Property Law - IT Computer Science Assignment Help

Assignment Task

Question 1

To facilitate the expansion of the Gautrain, the provincial government begins the process of planning and publishing future rail routes. These routes connect several economic centres, including ‘smart cities’ that are up for development in the future. The purpose behind this action is to drive economic growth and to plan for growing urbanisation in the Gauteng city-region.

The proposed rail routes will be developed within a period of 24 years over a three-phase period of 8 years each. Construction of the railway has already begun on Phase 1, and the construction of economic centres in Phases 2 and 3 is similarly underway. The preliminary design for Phases 2 and 3 may be amended after a review of the network takes places at the end of Phases 1 and 2. Phase 2 will be built entirely underground, and Phase 3 will be built entirely over ground.

Anneke owns two properties affected by the preliminary design of both Phase 2 and Phase 3.

Phase 2

Anneke intends to develop a townhouse complex on her property, which runs over the proposed railway line. She is concerned with an expert study she received, which indicates the likelihood of noise vibrations from trains passing below. She requests that the relevant MEC convenes, in terms of the Gauteng Transport Infrastructure Act 8 of 2001 (‘the Act’), a commission to consider this report and her objection to the preliminary design. The MEC refuses to do so, partly given the pressure he is under to deliver the project, but partly because he has been told it is possible to build deeper underground to avoid noise vibrations anyway. Accordingly, he publishes the route in terms of s6(11) of the Act.

Phase 3

The preliminary design of Phase 3 is based on a railway network set out almost 50 years ago, and which in terms of sections 10(1) and 10(3) of the Act is now deemed to be determined and published.

Anneke would like to develop an animal rehabilitation centre on this land. She would be unable to do so if a railway was built through her land as the noise of the train would disturb the animals and would not assist in their rehabilitation. She has obtained permission from the local municipality to develop the centre, but is concerned that in 24 years’ time, once Phase 3 is complete, she will no longer be able to maintain the centre.

Legal issue:

Anneke argues that the publication of both routes (in Phase 2 and Phase 3) amounts to an arbitrary deprivation of property. The Gauteng Provincial Government disagrees. Drawing on case law and relevant legislation, write a legal opinion in which you consider the merits of both arguments, and in respect of both routes. You may assume we are dealing with property for the purposes of section 25.

Question 2

“In terms of the principle omne quod inaedificatio solo cedit, more commonly formulated as superficies solo cedit, it is said that everything that is permanently built on or attached to land becomes the property of the landowner. Acquiring ownership of movable property by inaedificatio is classified as an original mode of acquiring ownership because ownership is not transferred from one person to another and consent is not required for ownership of the movable to vest in the acquirer. In fact, however, it is now widely recognised that ownership of the movable is not acquired by the landowner, because the movable ceases to exist as an independent legal object when it becomes permanently attached to land. When inaedificatio takes place, the owner of the movable loses ownership of that object by operation of law because the movable ceases to exist independently once it becomes permanently attached to land. Consequently, the former owner of the movable cannot reclaim ownership on the basis that he did not intend to transfer it to the landowner. Similarly, the landowner owns the same property as before accession took place (the land), but that land now includes a permanently attached structure that did not exist before. South African courts have found it difficult to determine whether a movable structure has become permanently attached to land, resulting in different approaches.”

AJ Van der Walt & NL Sono “The law regarding inaedificatio: A constitutional analysis” (2016) Journal of Contemporary Roman-Dutch Law 195-212

Explain the criteria applied in case law to determine whether a movable thing became permanently annexed to an immovable thing through accession. In your response, you should also distinguish the different approaches followed with regard to these criteria in the following cases:

• MacDonald Ltd v Radin NO and the Potchefstroom Dairies and Industries Co Ltd (1915 AD 454)

• Standard-Vacuum Refining Co of SA (Pty) Ltd v Durban City Council (1961 (2) SA 669 (A)

• Theatre Investments (Pty) Ltd v Butcher Brothers Ltd (1978 (3) SA 682 (A)

• Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (Wp) Bpk (1996 (3) SA 273 (A)

• Melcorp SA (Pty) Ltd v Joint Municipal Pension Fund (TvI) 1980 2 SA 214 (W).

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