CHAPTER 1: INTRODUCTION TO THE LAW OF PROPERTY
1. Scope and content of the law of property
In the widest sense it deals with ‘property.’
Includes all assets that form part of a person’s estate (non-legal term ‘possessions’).
Property includes:
o immovable assets (house);
o movable assets (motor car/cattle);
o immaterial property (patent/copyright);
o and a variety of other assets.
Definition is too wide for purposes of this subject, so we define more restrictively.
Private law: concerns itself with legal relationships and transactions between private
subjects operating in a more or less equal footing.
Public law: deals with the so-called vertical relationship between the state (or various state
organs) and private individuals.
s25 of the Constitution provides protection for rights in property, and consequently the law
of property must take note of constitutional principles and their effects upon private law.
Law of property is no longer restricted to corporeal assets or things, and therefore the term
‘law of property’ is currently more appropriate that the ‘law of things.’
Also deals with relationships that do not qualify as rights and they are important because of
their legal implications.
o These relationships are described as unlawful control of property, to which the person
in question has no right.
o These unlawful property relationships must be distinguished carefully from property
rights.
2. Sources of traditional property law (law of things)
Traditionally described within the restricted ambit of Roman-Dutch private law.
Sources of the law of things were described as:
o Mainly Roman-Dutch common law
o Complemented by South African legislation and case law.
Roman-Dutch common law: found in the writings of the great Roman-Dutch lawyers of the
seventeenth and eighteenth centuries, such as Grotius, Voet and Van der Linden.
Legislation: consists of statutes or Acts promulgated by, especially, the national legislature
of parliament.
o Pre-1994: Sectional Titles Act and Security By Means of Movable Property Act
o Most important new legislation: Constitution of the Republic of South Africa
Case law: (precedent) consists of the authoritative decisions of the high court.
o Important examples:
Ex parte Geldenhuys: deals with distinction between real rights and creditor’s rights.
Setlogelo v Setlogelo: deals with the requirements for obtaining and interdict.
, Pre-1994 sources left impression of the development of property law, and to a very large
extent the writings of the Roman-Dutch authors, legislation of South African legislative
authorities and earlier decisions of the South African courts still constitute a major part of
the written tradition upon which the law of property is built.
The sources of law of property must be seen in a new perspective
o Namely the transition from a society dominated by a largely white, privileged minority
to a ‘society based on democratic values, social justice and fundamental human rights.’
o This is as a result of legal, socio-political and economic developments and changes.
Transition:
o Old discriminatory laws shall be abolished;
o New democratic laws shall be promulgated;
o And the whole existing legal system and its tradition, background and sources must be
re-evaluated and, where necessary, amended.
S39(2) of the Constitution provides that all principles of existing common law and customary
law shall, as far as possible, be interpreted and applied with due regard to the spirit and
objectives of the Constitution, which embodies the aspirations and ideals of the new,
democratic legal order.
In line with this process of transition:
o The traditional sources and the background of law of property in common and
customary law have to be re-evaluated and reconsidered;
o Existing common-law and customary law principles have to be interpreted and applied
with sensitivity and;
o With recognition of the fact that the background against some of which they were
created and developed has changed dramatically.
Similar considerations apply with regard to the authority of existing and pre-1994 legislation
and case law.
, 3. Sources of current law of property
Common law Statutes Case law Customary Constitution
Was always most Played increasingly Has always been During apartheid All sources must
important source. important role. important: indicated customary law were interpreted
Result of changes in During apartheid: used how common-law regarded as primitive applied with
society, its role and to introduce and principles should be legal relationships. regard to the s
value must be enforce segregatory interpreted and Did not enjoy and objective of
reconsidered. policies with regard to applied or legislation recognition/ Constitution.
Not abolished but property. should be interpreted. protection from Ex parte Presid
of the Republic
applied with care and New laws changed the Cases decided before courts.
South Africa: In
circumspection. face of law property 1994 were informed Consitution is clear
Pharmaceutical
Must consider but must be evaluated by the then still that can’t be ignored.
Manufacturers
whether will against values and prevailing laws of Must be awared Association of So
promote/frustrate aspirations in apartheid and is no proper place and Africa: CC deci
ideals of human Constitution. longer accepted recognition in law of that there is o
dignity, freedom and authority. property. system of
equality. Minisiter of Interior v Might be in conflict shaped by
Lockhat: with constitutional Consittution, wh
discrimination brought principles. is the supreme
by Group Areas Act from which all
was inevitable result of derives its force
‘colossal social to which all law
experiment’ of subject.
apartheid.
, 4. Terminology
Person: a legal subject who can acquire and exercise rights and obligation in law. A legal
subject can be either a natural person or a juridical person.
Object: anything with regard to which a person can acquire and hold a right.
Property: everything which can form part of a person’s estate, including corporeal things
and incorporeal interests and rights.
Thing: a specific category of property, which is 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: independent parts of nature which can be controlled by humans and
which have some use of value for humans.
Right: a legally recognized and valid claim by a subject to a certain object. Not all relations
between a person and an object are recognized and protected by law.
Property right: any legally recognized claim to or interest in property.
Lawful/unlawful: a claim or action is lawful when it is acknowledged and protected by
existing legal principles and unlawful when it is in conflict with or not acknowledged by the
law.
Remedy: a legal procedure provided by the legal system to protect a right against
infringement or to control the effects of an unlawful act or situation.
1. Scope and content of the law of property
In the widest sense it deals with ‘property.’
Includes all assets that form part of a person’s estate (non-legal term ‘possessions’).
Property includes:
o immovable assets (house);
o movable assets (motor car/cattle);
o immaterial property (patent/copyright);
o and a variety of other assets.
Definition is too wide for purposes of this subject, so we define more restrictively.
Private law: concerns itself with legal relationships and transactions between private
subjects operating in a more or less equal footing.
Public law: deals with the so-called vertical relationship between the state (or various state
organs) and private individuals.
s25 of the Constitution provides protection for rights in property, and consequently the law
of property must take note of constitutional principles and their effects upon private law.
Law of property is no longer restricted to corporeal assets or things, and therefore the term
‘law of property’ is currently more appropriate that the ‘law of things.’
Also deals with relationships that do not qualify as rights and they are important because of
their legal implications.
o These relationships are described as unlawful control of property, to which the person
in question has no right.
o These unlawful property relationships must be distinguished carefully from property
rights.
2. Sources of traditional property law (law of things)
Traditionally described within the restricted ambit of Roman-Dutch private law.
Sources of the law of things were described as:
o Mainly Roman-Dutch common law
o Complemented by South African legislation and case law.
Roman-Dutch common law: found in the writings of the great Roman-Dutch lawyers of the
seventeenth and eighteenth centuries, such as Grotius, Voet and Van der Linden.
Legislation: consists of statutes or Acts promulgated by, especially, the national legislature
of parliament.
o Pre-1994: Sectional Titles Act and Security By Means of Movable Property Act
o Most important new legislation: Constitution of the Republic of South Africa
Case law: (precedent) consists of the authoritative decisions of the high court.
o Important examples:
Ex parte Geldenhuys: deals with distinction between real rights and creditor’s rights.
Setlogelo v Setlogelo: deals with the requirements for obtaining and interdict.
, Pre-1994 sources left impression of the development of property law, and to a very large
extent the writings of the Roman-Dutch authors, legislation of South African legislative
authorities and earlier decisions of the South African courts still constitute a major part of
the written tradition upon which the law of property is built.
The sources of law of property must be seen in a new perspective
o Namely the transition from a society dominated by a largely white, privileged minority
to a ‘society based on democratic values, social justice and fundamental human rights.’
o This is as a result of legal, socio-political and economic developments and changes.
Transition:
o Old discriminatory laws shall be abolished;
o New democratic laws shall be promulgated;
o And the whole existing legal system and its tradition, background and sources must be
re-evaluated and, where necessary, amended.
S39(2) of the Constitution provides that all principles of existing common law and customary
law shall, as far as possible, be interpreted and applied with due regard to the spirit and
objectives of the Constitution, which embodies the aspirations and ideals of the new,
democratic legal order.
In line with this process of transition:
o The traditional sources and the background of law of property in common and
customary law have to be re-evaluated and reconsidered;
o Existing common-law and customary law principles have to be interpreted and applied
with sensitivity and;
o With recognition of the fact that the background against some of which they were
created and developed has changed dramatically.
Similar considerations apply with regard to the authority of existing and pre-1994 legislation
and case law.
, 3. Sources of current law of property
Common law Statutes Case law Customary Constitution
Was always most Played increasingly Has always been During apartheid All sources must
important source. important role. important: indicated customary law were interpreted
Result of changes in During apartheid: used how common-law regarded as primitive applied with
society, its role and to introduce and principles should be legal relationships. regard to the s
value must be enforce segregatory interpreted and Did not enjoy and objective of
reconsidered. policies with regard to applied or legislation recognition/ Constitution.
Not abolished but property. should be interpreted. protection from Ex parte Presid
of the Republic
applied with care and New laws changed the Cases decided before courts.
South Africa: In
circumspection. face of law property 1994 were informed Consitution is clear
Pharmaceutical
Must consider but must be evaluated by the then still that can’t be ignored.
Manufacturers
whether will against values and prevailing laws of Must be awared Association of So
promote/frustrate aspirations in apartheid and is no proper place and Africa: CC deci
ideals of human Constitution. longer accepted recognition in law of that there is o
dignity, freedom and authority. property. system of
equality. Minisiter of Interior v Might be in conflict shaped by
Lockhat: with constitutional Consittution, wh
discrimination brought principles. is the supreme
by Group Areas Act from which all
was inevitable result of derives its force
‘colossal social to which all law
experiment’ of subject.
apartheid.
, 4. Terminology
Person: a legal subject who can acquire and exercise rights and obligation in law. A legal
subject can be either a natural person or a juridical person.
Object: anything with regard to which a person can acquire and hold a right.
Property: everything which can form part of a person’s estate, including corporeal things
and incorporeal interests and rights.
Thing: a specific category of property, which is 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: independent parts of nature which can be controlled by humans and
which have some use of value for humans.
Right: a legally recognized and valid claim by a subject to a certain object. Not all relations
between a person and an object are recognized and protected by law.
Property right: any legally recognized claim to or interest in property.
Lawful/unlawful: a claim or action is lawful when it is acknowledged and protected by
existing legal principles and unlawful when it is in conflict with or not acknowledged by the
law.
Remedy: a legal procedure provided by the legal system to protect a right against
infringement or to control the effects of an unlawful act or situation.
