PVL3701 Law of Property Assignment 01 Brief 2025 | UNISA

Question 3 

Identify the type of right that Mr. Smith, Mr. Jones and Mr. Brown have with regard to their properties. In your answer, also briefly explain how Mr. Smith, Mr. Jones and Mr. Brown should exercise their rights? 

1. Nature of the Right 

Mr. Smith, Mr. Jones, and Mr. Brown each hold ownership over their respective properties, a real right (ius in re)¹. Ownership is the most comprehensive real right under South African law, granting them exclusive control, use, enjoyment, and disposal of their land.² Real rights, such as ownership, must be registered in the Deeds Registry.³, ensuring formal recognition and protection against third parties. 

¹ Study Unit 1, para 2.3.2 (Definition of real rights). 
² Study Unit 3, para 3 (Ownership as a comprehensive real right). 
³ Study Unit 5, para 5 (Registration of real rights)

2. How the Right May Be Exercised 

Ownership rights must be exercised within legal limits, particularly the duty to avoid harming neighbouring properties.⁴ Key principles from Petropulos v Dias 2020 (5) SA 63 (SCA)⁵ and Study Units 2– 4 include: 

a. Duty of Lateral Support 

Owners must not excavate or construct in a way that removes necessary lateral support from adjacent land. 

Let's say Mr. Smith’s excavation destabilised the slope, breaching his duty to provide lateral support to Mr. Jones’s property⁷. This constitutes a violation of neighbour law, attracting strict liability. 

b. Reasonable Use 

Owners may build or modify their property provided they take precautions (e.g., retaining walls, engineering assessments) to prevent harm. 

For example, Mr. Brown’s minor excavation caused no destabilisation, so he exercised his rights lawfully.

c. Compliance with Legal Frameworks 

Excavations must adhere to municipal bylaws, the National Building Regulations, and geotechnical standards.

The ownership grants extensive rights, it is limited by the principle of reciprocity in neighbour law. Owners must balance their rights with the obligation to avoid prejudicing others' property. Failure to do so results in strict liability for damages, irrespective of negligence.

* Study Unit 3, para 3 (Limitations on ownership).
* Petropulos v Dias 2020 (5) SA 63 (SCA), paras 59-63.
* Study Unit 3, para 3 (Duty of lateral support).
> Petropulos v Dias para 59.
* Petropulos v Dias para 63 (Strict liability for breach of lateral support).
* Study Unit 6 (Legal compliance and remedies).
10 Study Unit 3 (Reasonable use principle).
11 Study Unit 6 (Protection of ownership through regulatory frameworks).
12 Study Unit 2 (Reciprocity in neighbour law).
13 Petropulos v Dias para 25 (Policy considerations).
14 Petropulos v Dias para 63 (No fault required for liability).

Question 4

Identify the relevant legal limitation that exists regarding the right of neighbours to develop their land. Explain the nature of this legal limitation.

The legal limitation is the duty to provide lateral support under neighbour law.

2. Nature of the Legal Limitation

Strict Liability

No fault required. A landowner is strictly liable for damage caused to a neighbour's property if their excavation or construction removes necessary lateral support, even if they acted without negligence (Petropulos v Dias 2020 (5) SA 63 (SCA)).1

For example, Mr. Smith's excavation destabilised the slope, causing Mr. Jones' property to subside. Mr. Smith is liable regardless of whether he took precautions.

b. Scope

Developed land. Unlike older English law principles, South African law extends the duty of lateral support to land with buildings (not just natural land).

Owners must balance their right to develop their property with the obligation to avoid harming neighbouring properties..

c. Legal Basis

Neighbour Law Principles: Rooted in fairness and reasonableness, requiring
landowners to respect their neighbours' entitlements (Regal v African Superslate 1963 (1) SA 102 (A)).

Affected neighbours can claim damages or seek an interdict to halt harmful activities (Study Unit 6).

The duty of lateral support is a strict liability obligation under neighbour law, ensuring landowners cannot unreasonably compromise the stability of adjacent properties. This limitation reflects the balance between ownership rights and communal responsibility, as affirmed in Petropulos v Dias."

Petropulos v Dias 2020 (5) SA 63 (SCA), paras 59-63 (Strict liability for lateral support breaches).
Study Unit 3, para 3 (Limitations on ownership).
Petropulos v Dias para 25 (Rejection of English law's "natural state" restriction).
Study Unit 2 (Reciprocity in neighbour law).
Regal v African Superslate 1963 (1) SA 102 (A) (Reasonableness standard).
Study Unit 6 (Remedies for breach of neighbour law).
Petropulos v Dias para 63 (Policy considerations for strict liability).

Question 5

Mr. Smith argues that he cannot be held liable for the damage to Mr. Jones' land because the legal limitation imposed on him only extends to land in its natural state. Concerning relevant case law, advise whether he is correct.

Mr. Smith is incorrect in asserting that the duty to provide lateral support applies only to land in its "natural state". This limitation was explicitly rejected in Petropulos v Dias 2020 (5) SA 63 (SCA)1, which modernised South African neighbour law.

1. Pre-Petropulos Position

Historically, cases like Gijzen v Verrinder 1965 (1) SA 806 (D)2 and Foentjies v Beukes 1977 (4) SA 964 (C)3 restricted strict liability for lateral support breaches to land in its natural, undeveloped state. Under this view, landowners with buildings or structures on their property could not claim lateral support protection.

2. Current Legal Position

The Supreme Court of Appeal in Petropulos v Dias1 overtumed this restrictive approach. The court held that the duty of lateral support extends to developed land (e.g., land with buildings) unless the land was "unreasonably loaded" (e.g., excessively burdened by structures that disproportionately strain neighbouring properties).

Application to Mr. Smith's Case

Mr. Jones' property had buildings, but the duty of lateral support still applied.1
Mr. Smith's excavation destabilized the slope, breaching this duty. Liability is strict (no proof of fault required).
Mr. Smith's reliance on the "natural state" defence is invalid post-Petropulos.
Mr. Smith is liable for the damage to Mr. Jones' property. The Petropulos judgment explicitly rejects the "natural state" requirement, affirming that strict liability applies regardless of whether the land is developed.'

1 Petropulos v Dias 2020 (5) SA 63 (SCA), paras 59-63.
2 Gijzen v Verrinder 1965 (1) SA 806 (D) at 810D-F.
3 Foentjies v Beukes 1977 (4) SA 964 (C) at 968E-H.
Study Unit 3, para 3.2.2 (Historical limitations on lateral support).
Petropulos v Dias para 25 (Rejection of English law's "natural state" doctrine).
Study Unit 6 (Strict liability in neighbour law).
Study Unit 2 (Reciprocity and fairness in neighbour law).

Question 6

If Mr. Smith argues that he was not negligent and had obtained all the necessary approvals before excavating, could he still be held liable for the damage?

Yes, Mr. Smith can still be held liable for the damage to Mr. Jones' property, even if he was not negligent and obtained all necessary approvals.1 This is due to the strict liability principle governing the duty of lateral support in South African neighbour law.

Strict Liability Principle

The duty to provide lateral support is not fault-based.3 Liability arises automatically if excavations on one property cause subsidence or damage to a neighbouring property.

Case Law: In Petropulos v Dias 2020 (5) SA 63 (SCA), the court confirmed that liability for breaching lateral support is strict, meaning fault (negligence) or intent is irrelevant."

Approvals Do Not Override Common Law Duties

Statutory approvals (e.g., municipal permits) demonstrate compliance with regulatory requirements but do not absolve landowners of their common law duty to avoid harming neighbouring properties.

Even if Mr. Smith's excavation complied with the National Building Regulations, he remains liable for destabilising Mr. Jones' land."

Neighbour law prioritises fairness and reciprocity between landowners.10 Compliance with administrative processes does not negate the obligation to respect adjacent properties' stability.

Mr. Smith's lack of negligence and regulatory compliance are irrelevant to his liability.12.The strict duty of lateral support under neighbour law holds him accountable for damages caused by his excavation.

1 Petropulos v Dias 2020 (5) SA 63 (SCA), para 63.
2 Study Unit 3, para 2.2.2 (Strict liability for lateral support breaches).
3 Gijzen v Verrinder 1965 (1) SA 806 (D) at 810D-F.
* Study Unit 6 (Remedies for breach of neighbour law).
* Petropulos v Dias para 59-63.
* Study Unit 2 (Legal principles of neighbour law).
Study Unit 6 (Statutory compliance vs. civil liability).
* National Building Regulations, SANS 10400.
Petropulos v Dias para 25 (Policy considerations for strict liability).
10 Study Unit 2 (Reciprocity in neighbour law)
Regal v African Superslate 1963 (1) SA 102 (A) at 114G.
Study Unit 3 (Limitations on Ownership).
Study Unit 6 (Strict Liability on ownership).

Bibliography

Books

Van der Walt, A.J. & Pienaar, G.J. (2020). Law of Property. Cape Town: Juta & Co.
Mostert, H. & Pope, A. (2017). The Principles of the Law of Property in South Africa. Oxford University Press.
Study Guide for PVL3703, University of South Africa (Study Units 2, 3, and 6).

Case law

Petropulos and Another v Dias 2020 (5) SA 63 (SCA).
Gijzen v Verrinder 1965 (1) SA 806 (D).
Foentjies v Beukes 1977 (4) SA 964 (C).
Gien v Gien 1951 (4) SA 510 (A).
Regal v African Superslate 1963 (1) SA 102 (A).

Legislation

The Constitution of the Republic of South Africa, 1996
Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA)
The National Building Regulations and Building Standards Act 103 of 1977