Classification of Things & Forms of

Ownership
• Outcomes
• Understand the concept of a thing and explain each of the distinguishing
characteristics of a thing.
• Understand the basic concepts of co-ownership and sectional title ownership.
• Understand the different forms of ownership that exist in South Africa.
• Understand the way in which alternative registers of ownership may be
marginalized by a dominant, individual form of ownership.
Classification of Things: a real right vs a limited real
right

Limited Real Right

Real Right in a thing – grants This right grants
the bank certain
the owner entitlements to… entitlements over
Use the thing the thing if certain
conditions come
Consume the thing into being, e.g. you
Encumber the thing fail to pay your
bond. The owner is
Destroy the thing exercising their
Possess the thing power of
Real Right of Ownership ENCUMBRANCE in
Vindicate lost possession granting the bank a
Resist unlawful invasion limited real right
over the property;
Draw on the natural and civil this limited real
fruits of the thing right is a BURDEN
on the property
iself. The owner’s
real right remains
in place.
Classification of Things: a real right vs a personal
right

Personal Right
Real Right in a thing – grants Ms Wannabe-
the owner entitlements to… Farmer has no right
Use the thing in the land; rather,
she has a right of
Consume the thing performance – a
Encumber the thing personal right –
against the Owner
Destroy the thing Owner Ms Wannabe- to provide access
Possess the thing to part of the land
Farmer: “I to grow her grapes.
Vindicate lost possession want to rent The Owner is
exercising their
Resist unlawful invasion part of your power of USE to
Draw on the natural and civil farm to grow grant her access.
Their real right
fruits of the thing my own remains intact, and
Alienate the thing grapes.” there is no
BURDEN on the
land itself.
Classification of Things: a real right vs other rights

Statutory Right
Real Right in a thing – grants A legislature may
the owner entitlements to… pass a piece of
Use the thing legislation granting
occupiers of
Consume the thing property certain
Encumber the thing statutory rights
Common law & over that property.
Destroy the thing This is a valid way
statutory obligations of limiting an
Possess the thing
to use the thing in a owner’s
Vindicate lost possession entitlements in a
certain way thing. Example: s6)
Resist unlawful invasion (11) of ESTA grants
Draw on the natural and civil an occupier the
right to reside on
fruits of the thing and use the
Alienate the thing (agricultural) land
Constitutional Right on which they
resided and used
Section 26 (3) of the Constitution provides that no one may be evicted from their home, prior to 4 February
or have their home demolished, without an order of court made after considering all 1997.
the relevant circumstances. Subsequent jurisprudence has confirmed that relevant
circumstances = the availability of alternative accommodation.
Classification of Things: a real right vs claims beyond
the law?

Real Right in a thing – grants

the owner entitlements to…
Use the thing
Consume the thing
Encumber the thing
Destroy the thing
Possess the thing
Vindicate lost possession
Resist unlawful invasion
Draw on the natural and civil
fruits of the thing
Alienate the thing
What about claims to land going beyond the law?
Defining Ownership

Ownership can be described as an abstract legal relationship, which implies that:

(a) A legal relationship exists between an owner and a thing (object) in terms of which the
owner acquires certain entitlements; and
(b) A relationship exists between an owner and other legal subjects in terms of which the
owner can require that others respect her entitlements regarding the object.
(c) This relationship consists of indeterminate entitlements in that they vary from time to time
regarding the same relationship or regarding different relationships; and
(d) This relationship is limited by statutory measures, limited real rights, personal rights of third
parties, non-property constitutional rights of others and the interests of the community.

Horn et al Introduction to the Law of Property 8ed (2021) 60

What is a thing?

“A thing can be defined, in terms of its traditional characteristics, as a corporeal or tangible

object external to persons and which is, as an independent entity, subject to juridical control
by a legal subject, to whom it is useful and of value.”

Thus, five characteristics:

1. Corporeality (not as an essential characteristic; a common characteristic)
2. External to humans
3. Independence
4. Subject to juridical control (appropriability)
5. Useful and valuable to humans
Horn et al Introduction to the Law of Property 8ed (2021) 16
What is a thing?

Five characteristics of a thing:

1. Corporeality (not an essential characteristic; a common characteristic)
1. Can be sensed by all five senses; occupies a space.
2. So consider: can gravity be considered something corporeal?
3. What about shares? An idea? A song? An NFT?
2. External to humans
3. Independence
4. Subject to juridical control (appropriability)
5. Useful and valuable to humans
Horn et al Introduction to the Law of Property 8ed (2021) 16
What is a thing?

Five characteristics of a thing:

1. Corporeality (not an essential characteristic; a common characteristic)
2. External to humans
1. Human beings cannot be regarded as things, nor can their body parts.
2. But advances in medical science = body parts increasingly commoditized. However,
these are donated to someone else, not sold. Consider the example of a surrogate.
3. Independence
4. Subject to juridical control (appropriability)
5. Useful and valuable to humans
Horn et al Introduction to the Law of Property 8ed (2021) 16
What is a thing?

Five characteristics of a thing:

1. Corporeality (not an essential characteristic; a common characteristic)
2. External to humans
3. Independence
1. The thing must exist independently of any other legal object in order to be owned.
2. A house, for example, cannot be sold separately to the land on which it exists (unless the law
intervenes to survey and juridically separate the house from the land.)
3. Water, land, sea and air must first be separated by human activity into a recognizable and manageable
entity.
4. Subject to juridical control (appropriability)
5. Useful and valuable to humans
Horn et al Introduction to the Law of Property 8ed (2021) 18
What is a thing?

Five characteristics of a thing:

1. Corporeality (not an essential characteristic; a common characteristic)
2. External to humans
3. Independence
4. Subject to juridical control (appropriability)
1. Can you own the sun? No: it is insusceptible to human control, and you
cannot enforce and protect the right in the thing.
5. Useful and valuable to humans
Horn et al Introduction to the Law of Property 8ed (2021) 18
What is a thing?

Five characteristics of a thing:

1. Corporeality (not an essential characteristic; a common characteristic)
2. External to humans
3. Independence
4. Subject to juridical control (appropriability)
5. Useful and valuable to humans
1. The utility and value of a thing is determined objectively, not subjectively.
2. For example, a dead leaf may not have value or utility to me, but it could have value
or utility to someone else if used as compost.
Horn et al Introduction to the Law of Property 8ed (2021) 18
The classification of things:

1. Negotiable and non-negotiable

1. Negotiable: res nullius (capable of being owned but which, at a particular stage, are not
owned by anyone; capable of being acquired and so are negotiable).
2. Negotiable: res derelictae (no longer within the physical control of an owner and in respect
of which the owner has no intention be owner; but capable of being acquired by someone
else and so are negotiable).
3. Non-negotiable: res communes omnium (things which are available to all people;
incapable of being owned)
4. Non-negotiable: res publicae (things used directly for the public’s benefit; incapable of
being owned)

Horn et al Introduction to the Law of Property 8ed (2021) 20

The classification of things:

2. Singular and composite

A composite thing has several components that must

be distinguished from the principal thing. The
accessory to the principal thing is the thing which has
been merged with the principal, and which has now
lost its independence. The auxiliary can exist
separately and independently of the principal, but
which has lost its economic value, destination or use.
Fruits emerge from the principal thing, and can
become their own independent thing.
Horn et al Introduction to the Law of Property 8ed (2021) 21-2
The classification of things:
3. Moveable and immoveable

Immoveables are units of land and everything permanently

attached to land by means of attachment.

Moveables are everything else.

The distinction is important for several reasons, principally

because of the transfer of ownership: the transfer of
moveables takes place upon delivery; the transfer of
immoveables takes place upon registration of transfer in the
deeds registry.

Horn et al Introduction to the Law of Property 8ed (2021) 22-3

The classification of things:
4. Fungible and infungible

Fungible things can be replaced by similar things, e.g. money or another object. Most
things we purchase are fungible.

Non-fungible things have characteristics that make them irreplaceable, e.g. an expensive
painting or an NFT in a digital piece of art. ‘Priceless’ objects. It is not about the value of
thing; rather, we are concerned with whether the parties regarded the thing as
sufficiently unique that it cannot be replaced with another fungible thing (e.g. money).

Parties to a contract can agree that a thing is non-fungible.

Horn et al Introduction to the Law of Property 8ed (2021) 22-3

The classification of things:

5. Consumable and non-consumable things

Consumable = depletes in value or is consumed through normal use, e.g. an

apple.

Non-consumable = thing is maintained even if normal wear and tear occurs

through use, e.g. a house or a motor bike.

Distinction is important because, for example, if a consumable is destroyed

through use, it can be deduced that parties agreeing to use the consumable
intended for it to be consumed; accordingly, they also intended that it would be
replaced by a similar thing when the agreement comes to an end (assuming
nothing had been exchanged prior to the agreement, e.g. money for the apple).
Horn et al Introduction to the Law of Property 8ed (2021) 24-5
The classification of things:

6. Divisible and indivisible things

Divisible = capable of division into smaller components whilst

retaining its nature and function and without the value being less
than the original thing, e.g. a piece of land.

Indivisible = incapable of division because this would change the

value, nature, or function of thing, e.g. a painting or a chair.
Horn et al Introduction to the Law of Property 8ed (2021) 24-5
Coetzee v Coetzee [2016] 4 All SA 404 (WCC)

Facts:
The plaintiff and the defendant were co-owners of a farm. The plaintiff owned 90% of the farm,
and the defendant owned 10% of the farm. Both parties had effected renovations on their
respective properties.
This was a free co-ownership in which both parties gained ownership a (non-physical)
undivided share in the property. The plaintiff sought an order for the co-ownership
arrangement to be dissolved and that the defendant do all that is necessary to transfer
ownership of his portion to the plaintiff. The defendant did not want to transfer his ownership:
instead, he contended that the co-ownership arrangement should be dissolved by means of
physical subdivision, which would grant him exclusive ownership of a portion of the farm
(which included his cottage), and grant the plaintiff exclusive ownership of his portion of the
farm.
Horn et al Introduction to the Law of Property 8ed (2021) 24-5
Coetzee v Coetzee [2016] 4 All SA 404 (WCC)

Issue:
Is it possible for a court to dissolve a co-ownership agreement when a
subsequent subdivision of agricultural land would require a) consent
from the Minister of Agriculture and b) approval from the local
municipality? – and where both owners seemingly cannot agree on
this course of action. Both owners needed to agree in order to obtain
the Minister’s consent and the local authority’s approval.

Horn et al Introduction to the Law of Property 8ed (2021) 24-5

Coetzee v Coetzee [2016] 4 All SA 404 (WCC)
Findings:
The court a quo found that it was legally and practically impossible to physically subdivide the farm due to the absence
of the necessary regulatory approval.
Para 13:
• “… The actio communi dividundo has a two-fold purpose, viz. to claim division of joint property and payment of
praestationes personales [personal obligations] relating to profits enjoyed or expenses incurred in connection with the joint
property. Van der Linden, 1.15.15; Voet, 10.3.3 Van Leeuwen, Censura Forensis, 1.4.27.2,4.
• The basic notion underlying the actio communi dividundo is that no co-owner is normally obliged to remain such against his
will. Van Leeuwen, Censura Forensis, 1.4.27.1. Accordingly when co-owners are desirous of having their joint property
divided and the share of each allotted to them in severalty, they may agree to the division among themselves without
having recourse to judicial proceedings.
• …. ‘if there is a refusal on the part of one of the co-owners to divide then the other co-owner can go to Court and ask the
Court to order the other to partition. Again, if the parties agree that there is to be a partition but the parties cannot agree as
to the method or mode of partition, the Court is asked to settle the mode in which the property is to be divided.’”

Horn et al Introduction to the Law of Property 8ed (2021) 24-5

Coetzee v Coetzee [2016] 4 All SA 404 (WCC)

Findings:
Paras 28-9:
• “The trial court was bound, in my view, to have attached significant weight to the evidence of
Cornelius van der Walt, an official in the Western Cape Department of Agriculture charged with
making recommendations to the national Department in respect of subdivision applications, that
an application for the subdivision of the farm as proposed by the defendant enjoyed good
prospects of success. Van der Walt testified that he would support such an application in principle
and that the national Department followed his recommendation in the determination of the vast
majority of applications submitted in terms of s 4 of the Subdivision Act…There was also evidence
that the Minister had historically adopted an indulgent approach to applications for the subdivision
of agricultural land when these sought to effect a division of ownership in cases when undivided
co-ownership had vested in the parties prior to the commencement of the Subdivision Act.

Horn et al Introduction to the Law of Property 8ed (2021) 24-5

Coetzee v Coetzee [2016] 4 All SA 404 (WCC)

Findings:
What was the net effect of the court’s finding?
What order did the court provide in the event that permissions from the
Minister or the local authority were denied?
How did the court deal with the defendant’s desire to access his parents’
gravesite? (Located on the plaintiff’s future portion of the property?)
How did the court deal with defendant’s road access to the farm?

Horn et al Introduction to the Law of Property 8ed (2021) 24-5