Monday 27 January

2025
Definitions
Legal Subject – a person; can be a natural or juristic person, a person
that can hold rights at law so generally a person at 18 and if it’s an
artificial person that person has been lawfully constituted either in terms
of the companies act or in terms of statute.

Legal Object – a thing; things that the law recognises

Property law looks at subject – object relationships, that is the relationship

between a subject and an object. This relationship is governed by rights.
The nature of the rights determines the nature of the relationship.
Similarly, the relationship also determines the nature of the rights. By
looking at the rights you can have an idea at the nature of the
relationship, similarly the relationship would tell you what rights exist.
Legal rights are the rights that the law recognises.

Difference between the law and a right?

- The law is something enforceable
- A right exists where there is the lawful legal relationship

Property Law (in many aspects will be referred to as patrimonial law)

Obligations – you create them for Property – the term is very broad, if
yourself. alive it is referred to as property
- They tend to be voluntary and once you die it is referred to as
like things like contracts, an estate.
family law (choose who you - With property there are
get married too, have many aspects; when
children with), delict (duty to someone dies that’d be
care). succession, there are things
with which we are primarily
concerned with in this
course, there is also
 intellectual property.

Will be looking at property law through the private law lens.

Property law is concerned with direct attribution in that we are looking for
a direct relationship between you and the thing.
Wednesday 29
January 2025
Recap of last class
Function of property law
- We seek to harmonise and regulate; in that how do you harmonise
competing rights, in property law we are particularly concerned with
harmonising and regulating rights between owners and the
neighbouring rights or non-owners and at the same we are
harmonising and regulating between holders of limited real rights.
That it is possible for several people to have rights in the same thing
and how are these relationships regulated.
- Also concerned with the acquisition; how do you buy property,
protect property and how do rights come to an end. The principle
when it comes to property law rights is either you use them or lose
them. Property law is an active right.

Sources
Historically property law is still primarily Roman Law. It is that branch of
the law which is still considered hard law. There’s an aspect of Germanic
law when it comes to non-registration. We may borrow terms from English
law but the meaning may get lost in translation.

Law of things
What is a thing – it is an independent part of the corporeal world; so it has
to be independent
- It is corporeal
- It is external to humans; a human being cannot be a thing
- Humans should still be able to control it; so, it is subject to human
control
- Has to be useful and valuable to humans
In property law we believe in the principle of diminimis in that the law
doesn’t concern itself with trivialities.
Corporeal – something is corporeal if you can perceive it with your 5
senses e.g sound, smell/scent. It has to be corporeal and occupy space.
Instead of using the word corporeal some will use the word tangible, if it is
tangible it is part of your law of things and this is an important distinction
in that if it isn’t corporeal it isn’t a thing and it means it is governed by a
different part of the law e.g crimes like theft can only happen to things. If
it isn’t a thing it can’t be stolen. Look at Telkom SA Ltd v Xsinet (Pty)
Ltd (92/2002) [2003] ZASCA 35 (31 March 2003) case; brunt of
argument in this case was whether wifi was a thing that should be
protected.
Property law stipulates that you cannot take things away from people
without due notice or following certain procedures but if it isn’t a thing
due notice is not necessary and you do not have to follow any procedures.

Has to be impersonal – cannot be a human being

What about parts of a human being?
We tend to draw the line when it comes to parts of the human. The line is
drawn at whether the part can regenerate, if it can regenerate on its own,
it is a thing.

Independent – it has to be capable of individual existence that is

because when it comes to property law, theoretically, we follow a unitary
model of property where we are saying only one person can own one
thing, that is our philosophy in property law and thus the thing has to be
independent casue you own the thing in its entirety.
You may divide ownership but the thing isn’t divided.
The term independence is used in a technical sense in that we are saying
it has to be a legally independent thing, e.g. land is a continium but the
only reason we can say that plots exist is because legally we have created
plots and hence it is legally independent. So if we say independent we
mean in the legal sense, in that can it be demacated as an individual
thing.
Subject to human control – can human beings control it?
It isn’t a thing if human beings can’t control it

Useful & valuable to human beings – we follow diminimis,

Useful could be in terms of size & quantity you could make something
useful.
In property law we are concerned with harmonising of contesting rights, so
it is only property if somebody else wants it. If no one wants it at property
law, we also don’t care. It needs to be of use and value, someone may
want to take it from you, borrow it…
Value doesn’t necessarily only have to be economic. Some things could
have aesthetic value

All the above elements must be present.

Going into classification for Friday class. Read those cases.
Friday 31 January
2025
No class
Monday 3 February
2025
Had looked at defining things during last class.
Classification of Things
How you classify a thing will determine how the law interacts with the
thing and thus we classify things for all sorts of reasons and the reason
why you classify the thing will determine how you classify it. That it’s
usually driven by the ends that the reason why you’re classifying will
determine how you classify.
Remember that all classification is discriminatory. Only reason you’d want
to classify anything is for purposes of discrimination. That you wanna
classify something as being of a particular nature because you want
particular rules to apply to that thing. Thus, if you wanna achieve a
particular means you will classify things in a particular way.
There’s an infinite number of ways to classify things and some things are
capable of more than one classification and the classification that you
choose will be determined by why you want to classify.

Classification is important in that it determines: -

- the rules that apply to the thing,
- how the thing is acquired as it’d be different for the different things,
- how you protect your property

When we are classifying, we have two primary methods of classification

1. relationship with humans – how do persons relate with the thing
2. according to its nature – the nature of a thing will also determine
how you classify it.

Classification in relation to persons

As persons when we are classifying things we are grouping into two
groups, either it is negotiable or it’s non-negotiable
Negotiable Non-negotiable
If negotiable, it’s in commerce. It isn’t in commerce
This means that it can be traded
and has commercial value
Can be owned and has an owner. Cannot be privately owned e.g.
Can then divide further – is it human body and its parts tend to
owned by one person, a group be dealt with in family law and in
of people or a juristic person. that regard when it comes to the
And in those different categories human being and human body
the rules would be different in that parts, we tend to be in the realm of
what you do with property that you personality rights and the
own by yourself if completely protection of that we are looking at
different from what you could do actio injuria actions; that your
with property that you own with personality rights have to be
someone else or as a group and so infringed. Thus that bit of the law is
on. out of commerce and is dealt with
- Can be owned but are not in terms of the law of persons.
owned (res nulius) – capable This category is shrinking as we
of being owned but at that become more and more secular,
particular point in time it we are saying more and more
isn’t owned. E.g. abandoned things are tradeable.
property (there’s a difference
between abandoned and lost
property; lost property is
owned & the owner just
doesn’t know where it is, see
Zim criminal case where a
grader had been left on the
side of the road for almost
10 years and villagers now
believed it was abandoned
and acquired parts from it,
only for the owner to return
and allege that a theft
occurred. Court held that the
duration it had be left for can
 lead one to believe twas
abandoned ) whether res
nulius or lost look at the
situation, it’s situational.
Remember that something is
said not to have an owner if
the owner relinquishes the
intention of becoming an
owner.
Our starting point is that everything is in commerce, therefore
everything is negotiable. When in doubt we assume that
everything is in commerce.
With this classification, we aren’t looking at the nature of the
thing, we’re simply looking at whether it can be owned.
Some things could be outside commerce because of legislation and that
the law will decide that this is outside commerce e.g. laws on drug trade;
thru legislative intervention certain drugs are outside commerce.
There are many reasons why things could be outside commerce -
1. Natural law argument - that some things naturally should be out of
commerce and are common to all. Things that are common to all
cannot be owned by anyone e.g. the free are that’s circulating that
we are breathing. But note that it’s only outside commerce if it’s
circulating. If it’s managed to be reduced and maybe put in a can at
that point it’s now in commerce.
If not given access to common things, it gives rise to actions
injuria. Because if something is common to everyone and at
some point u decide that I as a person shouldn’t enjoy what’s
common to everyone u r attacking my personality.
2. Public/common things – think of public services like the road,
national parks. Think state property and thus this property cannot
be in commerce or privately owned. Don’t forget to distinguish that
there is state property which is for the public and there’s state
 property which isn’t for the public. Some gov offices aren’t for the
public.
Just because it is state property doesn’t mean it is public. But
generally, our starting point is public.
3. For other reasons – such as being out of commerce for religious
reasons. See Masedza v Gospel of God Church – courts found that
this category is shrinking and questioned if it should be continued to
be recognised in property law. The church wasn’t found to be divine
(and therefore it’s negotiable). The category of divini uris has
moved from non-negotiable to negotiable and therefore in
commerce.

Next class will be on classifying things according to their nature.

Wednesday 5
February 2025
Classifying things according to their nature
Using the inherent characteristics of the thing in order to classify.
We look at them in two ways, and this is one of the most important
distinctions in property law; either it is moveable or immovable.
There’s been attempts to classify incorporeals as moveable or immovable
however it hasn’t made traction.
Immovable Moveable
Looking at land and anything Something you can move from one
permanently attached to that such place to another without the thing
as budlings. It is self-explanatory being destroyed.
Wear and tear is not destruction. If
you move things wear and tear will
occur, but this doesn’t mean that
the thing is destroyed. The thing is
still moveable.
In some textbooks movables tend to be referred to as goods or chattels.
This distinction is important in that how you acquire movables
is different from how you acquire immovable property. Certain
crimes can only happen with movables and can’t happen with
immovables.
Sometimes something can move from being an immovable to a
moveable e.g. when granite is on the mountain it is immovable
but if you cut off a piece it becomes moveable. Thus these
categories aren’t cast in stone.

Corporeal Incorporeal
If you can sense it with the 5 Rights.
senses and it occupies space. Talking along the lines of access
rights, think of Wi-Fi.
This distinction will determine whether property law principles apply or
not. This distinction has garnered some controversy, but it is still there.
See Telkom SA – look at whether incorporeal things should be treated as
property. Argument was that Telkom was depriving them of property
without due process and thus they were seeking property law remedies.
Spoilation remedy if being used states that if you take something from
someone without due process they’ll go to court and the courts will
require you to return the thing. With spoilation remedy we aren’t
concerned with whether possession was lawful or not, we are just saying
follow due process, can’t do self help. Are internet services things that
should be protected and due process be followed? HC judgement was
saying we’ve crossed the rubicon and intangible things are now
property law and CA said that’s misdirecting, intangible things aren’t
property and therefore there are no constitutional protections and
cannot demand due process for intangibles because they aren’t things.
Also see Section 8 of the BW Constitution – u cannot be deprived
of your property without due process in that if you’re to be
deprived of property due process has to occur; get a court order
and so on.

Divisible Indivisible
Making it smaller but the If once divided it no longer
functionality is still the same. performs the same function. E.g.
Smaller units should still be able to car
perform the same function that the
larger performed e.g. water is
divisible, whether it is 1000L or
500ml it is still water, or a bag of
oranges, land
We use these terms in their technical sense in that when we say
something is divisible in the legal sense what we mean is once you
divide it do the divided components still perform the same function they
performed when it was whole.
This distinction is important in that in litigation if something is
divisible the courts will order division. If indivisible only one of
you will get it and the other will get compensation. Sometimes
if none of you can get it the court will order that the thing be
sold and then you divide the money.

Consumable Inconsumable
Something is consumable if when The thing is not destroyed.
you use it according to its natural
destiny it is destroyed, e.g. a
candle; once you light it and use it
in the manner a candle is
supposed to be used there’ll be no
candle. Food, fuel
Consumable doesn’t mean edible.
This distinction is important as it tends to apply on choice of law i.e. if
you borrow a consumable you are in the realm of loan, cause if you
borrow a consumable you are returning a different consumable and the
applicable law is that of loans. An inconsumable on the other hand you
are returning the exact same thing e.g. taking a book from the library,
you’d be returning the exact same book and thus that is dealt with in
terms of the law of lease.

Fungible Non-fungible
Something that when you make Individual characteristics matter,
reference to it you do not refer to e.g. a painting; it is one of a kind.
individual characteristics. E.g.
money, P100 is still P100 whether
it is one note, x2 P50 notes and so
on.
Referred to in terms of quantity,
weight, amount. Individual
characteristics do not matter.
Fungibles are interchangeable.
Don’t look at the value of the thing
i.e in a six pack of cokes doesn’t
matter which can you are getting
but a can is a can. A fortuner could
be a fungible.
Can always get a replacement. Will not get a replacement.
Irreplaceable and therefore within
the realm of compensation or
cooperation where you actually
have to meet with the person and
let them know your thing was
destroyed and then you agree on
what to do.
Risk doesn’t pass until the thing is
individually determined and given
to you.
Whether something is fungible or not, it is important if you are
looking at the law of sale. It is also important in the law of
succession in that if u are left with 10 cows in a herd of a lot.
It is possible to move something from being fungible to non-
fungible e.g. customising your fungible will now give it
individual characterises that render it non-fungible.

Single Complex/Composite
Something that exists Something created by components
independently. of a single thing. You put several
single things together to create
that thing e.g. a bicycle, radio,
motor vehicle e.t.c.
Some single things will only have Has two elements –
value once they are an aggregate i) A principal thing – this
(group of single things). E.g. a flock is what gives the thing its
of sheep; they are still single identity.
sheep, but they are just an - Will produce fruit, but whilst
aggregate, and they aren’t a the fruits are attached to the
complex thing. principal thing, they are
A ton of sand is an aggregate, the accessories. They will only
quantity doesn’t convert it to a get their separate identities
complex thing. once they are removed from
the principal thing.
ii) Accessory things –
things attached to the
principal thing in such a
way that once that thing
is attached to the
principal thing it loses its
identity e.g. paint on a
wall; once you paint the
wall the paint has lost its
identity and becomes part
of the wall in that you’ll
refer to it as a pink house.
iii) Auxiliary things – things
that even when attached
to a principle thing do not
lose their identity and this
is important, particularly
like if you are looking at
your law of contract
(there’s express and
implied terms – if there’s
a lease agreement and
you are renting a house
you expect the accessory
things to be part of the
house e.g. the doors and
 windows, you wouldn’t
however expect the
auxiliary thing to come
with the principal thing
e.g. the padlock on the
gate. See Khan v Minister
of Law and Order – this
individual stole various
car parts and built a car,
of the people with their
stolen car parts only one
of them could get the car
as it isn’t divisible, the
question was what the
principal thing was.
Fruits - come in two types
a) Natural fruits – things
produced by nature e.g.
apples, sheep, wool
b) Civil fruits – produced by
operation of the law e.g.
interest; loan is the principal
thing and interest is the fruit,
law that’ll pertain to fruits
will be your tax law.
Fruit matters in that is this
gathered fruit or was this fruit not
gathered.
Friday 7 February
2025
Real rights and personal rights
Please read the cases under this section. Pay particular attention to the
locus classicus case of Ex Parte Geldenhuys.

How you interact with the next person is determined by rights. And the
rights that exist can tell you the type of relationship that is there. At the
same time the type of relationship that is there tells you the nature of
rights that exists. So within property law we are mainly concerned with
distinguishing between real rights (property rights) and personal rights.

This distinction between real and personal rights is important for several
reasons –
 With property we are seeking a direct relationship between a person
and a thing (subject-object) relationship and the nature of the
subject-object relo that is had will determine your property rights
and with property law what you are seeking is a direct relo between
the subject and the thing. The consequences that law attaches to
that relo matter.
With real rights the type of relationships that you can have with a thing
are –
- Ownership (rights that you have in your property)
- Limited real rights which come in various forms such as various
types of servitudes (rights that you have in property that belongs to
someone else)
- Security rights
- Lease
There are various types of real rights that a subject can have with an
object and the rights that exist will tell you the nature of the relationship
between the subject and the object. It thus becomes important to discern
that how can you tell whether that a right is a real right and not a personal
right.
Real rights are in the realm of property law. Personal rights are in the
realm of the law of obligations. If it is a property law right, it is
constitutionally protected. If it is a personal right, it is in the law of
obligations and really what you would be seeking is that someone does
their best. This distinction is particularly important in Roman-Dutch legal
systems in that different legal systems will have different ways of
separating between the law of obligations and property law. But in our
jurisdiction, we separate in terms of rights, that is it a real or personal
right.

Actions you can take with real rights is actions in rem while with personal
rights you have got actions in persona.

Legislation
- Deeds Registry Act – defines real rights as including any right
which becomes real upon registration.
S5 – gives an indicator of the types of rights that may be considered real
rights
S17 – becomes very clear as it tells us that real rights in land can only be
conveyed by a conveyancer, and it also tells us that real rights have to be
registered by the Registrar of Deeds. It’s telling us how you transfer real
rights and how you create them, but it isn’t telling us what real rights are
S60 – Registrar can only register real rights

Act simply tell us what you can and cannot do with real rights, but it
doesn’t define for us or let us know what a real right is. Yet the real right is
the most important right in distinguishing between the law of obligations
and property law. To that end we tend to use theories as a tool.

Personalist Theory Classical Theory

Can distinguish between a real and Known as this because this is how
personal right by looking at the Roman law used to distinguish
persons against whom that right between real rights and personal
can be enforced. rights
Personal rights can only be Distinguish between real and
enforced against persons with personal rights by looking at the
whom you have a relo with. nature of the object to which this
right applies to.
Real rights are enforced against Personal rights apply to people.
the whole world.
Personal rights are private in Real rights apply to objects.
nature.
Real rights are public in nature. This is your standard dichotomy of
whether subject-subject or subject-
object
Personal rights are relative in
application. They tend to be
moderated to some extent.
Real rights are absolute when it
comes to application.
Arguments that this theory is a bit
too simplistic in that you do have
instances where real rights aren’t
absolute in their application.

There is another jurist, Miejers who then says the theories help but let’s
try distil this further with additional characteristics such as considering the
–
1. Object – what does the right apply to.
- If applies to a thing, it is real
- If seeking performance, it is an indicator that it is personal
2. Content – what does this right give you?
- if the right gives you the thing, it is a real right
- if given the right to demand performance, it is a personal right
3. Remedies – if your rights are infringed what can you do
- Real right remedy is rei vindicatio; can demand the thing
 - If can only ask for damages or compensation you are in personal
rights
4. Origin – where is this right coming from
- If from an obligation it is personal e.g. pleading duty to care
- If coming from facts it is real
5. Absoluteness – personal rights are relative and real rights are
absolute. With absoluteness you’d be saying how can I enforce it
and are my enforcement rights absolute.
6. Preference – real rights give you preference and priority; if there’s
a dispute between a real right and a personal right a real right
always wins. If there’s a dispute between real rights, consider which
real right was acquired first.
7. Publicity – will let you know. Real rights are public in nature. With
moveable property possession is publicity and it has the
presumption that the possessor is owner. Immovables publicity is
through registration.
- Personal rights are private in nature

All three theories give us an idea of what is a real and personal right.
In the next lesson we will delve into what the courts are doing to
distinguish between these.