SU 1- Introduction
Sources of current property law:
a) Common law (Roman-Dutch)
b) Legislation (Statutory law)
c) Case law (Precedent)
d) Customary law
e) Constitutional law (Chapter 2)
a) Common law
Roman-Dutch common law was always considered the most important source of the
traditional law of things
The role and value of common-law rules must be reconsidered, due to changes that
took place in South Africa
b) Legislation
Legislation has played an important role in traditional law of property during the
apartheid era, and continues to play an important role
During the apartheid era, legislation was often used to introduce and enforce
segregatory policies with regard to property
New legislation can change the face of the law of property entirely, but all legislation
has to be evaluated against the recognised and established values and aspirations
that are embodied in the Constitution
c) Case law
Provides guidance on how common-law principles or legislation should be
interpreted and applied
d) Customary law
In view of the Constitution, it is clear that customary law cannot be ignored
It must be awarded its proper place and recognition in the law of property
Certain precepts of customary law might come into conflict with principles laid down
by the Constitution, especially with regard to equality
e) Constitutional law
The general values of the Constitution such as equality should be taken into account
when interpreting and applying any of the other sources
Chapter 2
,Terminology:
Law of property deals with the rights and actions of persons with regard to things
and other forms of property, as well as relations between persons and property
It describes ways in which property rights can be acquired and exercised lawfully and
the remedies which they are protected against infringement and legal results and
implications of other relations between persons and property
Legal subject:
Person who can acquire and exercise rights and obligations in law
Natural person (individual) or a legal person (groups or companies)
Can acquire and hold property rights individually and in groups in the case of a sport
club’s to its facilities
Legal object:
Any object with which a legal subject has a legally recognised relationship
Things, performances and immaterial property
Property:
Everything which can form part of a person’s estate, including corporeal things and
incorporeal things and rights
Object of property rights is property, which various forms for various categories of
property rights
Most important categories of property are physical or corporeal things and
incorporeal or immaterial property
Corporeal things- a book or a car- moveable things; and a piece of land or a house-
immoveable things
Incorporeal property- a patent or copyright- intellectual property; and shares in a
company- incorporeal things
Limited real rights- real security rights and servitudes
Personal rights- claim against a pension fund or a medical fund
Government trade license or concession
A thing:
Defined with reference to its characteristics
A 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 are not the only objects of modern property law
Corporeal things are independent parts of nature which can be controlled by
humans and which have some use or value for humans
Incorporeal things are also in certain circumstances recognised as legal objects
A right:
, Legally recognised and valid claim by a subject to a certain object
Not all relationships between persons and objects are recognised as protected by
law
Rights exist when a particular relationship between a person and a legal object is
recognised and protected by the law
A property right:
Any legally recognised claim to or interest in property
Relation between a person and property which was established and is held in
accordance with the applicable legal requirements, and is therefore recognised and
protected by the law
Lawful and unlawful action or claim:
Lawful- When it is acknowledged and protected by existing legal principles
Unlawful- When it is in conflict with or not acknowledged by the law
All property rights are lawful property relationships, and no unlawful property
relationship can constitute a property right
A 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
A remedy is used to protect the holders of property rights and used to protect and
regulate the legal order
, SU 4- 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
An important part of a person’s assets is tangible and perceptible- a car or a house
Assets that are not tangible or perceptible, but still forms part of a person’s assets-
amount of money owed in terms of a contract or the copyrights in respect of a book
Definition of a thing
The legal object of a real right and is the most important legal object
Value of a thing lies in the fact that it is juridically destined to satisfy the needs of a
legal subject
Can be defined as a corporeal or tangible object external to persons and which is
subject to juridical control by a legal subject, to whom it is useful and of value
Characteristics of a thing
a) Corporeality
b) External to humans
c) Independence
d) Subject to juridical control
e) Useful and valuable to humans
a) Corporeality
An entity that is part of corporeal reality because it can be sensorially observed and
it occupies a certain space
Several incorporeal or intangible things have been recognised by statute and case
law as things, where the object of the real right is not a corporeal thing, but another
subjective right
The following subjective rights are distinguished in South African law:
o Real rights (with things as objects)
o Intellectual property rights (with intellectual property as objects)
o Personality rights (with aspects of personality as objects)
o Personal rights (with obligations as objects)
If any of the subjective rights itself serves as an object of a legal right, it is regarded
as an incorporeal or intangible thing
b) External to humans
A human being cannot be a legal object- legal subject
Human corpses or parts of corpses can possibly be classified as legal objects, but
then as legal objects which falls outside legal commerce
Sources of current property law:
a) Common law (Roman-Dutch)
b) Legislation (Statutory law)
c) Case law (Precedent)
d) Customary law
e) Constitutional law (Chapter 2)
a) Common law
Roman-Dutch common law was always considered the most important source of the
traditional law of things
The role and value of common-law rules must be reconsidered, due to changes that
took place in South Africa
b) Legislation
Legislation has played an important role in traditional law of property during the
apartheid era, and continues to play an important role
During the apartheid era, legislation was often used to introduce and enforce
segregatory policies with regard to property
New legislation can change the face of the law of property entirely, but all legislation
has to be evaluated against the recognised and established values and aspirations
that are embodied in the Constitution
c) Case law
Provides guidance on how common-law principles or legislation should be
interpreted and applied
d) Customary law
In view of the Constitution, it is clear that customary law cannot be ignored
It must be awarded its proper place and recognition in the law of property
Certain precepts of customary law might come into conflict with principles laid down
by the Constitution, especially with regard to equality
e) Constitutional law
The general values of the Constitution such as equality should be taken into account
when interpreting and applying any of the other sources
Chapter 2
,Terminology:
Law of property deals with the rights and actions of persons with regard to things
and other forms of property, as well as relations between persons and property
It describes ways in which property rights can be acquired and exercised lawfully and
the remedies which they are protected against infringement and legal results and
implications of other relations between persons and property
Legal subject:
Person who can acquire and exercise rights and obligations in law
Natural person (individual) or a legal person (groups or companies)
Can acquire and hold property rights individually and in groups in the case of a sport
club’s to its facilities
Legal object:
Any object with which a legal subject has a legally recognised relationship
Things, performances and immaterial property
Property:
Everything which can form part of a person’s estate, including corporeal things and
incorporeal things and rights
Object of property rights is property, which various forms for various categories of
property rights
Most important categories of property are physical or corporeal things and
incorporeal or immaterial property
Corporeal things- a book or a car- moveable things; and a piece of land or a house-
immoveable things
Incorporeal property- a patent or copyright- intellectual property; and shares in a
company- incorporeal things
Limited real rights- real security rights and servitudes
Personal rights- claim against a pension fund or a medical fund
Government trade license or concession
A thing:
Defined with reference to its characteristics
A 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 are not the only objects of modern property law
Corporeal things are independent parts of nature which can be controlled by
humans and which have some use or value for humans
Incorporeal things are also in certain circumstances recognised as legal objects
A right:
, Legally recognised and valid claim by a subject to a certain object
Not all relationships between persons and objects are recognised as protected by
law
Rights exist when a particular relationship between a person and a legal object is
recognised and protected by the law
A property right:
Any legally recognised claim to or interest in property
Relation between a person and property which was established and is held in
accordance with the applicable legal requirements, and is therefore recognised and
protected by the law
Lawful and unlawful action or claim:
Lawful- When it is acknowledged and protected by existing legal principles
Unlawful- When it is in conflict with or not acknowledged by the law
All property rights are lawful property relationships, and no unlawful property
relationship can constitute a property right
A 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
A remedy is used to protect the holders of property rights and used to protect and
regulate the legal order
, SU 4- 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
An important part of a person’s assets is tangible and perceptible- a car or a house
Assets that are not tangible or perceptible, but still forms part of a person’s assets-
amount of money owed in terms of a contract or the copyrights in respect of a book
Definition of a thing
The legal object of a real right and is the most important legal object
Value of a thing lies in the fact that it is juridically destined to satisfy the needs of a
legal subject
Can be defined as a corporeal or tangible object external to persons and which is
subject to juridical control by a legal subject, to whom it is useful and of value
Characteristics of a thing
a) Corporeality
b) External to humans
c) Independence
d) Subject to juridical control
e) Useful and valuable to humans
a) Corporeality
An entity that is part of corporeal reality because it can be sensorially observed and
it occupies a certain space
Several incorporeal or intangible things have been recognised by statute and case
law as things, where the object of the real right is not a corporeal thing, but another
subjective right
The following subjective rights are distinguished in South African law:
o Real rights (with things as objects)
o Intellectual property rights (with intellectual property as objects)
o Personality rights (with aspects of personality as objects)
o Personal rights (with obligations as objects)
If any of the subjective rights itself serves as an object of a legal right, it is regarded
as an incorporeal or intangible thing
b) External to humans
A human being cannot be a legal object- legal subject
Human corpses or parts of corpses can possibly be classified as legal objects, but
then as legal objects which falls outside legal commerce
