Exam (elaborations)
Property law/ Law of Property Exam notes
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- Stellenbosch University (SUN)
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PROPERTY LAWLEARNING UNIT 1 I INTRODUCTION, TERMINOLOGY & BASIC
CONCEPTS I
Theme 1
LO 1: Describe the sources of SA Property Law.
LO 2: Define the following terminology: (a) Person – (b) object – (c)
property – (d) thing (e) right – (f) property right – (g) personal right (h)
lawful – (i) remedy.
LO 3: Discuss where property law fits into the SA legal system.
LO1: Describe the sources of SA Property Law.
1.Common law: however, in our new dispensation it must
Roman dutch be applied with circumspection in every
case, considering whether it will promote
or go against the ideals entrenched in the
Constitution.
2. Statutory law: N.B. source of traditional law of things and
Legislation- Sectional Title Act 95 of 1986 will continue to play a role in the future.
3. Case law: Indicates how common law principles and
Precedent- Ex Parte Geldenhuys 1926 legislation should be applied and
interpreted.
4. Customary law: During the apartheid era customary law
property rights = primitive legal
relationships, and wasn’t
recognised/protected by the courts,
however, the current Constitution changes
this position
5. Constitutional law: All sources of property law must be
interpreted and applied with due regard to
the spirit and objectives of the Constitution.
The Constitution is the guiding principle for
all legal developments
,As a result of recent socio-political and economic developments and changes, the sources of
the law of property must be seen in a new perspective, namely the transition from a society
dominated by white, privileged minority to a society based on democratic values, social
justice and fundamental human rights
LO2: Define the following terminology
Person A legal subject is a person who can acquire and exercise rights and
obligations in law. A legal subject can either be a natural person or a
legal (juridical) person (groups or bodies operating and recognised as a
single entity, eg, companies, universities etc).
Object Any object with which a legal subject has a legally recognised
relationship. These are things, performances and immaterial property.
Property Everything which can form part of a person’s estate, including corporeal
things and incorporeal interests and rights.
Thing A specific category of property, which is defined with reference to its
characteristics: a 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.
Right Legally recognised and valid claim by a subject to a certain object. Not all
relations between a person and an object are recognised and protected
by law
Property right Any legally recognised claim to or interest in property.
Lawful A claim or action is lawful when it is acknowledged and protected by
existing legal principles; unlawful is in conflict with that.
Remedy Legal procedure provided by legal system to protect a rights against
infringement or to control effects of an unlawful act or situation
LO3: Discuss where property law fits into the SA legal system.
1. Everything that forms 2. Property can be a
part of person’s estate variety of assests i.e.
can be described as Things, personal rights
property i.e. a persons
6. Apart from rights in property, possessions
the law of property also
traditionally deals with a 3. Whilst property law falls
number of relationships that do under the private law
not qualify as rights at all. umbrella –it has become
Although these relationships do impossible to ignore public
not qualify as rights, they are law when discussing property
law of property
important for the law of rights .Reason = s25 of the
within the legal
property because of their legal Constitution provides
system
implications. i.e. thief who protection for all rights in
steals a car. property, consequently, the
law of property must take
note of Constitutional
principles and their effects
upon private law
5. Because of socio-economic, political and
constitutional developments, it is not possible
to restrict the law of property to corporeal
assets or things as such the term law of 4. Traditionally law of property was
property is more appropriate than law of restricted to corporeal assets and
things things and therefore was referred
to as law of things.
, Theme 2
LO4: Define a thing as a legal object
LO5: Distinguish between corporeal and incorporeal things with reference to practical
examples.
LO6: Indicate which principles must be applied to distinguish between the following
categories: a) negotiable and non-negotiable things; b) singular and composite things; c)
movable and immovable things; d) fungible and non-fungible things; e) consumable and
non-consumable things.
LO7: Distinguish between principal things, accessory things, auxiliary things and fruits and
apply this distinction in practice
LO4: Define a thing as a legal object
A thing is the legal object of a real right and is therefore, for the purposes of the law of
property, the most important legal object.
A specific category of property, which is defined with reference to its characteristics:
a 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.
Characteristics of a thing
Corporeality
External to humans
Independence
Subject to juridical (Human Control)
Useful and valuable to humans
1. Corporeality
• Can be sensorily observed (5 senses) and occupies a certain space i.e., bike, car,
house, land, brick
• Note forces of nature like gravity, heat, light, sound and electricity can be sensorily
observed but cannot be described in terms of space and therefore excluded from
the definition of corporeal things
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