Law of Property

You have learnt at school that an essay / composition must consist of an Introduction, Body and Conclusion. The same applies in law. Any answer should consist of those three elements.

Your Introduction should identify the topic and indicate the direction the answer is going to take. It should consist of point I below. The Body of your answer should contain a discussion of the main principles of law, the authorities on which you rely and your legal argument. It should consist of points II & III below. When discussing a case, the ratio decidendi (reason for the court’s decision) must be given. The maxim, “He/she knoweth not the law who knoweth not the reasons thereof” will apply to those who do not do so. In this regard also note the wisdom contained in the quotation below:

“In any matter in which ral and substantial issues are raised, it is difficult to see how any judgment fulfils its basic function without reasons. The reasons for a judgment are the essence of that judgment. It is the reasons, more than any order that follows a judgment, which provide the cogency and persuasive force behind the judgment, which demystify the operation of the law and the role of the courts, and which give a judgment what was once described by Mahomed CJ in a public address as ‘the real and ultimate power of the judiciary’. However correct a judgment may be, it cannot communicate itself to ‘the minds and hearts’ of the litigants without reasons”

- Zulu v Minister of Defence & Others 2005 (6) SA 446 (T) at 453F—454A.

Your Conclusion should consist of point III below.

The following may be used as a guide for the writing of tests, and examinations. You could also use it with a few modifications when writing up your own notes.

(I) Identify the legal issue / question of law:
For example:
1. This question concerns the distinction between real and personal rights. OR
2. In this question I have to determine whether or not the condition contained in the Will/Deed of Transfer is registrable. OR
3. The question is whether or not the conduct complained of amounts to a nuisance.

(II) Explain the relevant law:
The following approach may be followed:
Usually one would commence with a definition. If the question concerns nuisance as in step I (3) above one would give a definition of nuisance.
1) Thereafter you would explain the test for nuisance.
2) The next step would be to discuss all relevant cases and/or legislation. If there are any journal articles or textbook comments, which have a bearing on relevant cases or legislation or on the legal question, then these have to be discussed as well.

In this context, the phrase “all relevant cases” means:
(1) You have to discuss the case(s) where the test was applied.
(2) If there are two or more cases where the judges have followed different approaches on more or less the same set of facts, then all these cases have to be discussed.
(3) In discussing the cases you need to:
     (i) identify the facts extremely briefly;
     (ii) state the question of law in the case – in most cases it will be the same as the question of law in the question you have to answer; (iii) state and explain the rule of law applied by the court;
     (iv) explain how the court applied the test to the facts of the particular case;
     (v) state and explain the court’s conclusion;
     (vi) if the court differed from an earlier decision (as happened in the Lorentz case - real rights) you have to explain the basis on which the court arrived at the different conclusion.

1) In a question such as in step I (i) and I (ii) above, you start by giving a very brief definition of real and personal rights.
2) Thereafter, you would explain the test developed by our courts to distinguish between real and personal rights.
3) The next step would be to discuss all relevant cases and/or legislation. If there are any journal articles or textbook comments that have a bearing on relevant cases or legislation or on the legal question, then these have to be discussed as well. Refer to the explanation in point II A above for the meaning of the phrase “all relevant cases”.

(III) Applying the law to the facts:
You would identify the relevant facts in the question and apply the law as explained in step II (A)(b) and (c) and II (B)(b) and (c) above to the facts. Put it differently, you MUST explain whether or not each of the legal requirements / elements of the test are present / have been met in the facts in the question / scenario.

EXAMPLE 1
Facts:
The testator stipulated in his will that his farm must go to Jack but that Jack and Jack’s successors in title must allow Jill to drive across the farm to reach the N1 to the market in Cape Town.

Question of law: Did Jill acquire a Real Right over Jack’s farm?

Relevant law:
Three-fold test - see Ex Parte Geldenhuys 1926 OPD 155,164:
(i) The intention of the creator of the right (e.g., the testator or contracting party) must be to bind not only the present owner of the land, but also his/her successors in title?
(ii) The unknown right/condition must amount to a “subtraction from dominium”./ The unknown right/condition must diminish/subtract from the owner’s right of ownership/ powers as owner over his/her land./ The unknown right/condition must restrict/ determine/stipulate how the landowner may use his/her powers over his/her land (what he/she may or may not do)?
(iii) Does the correlative obligation bind not only the current owner of the land but also his/her successors in title?

Application:
(i) Yes, the intention of the testator (the creator of the right) was to bind Jack and his successors in title because the facts in the question stipulate that Jack and Jack’s successor in title must allow Jill to drive across the land.
(ii) The unknown right/condition does subtract from Jack’s powers as a landowner because normally he would have had a right to refuse Jill access over his farm. What prevents
him from doing so is the stipulation in the will/is the right that Jill acquired in the will to drive across his property.
(iii) The correlative obligation binds Jack and Jack’s successor in title because …. (the student must complete this by using the facts above.

EXAMPLE 2
The requirements for estoppel are:
1) A representation by the owner, by word or conduct that the person who disposed of his property was the owner of it or was entitled to dispose of it.
2) The representation must have been made intentionally or negligently (fault).
3) The person raising estoppel must have relied on the representation.                                                                                                                      4)The person raising estoppel must have acted to his detriment.

In a problem type question, your task, after stating the requirements and referring to the relevant case(s) will be to explain whether or not each of the requirements are present in the factual scenario.
I.o.w: In a factual scenario you must discover the following:
1) Did the owner [of the car/bicycle/motorbike etc.] make a statement or did he/she act in a certain way (e.g. kept silent when he/she should have talked; made a hand gesture that signified agreement; nodded his/her head etc.)?
2) Did the owner when he/she acted in the way set out in 1 above, give the impression that the seller was the owner or had the authority to sell the car/bicycle etc?
3) Did the owner make the statement or did he act in that way intentionally or negligently? I.o.w. was he/she at fault in the legal sense (fault = intention or negligence).
4) Did the person raising estoppel rely on the owner’s statement / conduct? 5) Did the person raising estoppel consequently act to his/her detriment?

(III) Arrive at a conclusion
The final step would be to arrive at a conclusion with reference to what you did in step III above. Please, you must motivate your answer / conclusion. In other words, you must support your answer / conclusion with reference to the law.