Private Law 272 Lectures: Law of Property
Semester 1
Topic 1: Introduction to Property Law & Things
What is Property?
● Property in terms of the law - the Constitution:
○ Property clause: s 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
○ S 25(2): Property may be expropriated only in terms of law of general application—
○ S 25(4)(b): Property is not limited to land.
● How the courts refer to property:
○ “Practically impossible to furnish - and judicially unwise to attempt a comprehensive
definition of property for purposes of s 25… Ownership of corporeal movables (and
land) must lie at the heart of our constitutional concept of property, both as regards the
nature of the right involved and the object of the right…” - First National Bank of SA Ltd
t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) para 51.
■ New forms of law emerge all the time
○ A broad range of rights and interests have been accepted as property for purposes of
section 25, including (but not limited to):
■ Land (immovable) and corporeal movables: FNB 2002 4 SA 768 (CC)
■ Trademarks, which potentially opens up the possibility of recognising other
intellectual property rights as property: Laugh it off Promotions 2006 1 SA 144
(CC)
■ Mineral rights: Agri SA 2013 4 SA 1 (CC)
■ Goodwill: Phumelela Gaming 2006 8 BCLR 883 (CC)
■ A grocer’s wine licence: Shoprite Checkers (Pty) Ltd 2015 6 SA 125 (CC)
■ Licences more generally: South African Diamond Producers 2017 6 SA 331
(CC);
■ Personal servitudes: Opperman 2013 2 SA 1 (CC);
■ Servitudes generally: National Stadium South Africa 2011 2 SA 157 (SCA)
■ and public servitudes Link Africa (Pty) Ltd 2015 6 SA 440 (CC).
● How lawyers refer to property: NB
○ “Property”: “Rights of people in or over certain objects or things… The term also refers
to the legal objects themselves”. (Principles page 6)
■ The legal object itself
■ Right of ownership in a legal object
■ All the relationships that qualify for constitutional protection under s 25 (e.g.
unlawful control (NB)
,Intro to Property Law & Things:
- where does property law fit into the legal system?
● Property law is traditionally part of private law, which regulates legal relationships and
transactions between private individuals and things, plus the rights and obligations that
emanate from these relationships / subjective rights and legal objects. There is, however, an
element of public law (vertical relationship) in property law, especially due to the impact of the
Constitution on private law: s 25 has introduced protection of rights in property.
○ It is argued that the law of property now cannot be restricted to corporeal assets or
things, therefore “law of property” is more appropriate than “law of things”.
○ Aspects of public law in prop law: role of state; impact on private relationships; building
on land; transfer of land; expropriation; forfeiture of property.
● Apart from property rights, prop law also deals with unlawful property relationships that don’t
qualify as rights, which are important because of their legal implications. These relationships
are described as unlawful control of property, to which the person in question has no right.
○ E.g: relationship between a thief and stolen car; unlawful occupiers being protected
against eviction (affects rights of landowner).
● (Formal) function of law of property: harmonises relationships (social function; competing
interests); guarantees and protects individual and sometimes group rights; controls/regulates
relationships (horizontal & vertical).
○ Distinction between private and public.
● Background, sources and current development:
○ Sources:
■ Constitution (protection & reform of property s25, housing, equality etc)
■ Roman-Dutch common law principles (Grotius, Voet, Van der Linden)
■ Case law (before & after constitutional dispensation; s 39(2) interpret &
develop; e.g. Ex parte Geldenhuys)
■ Legislation (e.g. Sectional TItles Act; all subject to constitutional review)
■ Customary law
● Though customary law is recognised on equal footing with common
law, certain aspects may come into conflict with Constitutional
principles.
○ Pre-1994 sources left an impression on the development of property law, and the
writings of Roman-Dutch authors, legislation and earlier case law still constitute a major
part of the written tradition on which the law of property is built.
○ However, legal, socio-political and economic developments and changes mean that
sources of prop law must be seen in a new perspective - the whole existing legal system
must be re-evaluated and amended where needed.
, ○ There is tension between sources (esp common law & pre-1994 legislation vs post-
1994 promoting transformation), therefore it must be decided what is applicable.
■ Common law should not be abolished, but reconsidered and applied with
circumspection on a case by case basis - not just abolished.
○ S2 upholds the Constitution as the supreme law; the CC has stated that there is a
single system of law, and that all law is subject to the Constitution. S2 protects rights
but ensures that reforms be implemented in line with s 39(2); provides for a balancing
of rights and interests.
● Terminology:
○ Prop law deals with rights and actions of persons (natural or juristic) with regard to
things and other forms of property, as well as other relations between persons and
property. It describes how prop 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.
○ Property is everything which can form part of a person’s estate, including corporeal
things and incorporeal interests and rights.
○ Remedies are legal procedures that protect a right against infringement or control the
effects of an unlawful act or situation.
■ The first kind of remedy protects the holders of property rights, while the
second protects and regulates the legal order.
Property vs Things: (focus on private law)
● Point of departure:
○ The scope of property law is determined by the extent to which legal objects qualify as
things. Note - there is a narrow and wide approach (only in principles).
○ “Property” is a wide concept, including the traditional law of things, law of obligations
(performances - rights), commercial law and immaterial property law. It is everything
which can form part of a person’s estate, including corporeal and incorporeal rights and
interests.
○ A “thing” is a specific category defined in reference to its characteristics - it traditionally
has all 5 characteristics.
, ● Importance of what qualifies as a thing in private law in one’s estate:
○ Applicability of property law rules and principles.
○ Impact on remedies.
● Definition & characteristics of a “thing”: NB
○ Definition: any independent object, whether corporeal (or incorporeal), outside the
human body, which may be controlled by legal subjects to whom it is of use and value.
○ “Narrow” approach:
■ Corporeality
■ An impersonal nature
■ Independence
■ Appropriability
■ Use and value
● Approaches:
○ Narrow/strict approach:
■ All 5 characteristics have to be present for a legal object to qualify as a thing
(corporeality is a requirement).
○ Flexible approach:
■ Where the five characteristics are regarded as guidelines rather than
prerequisites to determine if a legal object is a thing (corporeality is not a
requirement).
Corporeality:
● When is a thing corporeal?
○ 1. An object can be corporeal if it is tangible (perceived by any of the 5 senses).
○ 2. Occupies space.
● This is a controversial characteristic because it excludes incorporeal property, i.e. rights.
Traditionally, incorporeal property (non-physical i.e. tangible interests in property) is not
regarded as property in SA property law structures.
● Examples of incorporeal property:
○ Rights:
■ Real rights
■ Intellectual property rights
■ Personal rights (creditor’s rights)
○ Shares in company
○ Forms of energy
○ Data
● Courts and legislature:
○ Incorporeal property is generally included in the ambit of things.
