1.2

1.2 Background, sources and current development 1.2.1 Sources of traditional law of things Traditionally the background and sources of the law of things were described within the restricted ambit of Roman-Dutch private law. In this context the sources of the law of things were described as (mainly Roman-Dutch) common law, complemented by South African legislation and case law. Roman-Dutch common law is found in the writings of the great Roman-Dutch lawyers of the seventeenth and eighteenth centuries, such as Grotius, Voet and Van der Linden. Legislation consists of statutes or Acts promulgated by, especially, the national legislature or parliament. Examples of pre-1994 legislation which are important to the law of property are the Sectional Titles Act 95 of 1986 and the Security by Means of Movable Property Act 57 of 1993; while perhaps the most important new legislation is the Constitution of the Republic of South Africa of 1996. Case law (or precedent) consists of the authoritative decisions of the high courts, and important examples of pre-1994 cases are Ex parte Geldenhuys 1926 (O), which deals with the distinction between real rights and personal (creditor’s) rights; and Setlogelo v Setlogelo 1914 (A), which deals with the requirements for obtaining an interdict. Obviously these pre-1994 sources of law left their impression on the development of property law, and to a very large extent the writings of the Roman-Dutch authors, legislation of South African legislative authorities and earlier decisions of South African courts still constitute a major part of the written tradition upon which the law of property is built. Copyright © 2021. Juta & Company, Limited. All rights reserved. Summary (a) (b) (c) Sources of traditional law of things before 1994: (Roman-Dutch) common law (eg Grotius, Voet, Van der Linden) Statutory law (legislation) (eg the Sectional Titles Act 95 of 1986) Case law (precedent) (eg Ex parte Geldenhuys 1926 (O)) Page 6 Horn, J. G., et al. Introduction to the Law of Property, Juta & Company, Limited, 2021. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uovs-ebooks/detail.action?docID=6896396. Created from uovs-ebooks on 2022-07-21 20:33:28. Downloaded by Zwothe Mudzielwana (zwomudzielwana@gmail.com) lOMoARcPSD|9421828 However, as a result of legal, socio-political and economic developments and changes, the sources of the law of property must be seen in a new perspective, namely the transition from a society dominated mainly by a minority of white, privileged persons to a ‘society based on democratic values, social justice and fundamental human rights’ (as it is described in the preamble to the Constitution). This transition means that old discriminatory laws shall be abolished, and that new democratic laws shall be promulgated, but it also means that the whole existing legal system and its tradition, its background and its sources must be re-evaluated and, where necessary, amended. Section 39(2) of the Constitution provides that all the principles of existing common law and customary law shall, as far as possible, be interpreted and applied with due regard to the spirit and objectives of the Constitution, which embodies the aspirations and ideals of the new, democratic legal order. In line with this process of transition the traditional background and sources of the law of property in common law and customary law have to be re-evaluated and reconsidered. Existing common-law and customary law principles have to be interpreted and applied with sensitivity, and with recognition of the fact that the background against which they were created and developed has changed, in some respects dramatically. Similar considerations apply with regard to the authority of existing pre-1994 legislation and case law – they must be understood and applied against the background of their origin and with due regard for their future role in the transition to a new kind of society. 1.2.2 Sources of current law of property Summary Copyright © 2021. Juta & Company, Limited. All rights reserved. (a) (b) (c) (d) (e) Sources of the current law of property since 1994: (Roman-Dutch) common law Statutory law (legislation) Case law (precedent) Customary law Constitutional law (chapter 2) (a) Common law Roman-Dutch common law was always considered the most important source of the traditional law of things. However, as a result of the changes taking place in South African society, the role and value of common-law rules must be reconsidered. This does not mean that common law is abolished, but rather that it must be applied Horn, J. G., et al. Introduction to the Law of Property, Juta & Company, Limited, 2021. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uovs-ebooks/detail.action?docID=6896396. Created from uovs-ebooks on 2022-07-21 20:33:28. Downloaded by Zwothe Mudzielwana (zwomudzielwana@gmail.com) lOMoARcPSD|9421828 Page 7 with great care and circumspection in every case, considering the question whether it will promote or frustrate the ideals of human dignity, freedom and equality set out and protected by the Constitution. The following example shows that the mere abolition of apartheid laws cannot guarantee that future applications of the common law would automatically result in or promote justice and equality. Example In terms of the common-law concept of ownership, the owner of a property has the most complete real right over the property. In terms of this right a person is free to use and dispose of the property as she sees fit, subject to limitations imposed by the law and the rights of others. In principle this freedom includes the right to lease the property to a lessee of her choice, and if the owner does not wish to lease the property to someone of a specific race group, she should not be forced to do so. Ironically, this freedom was restricted by apartheid laws, which forced owners to lease their properties to people from their own race group only. However, in view of the non discrimination provision in the Constitution this ‘freedom to discriminate’ is prohibited in a democratic, human-rights-based society and would be unconstitutional. The common-law authorities can therefore not be accepted as they are – they have to be analysed in view of the Constitution and within the current democratic context, to determine whether they can still apply and how they should apply in future. (b) Legislation Copyright © 2021. Juta & Company, Limited. All rights reserved. Legislation has played an important role in traditional law of property during the apartheid era, and it continues to play an important role. During the apartheid era, legislation was often used to introduce and enforce segregatory policies with regard to property. Most of the apartheid legislation has now been abolished and replaced with legislation that is in line with the objectives of the Constitution. Example The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 provides for the eviction of unlawful occupiers of land. The predecessor to this Act, the Prevention of Illegal Squatting Act 52 of 1951, Horn, J. G., et al. Introduction to the Law of Property, Juta & Company, Limited, 2021. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uovs-ebooks/detail.action?docID=6896396. Created from uovs-ebooks on 2022-07-21 20:33:28. Downloaded by Zwothe Mudzielwana (zwomudzielwana@gmail.com) was one of the most draconian apartheid laws and has been abolished (see chapter 23 for a discussion of Act 19 of 1998). New legislation can change the face of the law of property entirely, but all legislation has to be evaluated against the recognised and established values and aspirations that are embodied in the Constitution. The constitutional court has the authority Page 8 to evaluate both old and new laws and to declare them invalid if they are in conflict with the Constitution. This process is called constitutional review. (The effect of the Constitution on property law is considered in chapter 22.) (c) Case law (precedent) Case law always formed an important source of law of property, especially in the sense that it provides guidance on how common-law principles or legislation should be interpreted and applied. There can be no doubt that many cases that were decided before 1994 were informed by the then still prevailing discriminatory legislation and spirit of apartheid. Clearly such decisions should not be accepted as authority. Example A good example of such a decision is Minister of the Interior v Lockhat 1961 (A), where it was stated that the discrimination and injustice brought about by the application of the Group Areas Act 36 of 1966 was an inevitable result of the ‘colossal social experiment’ of apartheid. In this and other similar cases, the plight of individuals was often disregarded in order to promote subsequently discredited political programmes. In terms of section 26(2) of the Constitution, the Lockhat decision will at present be unconstitutional. Authority of many pre-1994 decisions should be evaluated in view of the Constitution and its application within a democratic, human-rights-based society. New decisions, especially those of the constitutional court, are a very important source of the new law of property, since they embody the aspirations and spirit of the Constitution. However, even new decisions might become unacceptable or outdated very quickly because of rapid social, political and legal developments. (d) Customary law Horn, J. G., et al. Introduction to the Law of Property, Juta & Company, Limited, 2021. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uovs-ebooks/detail.action?docID=6896396. Created from uovs-ebooks on 2022-07-21 20:33:28. Copyright © 2021. Juta & Company, Limited. All rights reserved. Downloaded by Zwothe Mudzielwana (zwomudzielwana@gmail.com) lOMoARcPSD|9421828 During the apartheid era customary law property rights enjoyed little recognition and protection from the courts. In view of the Constitution it is clear that customary law cannot just be ignored, and that it must be awarded its proper place and recognition in the law of property. On the other hand, certain precepts of customary law might come into conflict with principles laid down by the Constitution, especially with regard to equality. Page 9 Example The holders of customary law land rights are usually men, while women are awarded land rights only in exceptional cases. This might come into conflict with the principle of equality laid down in the Constitution, and in particular cases the courts may have to balance the values of customary social practice against the constitutional value of equality. In Bhe v Magistrate, Khayelitsha 2005 (CC) the constitutional court decided that the customary law principle of male primogeniture in succession was unconstitutional because it discriminated against women and extramarital children. The value and authority of the customary law principles regarding property rights must, therefore, be upheld and promoted in the current law of property, but at the same time they have to be evaluated within the present context. (e) Constitutional law All the sources of property law mentioned above, insofar as they are still applicable and authoritative, must be interpreted and applied with due regard to the spirit and objectives of the Constitution. This means that general values of the Constitution such as equality should be taken into account when interpreting and applying any of the other sources. In Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000 (CC) the constitutional court decided that there is only one system of law, shaped by the Constitution, which is the supreme law, from which all law, including the common law, customary law and legislation, derives its force and to which all law is subject. Example Section 39(2) of the Constitution provides that the courts shall have due Horn, J. G., et al. Introduction to the Law of Property, Juta & Company, Limited, 2021. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uovs-ebooks/detail.action?docID=6896396. Created from uovs-ebooks on 2022-07-21 20:33:28. Copyright © 2021. Juta & Company, Limited. All rights reserved. Downloaded by Zwothe Mudzielwana (zwomudzielwana@gmail.com) lOMoARcPSD|9421828 regard for the spirit and objectives of chapter 2 of the Constitution (which deals with fundamental rights) when interpreting any law and when applying any principle of common law and customary law. Section 8(1) provides that the chapter on fundamental rights applies to all law; and section 8(3) states that the courts have to amend the common law where necessary to accommodate fundamental rights. Section 211(3) states that customary law is applied subject to the Constitution. It is usually said that these provisions of the Constitution are supposed to ensure that the entire South African legal system will be infused by the spirit of the Constitution. The idea is that the Constitution embodies and signals a new direction in South Page 10 African history, and that the ideals, hopes and aspirations of all South Africans are entrenched in the Constitution. In order to help realise and promote these ideals and aspirations it is necessary that the law should reflect them as they are expressed in the Constitution. In the process the Constitution becomes the guiding principle for all legal development, including the law of property.