Law of Property
What does ‘Property’ mean?
Property can refer to tangible/intangible things (intellectual or corporeal property) – cars, houses, items,
inventions, song recordings, ideas, shares etc. In everyday life (layman), property refers to a particular
object.
Property in the legal context rights of people in or over certain things (objects), and it also refers to the
relationships that exists between these objects.
[Property is a means to create wealth in a capitalist system. In a communist system, the means of production
should be controlled by the state or government should act as a central planner. Communists would say
mines should be nationalised (not owned as property by individuals), because the poorest will get a share of
the mineral wealth of SA, to place the duty for job creation on the state and the state would be able to devise
rescue plans when the going gets tough. Communists would believe in expropriation without compensation
– land must be returned (stolen) to most of the people in the country who live in poverty. Capitalists believe
in the right to be protected under private law and exercise their rights of ownership over the land and not
have it interfered with. Peoples’ opinion on property is influenced by how they view it and its roles in
society. (e.g., it is believed that taking land without compensation can result in poor people owning land).]
What influences the meaning of property?
Economic and political relevance (how does our system view property law)
Nature and characteristics
Relationships (person v object or person and others in respect of property)
Culture and ideology
Constitutional view on objects/relationships over objects and whether they deserve protection.
Extent to which the object can be regarded as commodity
Property has four meanings in law:
1. Property referring to an object: A ‘legal object’ is anything in respect of which a person may hold a
right. In property law, these rights and duties relate to a class of legal objects termed things.
2. Right of ownership: rights of people in or over certain objects or things
3. Legal Relationships conferring property law protection. (to have things) (relationship between
tenant and owner where both rights are protected by PIE etc)
4. Someone’s ability to undertake certain actions with certain kind of objects (do stuff with things)
The position of the Law of Property in the South African legal system
Traditionally, in a society like ours, the Law of Property falls under Private Law (which is concerned with
the rights and relationships between private persons or legal subjects of equal status) and, specifically, under
patrimonial law which deals with assets or estates of individuals. Its basis is highly individualistic with the
whole focus of the law on the legal relationship existing between a person and property. This is emphasised
,by the fact that central to the Law of Property is the notion of ownership, i.e. the most direct and extensive
relationship between a person (or several persons) and property. Ownership is generally vigorously protected
by our law. This is characteristic of capitalist societies where private ownership is encouraged and protected
in the interests of the generation of profits. The system of rules that comprises property law regulate both
factual and legal relationships regarding in/tangible things. The law of property defines the legal object to
which it applies and classifies various types of property according to their nature and consequences.
Distinguishes different kinds of relations (in respect of property) e.g., classifies them as real rights and
personal rights. Property further shows how: real and personal rights differ from each other, to distinguish
different kinds of rights, to determine acquisition, loss and qualify as rights, such as possession.
General Function of property Law:
1. Property law determines what people may and can do with things that belong to them;
2. how they protect their things
3. and prescribes how people may acquire more things or get rid of them.
The Formal Function of Property Law:
1. To harmonise different individual interests in property
2. Guarantee and protect individual rights to property
3. Control the relationship between natural or juristic persons (concerning the things they are entitled)
and the rights and obligations that arise from these relationships.
Property must be understood in the single-system of law. Property rights stem from the Constitution and can
be limited under the Constitution. In this context, property law protects private interests in property (not in
an absolute sense). The law also imposes/determines limits. Therefore, all those who enjoy the property use
are bound by the duties/responsibilities that the freedom to use entails.
Example of a car: have the right to own a car, but may only use it under specific conditions (expected to
know all the rules of the road). In this way, the law ensures that your freedom to own and use a car does not
interfere with the freedom of someone else using the road or public in general.
The social function of the Law of Property
The social function of the Law of Property can be described as the regulation of the acquisition and use of
property which people need to satisfy their economic requirements, i.e. objects of monetary value are
generally the focus of the Law of Property.
Law of Property is not divorced from Public Law
Although Law of Property is categorised under Private Law in a schema of South African law, it is not
unaffected by Public Law, i.e. those areas of law where the State plays an active role e.g. where legal
,subjects of unequal status are interacting, as illustrated by Town planning regulations, Transfer of ownership
of immovable property which must be registered in the Deeds Registry, and other legislation, including the
Constitution. The state may regulate building on land, the state prescribes the way land may be transferred
by way of the registration of certain documents at the Deeds registry. Therefore, using these examples, it is
evident that property law operates both in private and public law. State regulates how land/buildings can
be divided/built, prescribes the manner of transferring property, can take your land and compensate you, you
can forfeit your property to the state – showing the state is always regulating property, and it is not just
between private parties! Public law relations of proprietary character and the rights and interests emanating
from this.
[The regulation of relationships between individuals and objects (rights and obligations) falls within the
private sphere and draws upon the doctrine of subjective rights (It accords legal status to persons who then
become bearers of capacities, rights, entitlements and obligations, which are exercised in respect to legal
objects). Legal objects are a range of things subject to property rights. Both tangible and intangible things
such as shares or interest in a company, land, vehicles or animals. Specific proprietary remedies can be used
to protect these rights over or the actual legal objects. Property is important to people, for monetary
commodities or family heirlooms.]
Law of property regulates both factual and legal relationships. Defines legal objects and classifies types of
property (according to nature and constitution). Distinguishes different kinds of relations such as classifying
them as real rights and personal rights and distinguishes different kinds of rights. It determines acquisition,
loss and protection and the consequences of those factual relations that do not qualify as rights – possession.
1.2 Sources of the Law of Property: Roman law, Roman Dutch law, English law and legislation
It is the basic Roman-Dutch law principles of the Law of Property that still form the basis of our Law of
Property. English law has had less influence on our Law of Property than on other areas of South African
law, but certain aspects come directly from English law, e.g. the Expropriation Act. Judicial precedent (case
law) has played a role in developing the Law of Property especially as new economic and social needs have
arisen. Legislation (statute) has played a major formative role in this area of law and there are numerous
Acts of Parliament that are applicable, e.g. Deeds Registries Act, Prescription Act, Sectional Titles Act, etc.
[Law of property and law of things differ in meanings. Property refers to a wide variety of patrimonial assets
whereas things are only understood in the restricted thing. Inheritance is property but it is not a thing, for
e.g.]
1.3 Impact of the Constitution and Land Reform Programme
The introduction of a constitution with a justiciable Bill of Rights changed the face of South African
property law significantly. Therefore, the sources of property law are the Constitution, common law,
, statutes, and case law. All of these must be viewed in the light of the Constitution and not contradict any
provision of it, as doing so would render the law invalid.
1.4 Definition of terms
Civil proceedings: legal proceedings used when legal subjects sue each other or the State. The parties in
application proceedings (also called notice of motion proceedings) are applicant and respondent; the parties
in action proceedings (also called trial proceedings) are plaintiff and defendant. The burden (or onus) of
proof in civil proceedings is on a balance of probabilities. An affidavit is a sworn statement setting out facts
for application proceedings.
Criminal proceedings: legal proceedings (always trial proceedings) used when the State (on behalf of the
victim or the general public) prosecutes the person alleged to have committed a crime (or an offence). The
parties are the State and the accused. The burden of proof in criminal proceedings is beyond a reasonable
doubt.
Common cause: means there is no dispute of fact
Right: can have three meanings
(i) a power/privilege/immunity guaranteed under a constitution, statutes or claimed as a result of long usage;
(ii) a legally enforceable claim of one person against another, that the other shall do or not do a given act;
(iii) an interest or title in an object of property; a just and legal claim to hold, use and enjoy it, or to convey
or donate it, as she may please.
Legal subject: is a person who can act as a subject in legal relationship, and who can acquire rights and
incur duties in doing so. 'Person' may be natural or juristic.
Legal object: is anything in respect of which a person can acquire and hold a right. It is passively involved
in legal relationships, and is usually classified according to its nature.
Thing: is a legal object in respect of which a person can acquire a real right and is thus the most important
category of legal objects for the Law of Property.
Real relationship: is the relationship between a legal subject and a thing.
Subjective right: is a legally recognized and valid claim by a subject to a certain object. When a legal
subject acquires a right in a thing as a result of a lawful real relationship with the thing, the right is a
subjective right. There are four categories of subjective rights, each distinguishable from the others by the
nature of the object attaching to the right.
- Real right: is a subjective right which has a thing as its object.
