Summary
Summary 4 and 5 Ownership and Co Ownership
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4 OwnershipOwnership is a real right.
Concept of ownership in a certain society is formed by legal sociological, historical, economic,
religious, political and philosophical considerations and ideas regarding ownership.
The Common Law Definition
Ownership is found in South African case law where ownership is defined in various decisions as the
most complete real right that a legal subject can have regarding a thing, or as the real right which
gives the owner either most complete and absolute entitlements to a thing. Even so it is a right
which can be limited by objective law and by the rights of others.
Ownership has to do both with the abstract’s relationships between legal subjects and between a
legal subject and a thing.
These relationships are indeterminate and therefore abstract.
They are indeterminate because they differ from time to time or from relationship to relationship.
The owner’s rights are also increasingly determinate by the interests of the community and are
therefore also influenced by social factors.
The content of ownership is described in terms of the owner’s exercise of entitlements regarding
the thing.
The communal form of ownership traditionally applied by most indigenous peoples in SA, forms the
basis of the view of a large part of the SA population on ownership.
Sec 39(3) of the Constitution the existence of rights and freedoms that are recognised or conferred
by customary law is not denied by the fundamental rights of chapter 2 of the Constitution to the
extent these customary rights and freedoms are consistent with the fundamental rights.
, The ’Modern’ Definition
Of ownership can be described as an abstract relationship, which implies that;
a) A legal relationship exists between the owner and a thing in terms of which the owner
acquires certain entitlements, and
b) A relationship exists between the owner and other legal subjects in terms of which the
owner can require that others respect his entitlements regarding the object.
The relationship:
c) Consists of indeterminate entitlements in that they vary from time to time regarding the
same relationship or regarding different relationships, and
d) Is limited by statutory measures, limited real rights, creditor’s rights of third parties and
the interests of the community.
Ownership without entitlements is impossible, since a real right cannot be without content.
Acquisition of limited real rights regarding the thing or of patrimonial rights against the owner is
usually of a temporary nature, while the duration of ownership is indeterminate.
As soon as the limitations fall away the owner’s ownership reverts to its original unlimited form.
These characteristics are known as the elasticity of ownership and confirms that the extent of
ownership is to be determined with reference to the owner’s entitlements.
Content of Ownership
Common-law descriptions of ownerships based on entitlements as found in SA case law.
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