LWPRA3-B22

LAW OF PROPERTY

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Week 2: Introduction
Limitations on Ownership – Neighbour Law & Constitutional Limitations
Chapter 6 of your prescribed textbook
Case Law
Laskey and Another v Showzone CC and Others 2007 (2) SA 48 (CPD)

Allaclas Investmenst (Pty) Ltd and Another v Milnerton Golf Club and Other 2008 (3) SA 134 (SCA)
Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A)
Malherbe v Ceres Municipality 1951 (4) SA 510 (A)
Dorland and Another v Smits 2002 (5) 374 (CPD)
Lombard v Fischer 2003 (1) All SA 698 (O)
Trustees of the Brian Lackey Trust v Annandale 2004 (3) SA 281
Redelinghuys v Bazzoni 1976 (1) SA 110 (T)
Opperman v Stanely and Another 2010 ZAGPPHC 221
Fedgroup Participation Bond Managers v Trustee of the Capital Property Trust 2015 ZASCA 103
First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services and Another 2002 ZACC
Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism, Eastern Cape 2015 (6) SA
125 (CC)
Haffejee NO and Others v eThekwini Municipality and Others 2011 ZACC
Uys N.O and Another v Msiza and Others 2017 ZASCA 130
 What will be covered in
this week’s lesson(s)?
Limitation of ownership – Why are
ownership rights limited? How are
they limited?

Constitutional Limitations
Week 2
Neighbour Law & Nuisance

Statutory Limitations

Common law and other limitations

Case Study 1

The Graham County Nuisance Case

• Source: https://www.ncdps.gov/news/press-
releases/2023/03/23/final-judgment-ordered-graham-county-
nuisance-case
Case Study 2

You can take legal action against weed-smoking neighbours if the

smell bothers you
Source: https://www.iol.co.za/property/you-can-take-legal-action-
against-weed-smoking-neighbours-if-the-smell-bothers-you-
406c320b-4441-4717-b491-5644044a345b
LIMITATIONS ON
OWNERSHIP
CONSTITUTIONAL
LIMITATIONS

S 25
 S25(4) defines property as more than land

All deprivations of rights must be done in accordance with s36

When can property be taken?

Interference by the state in private law

 DEPRIVATION

• Deprivation is the seizing of property is an exercise in policing powers

which restricts ownership entitlements without compensation.
• It is done in terms of a law of general application and does not single out
specific group/individual/right.

General application:
• accessible to citizens by being widely and officially published (in law) &
generally applicable
• clear enough that citizens are able to deduce from it how to display their
actions and affairs
• and not arbitrary in that it is not dependent on the exercise of discretionary
powers
NOT arbitrary:

Rational connection between:

• Legitimate purpose & manner that the purpose will be achieved

• FNB case:
Flexible test:
• Does sufficient reason exist for an infringement of property rights?
• To determine this the court looks at:
• The purpose of the infringement
• The law creating the infringement
• The extent of the infringement
• Affected property / owner
This test overlaps with s. 36:
• Proportionality test: Necessary, Appropriate & Moderate
 • Expropriation is the taking property without consent in public interest/public power
against compensation in terms of a law of general application.

• Compensation must be made in a manner that is just and equitable taking into
account relevant circumstances:

1. Current use The state has power of “eminent

EXPROPRIATION 2. History
domain” meaning they can take private
property without consent & terminate
3. Market value all rights associated with the property.

4. State investment

5. Purpose of expropriation
Law of General application:

For public purpose/public interest:

• S.25(4)(a): includes nation’s commitment to land reform

• Reforms to bring equitable access to all SA’s natural resources

Subject to compensation:

• S. 25 (3): a) Just & equitable b) Equitable balance between public interest &
individual interest

• Relevant circumstances: Current use, History, Market value, State investment & Purpose
of expropriation

• s. 26 (2)(b): Amount/time/manner à Either: Agreed to, Decided / approved by court,

Market value
 DEPRIVATION EXPROPRIATION

• Policing powers • Take property without consent

• Restricting ownership • If in public interest/public

entitlements power
• No compensation
• Against compensation
• Law of general application:
• Ito law of general application
• Cannot single out specific
group/individual/right

• Properly adopted
 Deprivations (s25(1)):

- Law of general application

- Not arbitrary
T H E R E Q UI R E M E N T S
O F DE P R IVAT IO NS V S
E XP RO P R IAT IO NS
Expropriations (s25(2)&(3)):

- For public purpose / interest

- compensation
First National Bank of SA Limited t/a Wesbank v Commissioner for the South African
Revenue Services and Another [2002] ZACC

Enquiry into constitutionality of infringement:

1. Does that which is taken away from FNB by the operation of section 114 (Customs &
exercises Act) amount to ‘property’ for purpose of section 25? See s.25(4)(b)
2. Has there been a deprivation of such property by the Commissioner?
3. If there has, is such deprivation consistent with the provisions of section 25(1)?
4. If not, is such deprivation justified under section 36 of the Constitution?
5. If it is, does it amount to expropriation for purpose of section 25(2)?
6. If so, does the deprivation comply with the requirements of section 25(2)(a) and
(b)?
7. If not, is the expropriation justified under section 36?
 Is the affected interest “property”?

Did a deprivation of that interest occur?

Is the deprivation in conflict with s25(1)?

SO, WE If no, was it justifiable ito s36?

ASK…
Did the deprivation amount to
expropriation?

If so did it comply with the requirements of

expropriation?

If not, was it justified under s36?

 HOW WOULD WE ANSWER
THIS QUESTION?

• Shepherd is the owner of a church, and

they play their music loud on Sundays.
• Mantwa is an atheist and is not happy with
the noise and applies to court and the
court grants an order for the church to
lower the noise or else be closed .
• In the class the students must debate the
weighing of rights Right to Religion and
Right to Property.
 SELF STUDY

• Interferences that go too far

• Page 130 – 131
NEIGHBOUR LAW
 OWNERSHIP
ENTITLEMENTS

• Use & Enjoy: ius utendi

• Limitations: Common law: NEIGHBOUR LAW
• Each owner entitled to use & enjoyment ‘Live and let live’
(Allaclas)
• Exercised in a REASONABLE manner
• To avoid UNREASONABLE infringement of neighbour’s
similar title
1. Nuisance: Narrow & Broad
2. Encroachments: Buildings & Branches/roots
3. Surface water
4. arty walls
5. lateral support
 NEIGHBOUR
LAW

• It states that each owner is

entitled to the use and
enjoyment of his or her
property, exercised in a
reasonable manner, to avoid
unreasonable infringement
of the neighbour’s similar
entitlement.
 SOURCES OF NEIGHBOUR LAW

• There are several pieces of legislation that that place a limitation on

how an owner can exercise their entitlements.
• Planning law or Zoning law restrictions in different municipalities
provides for the creation of a sustainable spatial planning framework as
well as for the management of land use and land development.
• Spatial Planning and Land Use Management Act 16 of 2013 provides
that a municipality may pass by-laws aimed at enforcing its land-use
scheme. It is an offence to contravene the provisions of a land-use
scheme.
• The National Road Traffic Act places limitations on speed as well as
licensing of your vehicle. These pieces of legislation are not a closed list.
 NUISANCE

• It is one of the limitations in neighbour

law and the enquiry is whether the
conduct complained of is to be tolerated.
• If not, then the conduct is most probably
a nuisance.
• The are however two types of nuisance
namely nuisance in the narrow sense and
nuisance in the wide sense
 NUISANCE IN THE NARROW SENSE

NUISANCE IN THE THESE TYPES OF A NOISY NEIGHBOUR THE GENERAL RULE IS THIS MEANS THAT ANY
NARROW SENSE INFRINGEMENTS INCLUDE AFFECTS THE QUALITY OF THAT ONE MUST PROVE ORDINARY PERSON WHO
REPRESENTS AN AND ARE NOT LIMITED LIFE YOU HAVE AND THAT THE CONDUCT OF FINDS HIM OR HERSELF IN
VIOLATION OF A TO, SMELLS, SMOKE, WOULD BE CONSIDERED A THE INFRINGER IS THE POSITION OF THE
NEIGHBOR’S ENTITLEMENT NOISE, WATER, NUISANCE IN THE UNREASONABLE AND PLAINTIFF, WOULD NOT
OF USE AND ENJOYMENT VIBRATIONS, AND NARROW SENSE. SHOULD NOT BE HAVE TOLERATED THE
WHICH AFFECTS THEIR FUMES. TOLERATED BY A RELEVANT
QUALITY OF LIFE AND REASONABLE PERSON. INTERFERENCE.
IMPACTS THEIR ORDINARY
HEALTH, COMFORT AND
CONVENIENCE BY AN ON-
GOING INFRINGEMENT.
 NUISANCE IN THE WIDE SENSE

• Nuisance in the wide sense refers to conduct by a

landowner involving abnormal or unusual use of land that
infringes the exercise of ownership entitlements, or that
results in actual damage to a neighbour’s property.
• This type of nuisance requires on to prove whether it is
fair and reasonable to continue using the property in that
manner and whether it should be stopped or changed to
prevent further infringement of their exercise of
entitlements.
• Nuisance in the wide sense causes damage
• Remedy: interdict
 LATERAL SUPPORT AND
ENCROACHMENTS

• Lateral and surface support

• Every owner of a piece of land is entitled to support
from his or her neighbour’s land.
• An owner cannot make excavations that result in his
neighbour’s land subsiding.
• This principle only applies to land in its natural state.
• Extensive building regulations regulate built up land.
 ENCROACHMENTS

Buildings
• When owners encroach their neighbour’s land, the rules
regarding encroachment come into operation.
• This can be by one person building on the land of another
or sometimes the obstructing the view by building in front
of the other owner.
• In some instances, the owner can claim removal of the
encroachment or the owner can claim payment of
compensation for the encroachment of their property.
Mainly regulated by statute
• Owner WITHOUT consent
• Builds over boundary line
• Or foundation/roof/balconies over boundary line

REMOVAL:
• Bona fide: compensation for unjustified enrichment
• Mala fide: no compensation

DAMAGES:
• When removal will cause disproportionate harm
• Transfer of ownership?
Lombard v Fischer:
• Lombard became unreasonable & unfair à rather
give compensation than demolish
• Court: in favour of encroacher à especially when
prop owner is mala fide
Trees (Branches)
• If trees planted in close proximity to
the boundary that branches encroach
upon neighbour’s land the neighbour
can request owner of trees to remove
branches.
• An order may be made by the court
to compel the neighbour if they refuse
to remove the encroaching branches.
Trees (Roots)
• The same rules apply to roots which
applies to the branches.
• The courts have held that held that
owner of trees had to remove trees
since it caused a nuisance.
• Owner thus had to remove nuisance
itself not merely the encroachment
• When branches overhang the boundary
• Roots grow underground the boundary
• Owner’s responsibility to ensure no interference with use & enjoyment

REMOVE:
• Within reasonable time
• Remove self + costs claimed
• NOT keep the branches UNLESS owner fails to remove or not within
reasonable time
• May be compelled by interdict to remove OR prohibitory interdict
preventing future encroachments
Surface Water
• The rationale behind this limitation is to allow natural
flow of water from adjoining land. The owner of the
land which is higher may not interfere with the flow of
water in a manner prejudicial to lower owner.
• Urban or rural?
• Redelinghuys v Bazzoni:
1. Extent of land
2. Extent of building development in the area
3. Identifiability of the original topographical qualities
of the land
Lateral support
• Duty not to excavate to extent that causes
neighbouring land to subside
• Liable for damages
• BUT only applicable to land in their naturAlstate
otherwise regulated by building regulations
• Only have to prove disturbance of land and not
wrongfulness so only actual loss not future loss

Party walls & fences

• A Party wall is built on boundary between two
pieces of land in such a way that it stands partly
on land of one owner and partly on neighbouring
owner’s land. The two owners of the property
have to take care of their part of the wall and
provide lateral support to the other owner.

Elimination of danger
• An owner has a duty to eliminate danger that
may affect their neighbour’s property.
Problem-Based Learning

Can expropriation of land without compensation be

justified as a constitutional limitation?

Class Discussion

Refer to principles discussed in class to substantiate

your answer

Feedback
 Activity
Eden and Karim have a horticulture project where they are planting a
tomato field on the farm. Their neighbor has planted a row of pine trees
along the boundary between the two farms. The trees have grown big and
the branches hang over the tomato field. The pine trees make a lot of
shade and the pine needles fall onto the tomatoes so that large areas of
tomatoes die.

Do Eden and Karim have any remedies towards their neighbor? Fully
discuss the legal position with reference to Malherbe v Ceres Municipality
1951 (4) SA 510 (A) case.

(10 Marks)
 Activity
The Le Roux’s neighboring property is sold to new owners. The
previous owner left some slate waste on his property which was
then washed into the Le Roux’s property due to flood water. This
caused minimal damage to their property. The new owner only
learned of the problem after the fact. This might happen again
but to prevent it from happening in the future though will be
very costly.

Refer to the rules of neighbour law and discuss this kind of

nuisance. Refer to applicable case law and discuss whether the
Le Roux’s will be able to hold the new owners liable for the
damage they have suffered due to the slate waste left by the
previous owner. [12]
Next week?
• Acquisition of Ownership
• Rights
• Protection of Ownership
• Chapters 3, 7 and 8 + prescribed cases + content on
myLMS (Week 3)