Property Law Term 3
Lecture 1 and 2 not in 2024 exam
Ownership
Ownership is a real right that is very strong, encompassing the right to use, abuse and disregard property,
and is protected by the rei vindication.
How do we understand ownership?
Historically, ownership was thought of as being:
absolute
exclusive
abstract
This finds expression in the statement: “ownership is the most complete real right which a legal subject can
acquire with regard to a thing.”
Philosophy or ideology of ownership especially important for those working on the assumption that
the moral function of ownership was to guarantee personal freedom.
Note influence of German Pandectists: complex set of rules and effectively created distinctions
between creditors rights and real rights and between ownership and limited real rights
“[The] South African law of ownership as set out above, is a product of historical, social, economic,
philosophical and political development, and it is not a universal and timeless set of abstract and
neutral legal principles based upon the authority of rational or scientific reasoning, as it is often
presented. It can be subjected to criticism regarding questions of morality and expediency, and to
changes as required by the society and circumstances in which it functions. Moreover, criticism and
changes of this nature will not bring about the end of the legal order or of society itself.”
Mondi v Martens:
High court judgement dealing with common law ideas of what ownership entails.
Issue: Whether the 1st defendant could be understood to be an owner in terms of the National Vel and
Forest Fire Act of 1998. (imposes delictual liability and has definitions for e.g. if you own a piece of
property and have a fire that you fail to stop spreading to other property).
Facts: 1st and 2nd defendants are father and son, who had bought adjacent properties. Father left
property in the son’s hands as a possessor and allowed to use as an owner even though they were
registered under the father’s name in the Deeds Registry. So, ownership was clearly not transferred
and 1st defendant is still owner even though son is in control.
In 2003, a fire broke out and was the reason for the Plaintiff’s claim for R1 million from the 1st
defendant, 2nd or both of them, for a veld fire which started on the first (fathers) property, for
damages caused to his (Plaintiff) property. Plaintiff relied on the Act. The 1st defendant didn’t even
know of the fire till he was summoned. He had divested himself of legal control over the property in
terms of the agreement and power of an attorney granted to his son.
1st defendant says he cannot be considered an owner in terms of the Act. Therefore, the legal issue is:
can he be understood as an owner in terms of s 1 of the Act, because if so, he is liable. The high court
considered the common law understanding of ownership – having complete dominium (power) over
the thing in question. P 16 Court says: “Central to the common law meaning of ownership is that of
unrestricted and exclusive control and possession of the rez together with the power of alienation”
, On the facts, it is clear that the 1st defendant had handed over complete control of the properties to
his son and included rights to lease. The son basically had full dominium. The judge noted that whilst
an owner in terms of land is often considered the person registered, that is not always the case.
P 20: “For the reasons that follow I regard the common law right to control of property as a decisive
incident of ownership to determine if the 1st defendant falls within the common law meaning of
owner in terms of the act”. For this reason, the 1st defendant ceases to be an owner in terms of the
common-law meaning in the Act and is absolved from all liability.
Para [8] quoting Thirion J in MEC for Local Government & Finance: “The concept of ownership has
thus far defied exhaustive definition. I do not propose to attempt to define it.”
Para [10] quoting Wessels J in Johannesburg Municipal Council: “What, however, is the exact scope
of dominium has been a matter of controversy for centuries... Savigny’s definition may be accepted
as of high authority. ‘Dominium is the unrestricted and exclusive control which a person has over a
thing.’... Inasmuch as the owner has full control, he also has the power to part with so much of his
control as he pleases. Once the owner, however, he remains such until he has parted with all rights of
ownership over the thing.”
Para [12]: “...it is evident that central to the common law meaning of ownership, is that of
unrestricted and exclusive control and possession of the res, together with the power of alienation.”
Para [17.1] “The first defendant handed over “complete control” of the properties to the second
defendant, which included the power to use the properties, or to lease the properties to a third party,
free of rental or at a rental which the second defendant in his sole discretion considered acceptable.”
Para [19]: “As pointed out by Thirion J in MEC KZN supra at 25H, “owner in the case of land is
ordinarily understood to be the registered owner of the land, but this is not necessarily so.”
Western style ownership is equated with private individual ownership of property in a free-market
environment and it is accepted that this kind of ownership endows the owner with certain kinds of
entitlements which might in fact allow for the existence of restrictions, but which are in fact unrestricted
in principle. Traditionally this is expressed as saying the owner is free to do with his property as he
pleases unless his right is restricted explicitly by legislation or the existing rights of others. This view of
ownership is regarded as the model for patrimonial rights and more specifically real rights. Ownership is
absolute (unrestricted with minimal state interference), abstract (ownership is never eroded even if a
piece of the right is granted to another – doesn’t lessen rights) and exclusive (you hold the right to the
exclusion of all others).
This is not an accurate representation of the current operation of property law in South Africa!
We shouldn’t ever consider ownership as something timeless and universal or unable to be restricted.
The constitutional vision of property employs property and its protection to work towards achieving a
society founded on the values of freedom, dignity and equality!
Daniels v Scribante:
Facts: Miss Daniels was an occupier residing on a farm owned by a private owner and her rights
were protected in terms of ESTA – the extension of security of tenure act (legislation parliament
enacted to comply with s 25(9) of the Constitution in order to give effect to s 25(6)). She wanted to
make basic improvements upon her dwelling at her own expense and she had resided in the dwelling
with her family for 16 years. The owner of the property and the person in charge (respondents) had
accepted that the dwelling was in an unacceptable state and lacked basic amenities such as running
water. Ms Daniels wanted to level the floor, install paving outside, install indoor water, a washing
basin, a window and a ceiling (not luxury improvements). She argues that ESTA protected her rights
to make improvements and the respondents argued the opposite (not empowered to make these
, improvements). Were concerned because in terms of ESTA, he could be ordered to compensate the
improvements because he had a positive obligation on him to finance improvements.
Do sections 5 and 6 of ESTA allow an occupier to make improvements?
In answering this question, the court is acutely aware of the historical context. See especially the
concurring judgment of Froneman J who [at para 115] states that before we can make substantial and
lasting progress in making the ideals of the Constitution a reality, we must have:
1. an honest and deep recognition of past injustice
2. a re-appraisal of our conception of the nature of ownership and property
3. an acceptance, rather than avoidance or obfuscation of the consequences of constitutional change
Majority in p 25: “the mischief that s 25(6) of the Constitution and ESTA are seeking to redress is not
far to seek. Addressing that mischief is not only about securing tenure best for occupiers but also
about affording occupiers the dignity that eluded them throughout most of the colonial and apartheid
regimes. We must adopt an interpretation that best advances the noble purpose of s 25(6) and ESTA.”
Con court rejects the respondent’s argument. We cannot interpret it so narrowly and interpret in a
constitutional context. Found the living conditions did not accord with standards of human dignity. In
ESTA, the dwelling being habitable was a minimum in the notion of security in tenure.
Acknowledges that the constitutional rights of ESTA occupiers are circumscribed by ESTA and
doesn’t mention a right to make improvements, but to deny this is depriving them human dignity.
Court concludes that ESTA does afford an occupier the right to make improvements without the
consent of the owner, however the person in charge/owner/occupier must meaningfully engage. They
hadn’t done that and so court ordered them to do so.
P 115: Before we can make substantial and lasting progress, three things need to happen: an honest
and deep recognition of past injustice, a reappraisal of our conception of the nature of ownership and
property and an acceptance rather than avoidance of the consequences of constitutional change.
This case situates property law in its critical historical context. When it comes to constitutional rights
such as human dignity, this cannot be undermined for economic reasons.
“The argument advanced on behalf of the respondent, Mr Scribante, proceeded from the premise that
the initial departure point of the enquiry into the evaluation of the validity of any right that Ms
Daniels may have, must be ownership of the farm. The main judgment clearly shows why this
premise cannot be sustained. But it is a recurrent view of property and ownership that is often used to
delay or avoid the consequences of constitutional values. It may be of some assistance to the main
judgment to demonstrate the unfeasibility of this absolutist kind of conception of property”
“Economic efficiency may be one important justification for legal rules. But economic growth can
often blind us to the limits of market-based exchanges and the distributional assumptions that
underlie them. Ms Daniels’s plight is a good illustration of the inadequacy of mere economic
efficiency as a legal justification in an open and democratic society based on human dignity, equality,
and freedom. Were we to follow the common law absolutism and vest in the Scribantes the sole right
to make improvements to an occupier’s property, what price would they demand in exchange for this
and with what funds would the impoverished Ms Daniels finance her dignity? The right to dignity
does not easily fit into the subject of a market exchange”
“The reality is that our colonial and apartheid history precluded any “free market” and millions of
people like Ms Daniels were precluded from participating in any free market. It was fatally flawed
by both “market” and “government” failures. Protecting existing (skewed) patterns of allocation and
distribution of resources cannot be justified with bland reliance on efficiency when such obvious
inequality in bargaining power prevents citizens from not only enjoying the benefits of that
efficiency, but from protecting their basic rights.”
“The social obligation of ownership means that rights in property come with a share of
responsibilities. Thus, in instances where constitutional rights are at stake, the social obligation of
property in contrast to the notion of absolute ownership has been used to argue for a limitation on the
use of property by a private land owner and/or the imposition of an obligation on a private land
owner to provide others with their constitutional rights. In the new constitutional dispensation,
