PVL1004F: South African Private Law – Systems and Context
Part 1
Week 1: Introduction and the System of Private Law (page 1-18)
Aims & Objectives
1. To serve as an introduction to SA private law with particular emphasis on the
law of property and obligations.
o Private law operating as a legal system.
o The roots of the law of property and obligations.
o International language of private law.
o Map of the law (where things are and what they are).
o Anatomy of the law (the system and how/why it operates as it does).
o Sound conceptual and functional overview of this most important practical,
commercially orientated part of Modern SA private law.
2. To enable participants to see SA law in the context of the other legal
systems.
3. To see and understand that law is contingent, in that it develops in response
to political and societal pressures.
Personalities
o P = Plaintiff
o D = Defendant
o T = Third party
Definition
o Private Law = The statement of citizens’ rights and duties towards each
other in every day social exchanges and collisions; the part of the law which
deals with the relationships and disputes between citizens.
,Law of Property
o Concerns interests in things that are protected by claims in rem.
o Mainly ownership, possession, servitudes and real security.
o About a particular sort of “real” relationship that a person has directly with
an object.
o The claim in rem allows the owner to assert their relationship of ownership
directly over that distinct object.
o In an owner dispossessed situation, the owner recovers their object from
the other holder, who has a lesser right to the object than ownership
(repossession).
o Features of claims in rem:
• Requirement of delivery.
• Publicity of delivery.
• A direct right of control over what they own.
• An absolute right of pursuit of the thing, if the owner has lost control
over it.
o This can be compared with a claim in personam, in which the direct legal
relationship, as stated in the court, is not in respect of an object.
o The legal assertion made by the plaintiff is that the defendant owes them a
duty arising from some legally recognised transaction.
, o Example: D steals P’s bike. D sells and delivers the bike to T, who pays for it.
• There is invalidity in the transfer of ownership.
• P’s property interests are protected (law of property). P cannot be
deprived unwillingly of their ownership. As the owner, P can reclaim the
bike in rem from T.
• There is validity in the contract of sale between D and T.
• T’s interests are protected (law of obligations). T has a claim in personam
against D for the breach of a valid contract.
• Private law makes a risk allocation between the innocent parties, P and T.
More risk is allocated to T, because they chose D as their contractual
partner.
Week 2: Property Law – Ownership & Possession (page 18-24)
Law of Property (continued)
o Classification of objects in property law:
• Corporeal (touchable).
• Incorporeal (abstract).
• Immovable (land and buildings).
• Movable (other objects).
Ownership
o Ownership = The right to use, take the fruits, abuse and dispose of the
object.
o Ownership is a right which confers a collection of subsidiary rights.
o Ownership is protected by the SA constitution.
o Ownership is protected by a claim in rem called the vindicatory claim.
o Ownership is recognised only of objects that are capable of being owned
(e.g. people and drugs cannot be owned, some objects may only be capable
of public, not private, ownership).
o Owner = A person who has acquired property that is capable of private
ownership, in a way that is recognised by the legal system as conferring on
them the status of owner of the object.
Part 1
Week 1: Introduction and the System of Private Law (page 1-18)
Aims & Objectives
1. To serve as an introduction to SA private law with particular emphasis on the
law of property and obligations.
o Private law operating as a legal system.
o The roots of the law of property and obligations.
o International language of private law.
o Map of the law (where things are and what they are).
o Anatomy of the law (the system and how/why it operates as it does).
o Sound conceptual and functional overview of this most important practical,
commercially orientated part of Modern SA private law.
2. To enable participants to see SA law in the context of the other legal
systems.
3. To see and understand that law is contingent, in that it develops in response
to political and societal pressures.
Personalities
o P = Plaintiff
o D = Defendant
o T = Third party
Definition
o Private Law = The statement of citizens’ rights and duties towards each
other in every day social exchanges and collisions; the part of the law which
deals with the relationships and disputes between citizens.
,Law of Property
o Concerns interests in things that are protected by claims in rem.
o Mainly ownership, possession, servitudes and real security.
o About a particular sort of “real” relationship that a person has directly with
an object.
o The claim in rem allows the owner to assert their relationship of ownership
directly over that distinct object.
o In an owner dispossessed situation, the owner recovers their object from
the other holder, who has a lesser right to the object than ownership
(repossession).
o Features of claims in rem:
• Requirement of delivery.
• Publicity of delivery.
• A direct right of control over what they own.
• An absolute right of pursuit of the thing, if the owner has lost control
over it.
o This can be compared with a claim in personam, in which the direct legal
relationship, as stated in the court, is not in respect of an object.
o The legal assertion made by the plaintiff is that the defendant owes them a
duty arising from some legally recognised transaction.
, o Example: D steals P’s bike. D sells and delivers the bike to T, who pays for it.
• There is invalidity in the transfer of ownership.
• P’s property interests are protected (law of property). P cannot be
deprived unwillingly of their ownership. As the owner, P can reclaim the
bike in rem from T.
• There is validity in the contract of sale between D and T.
• T’s interests are protected (law of obligations). T has a claim in personam
against D for the breach of a valid contract.
• Private law makes a risk allocation between the innocent parties, P and T.
More risk is allocated to T, because they chose D as their contractual
partner.
Week 2: Property Law – Ownership & Possession (page 18-24)
Law of Property (continued)
o Classification of objects in property law:
• Corporeal (touchable).
• Incorporeal (abstract).
• Immovable (land and buildings).
• Movable (other objects).
Ownership
o Ownership = The right to use, take the fruits, abuse and dispose of the
object.
o Ownership is a right which confers a collection of subsidiary rights.
o Ownership is protected by the SA constitution.
o Ownership is protected by a claim in rem called the vindicatory claim.
o Ownership is recognised only of objects that are capable of being owned
(e.g. people and drugs cannot be owned, some objects may only be capable
of public, not private, ownership).
o Owner = A person who has acquired property that is capable of private
ownership, in a way that is recognised by the legal system as conferring on
them the status of owner of the object.
