LAPR7321

LAW OF PROPERTY
LU2 THEME 1:
Characteristics of Ownership.
LU2: THEME 1-
CHARACTERISTICS OF
OWNERSHIP

•LO1: Discuss the common law concept of ownership

according to its characteristics and the entitlements of
owners.
•LO2: Discuss the various examples of Limitations on
ownership that are in the public interest with reference to
relevant case law.
INTRODUCTION: OWNERSHIP

Section 25 of the Constitution provides the framework on how and when

expropriation of property may take place.

This provision effectively ensures the relevance of private ownership of

property.

The importance of ownership is notable even between what distinguishes

between concept such as, Capitalism; Socialism; Communism and Africa
Communism.
WHAT FACTORS
DO YOU THINK
INFLUENCES THE
CONCEPT OF
OWNERSHIP
THE CONCEPT OF
OWNERSHIP

The concept of ownership may vary from one

society to another.
This depends on a number of considerations upon
which the particular society places emphasis.
Factors that contributes to the concept of
ownership includes the following:
1. Legal-Sociological.
2. Economic.
3. Historical.
4. Religious.
5. Political.
• Philosophical and others.
WHAT IS YOUR UNDERSTANDING OF
OWNERSHIP AS A RIGHT?
 The origin of South African common law
concept of ownership is based mostly on Roman
and Roman-Dutch Law.
COMMON
The common law description is found on
LAW various case laws.
DEFINITIO
N OF Ownership at common law is described as the
most complete real right that a legal subject can
OWNERSHI have regarding a thing.
P It is regarded as a real right which gives the
owner the most complete and absolute
entitlement to a thing.
IS THE RIGHT OF OWNERSHIP
ABSOLUTE?
 Ownership therefore entails the most
comprehensive real right.

In South Africa this right is protected by Section 25

of the Constitution.
CONTI… As comprehensive as the right of ownership is, it is
not absolute.

Ownership may be limited by objective law and

other persons limited real right or personal right.
 The content of ownership must be determined
within the context of each individual case.

CONTENT
This must be done having regard to two
OF aspects.
OWNERSHI
P These aspects ae the following:

• The entitlement of an owner.

• Limitations on ownership
WHAT ENTITLEMENT DO YOU THINK
AN OWNER HAS 0VER A THING?
 ENTITLEMENT
The following entitlements are usually distinguished:
• Entitlement to control is the entitlement to physically control and keep a thing.
• Entitlement to use is the entitlement to use and benefit from a thing.
• Entitlement to encumber is the entitlement to grant limited real rights in respect of the
thing.
• Entitlement to alienate is the entitlement to transfer the thing to someone else.
• Entitlement to vindicate is the unique entitlement of the owner to claim the thing from
another person.
WHAT LIMITATIONS LIMITS THE RIGHTS
OF AN OWNER?
 ENTITLEMENT
CONTI…
These entitlements of the owner arising from ownership can be limited
by the following:
1. Statutory measures.
2. Limited real rights of other persons regarding the thing.
3. Creditors’ rights of other persons against the owner personally.
 ENTITLEMENT
•The extent of the owner’s entitlements is therefore limited by
the use rights of other persons arising from:
Limited real rights of such persons regarding the thing and
which, as a burdens on the thing, limit the owner’s dominium in
terms of the subtraction from the dominium principle .

Creditors’ rights that such persons may have against the owner
personally.

Non-property Constitutional rights may limit an owner’s rights

where such persons exercise constitutionally protected rights such
as the right not to be evicted from their home, the right to picket or
demonstrate.
LIMITATION • Ownership is sometimes wrongly characterised as
absolute and individualistic.
ON • The absoluteness of ownership is ostensibly found in
the owner’s entitlement to do with the thing ‘what he
OWNERSHIP wants’ within the bounds of objective law, that is to say
to have absolute and unlimited control of the thing by
IN THE using it as he sees fit.
• The individuality of ownership is ostensibly found in
PUBLIC the fact that the owner’s right is ‘enforceable against
the whole world’, which indicates exclusive
INTEREST. entitlements of disposition and enjoyment.
CONTI…
• Increasing emphasis is placed upon the characteristic of
ownership which requires that entitlements must be
exercised in accordance with the social function of law in the
interest of the community.
• The inherent responsibility of the owner towards the
community in the exercise of his entitlements is emphasised.
• The balance between the protection of ownership and the
exercise of entitlements of the owner regarding third parties,
on the one hand, and the obligations of the owner to the
community, on the other hand, must be maintained
throughout.
 EXAMPLES:

1. The economic interests of owners must be weighed against the interest of the community. See Corium
(Pty) ltd v Myburgh Park Langebaan (Pty) ltd)
2. Interests of neighbouring landowners are subject to the rights of an informal settlement ITO the Less
Formal Township Establishment Act 113 of 1991. See Diepsloot Residents’ and Landowners’
Association v Administrator Transvaal.
3. In terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 the
interests of landowners have to be weighed up against the interests of squatters during eviction
applications. See Port Elizabeth Municipality v Various Occupiers.
4. A landowner’s entitlements can be limited in the interest of nature conservation in terms of the
Environment Conservation Act 73 of 1989. See Petro Props (Pty) Ltd v Barlow.
Corium (Pty) Ltd v Myburgh
Park Langebaan (Pty) Ltd
‘The balance of convenience is perhaps the most difficult part of this
decision. The first respondent (owner) will suffer loss if an interdict is
granted. On the other hand, I am called upon to consider not only the
interests of the applicants, but those of the general public whose
members may be affected . . . . Looking at the matter in this way, it is
apparent that the grant of the permit which . . . effectively negated the
earlier proclamation of the land as a nature area (with a view to its
eventual incorporation into the West Coast National Park) is a matter
of great public importance. Nature parks are a national asset of
immense value, perhaps the most valuable natural resource we have.’
Diepsloot Residents’ and Landowners’
Association v Administrator Transvaal 1994 (A)
‘I have previously mentioned that the Act was enacted against the background of the repeal of
discriminatory legislation, increased urbanization and the resultant squatter problem. There was an urgent
need to provide for the speedy and orderly settlement of homeless persons . . . . In the circumstances the
settlement of persons next door to – or close to – established residential areas is unavoidable . . . . It must
therefore have been within the contemplation of the Legislature that the exercise by Page 52 the
Administrator of his powers (including the exercise of any discretion vested in him) with regard to the
settlement of homeless persons might result in interference with the common-law rights of third parties.
Inherent in the grant of such powers is statutory authority for any such interference. It follows from the
aforegoing that the reasonably apprehended interference with the rights of the Diepsloot residents as a
result of the proposed settlement of the Zevenfontein squatters at the Diepsloot site is authorised by the Act
and not wrongful. The appellants (owners) are consequently not entitled to the interdict sought.’
Port Elizabeth Municipality v Various
Occupiers 2005 (CC).
‘In sum, the Constitution imposes new obligations on the courts concerning rights
relating to property not previously recognised by the common law. It counterposes to the
normal ownership rights of possession, use and occupation, a new and equally relevant
right not arbitrarily to be deprived of a home. The expectations that ordinarily go with
title could clash head-on with the genuine despair of people in dire need of
accommodation. The judicial function in these circumstances is not to establish a
hierarchical arrangement between the different interests involved, privileging in an
abstract and mechanical way the rights of ownership over the right not to be
dispossessed of a home, or vice versa. Rather, it is to balance out and reconcile the
opposed claims in as just a manner as possible, taking account of all the interests
involved and the specific factors relevant to each case.’
THE END