1. Historical Origins and Constitutional
Framework
1.1 General Nature and Place of Property Law
Property law is a branch of private law that regulates the legal relationships between
persons in respect of things. It defines the rights and duties of individuals regarding
property, including its acquisition, protection, and transfer. In the South African legal
system, property law forms part of the law of things, which is distinct from the law of
persons, family law, and the law of obligations (contracts and delicts).
Key characteristics:
• Real Rights: Deals primarily with real rights, which are rights in a thing itself
(e.g., ownership, servitudes, real security rights). These rights are enforceable
against the whole world (erga omnes).
• Exclusivity: Ownership, the most comprehensive real right, grants the owner
exclusive control over a thing.
• Object-oriented: Its focus is on the legal relationship between a person and a
"thing" (tangible or intangible).
1.2 Single System of Law, Subsidiarity, and Constitutional Alignment
South Africa's legal system, particularly after 1994, is characterized by a single system
of law, meaning that all law, including common law and statutory law, is subject to the
Constitution. The Constitution is the supreme law of the Republic, and any law or
conduct inconsistent with it is invalid.
• Subsidiarity Principle: This principle dictates that where a specific legal
remedy or legislative scheme has been enacted to give effect to a constitutional
right, a litigant must rely on that specific remedy or scheme rather than directly
on the constitutional provision. In property law, this means that while Section 25
(the property clause) underpins all property rights, specific statutory provisions
(e.g., Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
(PIE Act), Extension of Security of Tenure Act (ESTA)) and common law
principles are the primary means of regulating property relationships. The
Constitution serves as an overarching framework for interpreting and
developing these laws.
• Characteristics of a Property System in Line with the Bill of Rights:
o Transformative Constitutionalism: Property law must continually
evolve to address historical injustices and promote equitable access to
land and resources.
, o Balance of Rights: The system must balance individual property rights
with broader public interest considerations, as articulated in Section
25(1) and (2) of the Constitution (deprivation vs. expropriation) and
Section 36 (the general limitation clause).
o Human Dignity and Equality: Property laws must respect human
dignity and promote equality, ensuring that the exercise of property
rights does not unjustly infringe on the rights of others, particularly
vulnerable groups. For example, eviction processes must be just and
equitable.
o Sustainable Development: Property law increasingly incorporates
principles of environmental sustainability and responsible resource
management.
1.3 Application to Facts
To apply this theory to facts, one must always start by identifying the type of property
interest at stake, whether a state action constitutes a deprivation or expropriation
under Section 25, and whether any common law or statutory limitations (like neighbour
law) align with the constitutional spirit. The FNB v Commissioner (Wesbank) case
provides a crucial seven-step inquiry for constitutional analysis of property
infringements.
2. Characteristics and Classification of
'Res' (Things)
2.1 Explanation of 'Res' and Relationship between Things, Rights, and
Property
In property law, a 'thing' (or res) is a legal object that forms part of a person's estate. It
is generally independent, susceptible to human control, and of value to humans.
Characteristics of a 'Res':
1. Corporeality/Incorporeality:
o Corporeal things: Tangible objects that can be perceived by the senses
(e.g., a car, a house, a book).
o Incorporeal things: Intangible objects, such as rights (e.g., a personal
right, a servitude, intellectual property rights, shares in a company).
2. Independence: A thing must exist as a separate entity (e.g., a brick in a wall is
not independent, but the wall itself might be considered independent for certain
purposes).
, 3. Susceptibility to Human Control: It must be capable of being physically
controlled or legally managed by humans.
4. Utility/Value: It must be of some use or value to a person.
Classification of 'Res':
Category Description Examples
Res in Things that can be privately
Most movable and immovable property (cars, land, shares).
commercio owned and traded.
• Res nullius: Ownerless things (wild animals, fish). Can beco
commercio through appropriation. <br/> • Res publicae: Thin
Res extra Things that cannot be
the state for public use (public roads, national parks, beaches).
commercium privately owned or traded.
divini iuris: Things belonging to no human, but to a divine be
of worship - largely historical).
Movable vs.
Immovable
Can be moved without
• Movable Cars, furniture, books, crops (before harvest).
damage or loss of identity.
Cannot be moved without
damage or loss of identity;
• Immovable Land, buildings, trees (planted).
typically land and
permanent fixtures.
Divisible vs.
Indivisible
Can be divided into smaller
parts, each retaining the
• Divisible A piece of land, a quantity of grain.
essential nature of the
whole.
Cannot be divided without
• Indivisible losing its original nature or A car, a painting, a specific animal.
utility.
Fungible vs.
Non-fungible
Can be replaced by another
identical item (measured by
• Fungible Grain, money, fuel.
weight, number, or
measure).
Unique; cannot be replaced
• Non-fungible A specific painting, a particular piece of land, a unique heirloo
by an identical item.
Consumable vs.
Non-consumable
Destroyed or consumed by
• Consumable Food, fuel, money (when spent).
normal use.
Retains its essence despite
• Non-
normal use, though it may A car, a house, furniture.
consumable
wear out.
, Category Description Examples
Principal vs.
Accessory
• Principal thing Exists independently. A car.
Attached to or forms part of
• Accessory thing a principal thing; loses its Wheels of a car, a key to a house (in relation to the house).
independent identity.
Produce of a principal
Fruits
thing.
Produced naturally by the
• Natural fruits principal thing (e.g., crops, Apples from an apple tree, calves from a cow.
offspring of animals).
Income derived from a
• Civil fruits Rent from a leased property, interest from an investment.
thing (e.g., rent, interest).
Relationship between Things, Rights, and Property:
• Things are the objects of rights.
• Rights (specifically real rights in property law) are the legal claims that persons
have over things.
• Property is the sum total of a person's assets, including both corporeal things
(like land and movables) and incorporeal things (like real rights, personal rights,
and intellectual property). Thus, "property" is a broader concept encompassing
all things over which a person can hold rights.
3. Constitutional Limitations on
Ownership and Neighbour Law (Week 2)
This section covers the limitations on ownership arising from the Constitution and
common law neighbour principles, as per Chapter 6 of the prescribed textbook.
3.1 Introduction
Ownership, while the most comprehensive real right, is not absolute. It is limited by
both public law (e.g., constitutional provisions, statutory planning laws) and private law
(e.g., neighbour law). These limitations aim to balance individual property rights with
the rights of others and the broader public interest.
3.2 Core Case Law (Week 2)
Case Citation Relevance
2007 (2) SA 48
Laskey and Another v Showzone CC and Others Neighbour-law limits,
(CPD)
Framework
1.1 General Nature and Place of Property Law
Property law is a branch of private law that regulates the legal relationships between
persons in respect of things. It defines the rights and duties of individuals regarding
property, including its acquisition, protection, and transfer. In the South African legal
system, property law forms part of the law of things, which is distinct from the law of
persons, family law, and the law of obligations (contracts and delicts).
Key characteristics:
• Real Rights: Deals primarily with real rights, which are rights in a thing itself
(e.g., ownership, servitudes, real security rights). These rights are enforceable
against the whole world (erga omnes).
• Exclusivity: Ownership, the most comprehensive real right, grants the owner
exclusive control over a thing.
• Object-oriented: Its focus is on the legal relationship between a person and a
"thing" (tangible or intangible).
1.2 Single System of Law, Subsidiarity, and Constitutional Alignment
South Africa's legal system, particularly after 1994, is characterized by a single system
of law, meaning that all law, including common law and statutory law, is subject to the
Constitution. The Constitution is the supreme law of the Republic, and any law or
conduct inconsistent with it is invalid.
• Subsidiarity Principle: This principle dictates that where a specific legal
remedy or legislative scheme has been enacted to give effect to a constitutional
right, a litigant must rely on that specific remedy or scheme rather than directly
on the constitutional provision. In property law, this means that while Section 25
(the property clause) underpins all property rights, specific statutory provisions
(e.g., Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
(PIE Act), Extension of Security of Tenure Act (ESTA)) and common law
principles are the primary means of regulating property relationships. The
Constitution serves as an overarching framework for interpreting and
developing these laws.
• Characteristics of a Property System in Line with the Bill of Rights:
o Transformative Constitutionalism: Property law must continually
evolve to address historical injustices and promote equitable access to
land and resources.
, o Balance of Rights: The system must balance individual property rights
with broader public interest considerations, as articulated in Section
25(1) and (2) of the Constitution (deprivation vs. expropriation) and
Section 36 (the general limitation clause).
o Human Dignity and Equality: Property laws must respect human
dignity and promote equality, ensuring that the exercise of property
rights does not unjustly infringe on the rights of others, particularly
vulnerable groups. For example, eviction processes must be just and
equitable.
o Sustainable Development: Property law increasingly incorporates
principles of environmental sustainability and responsible resource
management.
1.3 Application to Facts
To apply this theory to facts, one must always start by identifying the type of property
interest at stake, whether a state action constitutes a deprivation or expropriation
under Section 25, and whether any common law or statutory limitations (like neighbour
law) align with the constitutional spirit. The FNB v Commissioner (Wesbank) case
provides a crucial seven-step inquiry for constitutional analysis of property
infringements.
2. Characteristics and Classification of
'Res' (Things)
2.1 Explanation of 'Res' and Relationship between Things, Rights, and
Property
In property law, a 'thing' (or res) is a legal object that forms part of a person's estate. It
is generally independent, susceptible to human control, and of value to humans.
Characteristics of a 'Res':
1. Corporeality/Incorporeality:
o Corporeal things: Tangible objects that can be perceived by the senses
(e.g., a car, a house, a book).
o Incorporeal things: Intangible objects, such as rights (e.g., a personal
right, a servitude, intellectual property rights, shares in a company).
2. Independence: A thing must exist as a separate entity (e.g., a brick in a wall is
not independent, but the wall itself might be considered independent for certain
purposes).
, 3. Susceptibility to Human Control: It must be capable of being physically
controlled or legally managed by humans.
4. Utility/Value: It must be of some use or value to a person.
Classification of 'Res':
Category Description Examples
Res in Things that can be privately
Most movable and immovable property (cars, land, shares).
commercio owned and traded.
• Res nullius: Ownerless things (wild animals, fish). Can beco
commercio through appropriation. <br/> • Res publicae: Thin
Res extra Things that cannot be
the state for public use (public roads, national parks, beaches).
commercium privately owned or traded.
divini iuris: Things belonging to no human, but to a divine be
of worship - largely historical).
Movable vs.
Immovable
Can be moved without
• Movable Cars, furniture, books, crops (before harvest).
damage or loss of identity.
Cannot be moved without
damage or loss of identity;
• Immovable Land, buildings, trees (planted).
typically land and
permanent fixtures.
Divisible vs.
Indivisible
Can be divided into smaller
parts, each retaining the
• Divisible A piece of land, a quantity of grain.
essential nature of the
whole.
Cannot be divided without
• Indivisible losing its original nature or A car, a painting, a specific animal.
utility.
Fungible vs.
Non-fungible
Can be replaced by another
identical item (measured by
• Fungible Grain, money, fuel.
weight, number, or
measure).
Unique; cannot be replaced
• Non-fungible A specific painting, a particular piece of land, a unique heirloo
by an identical item.
Consumable vs.
Non-consumable
Destroyed or consumed by
• Consumable Food, fuel, money (when spent).
normal use.
Retains its essence despite
• Non-
normal use, though it may A car, a house, furniture.
consumable
wear out.
, Category Description Examples
Principal vs.
Accessory
• Principal thing Exists independently. A car.
Attached to or forms part of
• Accessory thing a principal thing; loses its Wheels of a car, a key to a house (in relation to the house).
independent identity.
Produce of a principal
Fruits
thing.
Produced naturally by the
• Natural fruits principal thing (e.g., crops, Apples from an apple tree, calves from a cow.
offspring of animals).
Income derived from a
• Civil fruits Rent from a leased property, interest from an investment.
thing (e.g., rent, interest).
Relationship between Things, Rights, and Property:
• Things are the objects of rights.
• Rights (specifically real rights in property law) are the legal claims that persons
have over things.
• Property is the sum total of a person's assets, including both corporeal things
(like land and movables) and incorporeal things (like real rights, personal rights,
and intellectual property). Thus, "property" is a broader concept encompassing
all things over which a person can hold rights.
3. Constitutional Limitations on
Ownership and Neighbour Law (Week 2)
This section covers the limitations on ownership arising from the Constitution and
common law neighbour principles, as per Chapter 6 of the prescribed textbook.
3.1 Introduction
Ownership, while the most comprehensive real right, is not absolute. It is limited by
both public law (e.g., constitutional provisions, statutory planning laws) and private law
(e.g., neighbour law). These limitations aim to balance individual property rights with
the rights of others and the broader public interest.
3.2 Core Case Law (Week 2)
Case Citation Relevance
2007 (2) SA 48
Laskey and Another v Showzone CC and Others Neighbour-law limits,
(CPD)
