LU2 — The Law of Property (Core Concepts)
← 01 - LU1 Setting the Scene | 00 - Index | Next → 02a - LU2 Acquisition of Ownership
Learning Outcomes
After studying this unit you should be able to:
- - Identify differences between a real right and a personal right
- - Explain why possession needed protection under Roman law and why it still matters
- - Explain what a iusta causa is and why it was important for delivery
- - Discuss the Constitution's impact on eviction of unlawful occupiers
- - Explain whether the Constitution can protect property rights in South Africa today
2.1 Introduction
- - "Law of things" = law governing specific legal objects and legal relationships
- - "Law of property" = wider concept — includes relational rights in property AND constitutional developments
- - Roman foundations remain relevant in South African property law today
- - African customary law's conception of ownership is evaluated alongside the Western model
2.2 Slavery — From Objects to Subjects
- - Under Roman law, slaves = res (legal objects), not legal subjects
- - Slavery was supported (or not prohibited) by Christianity, Judaism and Islam
- - The Dutch brought slavery to the Cape in 1652
- - Abolition of slavery in 1834 at the Cape → slaves became legal subjects with rights
- - Modern equivalent = human trafficking (prohibited under the Prevention and Combating of Trafficking in Persons Act 7 of 2013)
💡 This arc (legal object → legal subject) shows how law changes with society — a key theme of the module.
2.3 African Customary Law vs Western Ownership
| Feature | Western (Roman-Dutch) | African Customary |
|---|---|---|
| Nature of ownership | Individual real right | Communal — family/clan/community |
| Who holds rights | Individual owner | Community; individuals have use rights |
| Constitutional status | Recognised | Constitutionally protected source of law |
Both systems are officially recognised under South African law.
2.4 Real Rights vs Personal Rights
| Feature | Real right (*ius in re*) | Personal right |
|---|---|---|
| Definition | Right in a thing | Right to claim performance from a specific person |
| Enforced against | Any person infringing the right | Only the specific debtor |
| Legal remedy | Real action | Personal action |
| Examples | Ownership, servitude, hypothec | Contract claim, delict claim |
The law of property = real rights. The law of obligations = personal rights. Both still exist in modern South African law, both now shaped by the Constitution.
2.5 Possession (Possessio)
Definition: The physical and factual control a person has over a corporeal thing.
Key distinctions
- - Possession ≠ Ownership
- - Tebogo owns a house AND lives in it → he has both ownership and possession
- - Tebogo leases the house to Christine → Christine has possession, Tebogo retains ownership
- - Anita steals Barbara's ring → Anita has possession (unlawful, mala fide), Barbara retains ownership
Requirements for possession
- 01Physical control over the thing
- 02Intention to control it (animus)
Why possession matters
- - Can be protected by interdicts
- - Important for limited real rights
- - Plays a key role in transfer of ownership (delivery)
⚠️ Exam language: possession and ownership have different legal consequences — use the correct term always.
2.6 Ownership
Definition
Ownership is the fullest (strongest) possible real right one can have over a corporeal thing.
Three entitlements of ownership
| Latin | Meaning | Example |
|---|---|---|
| Ius utendi | Right to use the thing | Paint a picture of the cow, plough with it |
| Ius fruendi | Right to the fruits | Automatically owns milk and calves |
| Ius abutendi | Right to alienate or destroy | Slaughter the cow or donate it |
Limits on ownership
Under Roman law and today, ownership can be limited by:
- - Provisions of the law (e.g. animal cruelty legislation)
- - Rights of others (e.g. servitudes)
- - The Constitution (e.g. ss 25 and 26 limit the rei vindicatio)
Ownership under Roman law
- - Only over corporeal things in commercio (in the commercial world, without legal defect)
- - Ownership could NOT be established over stolen goods
2.7 Protection of Ownership — The Rei Vindicatio
Definition
The most important remedy available to a Roman (and South African) owner — an owner uses this real action to reclaim their thing from whoever is in control of it.
Requirements
- 01Plaintiff must prove ownership
- 02Defendant must be in factual control of the thing
- 03It does NOT matter whether the defendant was bona fide or mala fide
- 04The defendant can avoid judgment at any time by simply returning the thing
Still valid today
The rei vindicatio remains the most important action to protect ownership in South African law — but the Constitution has placed restrictions on its use in certain circumstances (see 02c - LU2 Constitutional Developments).
2.8 Limited Real Rights (Ius in Re Aliena)
A real right in the property of another person.
Two categories
| Category | Examples |
|---|---|
| Real rights of enjoyment | Servitudes (usufruct, usus, habitatio) |
| Real rights of security | Hypothec (similar to a mortgage bond) |
Limited real rights are protected by real actions — enforceable against all third parties.
- - 02a - LU2 Acquisition of Ownership — nemo plus iuris, traditio, modes of acquisition
- - 02b - LU2 Limited Real Rights & Servitudes — servitudes in detail
- - 02c - LU2 Constitutional Developments — ss 25 & 26, PIE Act, case law
Self-Assessment Questions
- - Provide three distinctions between a real right and a personal right.
- - What is the best example of a real right?
- - Which major religions supported slavery as a social necessity?
- - How did slavery come to South Africa?
- - By what modern name is the slave trade known today?