The Principles of the
Law of Property
H Mostert, A Pope, P Badenhorst,
W Freedman, J Pienaar, J van Wyk
© Oxford University Press Southern Africa 2011
[Link]/za
Chapter 1
PERSPECTIVE ON PROPERTY
LAW
Sources of the South African law of
property
The South African law of property has the following main
sources:
• Roman-Dutch common-law principles
• Statutes dealing with property law issues
• Case law (judicial precedent)
• The Constitution
– The Constitution of the Republic of South Africa, 1996.
The meaning of “property”
• The term “property” has a range of colloquial (informal)
meanings
• However, “property” in the technical legal sense refers to the
rights of people in or over certain objects or things
• “Property” is therefore a shorthand reference to a legal
person’s ability, or right, to undertake certain actions with
certain kinds of objects.
Concepts of property in South African law
The use of the term “property” in South African law can refer to:
• The right of ownership in a legal object
• The legal object to which the right of ownership relates
• The legal relationships which qualify for constitutional
protection.
The function of the law of property
• The function of the law of property is to:
– Harmonise different individual interests in respect of things (property)
– Guarantee and protect individual rights and group rights in respect of
property
– Control the relationship between natural / juristic persons, the things
to which they are entitled, and the rights and obligations which arise
from these relationships between different persons in respect of things.
• The social function of property law is to manage the competing
interests of persons who acquire and enjoy property interests,
sometimes at the expense of one another. Eg…usufruct
Limits and duties imposed by law
• The law of property not only protects private (and sometimes group)
interests in property, but also imposes duties (remove dangers etc.)
on owners of property and limits (nuisance; servitudes etc.) on the
exercise of the rights of ownership
• The constitutional provisions relating to the right to property (section
25 of the Constitution) establish limits within which a person is free
to deal with his property and that which belongs to others
• Thus, the law protects the right to property, but imposes limits on
how the right to property is to be exercised, and presumes that all
who are enjoying the right to property are bound by the duties it
entails.
Property law as part of private law
• Traditionally, property law was regarded as forming part of
private law, along with succession, contract, delict, family law
and the law of persons
• The law of property regulated the relationship between private
individuals and things, as well as the rights and obligations that
emanate from these relationships
• Thus, the law of property deals with subjective rights and
legal objects (a thing in respect of which a person may hold a
legal right).
Property law and public law
• However, property law cannot be divorced from public law and in fact incorporates
aspects of private law and public law
• Increasingly, the private ownership of property is coming under public control,
largely through planning and environmental law
• The state also regulates the transfer of land from one private individual to
another through the conveyancing process
• The state may also expropriate a private person’s property in the public interest,
subject to compensation being paid to that person
– E.g. in terms of section 2 of the Expropriation Act 63 of 1975 the Minister may expropriate any
property for public purposes or take the right to use temporarily any property for public
purposes.
– The expropriation must be subject to the obligation to pay compensation.
• A private person can also be made to forfeit property because it was instrumental
in the commission of a crime.
Sources of South African property law
• The law of property is influenced strongly by Roman-Dutch
principles (rei vindicatio; mandament van spolie or known as
spoliation – it provides relief to persons who have been
deprived of goods without due legal procedure having been
followed – it is a remedy for the deprived) and, to a lesser
extent, English law (estopel)
• However, persons living in terms of African customary law
adhere to a system of principles relating to property use and
distribution that do not have their basis in Roman-Dutch law.
(communal land rights)
“Property” and “things”
“Things” usually refers only to corporeal (tangible) legal
objects that are capable of being owned.
“Property” is a broader term which refers to a wide variety of
patrimonial assets, some of which may not be corporeal or
even protected as property in private.
The scope of the law of property
• Property law deals with legal subjects’ factual and legal
relationships with things
• Property law deals with concepts such as possession and
ownership of things
• The law of property also describes what things constitute legal
objects, and classifies things according to their nature and
consequences
The scope of the law of property
(continued)
• Property law distinguishes between different kinds of
relationships in respect of property and indicates how these
rights are to be classified – such as, for instance,
- real rights; and
- personal/creditors rights.
• The law of property sets out how real and personal rights may
be acquired, protected and lost
• The law of property also deals with factual relationships which
do not give rise to legal relationships, such as bare possession.
Property law and the Constitution
• The right to property is protected as a fundamental right in section 25 of
the Constitution
– The Constitution therefore protects the right to (private) property
• Section 25 sets out the circumstances in which private property may be
regulated or expropriated
• Section 25 also contains provisions which provide for the reform of land
law
• In particular, section 25 provides that persons who were dispossessed of
rights in land after 1913 have a right to restitution, either in kind or by
the payment of money, in respect of that land
• Section 26 of the Constitution provides for access to housing as a
separate fundamental right.
Land reform
• The Constitution mandates an orderly and progressive system
of land reform
• The 1997 White Paper on Land Reform (“the White Paper”)
sets the following targets in respect of land reform:
– Redressing the injustices of apartheid
– Fostering national reconciliation and stability
– Underpinning economic growth
– Improving household welfare and alleviating poverty.
Land reform (continued)
• The White Paper identifies three main objects of the land
reform process:
– Land restitution
– Redistribution of land
– Tenure reform.
Key statutes relating to property law
• Prevention of Illegal Evictions from and Unlawful Occupation of
Land Act 19 of 1998
• Restitution of Land Rights Act 22 of 1994
• Deeds Registries Act 47 of 1937
• Extension of Security of Tenure Act 62 of 1997
• Land Reform (Labour Tenants) Act 3 of 1996.
African customary law and the common
law
• In the past, African customary law was marginalised and
subordinated to the (Western) common law
• The Constitution mandates a reappraisal of the relationship
between the common law and African customary law
• This issue was addressed by the Constitutional Court in Alexkor
(Pty) Ltd v Richtersveld Community and Others 2004 (5) SA 460
(CC), where the Constitutional Court recognised that an
indigenous community had real rights in respect of land which
it had owned under African customary law.
The Principles of the Law of Property
Thank you.
© Oxford University Press Southern Africa 2011
[Link]/za