The Principles of the Law of Property in South Africa
Summaries of textbook content, cases and lecturers w/ illustrations of the following topics:
Intro to property law & thing, Rights in property, Ownership (definition, forms, limitations), Original acquisition of ownership, Derivative acquisition of ownership, Ownership: protection and termination,...
• Factors that should be considered when discussing the meaning of property…
o Nature and characteristics of the object
o Relationship between the person and the object
o Relationship between the person and other persons in respect of that object
o Weight that political and economic systems attach to this object
o Extent to which the object can be regarded as a commodity
o Whether the Constitution acknowledges that this object and its relationships
deserve protection
o Cultural and ideological differences
• Property refers to the rights of people in or over certain objects or things.
• Property may mean…
o A legal object over which legal ownership is exercised
o Right of ownership in a legal object
o Legal relationships that qualify for constitutional protection (under
constitutional property clause)
• Property clause
o Section 25(1): No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of property
o Section 25(2): Property may be expropriated only in terms of law of general
application—
o Section 25(4)(b): Property is not limited to land
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,CONTEXT OF PROPERTY LAW: FRAMEWORK AND SOURCES
NB: the relationships between people and objects form the basis of property law.
FUNCTION OF PROPERTY LAW
o Harmonise different individual interests in respect to property
o Protect individual rights
o Regulates the relationships between individuals regarding certain objects; the
relationships between individuals and such objects, and the rights and obligations
that emanate from these relationships
o Manage competing interests
o NB: property rights can be limited in terms of the constitutional system laid down
SOURCES AND DEVELOPMENT OF THE LAW OF THINGS
SOURCES OF TRADITIONAL LAW OF THINGS
• Before 1994…
o Roman-Dutch common law (Grotius, Voet, Van der Linden)
o Legislation (Sectional Titles Act 95 of 1986)
o Case law / precedent (Ex parte Geldenhuys 1926 (O))
• However, because of legal, socio-political and economic changes, these sources must
be updated to match the new perspective of our current democratic system.
• S 39(2) of constitution
• Old discriminatory laws should be abolished
• The legal system must be re-evaluated (against the background it was written) and
be amended
SOURCES OF CURRENT LAW OF PROPERTY
a) Roman-Dutch common law
• Role and value of these rules must be reconsidered
• Will it promote or frustrate the ideals of human dignity?
b) Legislation
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, • New legislation can change the face of property law
• All new legislation must be evaluated and recognised against the values of
the constitution
c) Case law
• Indicates how common-law principles should be interpreted / applied
• How legislation should be interpreted
d) Customary law
• Customary law value and authority must be upheld and promoted in the
current law of property, but must also be re-evaluated with due regard to the
present context
e) Constitution
• All legal sources must be interpreted and applied with due regard to the
objectives of the constitution
• Constitution is the guiding principle for all legal development
TERMINOLOGY
The law of property deals with the rights and actions of persons with regard to things and
other forms of property, as well as other relations between persons and property. It
describes the way in which property rights can be acquired and exercised lawfully and the
remedies by which they are protected against infringement, as well as the legal results and
implications of other relations between persons and property.
Person: a person is a legal subject who can acquire and exercise rights and obligations in
law. Natural person (any individual person) OR juridical person (bodies operating and
recognised as a single legal entity).
Object: anything with regard to which a person can acquire and hold a right
Property: everything which can form part of a person’s estate, including corporeal things
and incorporeal interests and rights.
Thing: specific category of property, defined with reference to its characteristics. Corporeal
object outside the human body, and an independent entity capable of being subjected to
legal sovereignty by a legal subject for whom it has use and value.
Corporeal things: independent parts of nature which can be controlled by humans
and have use/value for humans.
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