Basic Principles of Property Law in SA


The law of property in the widest sense deals with all assets that can form part of a person's estate.

In a construction context, this is important as there are many different rights created by what is known as “the law of property”.

The distinction is made between ownership, as the most comprehensive right, holdership & possession, as well as limited real rights.

In order to avoid conflicts, it is important to have a good understanding of the law of property in order to identify possible conflicts and resolve them by way of agreement before they arise.

The law of property, also referred to as the law of things, deals with any item that forms part of a person's estate and should not be confused with property as fixed assets or real estate.

What makes this more important is the fact that ownership is transferred constantly throughout the process from one person to another, while certain rights are also held in various ways.

Due to the number of parties involved, this could become complicated and therefore a good understanding is necessary in order to explain the situation to avoid conflicts.

According to Knobel et al (2011) the modern law of property in South Africa and the concept of ownership, are derived directly from Roman law and still bear many similarities to it.

This view is to be approached with circumspection, since the socio-economic and cultural environment in which a particular legal system functions exercise an important influence on the nature, content and application of legal principles and institutions in that specific system.

It would be misleading to assume that specific legal principles in two systems should be exactly the same.

It is true, historically, that the modern law of property is the end product of a long and complex development which had its origin in classical Roman law.

However, it is just as true that this legal system underwent drastic changes in the more than twenty centuries of its existence.

Therefore, many characteristics of the modern law of things are the products of our time and the circumstances to which it is and has been applied.

The sources of the modern law of things are therefore to be found in the historic writings of Romanists since the classical Roman period and the works of the Roman-Dutch writers, as well as in statute law (legislation) and in case law (precedents created by court decisions).

Since its adoption, the Constitution of the Republic of South Africa, 1996, has played a major role in the development of the law in general and in particular, in the development of the law of property.

Furthermore, customary law greatly influences diverse aspects of the law.

The sources of the modern law of property can be summarized as follows:

The Constitution of the Republic of South Africa, 1996

Statutory law (legislation)

Case law (precedent)

Customary law

Common law (Roman-Dutch)

In order to keep everything in context, reference is made to various terminologies, which for the purpose of the law of property, are defined as follows (Van der Walt & Pienaar, 2009):

A person is a legal subject who can acquire and exercise rights and obligations in law.

A legal subject can be either a natural person (individual person) or a juridical person (groups or bodies operating and recognised as a single legal entity).

An object is anything to which a person can acquire and hold a right.

Property is anything which can form part of a person's estate, which includes corporeal items and incorporeal interests and rights.

A thing is a specific category of property, which is defined with reference to its characteristics: a corporeal object which is outside the human body, and an independent entity capable of being subjected to legal sovereignty by a legal subject for whom it has use and value.

A right is a legally recognised and valid claim by a subject to a certain object.

It is important to note that not all relations between a person and an object are recognised and protected by law.

A property right is any legally recognised claim to or interest in property.

A claim or action is legal when it is acknowledged and protected by existing lawful principles; unlawful when it is in conflict with or not acknowledged by the law.

A remedy is a legal procedure provided by the legal system to protect a right against infringement or to control the effects of an unlawful act or situation.

For More Info