Monday, 01 March 2021
Property Law week 1: Lecture notes
What is a thing?
• Res nulius (the thing of nobody.. belongs to nobody). Can become private if it is captured
by you
• If the thing escapes from your possession then it is no longer yours
• How is this in modern SA: Game Theft Act states that things that escape will stay private
property if one has an adequate game fence.
• One can claim back their private property by by using the rei vindictio remedy (but only if
they are still the owner)
Property Law in the legal system
1) Patrimonial: Property, succession and obligations
2) Family and Persons
The sources
- Roman-Dutch common law
- Legislation
- Customary Law
- Constitution
- Apartheid Law still impacts property law even though no longer in force
Ownership of a thing
• Most important real right
• In rem: Property/ real right (Servitude)
• In personam: personal right (contractual agreement)
1
, Monday, 01 March 2021
Apartheid and colonial law
• By 1913 19% of the land was set aside for Africans, it was a bit expanded in 1936
• Most people in SA were deprived of their citizenship
•
Land tenure in the apartheid territories
• System of access to the land was modeled on Customary law
• Barely any africans owned land
•Form of tenure called quit-rent, roman dutch law, but Africans didn’t have the ownership
security
Urban areas
• Group Areas Acts of 1950 and 1966
• For Africans particularly:
• Blacks (Urban Areas Consolidation Act 25 of 1945); Black Local Authorities Act 102
of 1982
– Created the townships, they could not own land, they only had access
– No real rights (eg ownership)
– Various insecure and temporary resident rights (if held permit) eg site permits,
residential permits, lodgers’ permits, certificates of occupation and hostel
permits
• Government policy since 1994 reacts to this history of precarious and insecure access
to land.
• Policy is to provide people with real rights (that can be registered) because such rights
are less vulnerable to abuse and are more secure.
• There is also a clear preference for making it possible for people to own their
property.
2
, Monday, 01 March 2021
Changing the law post-apartheid
• Abolition of Racially Based Land Measures Act of 1991 abolished most apartheid
land laws
• Prevention of Illegal Squatting Act 1951 [repealed and replaced by]:
• Prevention of Illegal Evictions Act 1998
• Group Areas Acts 1950 and 1966 [repealed and replaced by]
• Restitution of Land Rights Act 1994
• Housing Act 1997
• Interim Protection of Informal Lands Rights Act
• Lands Act [1913; 1936 and apartheid successors] [repealed and replaced by]
• Restitution of Land Rights Act 1994
• Land Reform (Labour Tenants) Act 1996 & 1997
Interim Protection of Informal Lands Rights Act 19
African Customary Law
• Source of property law
Roman Dutch Law
• A real right (property right) is a right to a thing. This lies at the heart of the system
• It is theorized as the right of an individual
• But system recognized co-ownership (eg marriage in community of property)
• Companies treated as individuals
Customary Law
• Focus on ‘access to’ the resources (rather than ‘ownership of’)
3
, Monday, 01 March 2021
• Access depends on membership of a community and membership of a particular
family/house.
• “Nested systems” co-ordinate the resources within the community. If you are a
member of a household you can do things on the property. You have access to the
materials on the land
• Customary law (like all law) is subject to the Constitution.
Customary law regarding land
• Applied in the former apartheid territories in terms of the Communal Land Rights
Act 2004 (Act has now been found unconstitutional)
• Might apply in terms of additional land acquired under the Restitution of Land
Rights Act 1994
• Could possibly apply in the context of the Land Reform (Labour Tenants) Act 1996
Land in urban areas
• Formal land and occupation rights acquired under the common law (emphasis on
registration in the Deeds Office). This is a real right under common law.
• Informal practices (eg in informal settlements) seem to be mirrored on common-law
practices (eg stand cards or rent paid by backyarders). Stand cards look like real
rights (but are not). Rent is a contractual (personal) right.
• Residence with family often based on customary law rules and practices (ie it’s based
on a relationship and not on a property right).
Other family property (excluding land in rural areas)
• Usually arise in context of family law and law of succession
– Disputes about access to urban housing usually arise in these contexts
– In particular, could arise in the context of a support duty
Legislation
• Restitution of Land Rights Act 22 of 1994
• Deeds Registries Act 47 of 1937
4
Property Law week 1: Lecture notes
What is a thing?
• Res nulius (the thing of nobody.. belongs to nobody). Can become private if it is captured
by you
• If the thing escapes from your possession then it is no longer yours
• How is this in modern SA: Game Theft Act states that things that escape will stay private
property if one has an adequate game fence.
• One can claim back their private property by by using the rei vindictio remedy (but only if
they are still the owner)
Property Law in the legal system
1) Patrimonial: Property, succession and obligations
2) Family and Persons
The sources
- Roman-Dutch common law
- Legislation
- Customary Law
- Constitution
- Apartheid Law still impacts property law even though no longer in force
Ownership of a thing
• Most important real right
• In rem: Property/ real right (Servitude)
• In personam: personal right (contractual agreement)
1
, Monday, 01 March 2021
Apartheid and colonial law
• By 1913 19% of the land was set aside for Africans, it was a bit expanded in 1936
• Most people in SA were deprived of their citizenship
•
Land tenure in the apartheid territories
• System of access to the land was modeled on Customary law
• Barely any africans owned land
•Form of tenure called quit-rent, roman dutch law, but Africans didn’t have the ownership
security
Urban areas
• Group Areas Acts of 1950 and 1966
• For Africans particularly:
• Blacks (Urban Areas Consolidation Act 25 of 1945); Black Local Authorities Act 102
of 1982
– Created the townships, they could not own land, they only had access
– No real rights (eg ownership)
– Various insecure and temporary resident rights (if held permit) eg site permits,
residential permits, lodgers’ permits, certificates of occupation and hostel
permits
• Government policy since 1994 reacts to this history of precarious and insecure access
to land.
• Policy is to provide people with real rights (that can be registered) because such rights
are less vulnerable to abuse and are more secure.
• There is also a clear preference for making it possible for people to own their
property.
2
, Monday, 01 March 2021
Changing the law post-apartheid
• Abolition of Racially Based Land Measures Act of 1991 abolished most apartheid
land laws
• Prevention of Illegal Squatting Act 1951 [repealed and replaced by]:
• Prevention of Illegal Evictions Act 1998
• Group Areas Acts 1950 and 1966 [repealed and replaced by]
• Restitution of Land Rights Act 1994
• Housing Act 1997
• Interim Protection of Informal Lands Rights Act
• Lands Act [1913; 1936 and apartheid successors] [repealed and replaced by]
• Restitution of Land Rights Act 1994
• Land Reform (Labour Tenants) Act 1996 & 1997
Interim Protection of Informal Lands Rights Act 19
African Customary Law
• Source of property law
Roman Dutch Law
• A real right (property right) is a right to a thing. This lies at the heart of the system
• It is theorized as the right of an individual
• But system recognized co-ownership (eg marriage in community of property)
• Companies treated as individuals
Customary Law
• Focus on ‘access to’ the resources (rather than ‘ownership of’)
3
, Monday, 01 March 2021
• Access depends on membership of a community and membership of a particular
family/house.
• “Nested systems” co-ordinate the resources within the community. If you are a
member of a household you can do things on the property. You have access to the
materials on the land
• Customary law (like all law) is subject to the Constitution.
Customary law regarding land
• Applied in the former apartheid territories in terms of the Communal Land Rights
Act 2004 (Act has now been found unconstitutional)
• Might apply in terms of additional land acquired under the Restitution of Land
Rights Act 1994
• Could possibly apply in the context of the Land Reform (Labour Tenants) Act 1996
Land in urban areas
• Formal land and occupation rights acquired under the common law (emphasis on
registration in the Deeds Office). This is a real right under common law.
• Informal practices (eg in informal settlements) seem to be mirrored on common-law
practices (eg stand cards or rent paid by backyarders). Stand cards look like real
rights (but are not). Rent is a contractual (personal) right.
• Residence with family often based on customary law rules and practices (ie it’s based
on a relationship and not on a property right).
Other family property (excluding land in rural areas)
• Usually arise in context of family law and law of succession
– Disputes about access to urban housing usually arise in these contexts
– In particular, could arise in the context of a support duty
Legislation
• Restitution of Land Rights Act 22 of 1994
• Deeds Registries Act 47 of 1937
4
