"Law of property revision notes" aims to provide a brief overview of several topics of South African property law, including the classification of things as legal things and the most important *Case summary* in Law of property - *Ex parte Geldenhuys 1926 OPD 155* - *The subtraction from dominium...
SU 2 – Things as legal subjects and the classification of things
SU 4 - Introduction to ownership
SU 5 - Co-ownership with reference to the nature of co-ownership and
establishment
SU 6 - statutory land use (distinguish between time-share, share blocks and
sectional titles)
SU 9- derivative acquisition of ownership with focus on what delivery entails
and the difference between actual and constructive delivery
SU 10 – protection of ownership with focus on enrichment action, termination
of ownership, and remedies for infringement of this right
SU 12 – introduction to possession and holder ship with reference to the
difference between lawful and unlawful control
SU 13 - Acquisition of possession and holder ship with focus on the elements of
possession and holder ship
SU 15 – Causes of loss of possession and holdership
SU 17-- Servitudes with focus on remedies and acquisition
SU 19 – The diagram that illustrates the categories of liens
SU 22 - Section 25 of the constitution function of a property clause
(The nature and scope of the property guarantee section 25(1): deprivations
clause section 25(2) and 25(3): expropriation clause)
THE DOMINIUM TEST : The Geldenhuys Case 1926 (O)
SU 2 – Things as legal subjects and the classification of things
Things as legal subjects………….( Definition: A legal object of a real right)
The traditional definition of a thing is as follows: A thing can be defined, in
terms of its traditional characteristics, as a corporeal or tangible object external
to persons and which is, as an independent entity, subject to juridical control by
a legal subject, to whom it is useful and of value.
A thing is the legal object of a real right and is therefore, for the purpose of the
law of property, the most important legal object. The value of a thing lies in the
fact that it is juridical destined to satisfy the needs of a legal subject .
1
Compiled by: haimbilindaambe@gamil.com
A law student@SBS
,In terms of the traditional definition a thing has certain characteristics, which
are explained as follows:
1. Corporeality – A thing is usually defined as corporeal or tangible and
could therefore be sensorially observed and occupies certain space. Eg.
Motor car
2. External to humans- A human being is not considered a legal object,
but a legal subject, however corpses or human body parts can possibly be
classified as objects but then as legal objects which fall outside legal
commerce
3. Independence- must be a definite and distinct entity that exists separately
4. Subject to juridical control- corporeal entities which are not susceptible
to juridical control cannot be classified as things
5. Useful and valuable to humans- be useful and valuable to legal subject
and must be destined to satisfy the legal subject.
Things are classified as:
➢ negotiable and non-negotiable things
➢ singular and composite things
➢ movable and immovable things
➢ fungible and non-fungible things
➢ consumable and non-consumable things
➢ divisible and indivisible things
Negotiable things - are owned by a natural or legal person or things in a
deceased or insolvent estate – res alicuius
➢ Things capable of being owned but which, at a particular stage, are not
owned by anyone – res nullius. Examples include wild animals, birds,
fish and insects which are wild by nature and have never been owned by
any person. Ownership of these things may be acquired through
appropriation.
➢ Things no longer within the physical control of an owner and in respect
of which the owner no longer has the intention to be the owner (animus
domini) – res deperiditae. Such things can also be acquired by another
person by means of appropriation.
➢ Things lost and no longer within the physical control of the owner, but in
respect of which the owner has not lost the intention to be owner (animus
domini) – res deperditae. Such things cannot be acquired by another
person by means of appropriation.
2
Compiled by: haimbilindaambe@gamil.com
A law student@SBS
, Not negotiable - Natural resources falling outside legal commerce and which
are available to all people, for example air and running water (res communes
omnium).
➢ There are, however, certain statutory limitations regarding these things in
terms of the National Water Act 36 of 1998 and the National
Environmental Management: Air Quality Act 39 of 2004.
➢ Things owned by the state and used directly for the public's benefit, for
instance public roads, national parks, the sea and beaches (res publicae).
However, not all state property falls outside legal commerce, and state
land and public buildings are usually negotiable.
Singular things- Van der Walt et al. (2016) state that singular things exist as
independent units without being composed of particular components, for
instance a brick, a coffee mug or a tennis ball.
composite things are compositions of different components, consisting of
independent things in a new unit, for example a motor bike, a house or a tennis
racquet.
➢ Although a composite thing consists of various components, these
components have lost their individuality through their combination and
the composite thing is, for the purposes of property law, regarded as one
thing.
➢ In the case of composite things a distinction is made between the
principal thing and the components. (SG: p. 8 6)
Immovable things - are units of land and everything permanently attached to
them by means of attachment, as well as sectional title units. Example of an
immovable: a piece of land indicated on a map
Movable things- All things that cannot be classified as immovable are
movables.
Example of a movable: can be either corporeal or incorporeal: shares in a
company, a car etc. (Textbook: p. 21 SG: p. 8)
Fungible things - are typical things that are referred to in trade with reference
to weight, measure or number, belong to a certain class or kind and can be
replaced by similar things because they do not have individual characteristics
that make them irreplaceable. Example: a light bulb
Non-fungible things - have individual characteristics or value that makes them
irreplaceable. Example: an original painting or hand-woven tablecloth
(Textbook: p. 21 SG: p. 9 )
Divisible things - can be divided into smaller components whilst retaining its
nature and function and without the value of the components being less than the
original value. For instance, a piece of land or a sack of mealies can be divided
into two or more parts.
Indivisible things- cannot be divided without changing the value, nature or
function of the thing: for instance a painting or a chair.
3
Compiled by: haimbilindaambe@gamil.com
A law student@SBS
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