Private Law 272:
Law of Property
NOTES 2021
STELLENBOSCH UNIVERSITY | BA LAW II
,TOPIC ONE: INTRODUCTION TO PROPERTY LAW
SCOPE AND CONTENT OF THE LAW OF PROPERTY
• Property includes…
o Moveable assets
o Immoveable assts
o Immaterial property
• Factors that should be considered when discussing the meaning of property…
o Nature and characteristics of the object
o Relationship between the person and the object
o Relationship between the person and other persons in respect of that object
o Weight that political and economic systems attach to this object
o Extent to which the object can be regarded as a commodity
o Whether the Constitution acknowledges that this object and its relationships
deserve protection
o Cultural and ideological differences
• Property refers to the rights of people in or over certain objects or things.
• Property may mean…
o A legal object over which legal ownership is exercised
o Right of ownership in a legal object
o Legal relationships that qualify for constitutional protection (under
constitutional property clause)
• Property clause
o Section 25(1): No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of property
o Section 25(2): Property may be expropriated only in terms of law of general
application—
o Section 25(4)(b): Property is not limited to land
1|Page
,CONTEXT OF PROPERTY LAW: FRAMEWORK AND SOURCES
NB: the relationships between people and objects form the basis of property law.
FUNCTION OF PROPERTY LAW
o Harmonise different individual interests in respect to property
o Protect individual rights
o Regulates the relationships between individuals regarding certain objects; the
relationships between individuals and such objects, and the rights and obligations
that emanate from these relationships
o Manage competing interests
o NB: property rights can be limited in terms of the constitutional system laid down
SOURCES AND DEVELOPMENT OF THE LAW OF THINGS
SOURCES OF TRADITIONAL LAW OF THINGS
• Before 1994…
o Roman-Dutch common law (Grotius, Voet, Van der Linden)
o Legislation (Sectional Titles Act 95 of 1986)
o Case law / precedent (Ex parte Geldenhuys 1926 (O))
• However, because of legal, socio-political and economic changes, these sources must
be updated to match the new perspective of our current democratic system.
• S 39(2) of constitution
• Old discriminatory laws should be abolished
• The legal system must be re-evaluated (against the background it was written) and
be amended
SOURCES OF CURRENT LAW OF PROPERTY
a) Roman-Dutch common law
• Role and value of these rules must be reconsidered
• Will it promote or frustrate the ideals of human dignity?
b) Legislation
2|Page
, • New legislation can change the face of property law
• All new legislation must be evaluated and recognised against the values of
the constitution
c) Case law
• Indicates how common-law principles should be interpreted / applied
• How legislation should be interpreted
d) Customary law
• Customary law value and authority must be upheld and promoted in the
current law of property, but must also be re-evaluated with due regard to the
present context
e) Constitution
• All legal sources must be interpreted and applied with due regard to the
objectives of the constitution
• Constitution is the guiding principle for all legal development
TERMINOLOGY
The law of property deals with the rights and actions of persons with regard to things and
other forms of property, as well as other relations between persons and property. It
describes the way in which property rights can be acquired and exercised lawfully and the
remedies by which they are protected against infringement, as well as the legal results and
implications of other relations between persons and property.
Person: a person is a legal subject who can acquire and exercise rights and obligations in
law. Natural person (any individual person) OR juridical person (bodies operating and
recognised as a single legal entity).
Object: anything with regard to which a person can acquire and hold a right
Property: everything which can form part of a person’s estate, including corporeal things
and incorporeal interests and rights.
Thing: specific category of property, defined with reference to its characteristics. 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.
Corporeal things: independent parts of nature which can be controlled by humans
and have use/value for humans.
3|Page
,Right: legally recognised and valid claim by a subject to a certain object.
Property right: legally recognised claim to or interest in property.
Lawfulness: A claim or action is lawful when it is acknowledged and protected by existing
legal principles
Unlawfulness: law does not recognise or protect these relations, but still attaches
certain implications to them.
Remedy: legal procedure provided by the legal system to protect a right against
infringement or to control the effects of an unlawful act or situation.
4|Page
,THINGS AS LEGAL OBJECTS
PROPERTY AND THINGS
• Property includes a wide variety of assets that make up a person’s estate or
belongings which serve as objects of the rights that such a person exercises in
respect thereof and which are constitutionally protected.
DEFINITION OF A THING
• A thing is 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.
CHARACTERISTICS OF A THING
a) Corporeality NB!
• Two approaches (narrow and wide approach)
• A thing is corporeal if it can be sensed and occupies a certain space
• Incorporeality = the subjective right itself serves as the object of a real right
• These are the following subjective rights:
i. A real right = things as objects
ii. Intellectual property rights = intellectual property as objects
iii. Personality rights = aspects of personality as objects
b) External to humans
• A human being cannot be a legal object
• Look at Human Tissue Act65 of 1983
c) Independence
• A thing must be a definite and distinct entity that exists separately
d) Subject to juridical control
• Corporeal entities which are not susceptible to juridical control cannot be
classified as things
e) Useful and valuable to humans
5|Page
, • Must be destined to satisfy the needs of a legal subject
CLASSIFICATION OF THINGS
NEGOTIABLE AND NON-NEGOTIABLE THINGS
Negotiable
• Res alicuius – (some things) things that are owned by a legal person or in a
deceased/insolvent estate
• Res nullius – (no thing) things capable of being owned, but which aren’t owned by
anyone (can be appropriated)
• Res derelictae – (abandoned/deserted thing) things no longer within the physical
control of the owner but the owner no longer has intention to be owner (can be
appropriated)
• Res deperditae – (lost/departed thing) 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
Not negotiable
• Res communes omnium – (thing common to all) natural resources falling outside
legal commerce which are available to all people (there are, however, statutory
limitations)
• Res publicae – (public thing) things owned by the state and used for the public’s
benefit
SINGULAR AND COMPOSITE THINGS
Singular thing: exist as an independent unit without being composed of particular
components
Composite things: compositions of different components, consisting of independent things
in a new unit ; these components have lost their individuality through their composition
ELEMENTS OF COMPOSITE THINGS
a) Principle thing
• A thing which exists independently and which can be the object of real rights
• Provides the thing with its identity
6|Page
, • Owner of principle thing is owner of composite thing
• Car, egg beater, drill
b) Accessory thing
• CAN exist independently, but which has been merged with the principle thing
to such an extent that it has lost its independence
• Attachments that do not help to determine the composite thing’s identity =
accessory things
• Wooden beam of a ship, brick in a house, roof carrier of a car
c) Auxiliary thing
• Exists separately and independently of the principle thing, but because of its
economic value is no longer regarded as independent
• Need not be a physical connection with the principle thing
• A key, set of tools marketed with a motor car
d) Fruits
• Produced by the principle thing without the principle thing being destroyed
• Exists independently
• Young of animals, wheat, rent, profit
MOVEABLE AND IMMOVEABLE THINGS
• Immoveable things are units of land and everything permanently attached to them
by means of attachment, as well as sectional title units
• Distinction:
o Transfer of ownership of immoveable things takes place by means of
registration of the transfer in the deeds registry, while the transfer of
ownership of moveable things take place by means of delivery of the thing
o (look at pg 20)
FUNGIBLE AND NON-FUNGIBLE THINGS
• Fungible things belong to a certain class and do not have individual characteristics
that make it irreplaceable.
7|Page
, o Referred to by weight, measure or number.
• Non-fungible things have individual characteristics or value which make them
irreplaceable
• The distinction is important:
o When parties to an agreement can determine the fungibility of a thing by
means of contract, which might influence the contract’s consequences
o A fungible thing cannot be pledged with the intention that it may be replaced
by a similar thing
o A non-fungible thing which is due to a legatee i.t.o. a legacy cannot be
replaced by a similar thing i.e. the legacy lapses
o Money is a fungible thing
CONSUMABLE AND NON-CONSUMABLE THINGS
• Consumable things are depleted in value or consumed by normal use
• Non-consumable things are maintained
o In a case of a consumable being part of a contract, it is expected that after
the depletion of the consumable thing be replaced with a similar thing once
the agreement comes to an end
o A usufruct can only be given regarding non-consumable things
▪ Salva rei substantia = kept in same condition
o Quasi-usufruct: to return things of the same amount and quality of those
consumed
o Money is a consumable thing = quasi usufruct
DIVISIBLE AND NON-DIVISIBLE THINGS
• Divisible thing can be divided into smaller components whilst retaining its nature /
function and without the value diminishing (piece of land)
• Indivisible thing cannot be divided without changing the value, nature and function
of a thing (painting)
8|Page
, TOPIC TWO: RIGHTS IN PROPERTY
PROPERTY RIGHTS, REAL RIGHTS AND CREDITOR’S RIGHTS
Relationships/Verhoudings
Rights/Regte Possession/Besit
Personal
Real Rights/Saaklike Regte
Rights/Persoonlike regte
BACKGROUND
WHAT ARE REAL RIGHTS?
• Ownership: most complete real right, held in own property (corporeal or incorporeal
things) – ius in re propria.
• Limited real rights: real right held by a non-owner in the property owned by another
– ius in re aliena. For example: servitudes, real security rights
9|Page
Law of Property
NOTES 2021
STELLENBOSCH UNIVERSITY | BA LAW II
,TOPIC ONE: INTRODUCTION TO PROPERTY LAW
SCOPE AND CONTENT OF THE LAW OF PROPERTY
• Property includes…
o Moveable assets
o Immoveable assts
o Immaterial property
• Factors that should be considered when discussing the meaning of property…
o Nature and characteristics of the object
o Relationship between the person and the object
o Relationship between the person and other persons in respect of that object
o Weight that political and economic systems attach to this object
o Extent to which the object can be regarded as a commodity
o Whether the Constitution acknowledges that this object and its relationships
deserve protection
o Cultural and ideological differences
• Property refers to the rights of people in or over certain objects or things.
• Property may mean…
o A legal object over which legal ownership is exercised
o Right of ownership in a legal object
o Legal relationships that qualify for constitutional protection (under
constitutional property clause)
• Property clause
o Section 25(1): No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of property
o Section 25(2): Property may be expropriated only in terms of law of general
application—
o Section 25(4)(b): Property is not limited to land
1|Page
,CONTEXT OF PROPERTY LAW: FRAMEWORK AND SOURCES
NB: the relationships between people and objects form the basis of property law.
FUNCTION OF PROPERTY LAW
o Harmonise different individual interests in respect to property
o Protect individual rights
o Regulates the relationships between individuals regarding certain objects; the
relationships between individuals and such objects, and the rights and obligations
that emanate from these relationships
o Manage competing interests
o NB: property rights can be limited in terms of the constitutional system laid down
SOURCES AND DEVELOPMENT OF THE LAW OF THINGS
SOURCES OF TRADITIONAL LAW OF THINGS
• Before 1994…
o Roman-Dutch common law (Grotius, Voet, Van der Linden)
o Legislation (Sectional Titles Act 95 of 1986)
o Case law / precedent (Ex parte Geldenhuys 1926 (O))
• However, because of legal, socio-political and economic changes, these sources must
be updated to match the new perspective of our current democratic system.
• S 39(2) of constitution
• Old discriminatory laws should be abolished
• The legal system must be re-evaluated (against the background it was written) and
be amended
SOURCES OF CURRENT LAW OF PROPERTY
a) Roman-Dutch common law
• Role and value of these rules must be reconsidered
• Will it promote or frustrate the ideals of human dignity?
b) Legislation
2|Page
, • New legislation can change the face of property law
• All new legislation must be evaluated and recognised against the values of
the constitution
c) Case law
• Indicates how common-law principles should be interpreted / applied
• How legislation should be interpreted
d) Customary law
• Customary law value and authority must be upheld and promoted in the
current law of property, but must also be re-evaluated with due regard to the
present context
e) Constitution
• All legal sources must be interpreted and applied with due regard to the
objectives of the constitution
• Constitution is the guiding principle for all legal development
TERMINOLOGY
The law of property deals with the rights and actions of persons with regard to things and
other forms of property, as well as other relations between persons and property. It
describes the way in which property rights can be acquired and exercised lawfully and the
remedies by which they are protected against infringement, as well as the legal results and
implications of other relations between persons and property.
Person: a person is a legal subject who can acquire and exercise rights and obligations in
law. Natural person (any individual person) OR juridical person (bodies operating and
recognised as a single legal entity).
Object: anything with regard to which a person can acquire and hold a right
Property: everything which can form part of a person’s estate, including corporeal things
and incorporeal interests and rights.
Thing: specific category of property, defined with reference to its characteristics. 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.
Corporeal things: independent parts of nature which can be controlled by humans
and have use/value for humans.
3|Page
,Right: legally recognised and valid claim by a subject to a certain object.
Property right: legally recognised claim to or interest in property.
Lawfulness: A claim or action is lawful when it is acknowledged and protected by existing
legal principles
Unlawfulness: law does not recognise or protect these relations, but still attaches
certain implications to them.
Remedy: legal procedure provided by the legal system to protect a right against
infringement or to control the effects of an unlawful act or situation.
4|Page
,THINGS AS LEGAL OBJECTS
PROPERTY AND THINGS
• Property includes a wide variety of assets that make up a person’s estate or
belongings which serve as objects of the rights that such a person exercises in
respect thereof and which are constitutionally protected.
DEFINITION OF A THING
• A thing is 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.
CHARACTERISTICS OF A THING
a) Corporeality NB!
• Two approaches (narrow and wide approach)
• A thing is corporeal if it can be sensed and occupies a certain space
• Incorporeality = the subjective right itself serves as the object of a real right
• These are the following subjective rights:
i. A real right = things as objects
ii. Intellectual property rights = intellectual property as objects
iii. Personality rights = aspects of personality as objects
b) External to humans
• A human being cannot be a legal object
• Look at Human Tissue Act65 of 1983
c) Independence
• A thing must be a definite and distinct entity that exists separately
d) Subject to juridical control
• Corporeal entities which are not susceptible to juridical control cannot be
classified as things
e) Useful and valuable to humans
5|Page
, • Must be destined to satisfy the needs of a legal subject
CLASSIFICATION OF THINGS
NEGOTIABLE AND NON-NEGOTIABLE THINGS
Negotiable
• Res alicuius – (some things) things that are owned by a legal person or in a
deceased/insolvent estate
• Res nullius – (no thing) things capable of being owned, but which aren’t owned by
anyone (can be appropriated)
• Res derelictae – (abandoned/deserted thing) things no longer within the physical
control of the owner but the owner no longer has intention to be owner (can be
appropriated)
• Res deperditae – (lost/departed thing) 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
Not negotiable
• Res communes omnium – (thing common to all) natural resources falling outside
legal commerce which are available to all people (there are, however, statutory
limitations)
• Res publicae – (public thing) things owned by the state and used for the public’s
benefit
SINGULAR AND COMPOSITE THINGS
Singular thing: exist as an independent unit without being composed of particular
components
Composite things: compositions of different components, consisting of independent things
in a new unit ; these components have lost their individuality through their composition
ELEMENTS OF COMPOSITE THINGS
a) Principle thing
• A thing which exists independently and which can be the object of real rights
• Provides the thing with its identity
6|Page
, • Owner of principle thing is owner of composite thing
• Car, egg beater, drill
b) Accessory thing
• CAN exist independently, but which has been merged with the principle thing
to such an extent that it has lost its independence
• Attachments that do not help to determine the composite thing’s identity =
accessory things
• Wooden beam of a ship, brick in a house, roof carrier of a car
c) Auxiliary thing
• Exists separately and independently of the principle thing, but because of its
economic value is no longer regarded as independent
• Need not be a physical connection with the principle thing
• A key, set of tools marketed with a motor car
d) Fruits
• Produced by the principle thing without the principle thing being destroyed
• Exists independently
• Young of animals, wheat, rent, profit
MOVEABLE AND IMMOVEABLE THINGS
• Immoveable things are units of land and everything permanently attached to them
by means of attachment, as well as sectional title units
• Distinction:
o Transfer of ownership of immoveable things takes place by means of
registration of the transfer in the deeds registry, while the transfer of
ownership of moveable things take place by means of delivery of the thing
o (look at pg 20)
FUNGIBLE AND NON-FUNGIBLE THINGS
• Fungible things belong to a certain class and do not have individual characteristics
that make it irreplaceable.
7|Page
, o Referred to by weight, measure or number.
• Non-fungible things have individual characteristics or value which make them
irreplaceable
• The distinction is important:
o When parties to an agreement can determine the fungibility of a thing by
means of contract, which might influence the contract’s consequences
o A fungible thing cannot be pledged with the intention that it may be replaced
by a similar thing
o A non-fungible thing which is due to a legatee i.t.o. a legacy cannot be
replaced by a similar thing i.e. the legacy lapses
o Money is a fungible thing
CONSUMABLE AND NON-CONSUMABLE THINGS
• Consumable things are depleted in value or consumed by normal use
• Non-consumable things are maintained
o In a case of a consumable being part of a contract, it is expected that after
the depletion of the consumable thing be replaced with a similar thing once
the agreement comes to an end
o A usufruct can only be given regarding non-consumable things
▪ Salva rei substantia = kept in same condition
o Quasi-usufruct: to return things of the same amount and quality of those
consumed
o Money is a consumable thing = quasi usufruct
DIVISIBLE AND NON-DIVISIBLE THINGS
• Divisible thing can be divided into smaller components whilst retaining its nature /
function and without the value diminishing (piece of land)
• Indivisible thing cannot be divided without changing the value, nature and function
of a thing (painting)
8|Page
, TOPIC TWO: RIGHTS IN PROPERTY
PROPERTY RIGHTS, REAL RIGHTS AND CREDITOR’S RIGHTS
Relationships/Verhoudings
Rights/Regte Possession/Besit
Personal
Real Rights/Saaklike Regte
Rights/Persoonlike regte
BACKGROUND
WHAT ARE REAL RIGHTS?
• Ownership: most complete real right, held in own property (corporeal or incorporeal
things) – ius in re propria.
• Limited real rights: real right held by a non-owner in the property owned by another
– ius in re aliena. For example: servitudes, real security rights
9|Page
