Property Chapter 1

Question 1

What is the meaning of property to a lawyer

Answer 1

• To understand what is meant by ‘property’ in the law, many factors have to be considered:
1. The nature and characteristics of the object
2. The relationship between the person and the object
3. The relationship between that person and other persons in respect of that object
4. The weight that the economic and political system attaches to the object
5. The extent to which the object can be regarded as a commodity
6. Whether the Constitution acknowledges that an object and the relationships involved deserve protection or should be regulated by the state
• All these influence the definition of property as a legal term.
• In the legal, technical sense, property means rights: rights of people in or over certain objects or things. → A person’s ability to undertake certain actions with certain kinds of objects.

Question 2

Property has at least 3 meanings

Answer 2

1. The legal object (‘thing’) to which the right of ownership relates.
2. The right of ownership in a legal object – the ability to undertake certain actions to do with the object.
3. The relationships that exist in respect of objects.

Question 3

what is the formal function of property law

Answer 3

− Harmonise individual interest in respect of property
− Guarantee and protect individual rights
− Control relationships between natural and juristic persons

Question 4

what is the social function of property law

Answer 4

• Social function
− Manage competing interests of persons (PE Municipality). Property law manages the competing interests of persons who acquire and enjoy property interests, sometimes at the expense of one another → the regulation of the acquisition and use of property.

• Property law protects interests in property, but not in an absolute sense. The law protects property and the freedom to enjoy it, but also presumes that all who enjoy this freedom are bound by the duties it entails. For example, a person is free to own a car but the law prescribes that a person may only use a car under specific conditions, i.e. the driver must have a valid driver’s license and the person must abide by the rules of the road. Therefore, the freedom to own and use a car does not interfere with the freedom of anyone else who also uses the road.

Question 5

what is the place of property law

Answer 5

• Private law regulates the relationships between individuals, where as public law regulates the relationship between the state and individuals.
• Traditionally, property law is regarded as part of private law (specifically patrimonial law) as the formal function of property law is to regulate the relationship between individuals regarding certain objects.
• The doctrine of legal subjectivity is the notion that persons as legal subject can be the bearer of rights, duties and entitlement in respect of legal objects (performances, things). Property is an object in respect of which a legal subject can have rights, duties and entitlements (legal relationship between a person and property). This is what makes us tend to want to put private law in the private sphere.
• Although property law is classified traditionally as falling under private law, it cannot be separated from public law. Some aspects of property law are regulated in the context of private law but there are other aspects which involve state authority and thus should fall under public law. The state often has to intervene in property law. For example, the state (municipalities) may regulate building on land, town planning regulations and rules relating to the transfer of ownership of land.
• Thus, property law is governed primarily by private law, but certain aspects fall within the sphere of public law. There is also an overlap with constitutional law.

Question 6

What are the roots of property law

Answer 6

• South Africa has a mixed/ hybrid legal system as it inherited its law from different European legal traditions as well as bring combined with indigenous law.
• SA inherits its legal system from 2 European legal traditions:
1. Western European ius commune- ‘civil law tradition’
− Principles derived from Roman law.
− Influenced the legal system of Holland → Roman- Dutch law.
− SA inherited RD law from the Dutch Settlers in 17th century.
2. English common law- ‘Common Law’
− Based on old English customs and rulings of courts in specific cases (case law).
− English law principles were brought to SA when Britain colonised the Cape in 19th century.
• The British allowed the RD law established at the Cape between 1652 and 1795 to continue as the law of the land. Thus, SA common law is based on RD law. Gradually, however the change of colonial power to the British, began to show an effect on the legal development in SA. English legal principles were introduced and subtle infiltrated the legal system.
• Property law is influenced strongly by Roman law principles.
• The RD basis of SA law was supplemented and reinforced by the German Pandectism. Its major contribution to modern SA property law is its account of property rights as subjective rights. The doctrine of subjective rights still forms the essence of the SA civil law concept of ownership.
• The civil law- based understanding does not apply to all property relations in SA because people living under customary law use a different system of distribution and protection of property.

Question 7

what is the scope of property law

Answer 7

• Property law = the law of things. ‘Property’- a wide variety of patrimonial assets (corporeal or non- corporeal); ‘things’- corporeal objects
• Property law- covers private law relations in respect of particular types of legal objects that are corporeal or incorporeal and public law relations with a proprietary character, and the resultant rights and interests.
• Property law regulates both factual (possession) and legal relationships (ownership) with regard to things.
• Law of property defines the legal object to which it applies and classifies various types of property according to their nature and consequences. It also distinguishes different kinds of relationships in respect of property and classifies them, for example a real right or a personal right. It indicates how these rights differ, how one may distinguish between different kinds of rights according to their scope and to the holder of the right, how such rights are acquired, lost and protected and the consequences of factual proprietary relationships that do not qualify as rights (possession).

Question 8

what are the sources of property law

Answer 8

• Common law- The rules of SA property law are formulated in the common law. The RD principles of property law still form the essence of the SA common law relating to property.
• Statute- The principals of property law in the common law have been supplemented and expanded by statute/legislation.
• Case law- The courts interpret and develop the common law principles of property → judicial precedent
• • The Constitution- The Constitution is the founding and directional document for the country’s legal system. All sources of law must be viewed in light of the Constitution. It allows for the protection of property and for the reform of property relations. Thus, it has become a source of property law.
• Customary law- as demonstrated in Richtersveld.

Question 9

what is the impact of the constitution on the land reform program

Answer 9

• The Constitution is now the founding document for the country’s legal system and thus all sources of law must be viewed in light of the Constitution. The Constitution allows for the protection of property and the reform of property relations. Therefore, the Constitution itself has become a source of property law.
• The impact of the Constitution has highlighted the importance of giving customary law equal consideration, in appropriate circumstances.
• The Constitution protects property as a fundamental right and prescribes the circumstances under which property may be regulated or expropriated.
• The constitutional property clause (s 25 of the Constitution) contains provisions that endorse the reform of land. It provides for restitution in kind of in money to persons or communities dispossessed of property after 1913 as a result of past racial discrimination (Richtersveld).