Chapter 1

1.1 Scope and content of the law of property

 The law of property deals with property including all assets that form part of a
or person’s estate or what is referred to in non-legal terminology as a person’s
possession.
 Property includes immovable assets such as a house and 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.
 Private law concerns itself with legal relationships and transactions between
private subjects operating on more or less equal footing.
 Private law is distinguished from public law, which deals with vertical
relationship between the state (or various state organs) and individuals.
 It is impossible to ignore public law when discussing property rights.
 Section 25 of the Constitution provides protection for rights in property and
consequently the law of property must take note of constitutional principles
and their effect upon private law.
 It has become impossible to restrict the law of property to corporeal assets or
things and the term ‘law of property” is currently more appropriate than ‘law of
things.
 The law of property traditionally deals with a number of relationships that do
not qualify as rights at all. Although these relationships do not qualify as
rights, they are important for the law of property because of their legal
implications and they must be distinguished carefully from property rights.
These relationships are described as unlawful control of property, to which a
person in question has no right.

Examples

1.2 Background, sources, and current development

1.2.1 Sources of the traditional law of things

 The background and sources of the law of things were described within the
restricted ambit of Roman-Dutch private law.
 The sources of the law of things were described as common law, south
African legislation and case law.
 Roman-Dutch common law is found in the writings of the great Roman-Dutch
lawyers of the 17th and 18th centuries such as Grotius, Voet and Van der
Linden. Legislation consist of statutes or Acts promulgated by the national
legislation or parliament
 Examples of pre-1994 legislation that are 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. The most important new legislation is the
Constitution of the Republic of SA 1996.
 Case law (or precedent) consists of the authoritative decisions of the high
courts, and important e.g of pre-1994 cases are Ex parte Geldenhuys
1926(0), which deals with the distinction between real rights and personal
(creditors) rights.
 Setlogelo v Setlogelo, which deals with the requirements for obtaining an
interdict.
 These pre-1994 sources of law left their impression on the development of
property law, the writing of the Roman-Dutch authors, legislation of South
African legislative authorities, and earlier decisions of Soiuth African courts
still constitute a major part of the written tradition upon which the law of
property is built.
 Sources of the traditional law of things before 1994: (1) (Roman-Dutch)
common law (e.g Grotius, Voet, Van der Linden) (2) Statutory law (legislation)
(eg the Sectional Titles Act 95 of 1986) (3) Case law (precedent) (eg Ex parte
Geldenhuys 1926 (0).
 As a result of legal, socio-political, and economic development and changes,
the sources of the law of property must be seen in a new perspective, namely
the transition from a society dominated mainly by a minority of white,
privileged persons to a society based on democratic values, social justice and
fundamental human rights (Preamble to the Constitution).
 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 ne
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.
 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.

1.2.2 Sources of Current law of property

 Sources of the current law of property since 1994: (Roman-Dutch) Common

law, Statutory law (legislation), case law (precedent), Customary law and
Constitutional law
(a) Common law
 Roman-Dutch Common law was always considered the most important
source of the traditional law of things.
 As a result of the changes taking place in South African society, the role and
value of common-law rules must be reconsidered. It does not mean that CL is
abolished, but rather that it must be applied with great care and
circumspection in every case, considering the question of whether it will
promote or frustrate the ideals of human dignity, freedom, and equality set out
and protected by the constitution.

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

(B) Legislation

 Legislation has an important role in traditional law of property during the

apartheid era and it continues to play an important role.
 During apartheid era, legislation was often used to introduce and enforce
segretory policies with regard to property.
 Most of the apartheid legislation has now been abolished and replaced with
legislation that is in line with the objectives of the Constitution.

Example

 New legislation can change the face of the law of property entirely, but all
legislation has to be evaluated against the recognized 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 declare them invalid if they are in conflict with the Constitution. This is
called constitutional review.

(C) CASE LAW ( PRECEDENT)

 Case law always formed an important source of law of property, especially in

the sense that it provides guidance on how common law principles or
legislation should be interpreted and applied.
 Many cases that were decided before 1994 were informed by the still
prevailing discriminatory legislation and spirit of apartheid. Such a decision
should not be accepted as authority.

Example

(D) Customary law

 During the apartheid era customary law property rights enjoyed little
recognition and protection from the courts.
 In view of the Constitution it is clear that customary law cannot just be ignored
and it must be awarded its proper place and recognition in the law of property
  Certain precepts of customary law might come into conflict with principles laid
down by the Constitution, especially with regard to equality

Example

 The value and authority of the customary law principles regarding property
rights must be upheld and promoted in the current law of property, but at the
same time they have to be evaluated within the present context.

E. Constitutional law

 All sources of property law, they are still applicable and authoritative, must be
interpreted and applied with due regard to the spirit and objectives of
Constitution. Meaning, general values of the Constitution such as equality
should be taken into account when interpreting and applying any of the other
sources
 In Pharmaceutical Manufacture Association of SA, The constitutional court
decided that there id only one system of law, shaped by the Constitution,
which is the supreme law, from which all law, including common law,
customary and legislation, derives its force and to which all law is subject.

Example

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