UNIT 1 - INTRODUCTION
PRIVATE LAW 272 – LAW OF PROPERTY
INTRO - HOW DO LAWYERS REFER TO PROPERY LAW
“Property”: Rights of people in or over certain objects or things.
The term also refers to the legal objects themselves
Thus:
o The legal object itself
o Right of ownership in a legal object
o All the relationships that qualify for constitutional protection under section 25 (the
constitutional property clause)
However
o “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.
Property law is TRADITIONALLY regarded as part of patrimonial law, thus private law
o Private law regulates relationship between private individuals and things, PLUS the rights
and obligations that emanate from these relationships
o Subjective rights are exercised and legal objects are present
However there is always an aspect of public law.
o State can play a role in the law of property and can have an impact on private relationships
and the horizontal application of rights.
E.g. building on land and state regulations with regards thereto.
E.g. transfer of land
E.g. expropriation
E.g. forfeiture of property (such as when used in a crime)
Property and laws relating to it must be understood in the one-system-of-law concept, as laid down
in the pharmaceutical manufacturers case
o “there is only one system of law. It is shaped by the constitution which is the supreme law,
and all law, including the common law, derives its force from the Constitution and is subject
to constitutional control”
FUNCTION OF PROPERTY LAW
The functions of the law of property is to:
Harmonize relationships - different individual interest relating to property
Guarantee and protect individual and sometimes collective rights to property
Control/regulate relationships between natural or juristic persons, and also between the state and
individual
SOURCES OF PROPERTY LAW
Constitution
, o S2 of constitution recognises the constitution as the supreme law
o Rights need to be protected BUT Reforms must be implemented in line with S39(2) of
constitution (needs to promote purport, spirit of constitution)
o Balancing of rights and interests takes place
Roman Dutch common-law principles
Case law before and after current constitutional dispensation (judicial precedent)
Statutes (legislation) dealing with property law issues
Customary law
PROPERTY VS THINGS INTRODUCTION
Focus is on private law
Point of departure: The scope of property law is determined by the extent to which legal objects
qualify as things
“Property” is a wide concept
o INCLUDES traditional law of things; performances (rights acquired and lost); immaterial
property (corporeal and incorporeal objects) as well as relationships
“Thing” has a more narrow definiton: traditionally relates to the presence of 5 characteristics
o Note the narrow and wide approach with regards to a thing
See p12 to p13 in textbook for more information on the scope of property law
DEFINITION & CHARACTERISTICS OF A “THING”
A “thing” is any independent object, whether corporeal (or incorporeal when following the flexible
approach), which does not form part of a human being, which may be controlled by humans, and is
of use and value to them.
o Corporeality
o An impersonal nature/external to persons
o Independence Possible test
o Appropriability definition
o Use and value
APPROACHES
There are at least 2 different approaches
Narrow/Strict approach Flexible approach
All 5 characteristics have to be present for a legal Where the five requirements are regarded as
object to qualify as a thing and to qualify for guidelines rather than prerequisites to determine if
protection in terms of proprietary remedies. a legal object is a thing
Corporeality is a requirement Corporeality is not a requirement
CORPOREALITY
Object can be “corporeal” if it is tangible (perceived by any of the 5 senses, can for e.g. be felt or
touched)
and occupies space
Controversial characteristic
o Traditionally incorporeal property (non-physical i.e. intangible interests in property) is not
regarded as property in SA property law structures according to the NARROW APPROACH.
o Examples of incorporeal property
Rights
, • Real rights
• Intellectual property rights
• Personal rights (creditor’s rights)
Shares in companies – even though you can see it on a register you can’t touch it
Forms of energy
Data still controversial but may be regarded as such
BUT Courts and legislature include incorporeal property in the ambit of things
Realities of legal practice demand that the characteristic of corporeality should not be regarded as
an essential characteristic or requirement for recognising an object as a thing, but rather as a
common characteristic
Thus practically: Corporeality is a common element rather than an essential element
GUIDELINE TO ANSWERING A QUESTION (EXPECT QUESTION ABOUT THIS !!!!)
POD: Generally the characteristics of a thing are:
o Corporeality
o An impersonal nature
o Independence
o Appropriability
o Use and value
Two approaches - explain
Traditional law of things (narrow approach): have all these characteristics to be a thing AND qualify
for protection in terms of proprietary remedies
Various exceptions in practice!
Therefore these characteristics should be viewed as guidelines to determine if something is a thing
IMPERSONAL NATURE/EXTERNAL TO PERSONS
Human beings are legal subjects, and never legal objects
What about human corpses/body parts?
o Corpses are no longer legal subjects – they are a legal object
o Body parts are thus also legal objects – but outside legal commerce and you can thus not
trade with them.
o “Human body has become objectified to some extent. Although free commerce in human
bodies or parts thereof is still regarded to be against public policy (contra bones mores),
the National Health Act provides for the donation of a person’s body or specific tissue after
death, the donation of tissue, blood, a blood product and gametes by living persons as well
as for the import, export and remuneration for bodies or parts thereof”. (Silberberg and
Schoeman’s The Law of Property 24).
o Regulated by the National Health Act 61 of 2003
Renewable body parts? Such as hair, may be sold.
o National health act also regulates this.
Are prosthetic implants or attachments things
o Yes- “Things” – but extent to which it is regarded as a “organ” impacts on whether it is a
negotiable or non-negotiable thing. BUT STILL REGULATED BY THE ACT
o National Health Act:
o “organ” means any part of the human body adapted by its structure to perform any
particular vital function, including the eye and its accessories, but does not include skin and
appendages, flesh, bone, bone marrow, body fluid, blood or a gamete
, (JURIDICIAL) INDEPENDENCE
It means that the law may intervene by rendering something independent which would otherwise
be physically part of another thing.
A thing must have an independent legal existence
Does not need to be physically independent, only juridically independent
Examples:
o Sectional titles: Apartment/Townhouses
o Water ? Sand ? Gravel ? Gas ?
If contained or bottled in a reconcilable entity. Before that, it is a public thing that
cannot be privately owned. Needs to be made juridically independent first.
APPROPRIABILITY
Susceptible to human control
Control = possibility to enforce and protect right in a thing
o Examples that aren’t appropriable: Celestial bodies (sun, moon and other planets not
subject to human control)
What about the sun, moon and other planets?
o South Africa: No
o BUT! Lunar real estate/property on the moon – international lunar land registry. You can
“Buy moon property”
What about the international space station and thousands of satellites sent up into space? Are they
property?
o Yes, as the are dependant and susceptible to human control.
USE AND VALUE
A thing must be of use and value to a person
May have an Economical or sentimental value to persons
o Very subjective aspect, as something may be of value to one person but not another.
Not a problematic characteristic
Context is thus very important - Determine objectively: may still satisfy someone’s needs and
therefore remain a thing.
Example? Dead leaves
o Might objectively think it’s useless – but might have scientific value such as compost.
Toxic waste? Negative value?
o Might even be used for research, so still regarded as a thing.
