PROPERTY LAW SEM 1 NOTES
INTRO
Things according to a legal perspective
Thing that belongs to nobody = res nullius
Rei vindicatio is a claim in rem that would be used to claim back a physical possession of
something you are the owner of
(eastern Cape Parks Board v Le roux)
If a landowner wants to use rei vindicatio to reclaim land from illegal occupants
Must comply with PIE (Prevention of Illegal Eviction from Unlawful Occupation of Land Act)
Pie is a part of constitutional right to housing s26(3)
Property means rights: rights of people in or over certain objects or things
Right of ownership, legal object,
Private law: individual v individual; public law: state v individual
Patrimonial law: deals with assets or estate of individual
Legal object: person may hold a right in respect of
Certain legal objects termed ‘things’ (res) have rights and duties under property law – can be
tangible or intangible
Property law is both public and private as government can become involved in private life
Scope of prop law determined by statutory development of common law and provisions which
determine special regulations of certain aspects of property
SOURCES OF PROP LAW
1. Roman Dutch common law
Influenced by Germanic customary law and canon law – old authorities
Romans classified ‘things’ and came up with certain remedies
Systemized by German pandectism in 19th century – major contribution to SA prop law is its
account of prop rights as subjective rights
Ownership of land is the most powerful real right in rem
A contractual agreement to use the land is different as this is a right in personam and not
registered on title deed
Real right is right to a thing and is seen as right of individual, however, can now recognize co-
ownership (marriage in COP) and companies treated as individuals
2. Apartheid colonial law – NOT USED
Lanf owned by state and held in trust for African communities
Systems of land use in apartheid territories was modelled on customary law
In urban areas, townships were created, and no real rights were given to occupants
Only permits were given for residential rights (insecure and temporary)
, As no
(Group Areas Act of 1950 and 1966)
Reaction in 1994 was to provide real rights that could be registered
Prevention of Illegal Squatting Act of 1951 (PISA) - demolish all structures erected without
consent of landowner
Post-apartheid law changes:
Abolition of Racially Based Land Measures Act of 1991 abolished most apartheid land laws
Prevention of Illegal Squatting Act 1951 [repealed and replaced by]:
o Prevention of Illegal Evictions Act 1998
Group Areas Acts 1950 and 1966 [repealed and replaced by]
o Restitution of Land Rights Act 1994
o Housing Act 1997
o Interim Protection of Informal Lands Rights Act
Lands Act [1913; 1936 and apartheid successors] [repealed and replaced by]
o Restitution of Land Rights Act 1994
o Land Reform (Labour Tenants) Act 1996 & 1997
o Interim Protection of Informal Lands Rights Act 1966
o Communal Land Rights Act [in progress]
White Paper defines 3 elements of reform initiative: land restitution, redistribution of land,
tenure reform
3. African Customary Law
Equal in status to common law
Due to Alexkor Ltd v The Richtersveld Community: Its validity must be determined by reference
NOT to common law but to the constitution.
Focus on access to instead of ownership of
Depends on membership – to community, to family/household
‘nested systems’ co-ordinate resources
Land can be owned by a community – whole community can have exclusive rights to enjoy land
and its resources
Courts must apply the living customary law as it is ever changing
?
4. Legislation
All acts and shit
5. Constitution
Supreme Law
No other rule may conflict with constitution
Con section 25 (property):
, 1. No one may be deprived of property except in terms of a law of general application, and no law
may permit arbitrary deprivation of property
2. Property may be expropriated only in terms of law of general application—
a. For a public purpose or in the public interest; and
b. Subject to compensation [either agreed or approved by the court]
3. The amount of compensation must be just and equitable …
4. For the purposes of this section, the public interest includes the nation’s commitment to land
reform, and to reforms to bring about equitable access to all South Africa’s natural resources;
and
5. The state must take reasonable legislative and other measures, within its available resources, to
foster conditions which enable citizens to gain access to land on an equitable basis.
6. A person or community whose tenure of land is legally insecure as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament,
either to tenure which is legally secure or to comparable redress.
7. A person or community dispossessed of property after 19 June 1913 as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament,
either to restitution of that property or to equitable redress.
8. No provision of this section may impede the state from taking legislative and other measures to
achieve land, water and related reform, in order to redress the results of past racial
discrimination,
9. Parliament must enact the legislation referred to in (6)
Constitution Section 26 (Housing)
1. Everyone has the right to have access to adequate housing.
2. The state must take reasonable legislative and other measures, within its available resources, to
achieve the progressive realisation of this right.
3. 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. No legislation may permit arbitrary
evictions.
Right to housing links to fundamental human rights including human dignity, health, security,
privacy and equality
Port Elizabeth v Various Occupiers (CC): roman-Dutch common law masqueraded as neutral
during apartheid times when in fact a law can never be neutral – it can allow things to stay the
same (unequal) or it can promote change
Judgment emphasised that if you can acknowledge the status quo is unjust then you must
promote changing it and transform the law
Private ownership of property can never be ‘absolute’ - it will always be subject to the needs of
society
Subjective rights
Old roman law concepts developed through pandectism
, Key element is idea of a legal subject
A person is a legal subject – they can be holder of duties and rights
Rights and duties can only exist between persons (legal subjects)
Classical Theory:
Rights are classified according to the object of the right
Personal rights – performances are the objects – in personam
Eg: john has right to babysitting; Mary has duty to baby sit; performance of babysitting is
the legal object
Real rights – physical things are the objects – in rem
Eg. John has a right to his house – house is legal object
Personalist theory:
Rights classified according to who the right operates against
Personal rights: only enforced against a particular person
Real rights: enforceable against everyone
WHY MATTER?
If object is a performance, it can only be enforced against a particular person (other
party of the contract)
If object is a thing, it can be enforced against anyone
Branch of law involved is different
Real rights: property law = powerful property remedies
You can pursue the thing itself
Personal rights: law of contract (usually) = can only use contractual remedies
You must pursue the person (weaker = not able to find them, not able to pay)
LIMITED REAL RIGHTS
- Made up of SERVITUDES & REAL SECURITY RIGHTS
SERVITUDES
Burdens the property
Involves immoveable property
‘burdens the land’
= limited real right (property right)
Praedial servitude: 2 pieces of land, one burdens the other
Personal servitude: land burdened by rights of a particular person (can sometimes
involve moveable property)
Praedial Servitudes
