South African property law regulates the "rights of people in or over certain objects or things."Mostert & Pope 5. It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law.A "legal object" is something in respect of which a person may hold a right (Mostert & Pope 7). Although in some circumstances the term may signify purely one's right of ownership in a legal object, in others it refers to the legal object (tangible or incorporeal) to which that right pertains.
Among the formal functions of South African property law is the harmonisation of individual interests in property, the guarantee and protection of individual (and sometimes group) rights with respect to property, and the control of proprietary management relationships between persons (both natural and juristic), as well as their rights and obligations.Mostert & Pope 6.
The protective clause for property rights in the Constitution of South Africas 25. stipulates those proprietary relationships which qualify for constitutional protection. The most important social function of property law in South Africa is to manage the competing interests of those who acquire property rights and interests. In recent times, restrictions on the use of and trade in private property have been on the rise.Wille 406.
Property law straddles private and public law,Mostert & Pope 8. and hence "covers not only private law relations in respect of particular types of legal objects that are corporeal or incorporeal, but also public law relations with a proprietary character, and the resultant rights and interests."Mostert & Pope 12.
Property in the private-law sense refers to patrimonial assets: those, that is, which comprise a person's estate. The law of property defines and classifies proprietary rights (for instance, as either real or personal), and determines the methods whereby they are acquired, lost and protected, as well as the consequences of their exercise and the limitations imposed by factual proprietary relationships which do not qualify as rights.
History
Until the present Constitution was passed in 1996, South African property law was most heavily influenced by Roman-Dutch civil law, and, to a much lesser extent, English property law. English and Roman-Dutch law have very different conceptions of property rights, and these differences had a profound impact on the development of property rights in South Africa. English property law is derived from John Locke's theory that rights to property arise from the realization of the monetary value of property through the application of labour. Locke expressly rejected the idea that conquest can transfer property rights, with certain exceptions. He considered war to be a competition over lives rather than material items, which meant that lives but not items are forfeited or gained.
As such, English property law recognizes the possession of property rights through mechanisms such as cession or improvement, but not through conquest. Roman-Dutch law is the opposite. Roman-Dutch property law is derived from Hugo de Groot's theory that property rights arise from just acquisition, and acquisition includes violence. Thus, while English property law forbids the acquisition of property rights through conquest, Roman-Dutch law does not. This fundamental difference between English and Roman-Dutch theories of property would have a major influence on the colonization of South Africa, in which British land acquisitions occurred predominantly by cession and Afrikaner land acquisitions occurred predominantly by conquest.
One example of how these two disparate property systems impacted South African property law is the legal mechanism of prescription. Under English law, prescription-like devices such as limitation periods (equivalent to extinctive prescription), adverse possession, and prescriptive easements (equivalent to acquisitive prescription) operated by creating a procedural bar on raising legal proceedings, but could never completely create or extinguish property rights to land.
According to John Salmond, ‘one of the most striking differences between our own [English] and foreign laws of prescription, is that by our own law a title to corporeal things cannot be made by prescription […] “no prescription in lands maketh a right”’. Under Roman-Dutch law, prescription creates and extinguishes rights and obligations, rather than barring court action. Early 20th-century statutory enactment in South Africa enshrined the Roman-Dutch understanding over that of the English.
Certain property law principles are directly attributable to Roman-Dutch law, such as (1) the view that ownership is a unitary right which confers on the owner the widest possible powers; (2) restrictions on an owner's absolute right of pursuit (ius persequendi) in favour of certain bona fide purchasers; (3) recognition that a long lease of land creates a real right;Under the Roman-Dutch rule huur gaat voor koop ‘lease trumps sale’, a real right vests in a lessee of land or buildings and is enforceable against any subsequent purchaser or successor of the lessor. (4) recognition of a way of necessity out of landlocked land; (5) emphasis on delivery (traditio) as a separate act required for the transfer of ownership in movables; (6) use of movable bonds (obligatio bonorum) under the name notarial bonds as real security, etc.C.G. van der Merwe & J.E. Du Plessis, eds., Introduction to the Law of South Africa (The Hague: Kluwer Law International, 2004), 201.
English law's influence has been more limited, e.g. the (1) introduction of perpetual quitrent and leasehold;Originally taking the form of a perpetual lease, 99-year lease, or a lease for an indefinite term coupled with right of renewal, they were prevalent in Cape Province, Natal, and the mining areas of Kimberley and Johannesburg. Initially interpreted as the leaseholder having dominium utile and the State dominium directum, the courts eventually equated them with ownership; this view was enacted into law. Leasehold was briefly re-established between 1978 and 1986. (2) penetration of the English tort of nuisance into neighbour law; (3) recognition of ‘atornment’ as a mode of delivery of movables; (4) adoption of technical aspects of the Torrens system; and (5) legislation on sectional title ownership.Van der Merwe & Du Plessis, Intro. Law SA, 202.
Development The Dutch East India Company established Cape Town in 1652. Dutch colonists initially took the land by force from the native San and Khoikhoi during the Khoikhoi–Dutch Wars. The wars were followed by systematic land grabs of water resources (springs, rivers) and pastureland, legitimised after the fact by exclusive land grants issued by the Company to colonial settlers. As the British slowly assumed control from 1795 to 1806 and the sovereignty over Cape Colony was formally ceded under the Anglo-Dutch Treaty of 1814, some Afrikaners fled inland to the northeast to establish their own colonies, the Boer Republics, taking land from Bantu peoples. Conflicts grew over the later half of the 19th century, as the rich mineral wealth of South Africa became evident.
In 1867, diamonds were discovered in the Kimberley and in 1886 gold was discovered in Johannesburg. In 1889, the British South Africa Company was given a Royal Charter to further seek out and exploit areas across Southern Africa where mining could be profitable. Meanwhile, some more simple property rules, such as streamlined land-registration system had been implemented under John Cradock, 1st Baron Howden,Proclamation on Conversion of Loan Places to Quitrent Tenure, 6 August 1813. and in the early 20th century registration practices were codified by the Deeds Registries Acts of 1918 and 1937.
In 1910, the Union of South Africa Act united the post Boer War British and Afrikaner communities, but excluded black South Africans from political involvement.The Hertzog Act 1936 finally stripped the limited franchise from Cape Africans that still remained. Indian or ‘coloured’ South Africans were also excluded, prompting a younger Mohandas Gandhi to leave in 1914. From this point a series of laws secured white control of South African land and civic property. The Land Act 1913 reserved 92% of South Africa's territory for whites, and only 8% for blacks. This was enlarged to around 13.6% by the Native Trust and Land Act, 1936, although the population of the country that was black stood around 61%. In the Urban Areas Act 1923, it was decreed that blacks could only enter into towns to work.
In the 1930s, ideas of racial supremacy became stronger among many white South Africans, and after the war the Afrikaner National Party won a majority at the 1948 election. From this point, the apartheid system was built up through legislation. In the Group Areas Act 1950 the country was categorised into various race-based regions, leading to forced removals and evictions of black people from their homes.Jackson & Wilde 334–340. See also the Immorality Act 1950 which prohibited sex and marriage between different races. The Group Areas Development Act, 1955 excluded non-white people from living in white areas altogether.
The Reservation of Separate Amenities Act 1953 stated that separate toilets, parks and beaches were allocated.See also the Bantu Education Act, 1953, which aimed to educate black people only enough to be able to serve whites. As the apartheid regime continued, the Bantu Homelands Citizenship Act 1970 and the Bantu Homelands Constitution Act 1971 purported to ‘constitutionalise’ the separate states within the South African state, where black South Africans had to live. Through the 1980s, the world's condemnation of the regime, the slow recognition of its deep injustice unsustainability, and the mounting civil disobedience led to a referendum and new constitution. By 1991 there had been approximately 17,000 statutory measures implemented to regulate land control and racial diversity.Jackson & Wilde 334–336. The Discriminatory Legislation regarding Public Amenities Repeal Act, 1990 and the Abolition of Racially Based Land Measures Act, 1991 started a process leading to the constitution.
This ‘excessive law making and manipulation of existing notions of property resulted in the collapse of administrative and legal certainty and, moreover, massive underdevelopment’, and left the post-1994 dispensation with ‘a severely compromised system of land rights’. The new constitution explicitly protects the right to property, including land, in section 25(1), under the Bill of Rights. Section 25(2) and (3) states how property can be regulated and expropriated, with limited compensation from people who were dispossessed after 1913 by racial discrimination.
Under section 26, the Constitution created a fundamental right to housing. In 2000, in Government of the Republic of South Africa v Grootboom, ZACC 19 the Constitutional Court held that although there was a justiciable right under section 26 to housing, this had to be interpreted in the light of administrative difficulties of achieving social and economic rights in practice. The claimant, Irene Grootboom, had been living temporarily in a shack on land that was being repossessed for redevelopment. It was accepted in the course of argument that she would be given temporary housing, but the court did no more than state that the government should aim to fix the housing and slum crisis.