Topic 1: Introduction to property law & things
Introduction
Definition
Property in a legal sense means rights of people in or over certain objects or things. It can refer to (1) the right of
ownership, (2) the legal object itself, and (3) legal relationships.
Function
The function of property law is to harmonize different individual interests; guarantee and protect individual rights;
and to control the relationships between natural and juristic persons, the things they are entitled to and the rights
and obligations that arise from these relationships. The social function is to manage competing interests.
Place
Property law comes from both private law (regulates relationship between individuals) and public law (regulates
relationship between individuals and the state). It forms part of patrimonial law, which deals with the assets or
estate of an individual.
Property law changed significantly after 1996, with the focus being on land reform. While formal apartheid has
been abolished, social and economic apartheid remain.
Source of property law
Roman-Dutch common law principles
Statutes
Case law (judicial precedent)
Constitution
"There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including
the common law, derives its force from the Constitution and is subject to Constitutional control."
Things
A thing is a much narrower concept than property, and a thing is not always property (since property can refer to
rights over an object). A thing is defined by the following characteristics:
► Corporeality
○ Tangible, i.e. can be perceived by any of the 5 senses and occupies space.
○ A common characteristic but NOT essential.
► Impersonal nature
○ A human being is not a thing, they are legal subjects not legal objects. All humans have an inherent and
inalienable right to dignity. The National Health Act deals with donations of body parts. Renewable body
parts such as hair may be sold.
► Independence
○ Refers to juridical independence, not physical. Must be able to legally exist independently.
○ When you buy a house, the land comes with it unless court order states otherwise.
► Appropriability
○ Susceptible to human control (can enforce and protect right in a thing)
○ The air is not a thing, but air in a cylinder is a thing. Planets are not a thing.
► Use and value
○ Both economic and sentimental value
○ Includes negative value, such as toxic waste
A thing is therefore any independent object, corporeal, not part of a human being, may be controlled by humans
and is of use and value to them.
Rights vs property vs things
Property Law (Sem 1) Erica Vegter Page 1
,Rights vs property vs things
Rights = the most important relationship between a legal subject and an object.
Property = broader concept, includes objects but also claims with regard to objects.
Things = defined according to its characteristics as a tangible object.
Classification of things
1. Negotiability
○ Negotiable
▪ Currently owned (by individuals or corporate bodies)
▪ Not currently owned (never been owned or abandoned)
○ Non-negotiable
▪ Common to all
▪ Public
▪ Religious things
2. Nature
○ Corporeal vs incorporeal
▪ Corporeal = tangible, can be perceived by senses.
▪ Incorporeal = abstract conceptions with no physical existence but an intrinsic pecuniary value (eg.
shares, cryptocurrencies, intellectual property rights).
○ Movable vs immovable
▪ Movable = can be moved without being damaged or losing its legal identity.
▪ Personal rights are always movable regardless of whether the underlying asset or object is
movable/immovable .
○ Single vs composite
▪ Single thing = individual things that exist independently and can be grouped in a collection.
▪ Composite thing = single entity in law that consists of principal thing (gives identity), accessories
and/or auxiliaries.
○ Fungible vs non-fungible
▪ Fungible = separate individual entities which are identical and interchangeable and distinguished
by weight/number/size (eg. money).
▪ Non-fungible = Individually determined, unique by nature, specified characteristics.
○ Consumables vs non-consumables
▪ Consumables = consumed through use, destined to be used up, substantial reduction in value over
time (eg. food/fuel).
▪ Non-consumables = use does not result in substantial change or reduction of thing.
○ Divisible vs indivisible
▪ Divisible = can be separated into parts, each with the same purpose and function as before (eg.
barrel of wine, land).
▪ Indivisible = cannot be divided this way.
Property Law (Sem 1) Erica Vegter Page 2
, Topic 2: Rights in property
Real rights
Real rights establish a direct relationship between a person and the property. It is a right you have over an object,
and is enforceable against the whole world. Real rights must be registered ito the Deeds Registries Act and are
automatically enforceable against a successor in title. Ownership is the most absolute real right and gets the most
protection.
Personal rights
Personal rights establish a relationship between one person and another in respect of a delictual or contractual
claim called a performance. It is a right you have in relation to a person, and is enforceable against a specific
person or group of people. Some personal rights can be registered, but this doesn't change the nature of the right.
Personal rights are transferred by way of cession and a successor in title is not automatically bound.
Approaches to the distinction between real and personal rights
Theoretical approach
The classic theory focuses on the object to which the right relates and the relationship the person has with that
object.
The personalist theory looks at who the right operates against. A real right is absolute since it can be enforced
against the whole world, while a personal right is relative.
The courts' approach
The courts have developed a practical two-fold test to determine if a right is real or personal:
1. Was the right intended to bind successors in title?
2. Does the right constitute a subtraction from dominium? (ownership entitlements are diminished by
granting the right)
Both aspects must be satisfied for a right to be a real right.
Ex Parte Geldenhuys
Most authoritative case for the subtraction from dominium test. NB start your answer with this case.
Facts: A testator bequeaths a farm to his children. His will provides that at time of first child reaching majority, the
child who draws the part with the farmhouse must pay a certain amount of money to the other siblings. The
Registrar refused to register these conditions, arguing that they did not establish real rights.
Property Law (Sem 1) Erica Vegter Page 3
Introduction
Definition
Property in a legal sense means rights of people in or over certain objects or things. It can refer to (1) the right of
ownership, (2) the legal object itself, and (3) legal relationships.
Function
The function of property law is to harmonize different individual interests; guarantee and protect individual rights;
and to control the relationships between natural and juristic persons, the things they are entitled to and the rights
and obligations that arise from these relationships. The social function is to manage competing interests.
Place
Property law comes from both private law (regulates relationship between individuals) and public law (regulates
relationship between individuals and the state). It forms part of patrimonial law, which deals with the assets or
estate of an individual.
Property law changed significantly after 1996, with the focus being on land reform. While formal apartheid has
been abolished, social and economic apartheid remain.
Source of property law
Roman-Dutch common law principles
Statutes
Case law (judicial precedent)
Constitution
"There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including
the common law, derives its force from the Constitution and is subject to Constitutional control."
Things
A thing is a much narrower concept than property, and a thing is not always property (since property can refer to
rights over an object). A thing is defined by the following characteristics:
► Corporeality
○ Tangible, i.e. can be perceived by any of the 5 senses and occupies space.
○ A common characteristic but NOT essential.
► Impersonal nature
○ A human being is not a thing, they are legal subjects not legal objects. All humans have an inherent and
inalienable right to dignity. The National Health Act deals with donations of body parts. Renewable body
parts such as hair may be sold.
► Independence
○ Refers to juridical independence, not physical. Must be able to legally exist independently.
○ When you buy a house, the land comes with it unless court order states otherwise.
► Appropriability
○ Susceptible to human control (can enforce and protect right in a thing)
○ The air is not a thing, but air in a cylinder is a thing. Planets are not a thing.
► Use and value
○ Both economic and sentimental value
○ Includes negative value, such as toxic waste
A thing is therefore any independent object, corporeal, not part of a human being, may be controlled by humans
and is of use and value to them.
Rights vs property vs things
Property Law (Sem 1) Erica Vegter Page 1
,Rights vs property vs things
Rights = the most important relationship between a legal subject and an object.
Property = broader concept, includes objects but also claims with regard to objects.
Things = defined according to its characteristics as a tangible object.
Classification of things
1. Negotiability
○ Negotiable
▪ Currently owned (by individuals or corporate bodies)
▪ Not currently owned (never been owned or abandoned)
○ Non-negotiable
▪ Common to all
▪ Public
▪ Religious things
2. Nature
○ Corporeal vs incorporeal
▪ Corporeal = tangible, can be perceived by senses.
▪ Incorporeal = abstract conceptions with no physical existence but an intrinsic pecuniary value (eg.
shares, cryptocurrencies, intellectual property rights).
○ Movable vs immovable
▪ Movable = can be moved without being damaged or losing its legal identity.
▪ Personal rights are always movable regardless of whether the underlying asset or object is
movable/immovable .
○ Single vs composite
▪ Single thing = individual things that exist independently and can be grouped in a collection.
▪ Composite thing = single entity in law that consists of principal thing (gives identity), accessories
and/or auxiliaries.
○ Fungible vs non-fungible
▪ Fungible = separate individual entities which are identical and interchangeable and distinguished
by weight/number/size (eg. money).
▪ Non-fungible = Individually determined, unique by nature, specified characteristics.
○ Consumables vs non-consumables
▪ Consumables = consumed through use, destined to be used up, substantial reduction in value over
time (eg. food/fuel).
▪ Non-consumables = use does not result in substantial change or reduction of thing.
○ Divisible vs indivisible
▪ Divisible = can be separated into parts, each with the same purpose and function as before (eg.
barrel of wine, land).
▪ Indivisible = cannot be divided this way.
Property Law (Sem 1) Erica Vegter Page 2
, Topic 2: Rights in property
Real rights
Real rights establish a direct relationship between a person and the property. It is a right you have over an object,
and is enforceable against the whole world. Real rights must be registered ito the Deeds Registries Act and are
automatically enforceable against a successor in title. Ownership is the most absolute real right and gets the most
protection.
Personal rights
Personal rights establish a relationship between one person and another in respect of a delictual or contractual
claim called a performance. It is a right you have in relation to a person, and is enforceable against a specific
person or group of people. Some personal rights can be registered, but this doesn't change the nature of the right.
Personal rights are transferred by way of cession and a successor in title is not automatically bound.
Approaches to the distinction between real and personal rights
Theoretical approach
The classic theory focuses on the object to which the right relates and the relationship the person has with that
object.
The personalist theory looks at who the right operates against. A real right is absolute since it can be enforced
against the whole world, while a personal right is relative.
The courts' approach
The courts have developed a practical two-fold test to determine if a right is real or personal:
1. Was the right intended to bind successors in title?
2. Does the right constitute a subtraction from dominium? (ownership entitlements are diminished by
granting the right)
Both aspects must be satisfied for a right to be a real right.
Ex Parte Geldenhuys
Most authoritative case for the subtraction from dominium test. NB start your answer with this case.
Facts: A testator bequeaths a farm to his children. His will provides that at time of first child reaching majority, the
child who draws the part with the farmhouse must pay a certain amount of money to the other siblings. The
Registrar refused to register these conditions, arguing that they did not establish real rights.
Property Law (Sem 1) Erica Vegter Page 3
