Law of Property
LWPRA3-B22
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Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008
WEEK 0
INTRODUCTION TO PROPERTY LAW
Week 0
What will be covered in this week’s lesson?
• The meaning of ‘property’
• Concepts of property in South African law
• Context of Property Law - framework and sources
• Function of Property Law
• Roots of Property Law
• Scope of Property Law
Prescribed Material
• Chapter 1, The Principles of the Law of Property in
South Africa.
1. Property: An evasive term
• Property is a widely used term with many different
connotations.
• ‘property’ refers to a particular object. E.g. her car, his
house, my farm.
• In everyday life, property can be used to refer to
objects but In the legal context, it is a complex matter
to use the word properly.
1.1 The use of ‘property’ in everyday language
• On the street, one may hear the term used to refer to
many different kinds of belongings.
• Usually involves the use of possessive pronoun.
• E.g. Susan may refer to ‘her’ property when she speaks of her
iPod; her music collection she bought online, which is stored on
her iPod.
• The fact that people refer to an iPod, a music collection, a song, a
home or a dog as property in everyday language does not mean
that all these r/ships are protected by the legal principles
discussed in this course.
• The meaning of property is affected by the ideologies prevalent in
the setting in which it is used.
• Property may refer to means to create wealth in a capitalist
society.
• It may have a range of completely different meanings in a socialist
or communist system.
• In SA, ‘property’ can also pertain to informal relations with land
and other things.
• IOW, people regard their relations with certain things as
property, even though such relations are not recognised or
regulated by law.
• Because such relations are economically invisible, they have only
limited potential to create wealth.
1.2 What ‘property’ means to lawyers
• ‘Property’ in the legal, technical sense of the word means rights:
rights of people in/over certain objects or things.
• Property, is therefore, a shorthand reference to someone’s
ability to undertake certain actions with certain kinds of objects.
• Lawyers use ‘property’ in many different contexts. Three of
these concepts are:
- Right of ownership in a legal object;
- The legal object to which the right of ownership relates;
- All the legal r/ships that qualify for constitutional protection
under the constitutional property clause, even though they
do not necessarily amount to either the right of
ownership/the object to which ownership relates.
2. Context of Property Law: Framework and sources
• The r/ships between people and objects form the
basis of property law, which determines what people
may and can do with the things that belong to them.
• It determines how they may protect their belongings.
• It prescribes how people may acquire more things, or
how they can dispose of these things.
• These considerations determine the place, function
ad scope of property law.
2.1 Function of property law
• Formal function of PL is to harmonise different individual
interests iro property;
• To guarantee and protect individual rights (sometimes
group rights) to property;
• and to control the r/ships between natural/juristic
persons, the things to which they are entitled, and the
rights and obligations that arise from these r/ships
between different persons in respect of things.
• The social function of PL is to manage the competing
interests of people who acquire and enjoy property
interests, some times at the expense of one another.
• PL protects private interests in property, but not in an
absolute sense.
• Alongside the existing private law framework, the
constitutional provisions operate to turn property into
a mechanism to determine the limits within which a
person is free to deal with his property & that
belonging to others.
• Hence, the law protects property and the freedom to
enjoy it, but it also presumes that all who enjoy this
freedom are bound by the duties it entails.
2.2 Place of property law
PRIVATE LAW
PATRIMONIAL LAW
LAW OF LAW OF LAW OF
PROPERTY SUCCESSION OBLIGATIONS
LAW OF PERSONS &
FAMILY
-LAW OF CONTRACT
-LAW OF DELICT
• Private Law vs. Public Law
• Private Law regulates the r/ships between individuals.
• Public Law regulates the r/ships between the state and
individuals.
• Classification lies in the formal function PL.
• This is to regulate the r/ships between individuals
regarding certain objects;
• The r/ships between individuals and such objects; as well
as the rights and obligations that emanate from these
r/ships.
• The fact that the law affords human beings(natural persons)
and some kind of associations (juristic persons) legal
subjectivity means that such persons bear capacities, rights,
entitlements and duties.
• These capacities, rights and obligations can be exercised iro
various types of ‘legal objects’.
• A ‘legal object’ is anything in respect of which a person may
hold a right.
• In property law, these rights and duties relate to a class of
legal objects termed ‘things’ (res).
• SA law has permitted the use of proprietary remedies to
protect both tangible & intangible objects.
3. Roots of property law
• SA is home to mixed legal system.
• SA common law originates from the legal tradition of the
European Continent.
• Roman law
• Roman-Dutch law
• English ‘Common law’
• African customary law.
3.1 Scope of property law
• PL is regarded as synonym for ‘the law of things’.
• Property is used broadly to refer to a wide variety of
patrimonial assets, not all of which are tangible/ even
protected as property in private law.
• The term things, however, is usually understood in a
more restricted sense, referring only to tangible or
corporeal objects.
• The system of rules that comprises PL regulates both
factual and legal r/ships wrt things.
• It covers r/ships such as possession of a toy or land, as
well as ownership of such types of property.
• The Law of Persons (LOP) defines the legal object to which
it applies,and classifies various types of property
according to their nature & consequences.
• It distinguishes different kinds of r/ships iro property and
classifies them, e.g. real rights or personal rights.
• The LOP indicates:
- How these rights differ from each other;
- How one may distinguish between different kinds of real
rights according to their scope and according to the
holder of the right.
• The scope of property law has always been influenced
significantly by the host of statutory provisions that deal
with special regulation of certain aspects of property.
3.2 Scope of property law
(I) Roman Law basis.
(II) Roman Dutch common law principles.
(III) Statutory law (legislation).
(IV) Case law (judicial precedent).
(V) African customary law.
(VI) The Constitution of the Republic of South Africa 108
of 1996
