Property Law: Ownership, Transfer, and Remedies

This article discusses the rights of parties in relation to property ownership, transfer of ownership, and remedies available in South Africa. It covers topics such as original and derivative modes of transfer, rei vindicatio, spoliation remedy, and more.

Running head: PROPERTY LAW
PROPERTY LAW
Name of the Student
Name of the University
Author Note

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Question 1
In light of the given set of facts and circumstances the rights of the parties which can be
determined through the relationship they share with the property is set out as follows:
a) Owner: In this situation Tammy is the only owner of the property as set out by the
facts. This is because she inherited the car from her grandmother and this means
that all rights of ownership, title and possession would flow to her when she
inherited the car.
b) Possessor: In these circumstances Tom is a possessor as he stole the vehicle from
a parking lot. Thus no rights of ownership or possession passed to him and he was
illegally in possession of the property.
c) Holder: A holder of a particular piece of movable property is someone who is
temporarily holding the property for another person. In these circumstances, John
is a holder as he is holding the property (the car) he borrowed from his mother. In
such a case there is no transfer of ownership or title and merely a temporary
transfer of possession takes place.
Question 2
Under the laws of South Africa, ownership can be transferred through two different
modes. The original mode and derivative mode are two categories of transfer of ownership and
title. Expropriation refers to a method of liquidation of property subsequent to valuation
(McAuslan 2013). This would be considered an original mode of transfer of ownership as the
ownership would be directly transferred to the buying parties in case of the liquidation process

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(Comaroff 2013). The mode of transfer of ownership through delivery with long hand would be
considered a derivative mode as it would involve an intention of transfer of property and would
also embody a transfer of registration of the property.
Question 3 (a)
The primary difference between rei vindicatio and spoliation remedy is that they
constitute different form of cause of action. The cause of action envisaged in rei vindicatio
mandates that the more than merely possessory rights in the property had been infringed
(Diamond 2013). A spoliation remedy on the other hand is a cause of action that only arises
through an infringement of possessory rights within the parties.
Question 3 (b)
It has been determined in the case of Ngqukumba v Minister of Safety and Security and
Others [2013] ZASCA 89; 2013 (2) SACR 381 (SCA) that for a mere possessory infringement a
spoliation remedy would be appropriate (Sisk 2017). In the facts and circumstances given above
the problems with the tenancy in the present scenario is that the landlord (Peter) has changed the
locks and thus has dispossessed the tenant from peaceful enjoyment of leasehold property.
Following the judgment in this case it can be assessed that Trevor (the tenant) should file an
application for a spoliation remedy. This would also hold up in court as dispossessing the tenant
devoid of any prior notice would ideally mean that his right to possess the property is being
assessed.

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Reference List
Comaroff, J., 2013. Body of power, spirit of resistance: The culture and history of a South
African people. University of Chicago Press.
Diamond, A.S., 2013. Primitive law, past and present. Routledge.
McAuslan, P., 2013. Land Law Reform in Eastern Africa: Traditional or Transformative?: A
critical review of 50 years of land law reform in Eastern Africa 1961–2011. Routledge.
Sisk, T., 2017. Democratization in South Africa: The elusive social contract (Vol. 4838).
Princeton University Press.