Apply neighbour law in the following
contexts: The following cases, but only
a) nuisance in narrow and wider to the extent mentioned in
sense. para 7.5.2.1 and para 7.5.2.2
b) lateral and surface support. of the textbook:
c) party walls and fences.
d) Encroachments. Regal v African Superslate
e) natural flow of water. (Pty) Ltd 1963 (1) SA 102 (A)
f) elimination of danger.
Prinsloo v Shaw 1938 AD
LO10: Explain how the following broadly 570
limits ownership rights:
a) statutory limitations:
(i) The Expropriation Act 63
of 1975.
(ii) The Spatial Planning and
Land Use Management
Act 16 of 2013.
b) creditor's rights of third parties
against the owner.
c) limited real rights of third parties
in the property.

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Learning Unit 3 Acquisition and Protection of Ownership

Overview:

There are two broad methods of acquiring ownership, namely original acquisition, and
derivative acquisition. Each of these broader methods of acquisition comprise of various
different means of acquisition of ownership.

This acquisition is dependent on whether the property in question is movable or immovable.

There are remedies available to protect ownership, which are split into real and delictual
remedies. A claim of unjustified enrichment is also available to aggrieved parties.

In this learning unit, we will look at original and derivative acquisition of ownership, as well as
the various remedies for protection of ownership.

Please work through Themes 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please complete the following activities on Learn.

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Learning Unit 3: Theme Breakdown

Sessions: Theme 1: Acquisition of Ownership Prescribed Material (PM)
13 – 18 PM: Chapters 8 and 9
LO1: Advise either party to a dispute on
Related the methods of acquiring Quenty’s Motors (Pty) Ltd v
Outcomes: ownership with regards to a set of Standard Credit Corporation
MO001 facts. Ltd 1994 3 SA 188 (A)
MO002 LO2: Explain the legal position regarding
the following forms of original
acquisition of ownership:
a) occupatio.
b) accessio: movables and
immovables; movables and
movables.
c) confusio et commixtio.
d) specificatio.
e) acquisition of fruit.
f) expropriation.
g) Acquisition by means of
prescription, with reference to:
Prescription Act 68 of 1969.

LO3: Explain the requirements for

derivative acquisition of
ownership.
LO4: Distinguish between the passing of
ownership and the transfer of
ownership.
LO5: Define a real agreement.
LO6: Distinguish between cash and credit
sales.
LO7: Distinguish between the following
forms of delivery:
a) traditio vera.
b) traditio ficta.
c) clavium traditio.
d) traditio longa manu.
e) traditio brevi manu.
f) constitutum possessorium.
g) attornment.

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Theme 2: Protection of Ownership PM: Chapters 10 and 11

LO8: Briefly explain each category of Clifford v Farinha 1988 4 SA

available remedy that can be used 315 (W)
to protect ownership and list the
actions that fall into each category, Quenty’s Motors (Pty) Ltd v
i.e.: Standard Credit Corporation
a) Real remedies. Ltd 1994 3 SA 188 (A)
b) Delictual remedies.
c) Enrichment remedies. Port Elizabeth Municipality v
Various Occupiers 2005 (1)
LO9: Distinguish between the following SA 217 (CC)
remedies , including the legal
requirements that must be
established in order for an owner
to successfully rely on each one:
a) rei vindicatio.
b) actio negatoria.
c) interdict.
d) actio ad exhibendum.
e) condictio furtiva.
f) actio legis Aquiliae.

LO10: Apply the various remedies that

may be used to protect ownership,
namely:
a) rei vindicatio.
b) actio negatoria.
c) condictio furtiva.
d) actio legis Aquiliae.

LO11: Discuss the limitations on the use of

the rei vindicatio, with specific
reference to the following:
a) Relevant circumstances.
b) Estoppel.
c) Stolen money.

LO12: Advise a party to a dispute on the

protection available to an unlawful

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occupier against an unlawful

eviction.
LO13: Advise a party to a dispute on
eviction proceedings, bearing the
complexity of factors involved in
eviction proceedings in mind, with
specific reference to the case of
Port Elizabeth Municipality v
Various Occupiers 2005 (1) SA 217
(CC).
LO14: Briefly explain the ways in which
ownership may be terminated.
LO15: Briefly explain the ways in which a
legal relationship may terminate,
i.e:
• Transfer of ownership.
• Loss of physical control.
• By operation of law.

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Learning Unit 4 Possession and holdership

Overview:

It’s important to remember that ownership is not the only form of property right. Let’s say
your friend asked if they could borrow a pen from you for the day.
Does that mean that they are now the owner of your pen?
Of course, not – they are merely in possession of your pen.
Like the right of ownership, the right of lawful possession comes with a number of protections
that the possessor can exercise in respect of the possessed property.

In this learning unit, we will look at the nature and protection of possession in property law.

Please work through Theme 1 on Learn, together with the relevant sections of your prescribed
source/s. To ensure that you are working towards mastering the objectives for this learning
unit, please complete the following activities on Learn.

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Learning Unit 4: Theme Breakdown

Sessions: Theme 1: Nature and protection of Prescribed Material (PM)
19 - 23 possessory rights

LO1: Discuss the legal nature of PM: Chapters 12, 13, 14 and
Related possession and holdership. 15
Outcomes: LO2: Advise either party to a dispute on
MO001 the acquisition of possession and Boggenpoel, Z. and Pienaar,
MO002 holdership; J. 2015. The continued
LO3: Apply the following measures to relevance of the
protect possession and holdership to mandament van spolie:
a set of facts: recent developments
a) an interdict. relating to dispossession and
b) a declaratory order. eviction. De Jure 999.
c) a spoliation order.
d) condictio furtiva. Port Elizabeth Municipality v
Various Occupiers 2005 (1)
LO4: Advise either party to a dispute on SA 217 (CC)
the application of the mandament
van spolie remedy and the defence Rikhotso v Northcliff
of "impossibility of restoration" in Ceramics (Pty) Ltd 1997 (W);
the context of evictions. and Ierse Trog CC v Sultra
Trading CC 1997 (only to the
extent mentioned in para
14.5.3 of the prescribed
textbook).

Tswelopele Non-Profit
Organisation and Others v
City of Tshwane
Metropolitan Municipality
and Others 2007 (6) SA 511
(SCA)

Nino Bonino v De Lange

1906 TS 120 (only to the
extent discussed in para
14.5 of the prescribed
textbook).

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Learning Unit 5 Limited real rights and other rights in property

Overview:

South African law recognises various types of limited real rights and other types of rights over
property. Limited real rights can be over movable or immovable property, and this could result
in certain limitations to the rights of the owners of the property. Such rights would include
servitudes, usufructs and restrictive conditions which have been developed as part of the law
that regulates property in South Africa. There are various categories of real security rights,
such as express real security rights like pledges ad mortgages, which are created by express
agreement between a creditor and a debtor. There are also tacit real security rights like tacit
hypothecs and liens which come into existence by operation of the law and judicial real
security rights such as judicial pledges and mortgages which are created by court orders.

In this learning unit, we will look at limited real rights as well as real and personal security as
governed by South African law. We will also look at mineral and water rights and how the laws
that regulate these have evolved to current approaches.

Please work through Themes 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please complete the following activities on Learn.

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IIE Learn Module Outline LAPR7311 / LAPR7111

Learning Unit 5: Theme Breakdown

Sessions: Theme 1: Limited real rights and Prescribed Material (PM)
24 – 29 Servitudes

LO1: Advise either party to a dispute on PM: chapters 16 and 17

the different categories of limited
Related real rights. Bloemfontein Municipality
Outcomes: LO2: Discuss how other rights in property Appellant v Jacksons Limited
MO001 differ from limited real rights in Respondent 1929 AD 266
MO003 property.
LO3: Describe the different categories of Singh v Santam Insurance
limited real rights. Company Ltd 1997 (1) SA
LO4: Advise either party to a dispute on 291 (SCA)
the creation of servitudes.
LO5: Differentiate, through illustrative
examples, between real and
personal servitudes.
LO6: Differentiate between servitudes as
limited real rights and creditor's
rights.
LO7: Discuss the requirements for and
characteristics of real and personal
servitudes.
LO8: Distinguish between real and
personal servitudes with the use of
examples.
LO9: Distinguish between servitudes as
limited real rights and creditor's
rights.
LO10: Apply the principles of real security
in practice.
LO11: Define servitudes as limited real
rights.
LO12: Discuss how servitudes are
acquired and terminated.

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Theme 2: Real security and other rights PM: chapters 18, 19 and 20

LO13: Differentiate between personal Singh v Santam Company

security and real security. Ltd 1997 (1) SA 291 (SCA)
LO14: Define real security as a limited real
right.
LO15: Advise either party to a dispute on
the applicable principles related
to real security.
LO16: Discuss pledge with reference to
the object and the nature of the
right.
LO17: Describe mortgage and distinguish
between the different kinds of
mortgages.
LO18: Name the requirements of notarial
bonds.
LO19: Describe tacit hypothecs.
LO20: Define liens.
LO21: Distinguish between the different
types of liens.
LO22: Discuss the requirements of lease,
leasehold, quitrent, and mineral
rights.

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IIE Learn Module Outline LAPR7311 / LAPR7111

Learning Unit 6 Constitutional property law

Overview:

Section 25 C provides that ‘No one may be deprived of property and no law may permit
arbitrary deprivation of property’. However, like other rights contained in the Bill of Rights,
the right not to be deprived of one’s property can be limited in terms of Section 36 C
(the general limitations clause) if it is just and equitable to do so in a democratic society based
on human dignity, equality, and freedom, and provided that such a limitation takes place, inter
alia, in terms of a law of general application. Therefore, the Expropriation Act 63 of 1975
makes it possible for an owner to be deprived of their property, provided that certain
requirements are met. In this way, the economic interests of owners must be weighed against
the interests of the community, for example expropriating private property in order to use the
land for a purpose that serves the interest of the general public.

The South African property law landscape is currently dealing with the call to amend section
25 of the Constitution of South Africa, 1996 to allow for the expropriation of land without
compensation. This call follows from the deep-rooted history of colonisation and apartheid,
which left many inhabitants displaced and without access to, and right to, land ownership.
Section 25 of the Constitution, known as the property clause, deals with deprivation and
expropriation of private property in South Africa.

In this learning unit, we will look at section 25 and the requirements for deprivation and
expropriation of property and explore the current debates around the expropriation of land
without compensation.

Please work through Theme 1 on Learn, together with the relevant sections of your prescribed
source/s. To ensure that you are working towards mastering the objectives for this learning
unit, please complete the following activities on Learn.

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IIE Learn Module Outline LAPR7311 / LAPR7111

Learning Unit 6: Theme Breakdown

Sessions: Theme 1: Constitutional Property Rights Prescribed Material (PM)
30 – 36
MO001 LO1: Name the features and values of the PM: Chapter 7 (para 7.2.2.1
MO004 Constitution. only), Chapters 21 and 22
LO2: Discuss the horizontal application of
the property clause. First National Bank of SA
LO3: Discuss the protection of rights in Limited t/a Wesbank v
property in terms of section 25 of the Commissioner for the South
Constitution, including the measures African Revenue Services
regarding the – and Another; First National
• deprivation of property in terms of s Bank of SA Limited t/a
25(1) Wesbank v Minister of
• expropriation of property in terms Finance 2002 (4) SA 768
of s 25(2); and
• the requirements for expropriation Prescribed journal articles:
in s 25(3) to be permitted.
LO4: Compare and differentiate between Hoops, J. 2019.
deprivation and expropriation of Expropriation without
property. compensation: A yawning
LO5: Briefly discuss the nature and effect gap in the justification of
of the proposed Constitutional expropriation? SALJ 261.
Amendment Bill which deals with
expropriation without compensation. Viljoen, S. 2020.
Expropriation without
compensation: principled
decision-making instead if
arbitrariness in the land
reform context (part 1) TSAR
35

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Glossary of Key Terms for this Module

Term Definition My Notes
Term Definition
Acquisition Acquiring something, like buying a car.
Alienate To get rid of something, for instance by
selling it.
Animus Mental
Bona fide Good faith
Corporeal Material objects that can be observed by
human senses.
Corpus Physical
Detentio Holdership
Dominium Ownership
Fungible Something that can easily be replaced
with a similar product.
Incorporeal No material existence, cannot be
observed by human senses, e.g. shares,
intellectual property, etc.
Mala fide Bad faith
Numerus A closed list, meaning there are only a
clausus certain number of things with no
possibility of it expanding.
Personal right A right a person has against another
person to a performance.
Thing It can be defined by its characteristics as
something that is an independent
corporeal object, external to humans,
subject to human control and is useful
and valuable to humans.
Vindicate To claim
Constitution Constitution of the Republic of South
Africa, 1996.
PIE Act Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of
1998.
ESTA Extension of Security of Tenure Act 62 of
1997.

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