2024

LAW OF PROPERTY
REVISION PACK
UNITS 1 – 6
 Unit 1 – Introduction to the Law of Property
• Law of property
o Deals with rights and actions of persons regarding things and other forms of
property
▪ Additionally: other relations between persons and property
o Describes ways in which property rights can be acquired and exercised lawfully
and the remedies by which they are protected against infringement
▪ Additionally: legal results and implications of other relations between
persons and property

• Main sources of law of property

o Common law (RDL writers) All sources must be S 39(2) and
S 211(3)
interpreted in terms of the
o Legislation objectives and spirit of the
o Case law Constitution, and all
should be subject to the BoR
o Customary law
o Constitution
Natural
or juristic
• Person
o Legal subject who can acquire and exercise rights and obligations in law

• Object
o Object which a person can acquire and hold a right to
Incl. corporeal and
incorporeal interests
and rights
• Property
o Everything which can form part of a person’s estate

• Thing
o Specific category of property which is defined with reference to its characteristic
as a:
▪ Corporeal object outside the human body; and
▪ An independent entity capable of being subjected to legal sovereignty
(control) by a legal subject
▪ For whom it has use and value Right is the relation
between a person
and legal object
• Right
o Legally recognised and valid claim by a subject to a certain object

• Property right Rights usually legally

o Any legally recognised claim to or interest in property recognised if established and
held in accordance with the
applicable legal requirements
• Lawfulness of a claim or action
o Lawful if:
▪ Acknowledged by existing legal principles
o Unlawful when:
▪ It is in conflict with or not acknowledged by the law
• Property relation
o Lawful when recognised by the legal order (owner of property established lawful
property relation with regard to the property)
o Unlawful when not recognised or protected (owner of property established
unlawful property relation with regard to the property)
▪ Although the law still attaches certain implications to this relation

• Remedy
o Legal procedure provided by the legal order to protect a right against infringement
or to control the effects of an unlawful act or situation
o First kind of remedy Thief may in exceptional circumstances
indirectly benefit from remedy which
▪ Used to protect the holders of property rights regulates legal effects of theft
o Second kind of remedy
▪ Used to protect and regulate the legal order

Except the
Subsidiarity principle approach Constitution

• Sources of law cannot be ranked hierarchically

o Should be applied according to their ability in a specific case to promote the spirit,
purport, and objects of the BoR
▪ Ensures property system displays characteristics of Constitution without
unwanted adverse effects

• Sources of law should promote:

o Equitable access to land and housing These are the guidelines
o Improved security of tenure regarding choosing between
competing sources of law
o Equitable balance of individual rights and public interest

• Sources of law should not allow:

o Arbitrary or discriminatory deprivation of property or eviction

• Question when deciding which source of law to use in a dispute:

o Whether and how the relevant source promotes:
▪ Development of single system of property law displaying these features and
characteristics,
▪ While avoiding the unwanted effects

• How to treat each source

• Laws pre-1994
o May not have desired features and may have some unwanted outcomes, treated
with scepticism

• Constitution itself and legislation created under it

o Should have desired features and will probably attempt to avoid undesired
outcomes
• Common law
o General point of departure: was not intended to give property system desired
characteristics or to avoid unwanted effects
▪ In principle: should always require suitable development

• Customary law
o May in certain respects display required features (forms part of social system
rather than system of individual rights)
▪ But may also fail due to patriarchal background (may require S 39(2)
development)

• Subsidiarity principles

• Subsidiarity principles’ (+ two provisos’) purpose

o Establish guidelines courts can use to decide when to apply each source of law
▪ And identify source of law the primarily governs litigation about alleged
infringements of rights Constitutional
review
principle
• First proviso
o Allows direct resort to constitutional right to attack constitutional validity of the
legislation Common-law
▪ Defines space where interpretation in terms of S 39(2) must take place development
principle

• Second (implied) proviso

o Indicates when direct resort to the common law is permissible, despite existence
of legislation
▪ Defines space where development of common law in terms of S 39(2) should
take place

• First principle
o Litigant averring infringement of constitutionally protected right must rely on
legislation specifically enacted to protect that right
▪ May not rely on constitutional provision directly when bringing action to
protect the right
o Proviso
▪ Litigants may rely directly on the constitutional right when s/he attacks the
legislation for being unconstitutional or inadequate in protecting the right

• Second principle
o Litigant averring infringement of constitutionally protected right must rely on
legislation specifically enacted to protect that right
▪ May not rely on the common law directly when bringing action to protect the
right
o (Inferred) proviso
▪ May rely on common law insofar as legislation was not intended to, or in fact
does not, cover that particular aspect of the common law; and
 ▪ Insofar as the common law is not in conflict with: constitutional provision or
scheme introduced by the legislation; or
▪ Can be developed through interpretation to that effect

• Principles and provisos should not restrict application of Constitution/BoR and

constitutional values
o Rather act as starting point for reflection

• Both parties to a dispute obliged to rely on principles

o Defendant who feels legislation does not provide suitable defence
▪ May rely on constitutional right provision to attack the validity of the
legislation
▪ May not rely on it directly (or common law) merely because legislation does
not fit their argument or provide a suitable remedy/defence

• Legislation
o Must still be interpreted in view of constitutional provision it is supposed to give
effect to
▪ Which in turn must be seen in the context of other constitutional provisions.

• If general rule and specific rule both govern same point

o Specific rule should find application
▪ Parties may not rely on deductive argument from the general rule

• First and second principle together

o Form interpretive principle

Ex Parte President of the RSA: In re Pharmaceutical

Manufacturers Association of South Africa (CC)
“There is only one system of law. It is shaped by the
Constitution, which is the supreme law, and all law,
including the common law, derives its force from the
Constitution and is subject to constitutional control”
 Unit 2 – Constitutional Property Law

Introduction to Constitutional Property Law

• Constitution of South Africa

o Influences both public and private sphere
o Aims to heal and correct the imbalance created by the past, and provide for an
equal, democratic, and peaceful future

• Features of Constitution
o Supreme law
▪ All laws have to be reconcilable with it; CC has power of constitutional review
o Entrenched or rigid
▪ Cannot be changed easily
o Contains a bill of rights
▪ Guarantees fundamental rights, and protects them against state
interference, but also affects private law
o Enforced by an independent judiciary
▪ CC highest court in the land with regard to constitutional (and all other)
matters
▪ HC have ability to adjudicate constitutional matters
o Acknowledges the validity of common and customary law
▪ Insofar as they do not contradict the principles of the Constitution
o Embodies important values and principles
▪ Does not just contain legal rules, but values and principles related to the
transformation of South African society
▪ Values and principles important for interpreting Constitution and all other
laws
o Protects property
o Makes provision for horizontal application
▪ All other laws must conform with the Constitution

• Values of the Constitution

o National unity and reconciliation
o Limited government in an open democracy
o A just and open society based on dignity, freedom, and equality
o Political and cultural pluralism
o Constitutionalism
Determined Democratic society
by S 39 based on human
• Interpretation dignity, freedom,
and equality

• Interpretation of chapter 2 (BoR)

o Interpreted with due regard to underlying values of Constitution

• International law
o When interpreting chapter 2, court must consider related international law
• Comparable foreign law
o When interpreting chapter 2, court may consider foreign law
▪ Discretion, and used if it will facilitate interpretation

• Restricted interpretation of laws

o Laws not simply invalidated if they appear to contradict BoR
▪ If can be interpreted more narrowly so they do not restrict rights, narrow
interpretation must be followed so law itself is still valid (“reading down” of a
law)

• Application of common law and customary law

o Normal legislation, common-law rules, and customary law rules have to be
interpreted and applied to promote the protection of fundamental rights, in the
general spirit of Constitution

• Permissible limitations of fundamental rights – S 36(1)

o May be limited by law
o Law must apply generally and not only to some people
o Limitation must be reasonable
o Limitation must be justifiable in an open and democratic society based on human
dignity, freedom, and equality
o Question of whether it is reasonable and justifiable answered with reference to
relevant factors:
▪ Nature of the right
▪ Importance of the purpose of the limitation
▪ Nature and extent of the limitation
▪ Relation between limitation and its purpose
▪ Whether there are less restrictive means to achieve the same purpose

Property Rights: Section 25

• Function of property clause No guaranteed

o Provide a guarantee for private property rights against improper state right is or can be
absolute
interferences
▪ While still leaving room for unavoidable and proper interferences

• Nature and scope of guarantee

• Nature of S 25: property clause

o Provides a negative guarantee for property
o Concept will probably be interpreted and applied with regard to a very wide range
of property interests, which would be protected against improper state
interferences

• Negative guarantee for property

 o Property or property rights may not be restricted unless certain requirements are
satisfied

• Two aspects of property guarantee

o 1. Allows for state regulation of the use of property
o 2. Protects private property by ensuring state interference will take place only
under certain circumstances and subject to certain requirements Property clause implicitly
protects the rights to acquire,
• Scope hold, and dispose of property

o Includes all kinds of rights (both real and personal)

o With regard to all kinds of property (movable and immovable, immaterial, or
intellectual property and incorporeal property)
o This wide interpretation under Constitution could influence private law

• Property in terms of S 25
o Ownership of movables
o Ownership of immovables
o Limited real rights in movables (pledge of a wristwatch)
o Limited real rights in immovables (servitude over a farm)
o Personal rights with regard to movables (contractual right to delivery of a car)
o Personal rights with regard to immovables (contractual right to transfer of a
house)
o Other creditor’s rights based on contractual and delictual claims (shares in
company, claim against pension fund)
o Immaterial property rights (patent, copyright)
o Labour rights (right to unionise)
o Claims against state wealth (housing, state pension schemes)

• Enforcement of guarantee
o Court action against the state with aim to obtain order to the effect that:
▪ Either the state action is unlawful
▪ Legislation authorising it is invalid because it conflicts with guarantee in S 25
o May be enforced on horizontal level
▪ Only allowed in order to promote values and spirit of chapter 2 in sphere of
private civil law or customary law

• Deprivation clause: S 25(1)

• Deprivation clause: S 25(1)

o “No one may be deprived of property except in terms of law of general application,
and no law may permit arbitrary deprivation of property”
▪ Recognises some state limitations of private rights in property are
unavoidable, and thus permits such limitations
▪ Prescribes the requirement that these permissible limitations must conform
with proper legal procedure
Limitations are
of a general
• Deprivation clauses: nature
Deprivation in terms of S 25(1)
Limitation which, in the public interest,
subjects the use and enjoyment of
property to certain restrictions
 o Permit state limitations of private property
o Provided these limitations:
▪ Occur in accordance with due process of law
▪ Serve the public welfare
▪ Sufficient reason for them

• S 25(1) ensures:
o Unavoidable state limitations of private property are legitimate as long as they are
not arbitrary and comply with proper legal procedures in terms of general law

• Expropriation clause: S 25(2) and 25(3)

• S 25(2) provides that:

o Property may be expropriated only in terms of law of general application
▪ For a public purpose or in the public interest
▪ Subject to compensation, the amount of which and the time and manner of
payment of which have either been agreed to by those affected or
decided/approved by a court

• Meaning of S 25(2) and the requirements:

o Certain category of legitimate state interference with private property which
amounts to an actual acquisition by the state or expropriation of the property
▪ Must not only comply with the due process requirement; but
▪ Also restricted to cases where it serves a public purpose; and
▪ That it must be accompanied by payment of compensation in terms of S 25(3)

• S 25(3) provides
o Amount of compensation, and the time and manner of payment, must be just and
equitable
o It must reflect an equitable balance between the public interest of those affected
o Must consider following relevant circumstances:
▪ Current use of the property
▪ History of the acquisition and use of the property
▪ Market value of the property
▪ Extent of direct state investment and subsidy in the acquisition and beneficial
capital improvement of the property
▪ Purpose of the expropriation Deprivation affects
everyone equally

• Deprivation vs expropriation
FNB t/a
Wesbank v
• Deprivation Commissioner
o All legitimate state limitations of private rights in property in terms of S 25(1) for SARS

o Deprivations that do not amount to expropriations do not require compensation

▪ But must comply with the proper legal procedures and they may not be
arbitrary

• Expropriations
Agri SA v
Minister for
Minerals and
Energy
 o Include only those deprivations that amount to expropriation or forced sale of the
property for public purposes (use) in terms of S 25(2)
o Expropriation said to be characterised by state acquisition of the property
o Expropriations must be accompanied by compensation as prescribed by S 25(3)
▪ Compensation paid only for expropriation, as it places the burden on one
person only but for the common benefit of everyone

• All deprivations of property

o Must be in accordance with laws in terms of S 25(1)
▪ Some must also be accompanied by compensation if they amount to an
expropriation of the property for a public purpose or in the public interest

• Just and equitable compensation

o Must reflect equitable balance between the public interest and interests of those
affected by the expropriation

• Land reform laws (promulgated according to duty in S 25(5)-(9) of Constitution)

o Balance between land reform and respect for private property must be found and
maintained Port Elizabeth
▪ Although they are not conflicting goals and should not interpreted as such Municipality v
Various Occupiers

• Constitutional Property Law

S 25 has both
protective and
• Section 25 contains four clusters of provisions transformative purpose

o 25(1) – deprivation
o 25(2) and (3) – expropriation Wide definition creates
o 25(4) – interpretation questions concerning
legitimacy of expropriation for
o 25(5) to (9) – land and other related reforms the benefit of private persons

• Public interest – S 25(4)(a)

o Includes the nation’s commitment to land reform, and to reforms to bring about
equitable access to all South Africa’s natural resources
S 25(4)
• Property not restricted to land

• Land reform – S 25(5) – (9)

• S 25(5)
o Places general duty upon the state to take reasonable legislative and other steps,
within its available resources, to foster conditions which promote equitable
access to land

• S 25(6)
o Places specific duty upon the state to ensure security of tenure
o For persons or communities
o Whose tenure of land is legally insecure as a result of past discriminatory laws or
practices
 o By providing for such security or comparable redress in legislation

• S 25(9)
o Parliament must enact the legislation referred to in S 25(6)

• S 25(7)
o Entitles a person/community dispossessed of property after 19 June 1913 as a
result of past racially discriminatory laws or practices
o To restitution or equitable redress, as provided for in legislation

• S 25(8)
o Ensues that no provision of S 25 may impede the state from taking legislative and
other measures to achieve land, water, and related reforms
o In order to redress the results of past racially discriminatory laws and practices
o Provided that such measures (in so far as they limit property rights that are
guaranteed in section 25) are in accordance with the limitation requirements in S
36

• Interpreting the property clause

• Beneficiaries
o Natural persons and juristic persons (FNB)

• Limitation of rights

• S 36 provides
o Rights in BoR can only be limited in accordance with this section
o Rights in BoR may only be limited by law of general application
▪ Only to extent that such limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality, and freedom
o All relevant factors considered:
▪ Nature of the right
▪ Importance of the purpose of the limitation
▪ Nature and extent of the limitation
▪ Relation between limitation and its purpose
▪ Less restrictive means to achieve the purpose
Applicant bears
onus of proof
• Two stage approach for inquiry into validity of a statute that limits fundamental right
o First stage: Whether there was an infringement of a right protected in BoR
Party relying on
▪ Must be answered in affirmative before proceeding to second stage validity of
o Second stage: whether the infringement can be justified under S 36 statute bears
onus of proof

• Two stage approach in constitutional property dispute

o First stage: infringement?
▪ Proof of property right that qualifies for protection under S 25?
▪ Infringement of this right?
o Second stage: justified under S 36?
• Infringement of property will likely never make it to second stage
o If the infringement fails S 25(1) or 25(2), it will also fail S 36(1).

Unpacking the FNB Methodology

• 1. Beneficiary in terms of S25(1)?

o Is the complainant a beneficiary of the protection of S 25?
o In casu: juristic person is beneficiary

• 2. Property?
o Is the property in question included in the scope of S 25?
▪ Ownership of movables and ownership of land lies at the centre of the
concept of property in terms of the property clause (FNB)
o In casu: movable property included under property clause

• 3. Deprivation or expropriation? In casu:

Lost ownership, but deprivation
When party challenges constitutional
validity of a deprivation or appropriation
• Ownership entitlements under S 25: challenges validity of the law
o Ius utendi – right to use property authorizing the deprivation/appropriation,
not the deprivation/appropriation itself
o Ius fruendi – right to draw fruit from property
o Ius abatendi – right to not use property
o Ius disponendi – right to dispose of property
o Ius vindicandi – right to vindicate property

Society would
• Deprivation (“police power”) descend into chaos if
o State, through its laws (common law, customary law, statute law)
everyone could use
their property as they
o Limiting the use, enjoyment, and exploitation of property pleased

o In the public interest

▪ Protect public health and safety, and resolve civil disputes
▪ “Core police power functions” Firearm regulations,
building laws, traffic
o Without payment of compensation laws, land reform
initiatives (ESTA)

• Reason for no compensation for deprivation

o Deprivations usually affect people in society more or less equally
o State would not be able to function if compensation had to be paid for
deprivations
▪ Members of society expected to bear deprivations without compensation

• When is it deprivation
o Deprivation if it limits one or more entitlements
o “Any limitation of use and enjoyment of ownership”
▪ If source of limitation does not provide for or regulate expropriation (and
provides no compensation) then it will likely not be expropriation Expropriation
Property expropriated for public purpose or in
public interest, subject to compensation
• When is it expropriation (“power of eminent domain”)
 o Expropriation if completely takes away entitlements
o Expropriation affects one owner (or small group of owners) as opposed to
impacting on most property holders in society more or less equally
Agreed by affected
o State takes away ownership for public purpose against compensation persons or
▪ However, some deprivations lead to state acquisition approved by court

▪ E.g. taxation, criminal forfeiture, exactions (discussed on page 13-14)

o Expropriation is a power that can only be exercised in terms of an empowering
statute

• Distinction factors Many people affected → most likely a

deprivation
o State acquisition One/few people affect → more likely to
be expropriation
o Number of affected persons, purpose of limitation
o Source of limitationNB
▪ Clause 2(4) of Expropriation Bill
▪ Some statutes expressly provide for expropriation

• Source of limitation
o Two factors to assist in determining if action is expropriation or deprivation
▪ (i) Rebuttable presumption that if statute does not provide for compensation,
then it does not authorise expropriation
▪ (ii) Legality principle (rule of law principle) Codified in 2(4) of
Expropriation Bill

• Legality principle
o State may only use its expropriation power if the empowering legislation:
▪ Clearly sets out the circumstances, procedures, and conditions in terms of
which this power may be exercised
o Strong indication empowering statute does not authorise expropriation if
authorising legislation does not:
▪ Set out circumstances under which state may expropriate property
▪ Provide for procedure that must be followed
▪ Reveal which conditions must be satisfied before expropriation may take
place

• Clause 2(4) of Expropriation Bill

o Expropriating authority may expropriate property in terms of a power conferred
by/under any law of general application, provided exercise of its powers is in
accordance with S 2-27 and 31

• Constructive expropriation
o Arbitrary deprivation effectively amounts to a de facto (or constructive)
expropriation for which compensation must be payable
▪ Dr Marais: does not fit into RSA law

• Equalisation payments
o Court can award compensation for excessive deprivation (open question in SA)
▪ Exception to general rule that deprivation doesn’t have compensation
▪ Must be provided for in statute
 ▪ Made to “equalise” the impact of the burden the deprivation places on
individual property holders

• Step 3 determines whether the investigation proceeds to step 4a or 4b

• 4a. Is deprivation = S 25(1)

• Does deprivation meet requirements of S 25(1)

o Law of general application
▪ Law must not amount to unfair discrimination (determined objectively)
▪ Does law arbitrarily differentiate between different categories of citizens?
Administratively →
o Non-arbitrary deprivation occurs directly in
terms of legislation

• Non-arbitrariness requirement
o Procedurally non-arbitrary
▪ If deprivation brought about administratively, PAJA Act and S 23 of
Constitution apply, not S 25(1)
o Substantively non-arbitrary
▪ Is there sufficient justification/reason for depriving law Under 4a, will
never be full scale
▪ Test: proportionality/rationality test to one side

• Proportionality and rationality test

o Continuum (or spectrum) with rationality at one end and proportionality at the
other
o Rationality side of spectrum – scrutiny test (less strict)
▪ Is limitation objectively capable of realising goal(?)
o Proportionality test – necessity test (more strict)
▪ Less invasive means of achieving purpose?
▪ Balance limitation and aim it seeks to achieve
▪ Balance public interest and individual interest
o Strictness of test depends on circumstances of the test
▪ Nature of property
▪ Extent of deprivation
▪ Identity of affected person
▪ Complexity of relationships to be considered
▪ Relationship between means employed (deprivation in question) and the
ends sought to be achieved

• Must be a sufficient nexus/reason for deprivation, with the following considered

o 1.a) Deprivation at hand and 1.b) purpose of law
o 2.a) Purpose of deprivation and 2.b) affected person
o 3.a) Nature of property and 3.b) extent of deprivation
▪ Less restriction on right, less strict

• In casu
o FNB close to proportionality side of spectrum
▪ Less extensive means to restrict right were available
 ▪ No connection between affected person and purpose (FNB did not owe SARS)
•
• 4b. Is expropriation = S 25(2)-(3)

• Requirements
o Law of general application
o Public purpose (narrower) and public interest (wider)
o Compensation
▪ Just and equitable (5 factors, see further down in Dr Marais’ article)

• 5. If not, is it a limitation in terms of S 36(1)?

• S 36(1) test
o Always proportionate (extremely strict, full scale proportionality test)

Is expropriation without compensation really the answer?

• Expropriated owner who is unsatisfied with amount of compensation

o Cannot delay expropriation
o May challenge the compensation amount in court of law
▪ Court will determine whether the amount offered is just and equitable

• Expropriation
o May only occur in terms of law of general application for a public purpose or in the
public interest
o Public purpose
▪ Traditional purposes – building roads, schools, hospitals etc
o Public interest – S 25(4)(a)
▪ Includes nation’s commitment to land reform, and to reforms to bring about
equitable access to all South Africa’s natural resources

• Two reasons why compensation is paid for expropriation

o To prevent unequal treatment of persons before the law
o To put expropriated parties, as far as possible, in the same position they would
have been had the expropriation not occurred
Constitution does
not stipulate
• Just and equitable compensation market value

• Arguments against compensation

o Makes land reform unaffordable because state must pay market value
compensation
o Unfair that landowners, many of whom are still white and who thus enjoyed the
benefits of apartheid, obtain a second benefit when their property is expropriated

• Five factors for determining compensation

o 1. The current use of the property
 ▪ Relevant when expropriating scarce resources which are not used
productively
▪ Mere fact owner is not using property should not on its own result in no
compensation (may amount to punishing owner, which is not in public
interest)
▪ Uses of property that are morally and socially unacceptable (ie abandoned
buildings in CBD) might justify less compensation
o 2. History of the acquisition and use of the property
▪ Unfair to pay market value compensation if state acquired property at
discount/for free and donated/sold at a discount to a white farmer
▪ Uncertain outcome when initial farmer sold it to another person for market
value
o 3. Market value of the property
▪ Determined through “comparable-sales method” (prices of land of similar
size in same area)
o 4. The extent of direct state investment and subsidy in the acquisition and
beneficial capital improvement of the property
▪ Uncertain role when current landowner paid market value and did not directly
benefit from investment and subsidy from the state
o 5. The purpose of the expropriation
▪ Arguably appropriate to reduce compensation if expropriation aimed at
realising transformation or social justice
▪ Unpredictable and uncertain to determine amount to reduce by

• Two step approach (followed by CC)

o Market value of property first determined
o Factors in S 25(3) considered to ascertain whether compensation amount should
be adjusted upwards or downwards

• Government and expropriation

o Government does not use expropriation powers optimally (due to corruption, lack
of political will, lack of training and capacity, etc)

• Constitutional problems with below-market value compensation

o 1. Might unjustifiably infringement fundamental rights
▪ Unequal treatment before the law → expropriated for traditional purposes –
market value compensation; expropriated for land reform - less than market
value compensation
o 2. S 33 of Constitution and Promotion of Administrative Justice Act 3 of 2000
▪ Requires all administrative actions to be lawful, reasonable, and procedurally
fair
▪ Intrusive nature of expropriation may be subject to strict proportionality test
to judge if it is reasonable (if not, expropriation may be set aside)
o 3. Might infringe right to human dignity
▪ May financially ruin parties and leave them without a home
▪ Committing new injustice to rectify old injustice may be at odds with
reconciliatory spirit of the Constitution
• Economical problems with below-market value compensation
o Argued that compensation is not main impediment to land reform, and abolition
of compensation may not result in accelerated land reform
o Long-term negative consequences might outweigh short-term advantages
o Might destroy investor confidence
▪ Negatively impact banking industry, agricultural productivity, and food
security
▪ Withdrawal of foreign capital would be disastrous
▪ Would lead to devaluation of the Rand’s value and affect the poor and
vulnerable persons the most

Distinction between deprivation and expropriation

• State acquiring property without it being expropriation

• Three property interferences where state acquires property but does not amount to
expropriation
o Tax laws
o Laws governing criminal forfeiture
o Laws governing exactions (building contributions)

• Tax laws

• Expropriatory nature of tax laws

o States acquires property (percentage of income) from property holders without
their permission
▪ Would be against purpose of taxes to require compensation for taxes

• Tax laws amount to deprivation

o Affect all property holders more or less equally Usually: S 18 of
Prevention of
o Aimed at protecting public health and safety Organised Crime Act

• Laws governing criminal forfeiture

• Courts can declare property used to commit crimes/acquired with proceeds of

crimes:
o Forfeited to the State
▪ State may sell property to promote public interest
o Forfeiture amounts to deprivation and does not require compensation

• Rationale behind criminal forfeiture

o Not to punish criminals
o (i) To remove property used to commit crimes from the hands of criminals,
ensuring property cannot be used to commit repeat crimes
 o (ii) To ensure property acquired with funds obtained illegally are removed from
criminals and cannot thus benefit them (discourages members of public to
commit crimes)

• Owners whose property was used to commit crime without their knowledge
o May be declared criminally forfeit property
o Legal duty to ensure property not used to conduct illegal activities
▪ Reasonable person test: would reasonable person in position of owner have
realised his property was being used to commit crimes and have acted
accordingly?
▪ Non-compliance with duty: property may be declared forfeit to the state

• Laws governing exactions

• Exactions
o Property developer wishing to construct new residential development on land
s/he owns must submit development plan to local authority to acquire permission
o Local authority requires plans to indicate which parts of proposed development
will be used as road reserves and public spaces
▪ In terms of applicable legislation: local authority requires developer to donate
this land to local authority free of charge
▪ In return, grants planning permission

• Doctrine of exactions
o Exactions are agreement between developer and local authority whereby
developer required to donate certain parts of their property to the local authority
(in terms of legislation)
▪ As precondition for obtaining planning permission
o Exactions provide resources for the use of the whole community
▪ Resources offset burdens imposed on community by new development
▪ Exactions are deprivations

• Why exactions are deprivations (no compensation)

o New development requires construction of new road reserves and public spaces
▪ Which local authority might otherwise not have built
o Responsibility to maintain road reserves and public spaces rests on local
authority
▪ Local authority will not compensate property developer
▪ Because it will have to maintain these spaces at its own expense

• Exactions only valid if satisfy non-arbitrariness requirements of S 25(1)

o Must be sufficient nexus between means used and ends sought
▪ Means used - requiring donations of road reserves and public spaces
▪ Ends sought - offsetting burden community will have to endure by providing it
with public roads and spaces
• Investigation of the validity of laws authorising exaction focuses on two
considerations
o (i) the general justification for the exaction
o (ii) the actual amount of land the local authority requires

• (i) General justification for exaction requirement

o Satisfied if rational connection between legitimate state interest and exaction
itself

• (ii) Actual amount of land local authority requires requirement

o Must determine whether exaction relates to the impact of proposed development
both in nature and extent
▪ Must be sufficient reason for how much land local authority requires as
donation when compared to expected impact the development will have in
particular area

• Exaction laws only authorise exactions reasonably necessary to build roads required
for the development itself
o Should the local authority want excess land to build bigger roads, it will need to
use other legislation (e.g. Expropriation Act)
 Unit 3 – Land Reform
• Outline of apartheid land law
o The Land Acts of 1913 and 1936
o Customary land rights
o Residential land rights in urban areas
o Criminalised land use: group areas and squatting
o Western civil law land rights

• (a) The Land Acts of 1913 and 1936

o Black Land Act 27 of 1913
▪ “Traditionally black” was “identified” and “reserved” for exclusive use and
occupation by black groups
▪ All other land was reserved for exclusive white use and occupation Rights rarely
amounted to full
o Development Trust and Land Act 18 of 1936 ownership
▪ Extended “reserved” land
o All rural land “reserved” for blacks in these two statutes
▪ Held either according to customary law or in terms of special land rights
created by these laws
▪ Land in fact owned by the state which held them in trust for the communities
actually living there
o Land “reserved” was not enough
▪ Family members forced to relocate to urban areas in search of job
opportunities

• (b) Customary land rights

o Customary law regarded as inferior, thus compromised and customary tradition
discredited
o Questioned whether customary law should be abolished along with apartheid
▪ Tribal customary land use seen as inefficient, yet it did hold groups and
families together

• (c) Residential land rights in urban areas

o Group Areas Act 6 of 1966
▪ Set aside special residential areas in urban areas for black, coloured, and
Indian group as identified by the Population Registration Act 30 of 1950
o Temporary land rights to these areas
▪ Prescribed and controlled by regulations issued in terms of various legislation
▪ Held by permission from the white controlled township administrations
▪ Temporary and insecure
o Strict control over urbanisation and housing in group areas
▪ Lead to growth of squatter settlements or informal settlements

• (d) Criminalised land use: group areas and squatting

o Designation of land implied only people belonging to that race group were allowed
to own, occupy, and use land in that area for any purpose
o Prevention of Illegal Squatting Act 52 of 1951
 ▪ Forced private landowners and public authorities to demolish all buildings
erected without consent from landowner or in contravention of planning and
provisions and building regulations
▪ During late 80s, some lenient court judgments attempted to soften the
impact, but were unable to affect things on a large scale

• (e) Western civil law land rights

o Property law remains close to its origins in classical Roman law
o Statutes and cases dealing with apartheid land law were not regarded as part of
property

The constitutional framework

• De Klerk government introduced number of land reforms

o Abolished most apartheid land laws
▪ Did not repeal Prevention of Illegal Squatting Act
Left out of final
Constitution
• 1993 Constitution: two sections dealing with property
o S 28 – property clause that provided constitutional protection for property
o S 121-123 – general principles provided for the promulgation of a special land
restitution Act
▪ Which was meant to govern the whole process of land restitution in more
detail

• 1996 Constitution:
o S 25(4) – provides that land reform is included in the public interest for purposes
of expropriation, and that property is not limited to land
o S 25(5) – places duty on the state to take steps to promote equitable access to
land (within its available resources)
o S 25(6) – provides that those people whose land rights are insecure because of
past discriminatory laws or practices are entitled to security of tenure as provided
by law, or to comparable redress
o S 25(7) – provides the basis for restitution of land rights (or equitable redress) as
foreseen in the Restitution of Land Rights Act 22 of 1994
o S 25(8) – ensures any state action aimed at land, water, and similar reforms aimed
at redressing past inequalities, will be justified in terms of S 25, as long as these
measures conform with S 36
o S 25(9) – places duty on parliament to enact security of tenure legislation foreseen
in S 25(6)
o S 26(3) – provides that no one may be evicted without a court order
▪ Which may not be granted without taking into account all relevant
circumstances

Categories of reform Three purposes of land reform

1, Restorative justice (restore land rights to
whom property was taken from)
• Main aspects of land reform 2. Redistributive justice (address inequity in
distribution of land)
o 1. Restitution of land rights 3. Procedural justice (put land reform procedure
in place for people who want to benefit from it
 o 2. Redistribution of land
o 3. Improving the security of tenure of existing land rights

• 1. Restitution of land rights

o Restricted category – based upon specific historical land claims
o Purpose: restitution of specific lands taken away from specific people in
apartheid era

• 2. Redistribution of land
o Based on general need for land amongst poor in both rural and urban areas
o Purpose: make land and access to land (rights to use land) available in an
equitable manner, to a larger number of people who previously had no land or
Housing Act and
insufficient land Land Reform (Labour
▪ Through expropriation where necessary Tenants) Act

• 3. Improving the security of tenure of existing land rights

o Involves legislation/other steps to improve quality and security of existing land
rights
▪ Especially where security of tenure was undermined/prevented by apartheid
policy
o Purpose: make existing land rights more secure by protecting the holders of those
rights against unfair evictions
o Tenure policy of government: recognise diverse forms of land rights and promote
innovative new forms of land rights that may help to secure and extend land
holding

• Restitution of land rights Restitution of Land Rights

Restitution of
Amendment Act:
Land Rights Act
Extended land claim submission
• Persons entitled to restitution deadline to 30 June 2019

• S 25(7) of Constitution
o Persons/communities dispossessed of property after 19 June 1913 due to past
racially discriminatory laws/practices
o Aimed at claims against the state, not between individuals or groups

• Rights in land – S 1 of Restitution of Land Rights Act

o Any rights, registered or not
o Specifically including interests of labour tenants, sharecroppers, customary land
interest, and beneficial occupation for not less than ten years
o Shall not apply to rights in land expropriated in terms of Expropriation Act 63 of
1975 if just and equitable compensation was paid

• Natural or juridical persons

• Claimants must have been dispossessed of a right in land

o Need not prove physical dispossession
o Must have been result of previously race-based laws or practices
 o Even if ostensible reason for it was apparently neutral or apolitical

• Procedures

• Restitution of Land Rights Act – chapter II

o Established commission screens all land claims
▪ Identifies those that qualify in terms of Constitution and the Act
▪ Attempts to solve claims by administrative or mediation procedures

• If commission cannot solve claims by administration or mediation procedures

o Referred to land claims court (LCC)
o S 22-38 of Act provides for establishment of special land claims court
▪ President of court must either be judges of SCA or legal practitioners or
academics with experience and expertise in legal and land matters

• Remedies

• Remedies provided in terms of Restitution of Land Rights Act

o Restitution of land in which the claimant was disposed
o Provision of alternative land
o Compensation

• Restoration of land to claimant

o Possible if state certifies that restoration is feasible
▪ Land can be bought/expropriated for the purpose if feasible
o Feasible when: History of its acquisition,
▪ Just and equitable to do so its use, hardship caused
and interests of the parties
▪ Accounting for all relevant factors involved.
o Alternatives:
▪ Provision of alternative land or compensation

• Matters considered by court in deciding restitution claims – S 33

o Desirability of making provision for restitution or compensation to people who
have been disposed of land rights by racially based laws
o Desirability of remedying past violations of human rights
o Requirements of equity and justice
o Desirability of avoiding major social disruption
o Any provision which already exists for the land in question to be dealt with in a
manner designed to promote equality
o Any other factor court considers relevant and consistent with Constitution’s
values

• Compensation could include – Hermanus v Department of Land Affairs

o For value of land
o For additional financial loss caused by original dispossession
o Amount for hardship such as emotional suffering
• Redistribution of land

• Constitution – S 25(5)
o State must take reasonable measures, within its available resources, to foster
conditions which enable citizens to gain access to land on an equitable basis

• Land Reform (Labour Tenants Act) Act 3 of 1996

o Aimed at regulating position of labour tenants who enjoy residential and grazing
rights on agricultural land in return for labour
o Prevents unjust evictions by emphasising obligation of labour tenant to provide
labour (not necessarily personally) in exchange for the land rights
o Tenants entitled to apply, within four years from commencement of the Act, to
acquire the land which they occupy for use in terms of labour tenancy

• Housing Act 107 of 1997

o Promotes and coordinates building and provision of houses
o Aimed at providing safe, humane, and affordable housing

• Rental Housing Act 50 of 1999

o Protects rights of residential tenants
o Regulates landlord-tenant contracts; reciprocal rights and duties of landlords and
tenants; and eviction

• Positive right to land and housing – S 25(5) and S 26(1)-(3) of Constitution?

o No positive right
o Negative right preventing state form interfering with existing land and housing
o Positive duty to do as much as possible within its available resources to provide
people with fair access to land and housing

• The Land Reform: Provision of Land and Assistance Act 126 of 1993
o Provides financing and powers to give effect to land objectives in S 25
o Inter alia allows for acquisition, subdivision, transfer, and settlement of
designated land

• The Spatial Planning and Land Use Management Act 16 of 2013

o Replaces fragmented legislation and policy with single, overarching management
system
▪ Includes planning and management of land involved in land reform initiatives

• Tenure reform

• Most tenure reform laws (enacted in terms of S 25(6))

o Provide strict rules, requirements, and procedures that have to be met before an
occupier’s or user’s right may be terminated and before the occupier or user may
be evicted
• Land Reform (Labour Tenants) Act 3 of 1996

• Purpose
o Protects labour tenants from unfair or unlawful evictions

• Proof of ownership never enough to justify eviction of any occupier (lawful or

unlawful)
o Without a court considering all the relevant circumstances

• Actions interfering with tenant’s grazing rights can also amount to evictions

• Communal Property Associations Act 28 of 1996

• Purpose
o Provides procedure and framework within which groups or communities can
acquire, hold, and manage land as a group

• Provides for implementation of land reform programmes

o With the beneficiaries being groups who acquire the land as a group

• Secures land rights in group context (e.g. customary land rights)

o Both against the state and other outsiders
o And internally among the group members

• Interim Protection of Informal Land Rights Act 31 of 1996

• Purpose
o Provides interim security of tenure to those whose land tenure rights are insecure
▪ Prohibits any deprivation of these rights without the holder’s consent

• “Rights” Includes:
o Customary land rights
o Beneficial occupation of land
o Rights of and access to, use or occupation of land in terms of certain customs,
practices, and usages in a certain area

• Excluded rights
o When they are of a contractual nature
o Land rights based on temporary, revocable permission issued by landowner

• Extension of Security of Tenure Act 62 of 1997

• Applies to all persons (excl. labour tenants) who occupy land outside the urban areas
with the permission of the landowners (ie lawfully)
o Venter v Claasen – Act does not apply to spouses of occupiers separately (spouse
acquired right through marriage to occupier, not independently)
 o Van Zyl v Maarman - Act does not apply where occupier resides on land pursuant
to an employment contract (can apply when the right of occupation derived from
lease agreement)

• Two stages to protection of occupier’s rights:

o Permission to occupy land may be revoked only according to procedures laid
down in the Act
o Once permission revoked – occupier evicted only according to procedures
provide in the Act

• Two categories of occupiers

o Those who occupied land with permission on 4 Feb 1997 (much harder to evict)
o Those who occupied land with permission after that date

• Act amended to grant lawful occupiers of land the right to bury family members
without the landowner’s permission (under certain circumstances) (S 6(2)(dA)
o Established practice to allow burials related to land (not family/group)
o Landowner cannot unilaterally revoke permission to bury once such a practice
had been established

• Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

• Applies to people who occupy land unlawfully (without permission) Revoked Prevention of
o Courts may only grant eviction order if it is fair and equitable Illegal Squatting Act
o With reference to circumstances such as:
▪ Age and health of the occupiers Common law remedies
▪ Availability of alternative accommodation disqualified if they cannot
apply together with the Act.

• PE Municipality v Various Occupiers 2005 (CC):

o Constitution obliges courts to find reasonable and just balance between rights of
landowners and interest of unlawful occupiers
o Vulnerable position of occupiers accounted for, but land-owner’s rights must also
be protected

Effect of the reform process

• Land reforms
o Can have potentially detrimental results for existing owners and users of land
o However, need for rectification of unequal and inequitable distribution of land

• Land reform laws and individual application of the law

o Tested against requirements of S 25 and S 36
▪ To determine whether it is a valid, fair, reasonable, and justifiable deprivation
or expropriation of property
 Unit 4 – Concepts and Classification of Property

Things as legal objects Object of a real

right
• Thing
o Corporeal and tangible object
o External to persons
o Is an independent entity subject to juridical control by a legal subject
o To whom it is useful and of value
Value = juridically
destined to satisfy
• Characteristics of a thing needs of a legal
o Corporeality subject
Subjective rights
o External to humans 1. Real rights (things as objects)
2. Intellectual property rights (intellectual
o Independence property as objects)
3. Personality rights (aspects of
o Subject to juridical control personality as objects)
o Useful and valuable to humans 4. Creditor’s rights (obligations as objects)

• Corporeality (tangible)
o (a) Can be sensorially observed (with any of five senses); and (b) it occupies a
certain space
o If subjective right itself serves as the object of a real right
▪ It is regarded (in common law) as an incorporeal or intangible thing Shares (can be used as
objects in various ways,
e.g. object of a limited real
• External to humans right (usufruct)

o Human being cannot be a legal object

o Parts of bodies which can no longer be connected to a human being
Human corpses (and parts
▪ Can be regarded as negotiable things (e.g. hair for a wig) thereof) can possibly be classified
as legal objects, but ones that fall
▪ Subject to provisions of Human Tissue Act 65 of 1983 outside legal commerce.

• Independence
o Thing must be a definite and distinct entity that exists separately
o In case of composite things:
▪ Object is composed of various components

• Subject to juridical control

o E.g. air/sea cannot be susceptible to juridical control (when not separated into
manageable units)

• Useful and valuable to humans

o Must be useful and valuable to a legal subject and must be destined to satisfy the
needs of a legal subject
o Need not necessarily have economic value, but can also have sentimental value No relationship can exist
o Usefulness and value determined objectively between corporeal thing
and legal subject if it is
not useful and valuable
to the legal subject.
• Classification of things

Negotiable and non-negotiable things

• Negotiable things
o Things owned by natural or legal person or things in a deceased/insolvent estate –
res alicuius
o Things capable of being owned but which at a particular stage are not owned by
anyone – res nullius
▪ Ownership of these things may be acquired through appropriation
o Things no longer within the physical control of an owner and in respect of which
the owner no longer has the intention to be owner (animus domini) – res derelictae
▪ Can be acquired by another person by means of appropriation
o Things lost and no longer within the physical control of the owner but in respect of
which the owner has not lost the intention to be owner – res deperditae
▪ Cannot be acquired by another person by means of appropriation

• Non-negotiable things
o Natural resources falling outside legal commerce, and which are available to all
people
o Things owned by the state and used directly for the public’s benefit
▪ Not all state property falls outside legal commerce and state land, and public
buildings are usually negotiable

Singular and composite things

• Singular things
o Exist as independent units without being composed of particular components

• Composite things
o Compositions of different components consisting of independent things in a new
unit
▪ Components lose their individuality through the combination
▪ Composite thing regarded as one thing for purposes of property law

• Elements of composite things

o Principal thing
o Accessory thing
o Auxiliary thing
o Fruits

• Principal thing
o Things that exist independently and which can be object of real rights
▪ Does not form part of another thing either as component (accessory thing) or
as supplement (auxiliary thing)
o Component of composite thing which provides the thing with its identity is the
principal thing
Khan v
Minister of Law
and Order
 ▪ Owner of principal thing is owner of the composite thing
▪ Which includes the accessory and auxiliary things to the principal thing

• Accessory thing
o Can exist independently of principal thing but which has merged with or been
mixed with the principal thing to such an extent that it has lost its independence
▪ All attachments which do not help to determine composite thing’s identity
can be classified as accessory things
Khan v
Minister of Law
• Auxiliary thing and Order
o Exists separately and independently of principal thing
▪ But because of its economic value, destination, or use
▪ Is no longer regarded as an independent thing for purposes of property law
▪ Need not be a real physical connection with principal thing

• Fruits
o Produced by principal thing without that principal thing being consumed or
destroyed thereby
o Before separation from principal thing:
▪ Fruits are accessory things to the principal thing
▪ But fruits are destined to be separated from the principal thing and to exist
separately and independently

Movable and immovable things As well as

sectional titles

• Immovable things
o Unit of land and everything permanently attached to them by means of
attachment
o Can be incorporeal (e.g. registered long-term lease)

• Movable things
Registration and delivery
o All things that cannot be classified as immovables must take place with
o Can be incorporeal (e.g. shares/goodwill) intention of transferring
ownership.

• Distinction important in following circumstances

o Transfer of ownership
▪ Movable things – takes place by means of delivery of the thing to the receiver
▪ Immovable things – takes place by means of registration of the transfer in the
deed’s registry
o Contract to alienate
▪ Immovable things - must meet formalities prescribed in terms of the
Alienation of Land Act (plus any other applicable statutes)
▪ Credit agreements in respect of movable things – must meet formalities
prescribed by National Credit Act (no other formalities required for alienation
of movable things)
o Real security
 ▪ Immovable things – provided by means of the registration of mortgages
▪ Movable things – provided by means of pledge or the registration of a notarial
bond
o In cases where debtor’s assets are sold in execution
▪ Movables first attached, and then his immovables

Fungible and non-fungible things

• Fungible things
o Belong to certain class or kind (genus) and can thus be replaced by similar things
▪ Does not have individual characteristics which make it irreplaceable

• Non-fungible things
o Have individual characteristics or value which make them irreplaceable

• Distinction important in following circumstances

o Parties to an agreement can determine the fungibility of a thing by means of
contract, which might influence the consequences of such a contract
▪ If agreed thing is irreplaceable – it cannot be replaced by similar thing if
destroyed before transfer
o Fungible thing cannot be pledged with the intention that it may be replaced by a
similar thing
o Non-fungible thing which is due to a legatee in terms of a legacy
▪ Cannot be replaced by similar thing
▪ If thing is destroyed, legacy lapses
o Money classified as fungible thing

Consumable and non-consumable things

• Consumable things
o Depleted in value or consumed by normal use

• Non-consumable things
o Essentially maintained ever if normal wear and tear occurs through use

• Distinction important in following circumstances

o Loan or lease of consumables
▪ As they are depleted, it can be deduced that the parties intended that the
borrower or lessor consume the thing and replace it with a similar thing when
the agreement ends
o Usufruct can only be given regarding non-consumable things (things returned
salva rei substantia)
▪ Quasi-usufruct can be given regarding consumables (holder of right
compelled to return things of the same amount and quality as those
consumed)
o Money regarded as consumable thing
▪ Quasi-usufruct can be given in respect of money
 Divisible and indivisible things

• Divisible
o Can be divided into smaller components whilst retaining its nature and function
and without the value of the components being less than the original value

• Indivisible
o Cannot be divided without changing the value, nature, or function of a thing
 Unit 5 – Ownership and Co-ownership

Introduction to ownership

• Ownership
o Right in property

• Concept of ownership
o Concept of ownership forms the point of departure in describing the nature and
extent of ownership in any given legal system
o Concept of ownership in certain society
▪ Formed by legal, sociological, historical, economic, religious, political, and
philosophical considerations and ideas regarding ownership

• Common law definition of ownership

o Real right which gives the owner the most complete and absolute entitlements to
a thing
o However, can be limited by:
▪ Objective law
▪ Rights of others (limited real rights or creditor’s rights) Subject-
object.

• Ownership and relationships

Thus
abstract o Ownership has to do with both the relationship between a legal subject and the
thing; and
o Relationship between legal subjects regarding the thing
o Relationships are indeterminate Subject-
subject.
▪ They may differ from time to time or from relationship to relationship

• Owner’s rights increasingly determined by interest of the community

o Thus influenced by social factors

• Communal form of ownership S 39(3)

o Traditionally applied by most indigenous peoples of South Africa

o Existence of rights/freedom recognised in customary law are not denied

• Content of ownership

• Content of ownership
o Described in terms of owner’s exercise of entitlements regarding the thing
o Determined within context of each individual case
o Two aspects
▪ Entitlements of owner
▪ Limitations on ownership

Entitlements
• Entitlements
o Entitlement to control (possession)
▪ Physically control and keep a thing
o Entitlement to use
▪ Use and benefit from a thing
o Entitlement to encumber
▪ Grant limited real rights in respect of the thing
o Entitlement to alienate
▪ Transfer the thing to someone else
o Entitlement to vindicate
▪ Unique entitlement of owner to claim the thing from another person

• Entitlements can be limited by

o Statutory measures
o Limited real rights of other persons regarding the thing
o Creditors’ rights of other persons against the owner personally
Thing is
• Extent of entitlements limited by use of rights of other persons arising from: encumbered.

o Limited real rights

▪ Of such persons regarding the thing
▪ Which as burden on the thing limit the owner’s dominium in terms of the
subtraction from the dominium principle; and
▪ Which are enforceable against the owner’s successors in title
Claim against
owner
o Creditors’ rights personally.

▪ Such persons may have against the owner personally

▪ Which do not imply real burdens on the thing in terms of the subtraction from
the dominium principle; and
▪ Which are not enforceable against successors in title
▪ But may limit owner’s entitlements to the thing

• Rights paradigm
o Rights seen as pyramid, with ownership on the top, followed by limited real rights,
personal rights, and then no rights
o Vertical conflicts Illegal
occupiers
▪ Traditional view: right higher up in the hierarchy trumps the other rights in any
conflict
▪ Post-constitutional view: may be considerations outside ownership e.g.
which can limit entitlements such as exclusive use
o Horizontal conflicts
▪ Between rights of two people (e.g. ownership of person A and ownership of
person B) Nuisance
▪ Balancing of rights occurs

• Ownership is more than the sum total of certain entitlements regarding the thing
o Entitlements are not the essence of ownership
▪ However: they determine the extent of the legal relationship between the
owner and the thing at a certain time
 o Ownership without entitlements impossible (real right cannot be without content)
▪ No single entitlement can be seen as essence of ownership (determine only
the extent of ownership as a real relationship)

Limitations on ownership in the public interest

Wrong point of
view

• Notion of absolute and individualistic ownership

o Absoluteness of ownership
▪ Owner has absolute and unlimited control of the thing by using it as he sees
fit
o Individuality (exclusivity) of ownership
▪ Owner’s right “enforceable against the whole world”
▪ Indicates exclusive entitlements of disposition and enjoyment
o Wrong point of view
▪ Ownership must be exercised subject to the requirements of objective law
and the rights of third parties

• Limitations of entitlements in interests of community

o Inherent responsibility of owner towards community in the exercise of his
entitlements
o Balance must be found between
▪ Protection of ownership and exercise of entitlements of the thing regarding
third parties
▪ Obligations of the owner to the community

• Infringement of owner’s entitlements by interest of the community

o Criterion for weighing interest of community against that of the owner
▪ Reasonableness and equity

• Examples of limitations on ownership in the public interest

Nature
• Economic interests of owners weighted against interest of community conservation

o Can be infringed/limited in the interest of the general public

• Interests of neighbouring landowners

o Subject to rights of inhabitants of informal settlement
o Potential harm of smoke, dust, pollution, and noise (nuisance) would have to be
tolerated by landowners

• Interests of landowners weighed against interests of squatters during eviction

applications
Prevention of Illegal
o Circumstances of vulnerable unlawful occupiers and human dignity of such Eviction of Unlawful
Occupation of Land Act
people
▪ Weighed against interests of landowner
o Not impossible to evict unlawful occupiers
▪ If just and equitable
• Economic, social, and political considerations lead to concept of ownership be
amended and developed in the interest of the whole community
o Examples of legislation
▪ Spatial Planning and Land Use Management Act
▪ Land Reform (Labour Tenants) Act
▪ Extension of Security of Tenure Act
▪ Prevention of Illegal Eviction and Unlawful Occupation of Land Act
o Social responsibility of owner is not unlimited
▪ State cannot shift its responsibility to supply housing to individual
landowners
Environment
Conservation Act
• Landowner’s entitlements limited in the interest of nature conservation

• Definition of ownership

• Ownership
o As an abstract legal relationship implies that:
▪ (a) legal relationship exists between the owner and a thing (object) in terms of
which the owner acquires certain entitlements
▪ (b) relationship exists between owner and other legal subjects in terms of
which the owner can require that others respect his entitlements regarding
the object
o The relationship
▪ (c) consists of indeterminate entitlements in that they vary from time to time
regarding the same relationship or regarding different relationships
▪ (d) limited by statutory measures, limited real rights, creditors’ rights of third
parties, and the interests of the community

• Elasticity of ownership
o When limitations fall away (ie in terms of limited real right), ownership reverts
back to its original unlimited form
o Extent of ownership determined with reference to owner’s entitlements

Co-ownership

• Co-ownership
o Two/more persons are co-owners of a thing(s) simultaneously
o They own the thing(s) in idealised, undivided co-ownership shares
o However, the thing or the ownership of the thing is not divisible
▪ Entitlements not divisible, but co-owners must exercise the entitlements
jointly in accordance with the undivided shares
• Establishment of co-ownership

• Ways of establishment
o Inheritance
o Conclusion of a marriage in COP
o Mixing
 o Estate holdership
o Voluntary association without legal personality
o Contract

• Inheritance
o Following owned in co-ownership if testator bequeaths it to two/more people
▪ Indivisible thing
▪ Divisible thing (but instructs that it may not be divided)

• Conclusion of marriage in COP

o Spouses are co-owners of all things in the common estate in equal, undivided
shares as long as marriage exists

• Mixing (commixtio)
o Movable things mixed, without owners’ permission, such that the mixture creates
a new thing
▪ Previous owners of mixed things become co-owners of new thing in the
relation in which their property contributed to the new thing (mixture)

• Estate holdership
o Surviving spouse of marriage in COP continues the COP together with the heirs of
the deceased spouse
Bound common
owners.
• Voluntary association without legal personality
o Members of association are co-owners of assets of the association in undivided
shares
▪ Member may not alienate/encumber his undivided share because of unique
consequences flowing from his contract of membership of the association Free co-
owners

• Contract
o Two or more persons, through contract, can jointly buy a thing and have
ownership transferred in undivided shares through delivery or registration

• Two types of co-ownership

o Common law co-ownership (bound and free)
o Statutory law co-ownership (unit 6)

• Bound common ownership

• Bound common ownership

o Exists between common owners as a result of an underlying legal relationship
between them
▪ Which forms basis for their common ownership of the things or things
▪ Implies the common owners cannot terminate the common ownership while
the legal relationship is still in existence

• Examples
 o Marriage in COP - determined by matrimonial law
o Partnerships - determined by partnership law and partnership contract
o Voluntary association - determined by law of associations and membership
contract

• Implications of bound common ownership

o Cannot alienate/encumber share of common ownership as long as underlying
legal relationship exist
o Joint exercise of entitlements of ownership determined by underlying legal
relationship
o Common ownership cannot be terminated unilaterally by common owner while
the underlying legal relationship still exists

• Free co-ownership

• Free co-ownership
o Only legal relationship existing between parties is the co-ownership of the thing(s)
o No underlying legal relationship exists

• Implications of free co-ownership

Can arrange
o Co-owner can alienate/encumber his undivided co-ownership share it by contract
independently
o Co-ownership can be terminated unilaterally
o Joint exercise of entitlements not determined by an underlying legal relationship

• Rights and obligations regarding the property

• Rights and obligations regarding the thing

o Alienation and encumbrance
o Use
o Profit, income, and fruits
o Maintenance and expenses
o Right of veto

• Alienation and encumbrance

o Co-owners must give permission

• Use
o Co-owners must decide jointly how the thing is to be used
▪ Use agreement
▪ Informally
o Entitled to use thing reasonably and in accordance with size of share
▪ Reasonable use → cannot be used to detriment of other co-owners
▪ Size of share → use of the whole thing must be in accordance with size of
share

• Profit, income, and fruit

 o Co-owners entitled to equal share proportionate to every co-owner’s share
▪ Even if profit/income was only initiated by one owner
▪ One owner cannot appropriate for himself the full profit of the property
through independent use and exploitation thereof

• Maintenance and expenses

o Co-owners obliged to contribute to maintenance/expenses of the property
proportionate to their shares
▪ Obligation only applicable to necessary expenses for conservation of the
property
▪ Not liable to contribute to luxurious improvements made without their
approval

• Right of veto
o Decision of majority of co-owners regarding the use of the property is not
necessarily binding on the minority
▪ Minority can veto decision of majority
o Co-ownership can be terminated or reasonableness of co-owners tested by the
court
▪ Court could give declaratory order or prohibitive interdict depending on case

• Entitlement regarding the undivided share

• Share in joint property (free co-owners)

o Can be encumbered by limited real right given by co-owner to third party
proportionate to co-owner’s share Provided it does
not infringe upon
rights of co-owners
• Encumbrance
o Possible to pledge the share
o Immovables → possible to encumber share with a mortgage Real servitudes are indivisible →
o Possible to encumber share with personal servitude (e.g. usufruct) thus cannot be given regarding a
co-ownership share
o Possible to lease or bequeath share

• If thing is divisible
o Co-owners may agree that a co-owner may exercise his use right in terms of his
share regarding a specific part of the property

• If thing is indivisible
o Co-owners may agree to divide use of thing on the basis of time

• Use agreements
o Only binding on parties to agreement and not on party’s legal successor

• Shares in joint property need not be equal

o Co-owner can subdivide his share and alienate part of it and retain another

• What can and cannot be objected to

 o Co-owners cannot object to new co-owner as a result of alienation
o Co-owners can object to co-owner giving use rights to third party without their
permission
▪ But: co-owner can lease his share to third party without permission

• Remedies
Control and use usually regulated
• Remedies through mutual agreement of co-
o Damages or division of profit owners, but non-compliance/lack of
agreement can make it necessary to
o Interdict approach the court for assistance
o Subdivision (actio communi dividundo)

• Damages or division of profit

o Can claim damages or division of property if:
▪ Co-owner exceeds reasonable use in terms of his share
▪ By using thing for purpose not previously used or intended
▪ Or if extent of use larger than his share
o Extent of other co-owners claim determined by considering:
▪ Income of the co-owner from such use
▪ The expenses and profit
▪ Extent of the share

• Interdict
o Co-owners can, via an interdict, prohibit the continuation of an unreasonable use
▪ Basis of interdict: co-owners right of veto regarding use of the thing (ius
prohibendi)
▪ Cannot prohibit reasonable use (co-owners entitled to this by virtue of co-
ownership)

• Subdivision

• If property divisible
o Co-owner can at any time claim the subdivision of the property
▪ Requirement → co-owners must first attempt to divide thing amongst
themselves in accordance with everyone’s share
o If such division not achieved: actio communi dividundo can be used
▪ Co-owners expected to submit proposed subdivision
▪ If absolutely impossible for co-owners to agree on division: court will order a
division

• Co-owners can agree not to subdivide property for period of time

o However: agreement that co-ownership will be perpetual is not enforceable and
cannot prevent introduction of actio communi dividundo

• If agreement of subdivision concluded

o Co-owner cannot attack agreement on ground that it is not in accordance with the
sizes of the share or that it is inequitable
 o Subdivision agreement can be enforced by court

• If property indivisible or it would be uneconomical/detrimental to physically divide

property
o Court may order property be sold and proceeds divided in accordance with
shares; or
o Court may order that one co-owner compensate another co-owner in accordance
with their shares

• If immediate division would be to detriment of co-owners

o Court may in appropriate cases postpone the division or sale of the property for a
determinate/indeterminate period

• Legal relationship between co-owners terminated when:

o Property delivered to new owner(s) (movables)
o Registration of transfer takes places in deeds registry (immovables)

The notion of absolute and exclusive ownership

• Difficulty of defining ownership

o Ownership functions in legal system based on and shaped by historical,
philosophical, religious, economic, political, and social considerations

• Concept of dominium in Roman law

o Relationship between a dominus and a res – not understood as a right
o Dominum never described as absolute
▪ Limited by public law as well as private law
▪ Could be limited voluntarily by an owner (e.g. usufruct)

• Two Roman-Dutch law definitions of ownership

o 1. Dominium described as right to dispose perfectly over a corporeal object, in so
far as is not prohibited by law (Bartolus)
▪ Negates idea that ownership is absolute
o 2. Ownership described as the right that allows the person to whom a thing
belongs, but who is not in possession of it, to reclaim it (right of vindication)
(Grotius)
▪ 2nd Definition (Grotius): full ownership is the right to do anything with the
object that the owner wants and that benefits him, to the extent that such use
is not prohibited by law
▪ Ownership not absolute

• Approach of the courts

o Often describe ownership as the most complete right but rightly accept it is not
absolute and is subject to the law

• Notion of absoluteness referred to

 o In this sense, refers to completeness in the sense that the owner holds all
entitlements that have not been suspended or transferred to someone else
▪ However, enjoyment or exercise of those entitlements is not unrestricted

• Individuality characteristic of ownership

o There is only one kind of ownership and this one form of ownership is not
fragmented amongst more than one person at a time (not referring to co-
ownership here)
▪ Fact that only one person can hold any one kind of legally recognised
ownership over any given property object at any given time
▪ Implies that the owner’s right is enforceable as a real right (“against the whole
world)
o Gives ownership a strong right to vindicate the property from anyone who cannot
prove a valid and enforceable access or occupation right

• Rei vindicatio
o Entitles owner to recover his property from any person who has possession of it
o Requirements:
▪ Prove s/he is owner of property
▪ Property in possession of the defendant
▪ Property is still in existence and clearly identifiable
o Only defence:
▪ Prove a valid right of possession (e.g. lease agreement)
o Remedy based on assumption that owner is entitled to exclusive possession of
his property in the absence of a valid defence
▪ Defendant proves valid right of occupation → owner not entitled to
possession
▪ Valid defence may be derived from legislation, proof of which will block
against recovery of possession

• Ownership an abstract right

o More than sum total of its constituent entitlements and is not exhausted/eroded
by the granting of limited real rights or imposition of restrictions on the exercise of
any entitlement
o Ownership is totality of rights (not bundle of rights)

• Elasticity of ownership
o Embraces the idea that when rights in property that are held be person others
other than the owner are terminated, those rights automatically revert back to the
owner
o As soon as limitation falls away, ownership resumes its natural completeness

• Private individual ownership

o Entitlements unrestricted in principle, but may be restricted in fact
o Owner free to do what he please with his property, unless the right is restricted by
legislation or by competing rights created by consent
• Section 2 and Section 36(3) of Constitution create:
o Constitutional framework within which ownership, and all other property rights,
can only exist as fundamentally, systemically limited rights that can be exercised
as far as the law allows

• Limitations of ownership
o Inherent to the constitutional and legal system in which ownership is possible, in
which it is created, and in which it functions and is protected
Unit 6 – Neighbour law

• Limitations on ownership
o Statutory limitations
o Creditor’s rights of third parties against the owner
o Limited real rights of third parties in the property
o Provisions of neighbour law

• Purpose of neighbour law

• Unifying theme/principle
o Sie utere tuo ut alienum non laedas → may not use property in such a way so as to
cause burden to neighbour
o Harmonisation of neighbouring owners’ or users’ interests
▪ By weighing their rights and obligations in the exercise of entitlements against
each other in order to balance conflicting ownership interests
o Landowner must exercise entitlements reasonably
▪ Neighbour must tolerate this within reasonable bounds

• Nuisance

• Act unreasonably if
o Owner/occupier of land in the exercise of his entitlements
o Should inconvenience a neighbouring owner/occupier
o By creating or allowing a situation
o As a result of which his neighbour suffers damage One approach
o Or if neighbour is disturbed in the use and enjoyment of his property need not exclude
the other

• Remedies
o Delictual remedies if neighbour’s unreasonable actions cause patrimonial loss or
personal injury (owner commits delict)
o Common law property remedies due to infringement of ownership or the right of
occupation

• Nuisance in narrow sense Annoyance

o Infringement of neighbour’s use and enjoyment of his land

o Constitutes infringement of a personality right (e.g. health) or an entitlement of
use
o By means of noise, smells, gases, etc
o Infringements can normally be prohibited by means of an interdict

• Criterion of reasonableness
o Nuisance must usually be repetitive or continuous
▪ Single action of short duration must be tolerated
▪ Except if there is reasonable expectation that activity will be repeated
o Only annoying actions which would be unreasonable in the opinion of the
community can be seen as unusual activity
o Action or activity must be nuisance according to a normal person
 o Aspects such as:
▪ Location of properties
▪ Zoning of properties as residential, business, or industrial areas
▪ Habits of inhabitants
▪ Whether the health of the neighbour might be affected

• Nuisance in wider sense Compensation claimed

with action legis Aquiliae
o Infringement of the neighbour’s exercise of entitlements in general
o Or actions by neighbouring owner/occupier that cause damage
o Compensation can be claimed or infringement can be prohibited by means of an
interdict

• Delictual liability not applicable to:

o Encroachments, lateral support, and the natural flow of water
▪ Principles of English law applied

• Nuisance and abuse of rights

o Owner acts with exclusive intention of harming his neighbour (animo vicino
nocendi) and it results in real damage or prejudice to his neighbour
▪ Actions are unlawful (no longer regarded as exercise of an entitlement of
ownership)
o Requirements of unlawfulness
▪ Done with improper motive toward neighbour
▪ Actor derives no benefit from it
▪ Neighbour is injured
o Conduct not unlawful if exclusive purpose is not to injure neighbour, even though
actions cause neighbour injury
▪ Criterion of reasonableness applied

The give-and-take spirit of neighbour law

• Unifying principle of natural and reasonable use

• Objective reasonableness criterion (give-and-take reasonableness principle)

o Best way to harmonise conflicting interests of neighbouring land owners
o Twin notions
▪ Natural (normal) use
▪ Reasonableness

• Nuisance in narrow vs wide sense

o Narrow → nuisance that causes annoyance by disturbing neighbour’s use and
enjoyment of land
o Wide → abnormal or unnatural use of land which causes neighbour actual
patrimonial loss

• Reasonable use of land

 o Land owners expected to use land in reasonable manner and to accept a
reasonable level of emissions onto their land cause by the reasonable use of
neighbouring land
o Emissions only constitute nuisance when they exceed bounds of reasonableness

• Whether particular interference is unreasonable

o Decided with reference to nature of interference and other contextual
considerations
▪ Suitability of respondent’s interference
▪ Time or times at which interference is caused
▪ Sensitivity of the applicant generally or to the particular emission
▪ Nature of the property and the nature of the locality where harm was caused
or occurred and the custom regarding land use in that locality
▪ Possibility and practical or economical feasibility of actually preventing,
terminating, or mitigating the harm

• Reasonableness relates to ordinary physical comfort of reasonable person

o Normal man of sound and liberal tastes and habits

• Where nuisance causes actual damage to property or physical injury

o Judged differently
▪ Unreasonableness is assumed when damage or injury occurs