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Law of Property and Security A

Law of Property and Security A

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Published by: Farai Faifi (Konfizoh Hitlab) on Aug 28, 2010
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11/02/2013

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Law of Property and Security A
MEANING AND SCOPE OF THE LAWA) Purposes of the Law:
Importance is found in the Constitution
Deals with rights and actions with regard to things – the acquisition, use and protection of the things; the remedies available; implications of holding
Section 25(2), (3), (4) and (5):
o
Interests of the public
o
Commitment to land reform and access to resources
o
FNB case
Bill of Rights does define the law
B) Meaning of the Law:
Contrasted with other nations (America and England) who provide a definitedefinition
 Now set out by the Constitution – 
Port Elizabeth v Various Occupiers
Alternative meanings (Rautenbach and Silverberg and Schoeman)
o
Patrimonial interests acquired through personal endeavour 
o
Right of ownership in a legal object
o
Variety of legal relationships qualifying for protection
o
Object of real rights (corporeal and incorporeal) and real rights inthemselves
Roman Dutch provides bundles:
o
Right to do as one pleases (ius disponendi)
Gien case
Mkontwana case
o
Right to exclude (rei vindicatio)
Chetty case
FNB case
Diepsloot case
o
Right to derive income
C) Changing face of the law of property:
Development has brought functionalization and socialization of property in SouthAfrica
So cannot just view property in section 25, but in light of other legislation and values
Emergence of a new property law framework 
o
Substance of rules have changed
o
Economic and social needs are applied under different conditions
o
Security of title and tenure have now become of importance
o
Disappearance of highly personal and individuals character of property1
 
D) Impact of the Constitutional Order:
Inclusion in the constitution gives rise to challenging of natural boundaries of acquisition, protection and transfer 
Must consider the scope of the concept of property in the Constitution; range of  permissible limitation on property
Influences ambit and restrictions on property in South Africa
Constitutional definition:
o
 Negative guarantee of property as ‘holding’ and ‘regime’
o
 No clear definition of property
Value of testing competing rights are established in
FNB case
and
Mkontwana case
and
PE Municipality case
and
Modderklip case.
o
The court applies the Harksen test to whether or not there has been andinfringement
S28 of the interim constitution – doesn’t refer to property, but rather real rights inrelation to property
S25 of final constitution – couched in negative terms, deals with deprivation,expropriation
 New property now includes subsidies, welfare, licenses (trade and driving); means of livelihood
Transkei Public Servants Association caseE) Deprivation and Expropriation:
Considered in
FNB
case, confirmed in
Mkontwana case
Any interference with the use, enjoyments or exploitation of private property amountsto deprivation
Any substantial interference beyond normal restrictions
Expropriation is an instance of deprivation
o
Harksen case – process whereby public authority take property for publicuse against payment of use
o
Constitutes deprivation, make a distinction between rights in property andexpropriation of rights in property
o
Compensation is given for expropriation
Deprivation:
o
 Need to consider whether it is arbitrary deprivation – have to consider rationality and proportionality test in context of s25
o
S v Makwanyane
 provide use of proportionality test and to weigh up thedifferent values that need to be considered in light of the constitution
o
Law of general application – should be authorized by law of generalapplication at a national level; original and delegated legislation andcommon law
Expropriation:2
 
o
Procedure and principles – must be done through general application for the interests of public policy and subject to the constitution
o
Must be just and equitable
o
Public purpose – wider (refer to all purposes which pertain to or benefitgeneral public) and narrow (refer to governmental purposes) – mostlyfavour the wide definition
o
Public interest includes a commitment to land reform
o
When expropriation occurs, will include all interests associated with the property
o
State does not have a general power to use land and right to expropriate – governed by the Expropriation Act
o
Must be compensated for – 
City of Cape Town Municipality case
Amount must be just and equitable, reflecting an equitable balance between public interests and the interests concerned
Done in two stages – consider the Expropriation Act
Du Toit case
Ex Parte case
Pointe Gourde Principle
o
Constructive compensation
Property is not taken away, but rather state interfers with the use of the property – which creates some loss as if it were taken away
But this is not recognized in South Africa, rather an Americanconcept
Steinberg case
 – questioned whether the US tradition could berecognized; no room in our law for this doctrine – too difficult todistinguish this and deprivation
Harksen caseF) Search and Seizure of Property:
Siezure is dealt with in legislation if the property was used for illegal behaviour 
o
Investigation of Serious Economic Offences Act
o
Proceeds of Crime Act
o
Prevention of Organized Crime Act
o
Director of Public Prosecutions case
o
Must meet the requirements of s 25 and s36(1) of the Constitution
o
Gerber case
o
Prophet case
 – increased the test – proportionality, rationality andconnection test (close connection of things – between the committing of the crime and the property associated with it)
Sale in execution
o
Lesapo case
o
Zondi case
o
The court can sell the property if it is already seized, then can use themoney for resources3

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