LAW OF PROPERTY

LECTURE FOR WEEK ONE NOTES

MODULE 1 – INTRODUCTION TO THE LAW OF PROPERTY

ANNOUNCEMENTS:

LECTURE SLIDES OF MONDAY ARE AVAILABLE ON BLACKBOARD

LECTURE BEGINS:

Module one is an introductory module and forms part of the theme that concerns
property, the constitution and land reform.

We specifically consider the place of LOP in the legal system and constitutional
framework, as well as what sources of law govern the law of property as well as
importance of distinguishing the sources and identifying the sources.

Module one is concerned 3 main aspects:

1. What the law of property is and how it fits into the legal systems.
2. What property is as LOP concerns property.
3. Sources governing the law of property. (refer to slides for pictures)

*property deals with anything that belongs to a person/ possession that belong to
someone’s estate*.

Page 19 of course framework – 2 things that pertain to purpose and learning outcomes
of the modules:

1. Purpose
2. Learning outcomes
(Pay attention to these and make sure you achieve them)

The learning outcomes give an impression of what is expected of you.

THE MEANING OF PROPERTY – SLIDE 2.1

SLIDE gives a broad overview in legal system.

 Private law deals with horizontal r/ships. It must be distinguished from public law
that deals with vertical relation with legal subject. We will see that it is hard to
strictly distinguish private law from public law as constitution forms part of public
law and has major impacts on private law.
 Property law forms patrimonial law.

Patrimonial law concerns itself with patrimony. Law of property deals with the specific
legal objects in a person’s estate or person’s patrimony. Property are legal objects
owned by legal subjects and can be used, sold or alienated for personal use by the
owner. Ownership is the most complete right regarding a legal object in the law of
property. In property law, the term property has a very broad meaning. Property law was
initially known as the law of things. A thing may be perceived with the 5 senses – it is
corporeal. But then as time progressed assets that are incorporeal yet had monetary
value, such as shares, came about. Hence the adoption of the term property to
incorporate incorporeal assets. The Constitution made it mandatory to use property to
encompass these incorporeal assets.

Property has 2 important meanings in law of property:

1. Ownership of legal object (thing) (or incorporeal objects, such as shares) by legal
subject.
2. Property also refers to the legal relationship between a legal subject and a legal
object which the subject owns.
  Ownership (as a form of such relationship) is the strongest and most
complete right in the law of property. The owner has complete right to
transfer ownership and exercise control over the object

(Slide with arrows showing horizontal relationship being explained)

Ownership is the fullest property right over legal object in law of property. The difference
uses to which property can be put are known as entitlements. Ownership gives the
entitlement to be in possession of property, to use, to enjoy fruits, alienate, destroy
property and not to use your property.

Property does not only focus on the relationship between legal subject and object but
concerns other persons in society who have no rights to the car.

The rules of lop require that other legal subjects must respect the relationship in
essence and not invade, destroy, alienate, deprive possession of such objects of legal
subject.

Legal subject has certain remedies in terms of law of property against infringement of
the special relationship.

Impact that constitution has on the relationships entrenched in law of property.

Constitution affecting the law of property will be discussed in greater details in modules
2 and 3.

SOCIAL FUNCTION OF PROPERTY

One must distinguish between the social and formal functions of property.

Formal function:

 Property – satisfies economic and social interests, it is a means to an

end. It satisfies the human social and economic interests. E.g., clothes to
 keep warm to not be exposed to harsh times. Cellphones to help study
during the pandemic, to help be a professional in the course (economic
function). Cellphones helping people connect to one another fulfills the
social need. These desires help to leading a dignified life. Law of property
recognizes these interests and is meant to govern and protect these
interests.
 Law of property thus controls acquisition, enjoyment, alienation and
protection of property. These mostly stem from the private law rules of
property. There is not much public law influence or public law influence
before the Constitution.
 Static and favours quo by demanding respect of the relation between legal
subjects and legal objects as well as the relation concerning that of rights.

Social function:

 Acknowledges that the acquisition and enjoyment of wealth does not occur in
isolation. But in a specific socioeconomic, historical and cultural context.
Property, though an individual interest, is not only considered from the
perspective of the individual property holder. The social context pays a major
rule in how property is understood and how it is regulated. Constitution in s 25,
property clause, sets limitations and parameters on property. This will be
discussed in greater detail in unit 5.
o The political parties that negotiated the constitution at Codes, settled on a
property clause which recognized the institution of private property and opted
for a free-market system allowing trade of such. This must be contrasted
from the socialist system in which no private property is recognized and
government exercises control over all property, and people merely have use
rights. – He goes on to explain about inequality in SA and all.-
 Constitutional influence
 Dynamic; favours social change – breaks away from status quo under formal
function. Promotes redistribution of property. The tension between the social and
formal function should you get a question on this in the exam.
 Historical background will be discussed in greater detail in modules 2 and 3. But
we will briefly discuss it now. Refer to map under 2.2.; reason for this is that the
Bantustans had separate laws from the rest of the state. Apartheid government’s
cornerstone was the homeland policy to regulate property law. The government
managed to promote its ideology by regulating the property system. The state
wanted to regulate spatial segregation. State did this by adopting a rule that
certain races could own land and property, as well as rights, in certain areas.
Whites could own land in white areas and blacks in black areas. Black refers to
all people of colour. Black people could only have rights in their specific
Bantustan territories and this is one of the ways in which the state upheld its
apartheid policy and is the reason poverty is common amongst black people
today. The poverty also stems from the fact that the rights of ownership amongst
blacks differed from that of whites (who were at an advantage) and resulted in
blacks being unable to gain wealth from the land they owned.
 The map indicates the important and cognizance of the differing property laws in
south Africa and how we can recombat poverty if we rethink how property works.
 Earlier on we talked about how south Africa is the most unequal country
according to Times magazine. The distinction is quite important as property
indicate the importance of living a dignified life and protection of such (reinforces
social function). Law of property is important in showing how we can redistribute
property to promote constitutional values of human dignity, equality, freedom for
all.
 The source of law for settling legal disputes concerning property is important.
Selecting the wrong source may result in unfairness and entrenching the current
status quo of the law which might ultimately disadvantage others.
 In SA law during the apartheid when law of property was known as law of things,
different sources were the foundations of law of things. There were different
 sources namely to roman Dutch, civil law systems of Europe and very little
English law. Case law is also part of the sources. Legislation is the final source.
 Most important sources for property law, is case law, precedent and work of
roman Dutch author. It is important to study sources.
 Under the constitution the number of sources has increased. Under the
constitution, 2 more came into effect, being:
1. Bill of Rights, s 25 namely
2. African customary property law – which was ignored by white scholars and
judges under the preconstitutional era. Dealt with in indigenous law

Here we focus on precedent, case law, common law and legislation and influence of
constitution on these sources.

How to select the correct source to settle disputes?

 Random choice would undermine the constitution. Litigants don’t have free
choice. Identifying correct source is important as not choosing the correct source
to adjudicate the dispute would lead to possible undermining of the constitution.
There is already tension of formal function of upholding status quo and social
function to favour change. There are clauses in constitution that favours
departure from the static approach and be dynamic. But departure may lead to
undermining.
 Constitution gives guidance on this. The values of human dignity, equality and
freedom must be considered when interpreting BOR and common law. S 39(2)
demands that when interpreting a source of law, courts must promote the spirit,
purport and object of the B.O.R (promoting the human dignity stuff as
foundational constitutional values and the rights in B.O.R)
 Van Der Walt sets out an approach to choosing when there is an array of
sources in “Constitutional Vision of Sources”.

Example of importance of choosing the right source of law – listen to 1:01:00 – 1:10:00.
Unlawful occupation of land in apartheid times led to eviction that was performed that
ignored the factors such as disabled persons occupying the land as well as
socioeconomic factors such as inability of inhabitants to find housing. State used law of
property and strong protection it gave owners, and reinforced this protection by enacting
eviction laws, to evict unlawful occupiers and called them derogatory words such as
squatters, without taking into account their subjective rights.

In the case of eviction regime under the apartheid regime (preconstitutional era), the rei
vindicatio (rules in which property owners would use to protect their rights) was used
as a source of law.

 If one could merely prove:

1. Ownership being present,
2. existing and identifiable property and
3. defendants (unlawful occupiers) are in possession of land.

The rei vindication could be used. In such instances, courts would grant eviction orders
and circumstances and rights, if any, of the inhabitants were not taken into
consideration. This led to immense suffering amongst blacks and the eviction of round
about 4,3 million blacks. Sadly, these circumstances were not considered, and this
reflects the strong protection law of property had under the formal function.

 Due to the formation of the constitution, the case of what was under the rei
vindication no longer applies. S 26(3) (housing clause) of constitution and PIE
(Protection from Illegal Eviction from and Unlawful occupation of land Act) 19 of
1998:
o S 26 - Obliges courts to consider all relevant circumstances before eviction
orders being granted under rei vindicatio.
o PIE s2 - applies to land in the republic. and
o S 4(1) – notwithstanding anything to the contrary contained in any law or the
common law the provision of this section applies to proceedings by owners or
holders of land. Landowners may only evict them if court’s decisions align
with the provisions set out in PIE.
  Factors to be considered are:
1. Are the inhabitants to be deemed homeless after eviction? Will there be
alternative accommodation if so?
2. Are there women-headed households?
3. Are there children in the area?
4. Are there elderly and disabled under unlawful occupiers?
- Courts are hesitant to grant eviction order if these factors are present. This
satisfies the constitutional values of justice and fairness when these factors are
considered.
- If landowners rely solely on common-law remedy of rei vindicatio, this would
make evictions easier and ultimately undermine the constitution. The order to
follow s 26 and PIE helps protect the human dignity of the inhabitants and
promote the spirit and purport of the B.O.R.

**NB: Brisley v Drotsky 2002 (4) SA 1 SCA. This should be known in as far as it
applies to the section and textbook as it is not prescribed. **

- Basically, a landlord wanted to evict a lessee from his land. She had a contract
with the landlord and would pay the landlord from month to month and at some
point, failed to keep up with payments. The landlord wanted to evict the lessee as
she now became an unlawful occupier. He did this under the rei vindicatio and
argued that he has to prove the 3 requirements that were used in the
preconstitutional era. Lessee invokes s 26(3) of constitution. She did not rely on
PIE for reasons known to herself. She argued that she may not be evicted unless
the legally relevant circumstances have been proved. The supreme court said
the relevant circumstance are nothing other than the legally relevant
circumstances which are listed in the rei vindicatio, and the constitution in s 26(3)
does not expand on the relevant circumstances. What we see here is the formal
function triumphing over the social function and reinforcing an inhumane eviction.
This is extremely important for courts and lawyers to choose an applicable and
appropriate source of law as this decision could have been different had the court
considered sections 2 and 4(1) of the PIE.