INTRODUCTION TO

PROPERTY LAW
ADV. KOLA
 INTRODUCTION TO PROPERTY LAW
Textbook Chapter 1
Casebook [1] Pearly Beach Trust v Registrar of Deeds 1990 4 SA 614 (C)
Learning outcomes After engaging with the materials and activities in this study
unit you
should be able to:
 Define the following terminology:
a. person;
b. object;
c. property;
d. thing;
e. right;
f. right in property;
g. lawful;
h. remedy.
 Indicate the field of study of property law;
 Discuss where property law fits into the legal system;
 Describe the sources of South African property law;
 Analyse a court case according to the prescribed method.
 INTRODUCTION TO PROPERTY LAW
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 INTRODUCTION TO PROPERTY LAW

1. Scope and content of the law of property

2. Background, sources and current
development
2.1. Sources of traditional law of things
2.2. Sources of current law of property
3. Terminology
4. Summary
 INTRODUCTION TO PROPERTY LAW

1.Scope and
content of the
law of property
 INTRODUCTION TO PROPERTY LAW
In the widest sense the law of property deals with ‘property’,
including all assets that form part of a person’s estate, or what is
referred to in non-legal terminology as a person’s ‘possessions’.

In this sense property includes immovable assets such as a

house, movable assets such as a motor car or cattle, immaterial
property such as a patent or copyright in a book, and a variety of
other assets.

However, for purposes of the law curriculum this definition is too

wide, and the law of property, as it is understood for purposes of
this module, is defined more restrictively.
 INTRODUCTION TO PROPERTY LAW

Section 25 of the Constitution of the Republic of South

Africa of 1996 provides protection for rights in
property, and consequently the law of property must
take note of constitutional principles.

Constitutional property rights are discussed later in

the course.
INTRODUCTION TO PROPERTY LAW

2. Background,
sources and
current
development
2.1 Sources of
traditional law
of things
Traditionally the background and sources of the law of things were
described within the restricted ambit of Roman-Dutch private law. In
this context the sources of the law of things were described as
(mainly Roman-Dutch) common law, complemented by South
African legislation and case law.

Roman-Dutch common law is found in the writings of the great

Roman-Dutch lawyers of the seventeenth and eighteenth centuries,
such as rotius, Voet and Van der Linden.

Legislation consists of statutes or Acts promulgated by, specially,

the national legislature or parliament.

Examples of pre-1994 legislation which re important to the law of

property are the Sectional Titles Act 95 of 1986 and the security by
Means of Movable Property Act 57 of 1993; while perhaps the most
important new legislation is the Constitution of the Republic of
South Africa of 1996.
Case law (or precedent) consists of the authoritative
decisions of the high courts, and important examples of pre-
1994 cases are Ex parte Geldenhuys 1926 (O), which deals
with the distinction between real rights and creditor’s rights;
and Setlogelo v Setlogelo 1914 (A), which deals with the
requirements for obtaining an inderdict.

Obviously these pre-1994 sources of law left their

impression on 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 South African courts still constitute a major part
of the written tradition upon which the law of property is
built.
Sources of traditional law of things before 1994:

 (Roman-Dutch) common law (Grotius, Voet, Van der Linden)

 Statutory law (legislation) (Sectional Titles Act 95 of 1986)
 Case law (precedent) (Ex parte Geldenhuys 1926 (O))

However, as a result of legal, socio-political and economic

developments and changes, the sources of the law of property must
be seen in a new perspective, 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’
(as it is described in the preamble to the Constitution of 1996).

This transition means that old discriminatory laws shall be abolished,

and that new democratic laws shall be promulgated, but it also means
that the whole existing legal system and its tradition, its background
and its sources must be re-evaluated and, where necessary,
amended.
Section 39(2) of the Constitution provides that
all the 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 the

traditional background and sources of the law
of property in common law and customary law
have to be re-evaluated and reconsidered.
Existing common-law and customary law principles
have to be interpreted and applied with sensitivity, and
with recognition of the fact that the background
against which they were created and developed has
changed, in some respects dramatically.

Similar considerations apply with regard to the

authority of existing pre-1994 legislation and case law
– they must be understood and applied against the
background of their origin and with due regard for their
future role in the transition to a new kind of society
INTRODUCTION TO PROPERTY LAW

2.2. Sources of
current law of
property
 INTRODUCTION TO PROPERTY LAW

Sources of the current law of property since 1994:

a) (Roman-Dutch) common law

b) Statutory law (legislation)

c) Case law (precedent)

d) Customary law

e) Constitution (chapter 2)
(a)Common law

Roman-Dutch common law was always considered the most important

source of the traditional law of things.

However, as a result of the changes taking place in South African

society, the role and value of common-law rules must be reconsidered.

This does not mean that common law is abolished, but rather that it
must be applied with great care and circumspection in very case,
considering the question whether it will promote or frustrate the ideals of
human dignity, freedom and equality set out and protected by the
Constitution.

The following example shows that the mere abolition of apartheid laws
cannot guarantee that future applications of the common law would
automatically result in or promote justice and equality.
 INTRODUCTION TO PROPERTY LAW
Example

In terms of the common-law tradition the owner of a house is free

to use and dispose of her property as she sees fit. In principle this
freedom includes the right to lease the property to the lessee of
her choice, and if the owner did not wish to lease the property to
someone of a specific race group, she could not be forced to do
so.
Ironically, this freedom was restricted by apartheid laws, which
actually forced the owner to lease the property to people from her
own race group only. However, in view of the non-discrimination
provision in the Constitution this common law ‘freedom to
discriminate’ should not be revived; it would be unconstitutional.
The common-law authorities can, therefore, not be accepted
as they are – they have to be re-evaluated in view of the
current context to see whether they can still apply and how
they should apply.
 INTRODUCTION TO PROPERTY LAW

(b) Legislation
Legislation has played an increasingly important role in
the traditional law of things, and no doubt it will continue
to play an important role in future.
During the apartheid era legislation was often used to
introduce and enforce segregatory policies with regard to
property, and many people still see apartheid as
something that was upheld through legislation.
Consequently, they also think that apartheid can be
eradicated simply by abolishing the old apartheid laws.
Since most of the apartheid laws have now been
abolished, many people think that legislation no longer
creates a problem.
Example

The Prevention of Illegal Eviction from and Unlawful

Occupation of Land Act 19 of 1998 provides for the eviction of
unlawful occupiers of land. However, the predecessor to this Act,
the Prevention of Illegal Squatting Act 52 of 1951, was one of the
most draconian apartheid laws, and consequently the new law will
inevitably be applied and enforced with great circumspection.

New legislation can change the face of the law of property entirely,
but even new laws have to be evaluated against the recognised
and established values and aspirations that are embodied in the
Constitution.

The constitutional court has the authority to evaluate both old and
new laws and to declare them invalid if they are in conflict with the
Constitution. This process is called constitutional review.
(c) Case law
Case law (prior decisions of the high courts) always
formed an important source of the law of things,
especially in the sense that it indicated how common-
law principles should be interpreted and applied or
how legislation should be interpreted.

Obviously many cases that were decided before 1994

were informed by the then still prevailing laws and
spirit of apartheid, and such decisions can no longer
be accepted as authority.
Example

A good example is the infamous decision in Minister of the Interior v

Lockhat 1961 (A), where it was said that the discrimination and injustice
brought about by the application of the Group Areas Act 36 of 1966 was an
inevitable result of the ‘colossal social experiment’ of apartheid.

In this and other similar cases the plight of individuals was often
disregarded in order to promote subsequently discredited political
programmes.

In terms of section 26(2) of the Constitution, the Lockhat decision will at

present be unconstitutional. Accordingly the authority of most of the pre-
1994 decisions will have to be evaluated in terms of their current
acceptability. New decisions, especially those of the constitutional court, are
a very important source of the new law of property, since they will probably
embody the new aspirations and spirit of the 1993 Constitution.

However, even these new decisions may be unacceptable or become

outdated very quickly because of rapid social, political and legal
developments.
 INTRODUCTION TO PROPERTY LAW

(d) Customary law

During the apartheid era customary law property rights were

often regarded as primitive legal relationships, and they
enjoyed little recognition and protection from the courts.
In view of the Constitution it is clear that customary law
cannot just be ignored, and that it must be awarded its proper
place and recognition in the law of property.
On the other hand, certain precepts of customary law might
come into conflict with principles laid down by the
Constitution, especially with regard to equality.
Example

The holders of customary law land rights are usually men, while women
are awarded land rights only in exceptional cases. This might come into
conflict with the principle of equality laid down in the Constitution, and in
particular cases the courts may have to balance the values of customary
social practice against the constitutional value of equality.

In the Bhe case (2005 (CC)) the constitutional court decided that the
customary law principle of male primogeniture in succession was
unconstitutional because it discriminated against women and extramarital
children.

The value and authority of the customary law principles regarding

property rights must, therefore, be upheld and promoted in the current law
of property, but at the same time they will have to be re-evaluated with
due regard to the present context.
 INTRODUCTION TO PROPERTY LAW
(e) Constitutional law
All the sources of property law mentioned above, insofar as they
are still applicable and authoritative, must be interpreted and
applied with due regard to the spirit and objectives of the
Constitution of 1996.

This means that general values of the Constitution such as

equality will have to be taken into account when interpreting and
applying any of the other sources.

In Ex Parte President of the Republic of South Africa: In re

Pharmaceutical Manufacturers Association of South Africa 2000
(CC) the constitutional court decided that there is only one system
of law, shaped by the Constitution, which is the supreme law, from
which all law, including the common law, customary law and
legislation, derives its force and to which all law is subject.
INTRODUCTION TO PROPERTY LAW

3. Terminology
 INTRODUCTION TO PROPERTY LAW
Terminology

The law of property deals with the rights and actions

of persons with regard to things and other forms of
property, as well as other relations between persons
and property.
It describes the ways in which property rights can be
acquired and exercised lawfully and the remedies
by which they are protected against infringement, as
well as the legal results and implications of other
relations between persons and property.
 INTRODUCTION TO PROPERTY LAW

A person is a legal subject who can acquire and exercise rights

and obligations in law. A legal subject can be either a natural
person (any individual person) or a juridical person (groups or
Bodies operating and recognised as a single legal entity).
People can acquire and hold property rights individually, as in
the case of an individual’s right to her own pen; but they can
also do so in groups, as in the case of a sports club’s right to its
facilities.
In legal theory the people who acquire and hold rights in
property are referred to as persons.
Any individual is a natural person, whereas a group of people
who act together in acquiring and holding property rights is
referred to as a juridical person.
 INTRODUCTION TO PROPERTY LAW

An object is anything with regard to which a person

can acquire and hold a right.

A legal object is anything with regard to which a

person can acquire and hold a right. There are
different kinds of rights for different categories of
objects.
 INTRODUCTION TO PROPERTY LAW

Property is everything which can form part of a person’s estate,

including corporeal things and incorporeal interests and rights.

The object of property rights is property, which assumes various

forms for various categories of property rights.
The most important categories of property are physical or
corporeal things and incorporeal or immaterial property.

Examples of corporeal things are a book or a car (movable things)

and a piece of land or a house (immovable things).
Examples of incorporeal property are a patent or copyright
(intellectual property) and shares in a company or a usufruct of a
mineral lease (incorporeal things).
Other forms of property are real security rights and servitudes (limited
real rights), claims against a pension fund or a medical fund and a
government trade licence or concession.
 INTRODUCTION TO PROPERTY LAW
A thing is 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.

Traditionally the most important category of objects for

purposes of the law of things was corporeal things.
Corporeal things are, however, not the only objects of the
modern law of property, although they are important.
Corporeal things are defined as independent parts of
nature which can be controlled by humans and which have
some use or value for humans.
 INTRODUCTION TO PROPERTY LAW
A right is a legally recognised and valid claim by a subject to a
certain object.
Not all relations between a person and an object are recognised
and protected by law.
The most important relation between a person and a legal
object is a right.
Rights exist when a particular relation between a person and a
legal object is recognised and protected by the law.
In such a case the law is satisfied with the way in which that
particular relation between the person and the object was
established and the way in which it is exercised, and therefore the
law attaches protection to the relation, which is then described as
a right.
 INTRODUCTION TO PROPERTY LAW
EXAMPLE

When a thief steals a bicycle, the law will not

approve the relation that was established between
thief and bicycle in this manner, and it will not
recognise or protect this relation, and the thief will
not establish a right.
However, when a person buys and pays for a
bicycle and satisfies all the requirements for the
establishment of ownership the law will recognise
and protect that relationship as a right.
 INTRODUCTION TO PROPERTY LAW
A property right is any legally recognised claim to or
interest in property.

A right in property is called a property right.

Such a right can be described as a relation between a

person and property which was established and is held in
accordance with the applicable legal requirements, and is
therefore recognised and protected by the law.

The term ‘rights in property’ is used interchangeably with

‘property rights’. Both terms can be used to refer to all
real, personal and constitutional rights with regard to all
kinds of property.
 INTRODUCTION TO PROPERTY LAW

A claim or action:

 is lawful when it is acknowledged and protected by

existing legal principles;
 unlawful when it is in conflict with or not
acknowledged by the law.
 INTRODUCTION TO PROPERTY LAW
A property relation or an action with regard to
property is lawful when it is recognised by the legal
order; unlawful when it is not.
An owner of a bicycle has established a lawful
property relation with regard to the bicycle; a bicycle
thief has established an unlawful relation with the
bicycle.
All property rights are lawful property relations, and no
unlawful property relation can be a property right.
That does not make unlawful property relations
irrelevant to the law of property, because although the
law does not recognise or protect these relations it
still attaches certain implications to them.
 INTRODUCTION TO PROPERTY LAW
A remedy is 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.
The law makes use of remedies to protect lawful rights against
infringement, and to regulate the results and implications of
unlawful property relations.
The owner of a bicycle will obtain a remedy to protect her against
infringements of her right, whereas the law will prescribe certain
remedies to regulate the implications of the thief’s unlawful
property relation with the stolen object.
The first kind of remedy is used to protect the holders of property
rights; the second kind is used to protect and regulate the legal
order.
A thief cannot obtain a remedy to ‘protect’ her ‘rights’, since she
has no rights, but in certain exceptional circumstances she might
benefit indirectly from the remedy which regulates the legal
effects of theft
INTRODUCTION TO PROPERTY LAW

4. Summary
 INTRODUCTION TO PROPERTY LAW
Summary
In summary the law of property module deals with rights in property, as
well as unlawful control of property and includes property rights in
constitutional law.
The main sources of the law of property are common law, legislation,
case law and customary law, all of them as interpreted and applied with
due regard to the spirit and objectives of the Constitution of 1996.
The law of property deals with the rights and actions of persons with
regard to things and other forms of property, as well as other relations
between persons and property.
It describes the ways in which property rights can be acquired and
exercised lawfully and the remedies by which they are protected against
infringement, as well as the legal results and implications of other
relations between persons and property.
 INTRODUCTION TO PROPERTY LAW
Summary cont .

A person is a legal subject who can acquire and exercise rights and obligations in law. A legal subject can

be either a natural person (any individual person) or a juridical person (groups or bodies operating and

recognised as a single legal entity).

An object is that with regard to which a person can acquire and hold a right. Property is everything which

can form part of a person’s estate, including corporeal things and incorporeal interests and rights.

A thing is a specific category of property, which is defined with reference to its characteristics as 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.

A right is a legally recognised and valid claim by a subject to a certain object.

A property right is any legally recognised claim to or interest in property. A claim or action is lawful when it

is acknowledged by existing legal principles; unlawful when it is in conflict with or not acknowledged by the

law.

A remedy is a legal procedure provided by the legal order to protect a right against infringement or to control

the effects of an unlawful act or situation.