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- Rhodes University (RU)
The notes mainly focus on Private Law limitations on the right of ownership and acquisition of ownership.
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Chapter 6: Limitations on Ownership.1. At the end you should have gained an overview of the limitations to the concept of
ownership. (In neighbour Law context the limitation of ownership has been expressed
by courts’ reference to the fundamental live, let live principle of law.
The case in Allaclas Investments (Pty) Ltd and Another v Milnerton Golf Club and
Others 2008 (3) SA 134 (SCA) at para 21 states that ‘The principle of “give and take,
live, and let live”, … forms the basis of our law.’ Hence showing that rights to
ownership
While ownership as summarised by the plena in re potestas principle may provide the most
extensive entitlements over property to a person, and as well as confer to one the most complete
control over a things/property that does not mean it is not without limitations. Ownership is subject
to constitutional limitations as well as private law and public law limitations. This is because
ownership does not only bring about rights, but it also comes with responsibilities and obligations.
(For Constitutional LIMITATIONS REFER TO THE ASSIGNEMNT. These limitations work for the benefit
of the society, they are supposed to be justified by the constitution.
Constitutional limitation
• Section 25(1) of the Constitution provides that “no one may be arbitrarily deprived
of (their) property.
• Section 26(3) of the Constitution provides that “no one may be evicted from their
home, or have their home demolished, without an order of court made after
considering all the relevant circumstances”.
Private Law Limitations on the right of ownership
Iura in re aliena (that is limitation caused by the rights of others) and this can create the
concept of limited real rights. When one (part A) has a limited real right on the other’s (part
B) property part A’s right to ownership will be limited. For example, leasing your property to
another person gives that person limited real rights on your property and limits your extent of
ownership on that property.
Another example, of private law limitations is the rights of neighbours. This stems from the
notion that every owner has entitlements to for example use, enjoy, control or vindicate his
, property but the exercise of this right by the owner might negatively impact his neighbours
and restrict the neighbours’ enjoyment or exercise of the same entitlement over their
properties. And as a result of this, conflicts may arise between the neighbours. Neighbour
Law therefore serves to regulate the manner in which such conflicts between neighbours are
resolved. The underlying principle is that in as much one owner is entitled to use and enjoy
his property so is the neighbour, hence the entitlement/right should be exercised in a way that
is reasonable in order to prevent any unreasonable infringement of others’ (neighbours)
similar right.
Neighbour law traces some of its rules from English Law, as well as from Roman and Roman
Dutch Law, and it is because of this that South African law does not rely on a single principle
but a set of principles to…
When it comes to English Law, treatment of neighbour conflicts is delt with “as a tort of
nuisance. This nuisance principle is divided into a narrow sense and wide sense, and the
difference created by these two does not give rise to a difference in the treatment of the
problem but instead the most suitable remedy may be different in terms of whether it is
nuisance in the narrow or wide sense being delt with.
So as to determine nuisance in a certain dispute a test is applied, and the test is one of
objective reasonableness. The test makes an enquiry as to whether the act or conduct that
gave rise to the conflict can be tolerated, this is so ask whether the conduct in question is
proper and socially fit in a way that is in line with the prevailing community views. The
second part of the enquiry is an enquiry for delictual liability. Once it is proven that there is
an unreasonable conduct or that the conduct has created actual damage, remedies in the form
of a prohibitory interdict as well as an action for damages can be claimed respectively.
The difference between Neighbour Law in the narrow sense and wide sense.
Narrow sense.
This narrow/strict sense of nuisance is also known as annoyance. It is a type of nuisance that
deals with situations whereby a neighbour’s entitlement of use and enjoyment is infringed in
such a way that his quality of life is affected, be it his ordinary health, convenience or
comfort by ongoing wrong conduct which causes noise, smoke, fumes or other activities
detrimental to the neighbour’s property. In terms of case law other detrimental activities
include the keeping of chickens, holding religious activities and so forth.
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