SAR
(LoT – Law of Things)
Case law
Legislation
Examples
Definitions
Study Unit 1 – Introduction
The meaning of property
“Property” –
o Widely used with various connotations.
o Invasive term bcs not easy to define/restrict to something
specific.
o Informal meaning v Legal-technical/strict meaning
1. ‘property’ refers to rights in 1. Assets which form part of persons estate.
legal objects = possessive 2. More strictly = rights that legal subjects have
usage indicating a right to an in/over legal objects including:
object (this belongs to me). a. Ownership.
2. ‘property’ refers to object b. Legal objects.
itself = ‘the agent showed us c. Other legal relationships
the property’ (rights/interests).
Factors that influence what is meant by ‘property’ –
o (1) Nature and characteristics:
Some objects do not qualify as property because they don’t
have required characteristics or nature.
o (2) Relationship between legal subject and object:
The specific relationship (legal/not legal) that a legal subject
has over object with influence what is meant by property.
o (3) Relationship between legal subject and other subjects:
Others may have rights in the property which impacts
meaning.
o (4) Economic and political systems:
, Changes in political regime (capitalist v socialist meaning of
property).
o (5) Commodities:
What is regarded as valuable to society at specific time
influences notion of property (money is what society values –
future is crypto).
o (6) Constitutional protection:
‘Constitutional property’ widened ambit of what property can
mean.
Tells us what property is protected.
o (7) Cultural and ideological differences:
Notion of property influence by communal v private
understanding of objects and relationships with objects (living
in a village where you share vs living in a city where what’s
mine is mine etc.).
Function of Property Law
Formal function of PL v Social function of PL
Regulate the protection and harmonization of Acquisition and maintenance of wealth (made
rights in and over land possible through the formal function) does not take
1. Guaranteeing and protecting individual place in vacuum but rather in proximity to each other
rights (acquisition, enjoyment, and disposal with conflicting interests (interests can be legally
of property). recognized/unrecognized).
2. Harmonization: 1. PL includes responsibilities and regulates those
a. Harmonizing individual interests and responsibilities:
rights wrt SAME property (where 1 a. Focus on responsibilities on legal subjects
person has ownership over property and with right over legal objects, to other legal
another person has use of the same subjects in society (owning coal: can
property). decide to sell or keep the coal, that
b. Harmonization of individual rights and decision impacts society SO those who
interests wrt to DIFFERENT property (2 have, have responsibility to those who
neighboring properties have different don’t. This responsibility is filtered through
owners – making sure one does not law).
interfere with the others’ rights). 2. Management and regulation of competing
interests of property holders at the expense of
others:
a. Ownership = use and enjoy BUT laws may
regulate the way in which we use and
enjoy s25 & s26 of Consti (you own a car
but can’t use it past the speed limit).
,Where does PL fit into framework of law
Private Law
Patrimonial Law
All 3 deals with assets of
Law of Property Law of Succession Law of obligations natural/juristic person’s
estate
Contract Law
Delict
PL forms part of pat law bcs it deals with assets of a person’s estate
over which they can have rights.
Distinction between public and private law:
o Public law regulates relationship between individuals and state.
o Private law regulates relationships between individuals.
BUT PL cannot be confined to ONLY private law because state plays
role in the regulations wrt to PL. Private and public law overlap at PL
Scope of PL
PL regulates relationship between legal subjects and legal objects
(property).
Property regulated by PL includes differently legal objects:
o Corporeal objects (tangible property).
o Incorporeal objects (intangible property).
o Informal/formal rights and interests.
o Public law relationships of proprietary.
o Constitutional property (s25 of Consti).
PL includes LoT:
, o LoT is only a subcategory of PL (LoT regulates relationship
between legal subjects and THINGS, not property).
o ‘things’ = corporeal, independent, legal objects that have use
and are situated outside human body (of impersonal nature
and susceptible to human control).
o LoT is a narrower concept of PL.
Sources of PL
(1) Common Law:
o CL derived from Roman-Dutch law influenced by English law.
o Institutional writers keep track of CL.
o CL is the source of PL where we find the legal norms that
regulate day-to-day aspects of property.
(2) Legislation:
o Parliament is author.
o Supplements (where legislation regulates issues not covered
by CL principles)/replaces (where parliament promulgates
legislation that expressly replaces certain CL
principles)/develops/change parts of CL.
(3) Customary Law:
o Regulates customary and indigenous proprietary law.
o Operates alongside CL.
(4) Case law/precedent:
o Interpretations of legal norms that make up LoT.
o Developments of CL (where a CL rule is not equitable).
(5) The Constitution:
o S25 of Consti (property clause).
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