Property
Law
(RDL2002H)
Notes and case
summaries
Rémy Ngamije
1|Page
,Section 1: Introduction
• Property law is a highly abstract discipline, based on classical disciplines, tested by time and
adapted where necessary.
• It is not only the source through which property lawyers derive their income, but also the
medium through which socio-economic and political issues are resolved.
• Property in law means rights: rights of people in or over certain objects or things.
Function of property law
• The function of property law is to:
Harmonise competing interest in respect of property.
To guarantee and protect individual rights (or group interest) with respect to
property.
And to control relationships between natural and juristic persons and the things to
which they are entitled, and (enforce) the rights and obligations that arise from
these relationships in respect of things.
• Property law plays an important role in a market economy. It controls the competing
interests that people have in a market economy by not only granting rights but also
conferring duties upon the owners of property.
• Property law protects private interests in property though such protection is not absolute.
This is an essential thing to understand.
Place of property law
• Private law is generally defined as that body of law that regulates the legal relationships
between individuals while public law regulates the legal relationships between the
individual and the state – property law straddles these two spheres.
• Traditionally, private law is grouped within the larger sphere of patrimonial law. This
sphere of law deals with the assets or estate of an individual. It comprises of the law of
succession and the law of obligations.
• The function of property law is to regulate the relationships between people and things.
However, this relationship often transcends the private sphere of law and touches on
aspects of public law.
• Property law can only be adequately understood as floating between the public and private
law, interpreted through the constitutional medium.
Roots of property law
• South Africa has a mixed legal system, it comprises of elements of the civilian law as well as
strands of the English common law. These two strands exist because of the colonial history
of South Africa.
• The basic foundations of SA’s property law are founded in Roman law as interpreted through
the Roman-Dutch spectrum although some definitions and substances of the law have
English traits.
• Property law is strongly influenced by civilian principles. The greatest effect that can be
seen of this trait is the treatment of property rights as subjective rights. This feature of
2
, property law was transmitted by German Pandectism. This school of thought involved a
return to and expansion of the work of the classical Roman lawyers. In doing so, they
empahsised the universality of Roman law principles.
• The doctrine of subjective rights still forms the backbone of the SA civil law concept of
ownership, which is described as the pinnacle in a hierarchy of rights, because of the way it
is enforced and because of its broad content.
• The Pandectist method of scientific systematisation resulted in the depiction of ownership
as a universal, timeless, abstract and logical concept.
• The civil-law based understanding of property law is not the only one that applies in SA. SA
also uses customary law as a source of property law.
Scope of property law
• Property law is often taken to mean “the law of things” although the words property and
thing differ greatly in meaning.
• Property is taken to refer to a wide variety of patrimonial assets not all of which are
necessarily tangible or even protected in private law.
• The term thing however, is usually understood in its more restricted sense, referring to only
tangible or corporeal objects. The term property law is preferred because it covers the
relationship between individuals and legal objects which are not necessarily corporeal, but
which are nonetheless, subject to ownership.
• Property law regulates both factual (actual, existing situation) and legal (the position of the
law) relationships with regard to things.
• It outlines what can and cannot be owned, how one acquires property and how one can
alienate such property. Property law also describes the manner in which property rights
can be defended and how one can protect possession.
• Statutory provisions are also particularly important as a source of property law since Acts of
Parliament outline how certain property can be acquired. An important example is the
Deeds Registration Act – which outlines how one can acquire land and sets out the ways in
which the registration of land can occur.
• Property law is particularly important in the regulation of land rights especially after the
fall if the apartheid regime.
o In this regime, property law was manipulated to create varying strengths of
property rights that were dependent on racial discrimination.
o Thus, white people had stronger real rights while black people were not really
owners of land, but lessees.
o In the apartheid years, it was also noticed that property law was used as a form of
oppression, an active tool in the segregation and alienation of black people from
native lands.
• Since the fall of apartheid, property law has been reformed to try and achieve
transformative ends – to address that past injustices that were and still are prevalent in
South Africa. The Constitution of the Republic of South Africa not only outlines the
importance of property rights, but also details extensively the need and manner in which
land reform should take place.
3
, Sources of property law
• Common law, precedent and statutory law were regarded as the traditional sources of
property law. These old preconceptions have now disappeared after the introduction of the
Constitution of South Africa.
• The Constitution of South Africa, now the highest law of the land forms a source of law since
anything not in line with it cannot become law.
• Customary law has also been outlined as a source of property law.
Property law recontextualised
• Property is essentially a social and political institution.
• It is predominant – all laws and other social institutions are shaped around the boundaries of
property. It is central to social organisation.
• Property has value because it is a method of wealth-creation.
• Property is inherently exclusionary – exclusivity allows for the enjoyments of the use of
property.
• Property can be used as a means to access finance.
• Numerous debates rage about the importance of property law in SA today. Some argue that
it can be used to address the injustices of the past. Others state that this is not the role that
property law should play, that it should rather be used as a means of driving the national
economy.
• Property law is no longer deemed to exist only in the realm of private law. Although the
rules that governing acquisition, protection and transfer of property are based in property
law, they are intricately influenced by public law and customary law.
Principles and challenges
1. Transmissibility
• Real rights are freely alienable and transmissible.
• The only exception to this rule is when rights follow the person or their holder closely –
such as usufructs. These are inalienable.
• A servitude cannot be alienated separately from the dominant tenement.
• The alienability of land may be limited contractually (Through agreement) or
statutorily (by some Act of Parliament such as the Land Reform Act). In circumstances
where the alienation of land is limited through contract, then the terms must be
registered against the title deed.
• Indigenous land rights are transmissible in terms of and within the parameters of
customary law.
2. Numerus clauses
• SA property law relies closely on closed categories or systems.
• Where the numerus clausus is applicable, high levels of certainty are possible – it
becomes easier to determine what laws of property operate when a certain problem is
encountered.
• When there is no numerus clausus, then the law becomes more flexible and uncertain.
4
Law
(RDL2002H)
Notes and case
summaries
Rémy Ngamije
1|Page
,Section 1: Introduction
• Property law is a highly abstract discipline, based on classical disciplines, tested by time and
adapted where necessary.
• It is not only the source through which property lawyers derive their income, but also the
medium through which socio-economic and political issues are resolved.
• Property in law means rights: rights of people in or over certain objects or things.
Function of property law
• The function of property law is to:
Harmonise competing interest in respect of property.
To guarantee and protect individual rights (or group interest) with respect to
property.
And to control relationships between natural and juristic persons and the things to
which they are entitled, and (enforce) the rights and obligations that arise from
these relationships in respect of things.
• Property law plays an important role in a market economy. It controls the competing
interests that people have in a market economy by not only granting rights but also
conferring duties upon the owners of property.
• Property law protects private interests in property though such protection is not absolute.
This is an essential thing to understand.
Place of property law
• Private law is generally defined as that body of law that regulates the legal relationships
between individuals while public law regulates the legal relationships between the
individual and the state – property law straddles these two spheres.
• Traditionally, private law is grouped within the larger sphere of patrimonial law. This
sphere of law deals with the assets or estate of an individual. It comprises of the law of
succession and the law of obligations.
• The function of property law is to regulate the relationships between people and things.
However, this relationship often transcends the private sphere of law and touches on
aspects of public law.
• Property law can only be adequately understood as floating between the public and private
law, interpreted through the constitutional medium.
Roots of property law
• South Africa has a mixed legal system, it comprises of elements of the civilian law as well as
strands of the English common law. These two strands exist because of the colonial history
of South Africa.
• The basic foundations of SA’s property law are founded in Roman law as interpreted through
the Roman-Dutch spectrum although some definitions and substances of the law have
English traits.
• Property law is strongly influenced by civilian principles. The greatest effect that can be
seen of this trait is the treatment of property rights as subjective rights. This feature of
2
, property law was transmitted by German Pandectism. This school of thought involved a
return to and expansion of the work of the classical Roman lawyers. In doing so, they
empahsised the universality of Roman law principles.
• The doctrine of subjective rights still forms the backbone of the SA civil law concept of
ownership, which is described as the pinnacle in a hierarchy of rights, because of the way it
is enforced and because of its broad content.
• The Pandectist method of scientific systematisation resulted in the depiction of ownership
as a universal, timeless, abstract and logical concept.
• The civil-law based understanding of property law is not the only one that applies in SA. SA
also uses customary law as a source of property law.
Scope of property law
• Property law is often taken to mean “the law of things” although the words property and
thing differ greatly in meaning.
• Property is taken to refer to a wide variety of patrimonial assets not all of which are
necessarily tangible or even protected in private law.
• The term thing however, is usually understood in its more restricted sense, referring to only
tangible or corporeal objects. The term property law is preferred because it covers the
relationship between individuals and legal objects which are not necessarily corporeal, but
which are nonetheless, subject to ownership.
• Property law regulates both factual (actual, existing situation) and legal (the position of the
law) relationships with regard to things.
• It outlines what can and cannot be owned, how one acquires property and how one can
alienate such property. Property law also describes the manner in which property rights
can be defended and how one can protect possession.
• Statutory provisions are also particularly important as a source of property law since Acts of
Parliament outline how certain property can be acquired. An important example is the
Deeds Registration Act – which outlines how one can acquire land and sets out the ways in
which the registration of land can occur.
• Property law is particularly important in the regulation of land rights especially after the
fall if the apartheid regime.
o In this regime, property law was manipulated to create varying strengths of
property rights that were dependent on racial discrimination.
o Thus, white people had stronger real rights while black people were not really
owners of land, but lessees.
o In the apartheid years, it was also noticed that property law was used as a form of
oppression, an active tool in the segregation and alienation of black people from
native lands.
• Since the fall of apartheid, property law has been reformed to try and achieve
transformative ends – to address that past injustices that were and still are prevalent in
South Africa. The Constitution of the Republic of South Africa not only outlines the
importance of property rights, but also details extensively the need and manner in which
land reform should take place.
3
, Sources of property law
• Common law, precedent and statutory law were regarded as the traditional sources of
property law. These old preconceptions have now disappeared after the introduction of the
Constitution of South Africa.
• The Constitution of South Africa, now the highest law of the land forms a source of law since
anything not in line with it cannot become law.
• Customary law has also been outlined as a source of property law.
Property law recontextualised
• Property is essentially a social and political institution.
• It is predominant – all laws and other social institutions are shaped around the boundaries of
property. It is central to social organisation.
• Property has value because it is a method of wealth-creation.
• Property is inherently exclusionary – exclusivity allows for the enjoyments of the use of
property.
• Property can be used as a means to access finance.
• Numerous debates rage about the importance of property law in SA today. Some argue that
it can be used to address the injustices of the past. Others state that this is not the role that
property law should play, that it should rather be used as a means of driving the national
economy.
• Property law is no longer deemed to exist only in the realm of private law. Although the
rules that governing acquisition, protection and transfer of property are based in property
law, they are intricately influenced by public law and customary law.
Principles and challenges
1. Transmissibility
• Real rights are freely alienable and transmissible.
• The only exception to this rule is when rights follow the person or their holder closely –
such as usufructs. These are inalienable.
• A servitude cannot be alienated separately from the dominant tenement.
• The alienability of land may be limited contractually (Through agreement) or
statutorily (by some Act of Parliament such as the Land Reform Act). In circumstances
where the alienation of land is limited through contract, then the terms must be
registered against the title deed.
• Indigenous land rights are transmissible in terms of and within the parameters of
customary law.
2. Numerus clauses
• SA property law relies closely on closed categories or systems.
• Where the numerus clausus is applicable, high levels of certainty are possible – it
becomes easier to determine what laws of property operate when a certain problem is
encountered.
• When there is no numerus clausus, then the law becomes more flexible and uncertain.
4
