1: Introduction to Property Law
INTRODUCTION TO PROPERTY LAW
VDW&P Chapter 1
→ The meaning of "property"
i. Colloquial (informal) meanings
ii. Technical legal sense
> Considerations:
□ Nature and Characteristics of object
□ Relationship between person and thing
□ Relationship between person and other persons wrt the object
> Property in a technical legal sense refers to the right of people in or over certain
objects or things
All assets that form a person's estate
> Concepts of Property In South Africa:
1) Right of ownership
2) The legal object itself
3) Legal relationships that qualify for Constitutional protection
Function of Property Law
→ Harmonise individual interests wrt property
→ Guarantee and protect rights wrt property
→ Control relationship between person and thing
→ Social purpose of property law is to manage competing interests e.g. owner and lessee
Limits and Duties
→ Property Law protects but also imposes duties and limits on the exercise of the rights of ownership
→ Sec 25 of the Constitution - Property Clause
Place of Property Law
→ Property Law is part of Private Law
Regulates relationships between individuals and things PLUS the rights and obligations that
emanate from these relationships
Deals with subjective rights and legal objects
Property Law 272 Page 1
,Property Law and Public Law
→ Public law element in property law:
i. Transfer of land (e.g. must be registered)
ii. Expropriation- Expropriation Act 63 of 1975
iii. Forfeiture of property
Sources of Property Law
→ Roman Dutch Common Law Principles
→ Statutes dealing with property law issues
→ Judicial precedent
→ Constitution
Conclusion
→ Property deals with
legal subjects' factual and legal relationships with things
Entails concepts such as possession and ownership of things
Describes what things constitute legal objects and classifies things according to their nature
and consequences
Distinguishes between different kinds of relationships irt property and indicates how these
rights are to be classified
Sets out how rights may be acquired, protected and lost
→ Class example:
Van der Merwe v Nel 2006 [4] All SA 96 (C)
> vdM = appellant on his way from Cape Town to Las Palmas
> Apprehended at CPT International Airport
□ In possession of foreign currency amounting to approx R1 million
○ He was carrying money for an entire group
□ Contravention of Reg 3(1)(a) of the Exchange Control Regulations of South Africa
As in the case (dealt with in 2) most cases in property law deal with at least one of the 3 following:
1. What does a person want to claim back?
Must qualify as a 'thing' in property law before a remedy is used.
2. If object = 'thing' for purposes of property law, ascertain what right the person had over it before
it was taken i.e. in what capacity is the person claiming the thg
3. What remedies are available in property law for such thing in (2)
Property Law 272 Page 2
, 2: Things
INTRODUCTION TO "PROPERTY" AND "THINGS"
→ Property = everything that can form part of one's estate - incl. corporeal and incorporeal interests
and rights
→ Thing = any independent object, corporeal or incorporeal, not part of the human being (outside
the human body) that may be controlled by humans and is of use and value
Characteristics of things
→ Scope of property law is determined by the extent to which legal objects qualify as things.
→ Distinction between property in private law and an object that cannot be regarded as property in
private law rests in the following characteristics:
a. Corporeality
> Tangible - can be sensorially observed and occupies space
> Should be regarded as a common characteristic
□ Problem: non-physical types of property (intangible interests in property with
economic value)
b. Impersonal nature
> Human beings cannot be legal objects - but legal subjects
> Human body parts are not negotiable since they are not legal objects
□ However corpses body parts negotiable subject to statute
c. Independence
> Exists separately
□ e.g. house cannot exist separately from the land on which it is built, key not
independent but instrument of access to other thing
> Physical independence not necessary, but thing must have juridical independence
> Components of a composite entity lack legal independence until they are physically or
juridically separated
d. Appropriability
> must be susceptible to human control (e.g. sun)
□ i.e. possible to enforce or protect right in the thing
e. Use and value
> Economic or sentimental value
> Context is NB
> Dangerous or unwanted things may also have value even though their value would
have been negative
→ Narrow approach = 5 characteristics determine whether legal object qualifies as a thing
→ Broad approach = above characteristics are merely guidelines
Rights, Things and Property
→ If something is considered a thing ito private law - a remedy will be available
→ Assets may be tangible or immaterial
Tangible e.g. blackberry, laptop, pen
Intangible - abstract with monetary value e.g. copyright
Classification of things
→ It is NB to classify things so as to know how the rights to that particular thing are protected
i. Negotiability
Question: Can a private person vest ownership wrt thing
Res In commercio (negotiable things)
> Res aliciuius - things owned by a natural person or legal person/in deceased's estate
Property Law 272 Page 3
, > Res aliciuius - things owned by a natural person or legal person/in deceased's estate
□ Res singolorum - owned by private party
□ Res universitatis - owned by companies
> Res nullius - things that can be but aren't owned
□ Res nullius in real sense - things never owned (birds etc)
□ Res derelictae - once owned, now abandoned
Res extra commercium (things outside of commerce - non-negotiable- can't be privately
owned)
> Res omnium communes - common to all, natural resources e.g. water
> Res publicae - public things - owned by state for public use
> Res divini iuris - religious things
□ Obsolete in modern law - Private property protected by remedies in criminal law
and delict (actio iniuariarum)
ii. Nature
Corporeal & Incorporeal
> Convictions of community are important for this classification
> Corporeal = tangible and can be perceived by the sense e.g. land, house, book, vehicle
> Incorporeal = "abstract concept with no physical existence but which has pecuniary
value" e.g. forms of energy, air or sounds
Movables and immovables
> Can it be moved from A to B without damage/decrease in value - without losing
identity or legal existence
> All things that are not immovables = movables
> Immovables e.g. land and everything attached to them (permanent attachments)
Single and Composite
> Single things
□ Individual things, exist independently
□ Comprises an entity with use and value
□ Can be grouped into a collection of single things (not a composite thing)
> Composite things
□ Consist of principal thing, accessories , auxiliaries
□ Regarded as single entity in the law
□ e.g. House = principal, built-in bar = accessory, bar stool = auxiliaries
Fungible & Non-fungibles
> Fungible
□ Belong to a certain class and can therefore be replaced by similar things
□ Weight, number, size e.g. Light bulb, roll of wire, chocolate
> Non-fungible
□ Have individual characteristics or value which makes them irreplaceable
□ Exchangeability?
Consumables & Non-consumables
> Consumables - depleted in value or consumed by normal use e,g, wine, food
> Non-consumables - not changed or reduced through use. Normal tear and wear may
occur but never exhausted e.g. motorbike, house
> Sometimes difficult to distinguish
□ Test - decrease in value over time
Divisible & Non-divisible
> Divisible
□ Separated into parts
□ Total value of the separated parts should not be significantly less than the value
of the whole
□ e.g. land
> Indivisible
□ Cannot be divided this way e.g. painting, chair
Property Law 272 Page 4
INTRODUCTION TO PROPERTY LAW
VDW&P Chapter 1
→ The meaning of "property"
i. Colloquial (informal) meanings
ii. Technical legal sense
> Considerations:
□ Nature and Characteristics of object
□ Relationship between person and thing
□ Relationship between person and other persons wrt the object
> Property in a technical legal sense refers to the right of people in or over certain
objects or things
All assets that form a person's estate
> Concepts of Property In South Africa:
1) Right of ownership
2) The legal object itself
3) Legal relationships that qualify for Constitutional protection
Function of Property Law
→ Harmonise individual interests wrt property
→ Guarantee and protect rights wrt property
→ Control relationship between person and thing
→ Social purpose of property law is to manage competing interests e.g. owner and lessee
Limits and Duties
→ Property Law protects but also imposes duties and limits on the exercise of the rights of ownership
→ Sec 25 of the Constitution - Property Clause
Place of Property Law
→ Property Law is part of Private Law
Regulates relationships between individuals and things PLUS the rights and obligations that
emanate from these relationships
Deals with subjective rights and legal objects
Property Law 272 Page 1
,Property Law and Public Law
→ Public law element in property law:
i. Transfer of land (e.g. must be registered)
ii. Expropriation- Expropriation Act 63 of 1975
iii. Forfeiture of property
Sources of Property Law
→ Roman Dutch Common Law Principles
→ Statutes dealing with property law issues
→ Judicial precedent
→ Constitution
Conclusion
→ Property deals with
legal subjects' factual and legal relationships with things
Entails concepts such as possession and ownership of things
Describes what things constitute legal objects and classifies things according to their nature
and consequences
Distinguishes between different kinds of relationships irt property and indicates how these
rights are to be classified
Sets out how rights may be acquired, protected and lost
→ Class example:
Van der Merwe v Nel 2006 [4] All SA 96 (C)
> vdM = appellant on his way from Cape Town to Las Palmas
> Apprehended at CPT International Airport
□ In possession of foreign currency amounting to approx R1 million
○ He was carrying money for an entire group
□ Contravention of Reg 3(1)(a) of the Exchange Control Regulations of South Africa
As in the case (dealt with in 2) most cases in property law deal with at least one of the 3 following:
1. What does a person want to claim back?
Must qualify as a 'thing' in property law before a remedy is used.
2. If object = 'thing' for purposes of property law, ascertain what right the person had over it before
it was taken i.e. in what capacity is the person claiming the thg
3. What remedies are available in property law for such thing in (2)
Property Law 272 Page 2
, 2: Things
INTRODUCTION TO "PROPERTY" AND "THINGS"
→ Property = everything that can form part of one's estate - incl. corporeal and incorporeal interests
and rights
→ Thing = any independent object, corporeal or incorporeal, not part of the human being (outside
the human body) that may be controlled by humans and is of use and value
Characteristics of things
→ Scope of property law is determined by the extent to which legal objects qualify as things.
→ Distinction between property in private law and an object that cannot be regarded as property in
private law rests in the following characteristics:
a. Corporeality
> Tangible - can be sensorially observed and occupies space
> Should be regarded as a common characteristic
□ Problem: non-physical types of property (intangible interests in property with
economic value)
b. Impersonal nature
> Human beings cannot be legal objects - but legal subjects
> Human body parts are not negotiable since they are not legal objects
□ However corpses body parts negotiable subject to statute
c. Independence
> Exists separately
□ e.g. house cannot exist separately from the land on which it is built, key not
independent but instrument of access to other thing
> Physical independence not necessary, but thing must have juridical independence
> Components of a composite entity lack legal independence until they are physically or
juridically separated
d. Appropriability
> must be susceptible to human control (e.g. sun)
□ i.e. possible to enforce or protect right in the thing
e. Use and value
> Economic or sentimental value
> Context is NB
> Dangerous or unwanted things may also have value even though their value would
have been negative
→ Narrow approach = 5 characteristics determine whether legal object qualifies as a thing
→ Broad approach = above characteristics are merely guidelines
Rights, Things and Property
→ If something is considered a thing ito private law - a remedy will be available
→ Assets may be tangible or immaterial
Tangible e.g. blackberry, laptop, pen
Intangible - abstract with monetary value e.g. copyright
Classification of things
→ It is NB to classify things so as to know how the rights to that particular thing are protected
i. Negotiability
Question: Can a private person vest ownership wrt thing
Res In commercio (negotiable things)
> Res aliciuius - things owned by a natural person or legal person/in deceased's estate
Property Law 272 Page 3
, > Res aliciuius - things owned by a natural person or legal person/in deceased's estate
□ Res singolorum - owned by private party
□ Res universitatis - owned by companies
> Res nullius - things that can be but aren't owned
□ Res nullius in real sense - things never owned (birds etc)
□ Res derelictae - once owned, now abandoned
Res extra commercium (things outside of commerce - non-negotiable- can't be privately
owned)
> Res omnium communes - common to all, natural resources e.g. water
> Res publicae - public things - owned by state for public use
> Res divini iuris - religious things
□ Obsolete in modern law - Private property protected by remedies in criminal law
and delict (actio iniuariarum)
ii. Nature
Corporeal & Incorporeal
> Convictions of community are important for this classification
> Corporeal = tangible and can be perceived by the sense e.g. land, house, book, vehicle
> Incorporeal = "abstract concept with no physical existence but which has pecuniary
value" e.g. forms of energy, air or sounds
Movables and immovables
> Can it be moved from A to B without damage/decrease in value - without losing
identity or legal existence
> All things that are not immovables = movables
> Immovables e.g. land and everything attached to them (permanent attachments)
Single and Composite
> Single things
□ Individual things, exist independently
□ Comprises an entity with use and value
□ Can be grouped into a collection of single things (not a composite thing)
> Composite things
□ Consist of principal thing, accessories , auxiliaries
□ Regarded as single entity in the law
□ e.g. House = principal, built-in bar = accessory, bar stool = auxiliaries
Fungible & Non-fungibles
> Fungible
□ Belong to a certain class and can therefore be replaced by similar things
□ Weight, number, size e.g. Light bulb, roll of wire, chocolate
> Non-fungible
□ Have individual characteristics or value which makes them irreplaceable
□ Exchangeability?
Consumables & Non-consumables
> Consumables - depleted in value or consumed by normal use e,g, wine, food
> Non-consumables - not changed or reduced through use. Normal tear and wear may
occur but never exhausted e.g. motorbike, house
> Sometimes difficult to distinguish
□ Test - decrease in value over time
Divisible & Non-divisible
> Divisible
□ Separated into parts
□ Total value of the separated parts should not be significantly less than the value
of the whole
□ e.g. land
> Indivisible
□ Cannot be divided this way e.g. painting, chair
Property Law 272 Page 4
