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South African property law governs the rights individuals have in certain objects or assets. It deals with what actions individuals can take concerning specific objects under South African legal jurisdiction. Its primary roles include aligning individual interests in property, ensuring protection of individual or group rights regarding property, and managing proprietary relationships among individuals (both natural and legal) along with their associated rights and responsibilities. The constitutional protection clause safeguards certain proprietary relationships. A crucial social function of South African property law is to balance the interests of property rights holders. Recently, there has been a rise in restrictions on private property use and trade.
Property law encompasses both private and public law, addressing private law relations regarding various types of tangible and intangible legal assets, as well as public law relations with a proprietary character and the ensuing rights and interests. In the private-law context, property refers to patrimonial assets, which constitute an individual’s estate. This legal framework defines and categorizes proprietary rights, such as real or personal property, and outlines how they are acquired, forfeited, and protected. It also specifies the consequences of their exercise and the constraints imposed by factual proprietary relationships that do not qualify as rights.
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Until the Constitution was passed in 1994, 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 theories of property law impacting South African property law is the legal mechanism of prescription. Under English law, prescription-like devices like limitation periods (equivalent to extinctive prescription) and 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 an indivisible 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; (4) recognition of a way of necessity out of landlocked land; (5) emphasis on delivery as a requirement for the transfer of ownership in movables; (6) use of movable bonds (obligatio bonorum) under the name notarial bonds as real security, etc. English law’s influence has been more limited, e.g. the (1) introduction of perpetual quitrent and leasehold; (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 apartment ownership.
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, and in the early 20th century registration practices were codified by the Deeds Registries Acts of 1918 and 1937.
After the groundwork laid by the Land Act 1913 and the Group Areas Act 1950, Bantustans or ‘homelands’ for black South Africans at the end of apartheid were very small and economically deprived.
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. 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. 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. 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. 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, 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.
In political terms, the 1997 White Paper on Land Policy has been influential in setting up objectives. These were said to be to (1) redress apartheid-era inequities (2) nurture national reconciliation and stability (3) to support economic growth; and (4) to improve welfare and relieve poverty. The new constitutional arrangement supports the regulation and protection of property, mandates the reform of land law, provides explicitly for basic rights like access to housing, and gives equal recognition to common- and customary-law principles. A host of policies have been implemented, and statutory measures promulgated, in the fulfilment of this mandate, which ‘has already had a significant influence on property law’.
South African law “jealously protects the right of ownership and the correlative right of the owner in regard to his property, unless, of course, the possessor has some enforceable right against the owner.” There exists a variety of remedies for the protection of ownership. They may be divided into three distinct categories: real, delictual and unjustified-enrichment remedies.
Real remedies
Real remedies are concerned with physical control. They give the owner the power to exclude others from access to and enjoyment of his property. Real remedies either restore physical control of the property to the owner or prevent infringement of the owner’s entitlements. (An interdict and a declaratory order are also available to owners and possessors of property.) There are two real remedies used to protect the right of ownership: the rei vindicatio and the actio negatoria
Rei vindicatio
Ownership includes the entitlement of exclusive possession of res. The rei vindicatio, or vindicatory action, is a remedy available to the owner to reclaim his property from wherever it is found and from whosoever is unlawfully holding it. The remedy entitles him to “exclusive possession.” It is founded on the nemo plus iuris rule, which holds that one cannot transfer more rights than one has; more succinctly, that one cannot give what one does not have.
The remedy is available to the owner in respect of both movable and immovable property, taking, in the latter case, the form of an eviction order, and applying only to business or trade or industrial property.
It is important to note that the remedy merely restores proprietary interest; it does not award damages. The decision in Mlombo v Fourie has been criticised, accordingly, for blurring the distinction between the rei vindicatio and the actio ad exhibendum. The former is a restorative proprietary remedy, whereas the latter is a delictual one.
Requirements
Three requirements must be met for a claim to be based on the rei vindicatio:
There must be proof of ownership on the part of the person instituting the action;
the property must exist and be identifiable; and
the defendant must be in physical control of the property at the time the action is instituted.
In Chetty v Naidoo, Chetty brought a rei vindicatio action against Naidoo in respect of property occupied by Naidoo, who claimed, but could not prove, that she had bought the property. The case sets out the following rules:
The owner need not aver that the defendant is in unlawful control of his property.
How the owner characterises the defendant’s control is immaterial.
The burden is on the defendant to prove a right: for example, a lien or a lease.
If the owner concedes any right to the defendant, he must show that the right has been terminated if he still wishes the action to succeed.
Defences
The facta probanda may be challenged in defence against the rei vindicatio. There are four main defences:
The claimant is not the owner of the property. This allegation would clearly require the defendant to produce documentary evidence.
The property in question is no longer identifiable or does not exist; it has, for instance, been destroyed.
The defendant’s possession or physical control of the property is not unlawful.
The defendant is in fact not, or no longer, in physical control of the property.
Good faith may not be used as a defence against the rei vindicatio.
Estoppel may be raised as a defence to the rei vindicatio only in certain circumstances; in others—see below—it may simply vary the effect of the action.
Limitations
There are two types of limitations, statutory and common-law, on the use of the rei vindicatio. The effect of these limitations is to prevent the claimant from vindicating his rights.
The common-law limitation of estoppel may act as a defence, or it may vary or limit the effect of the rei vindicatio. As a limitation on the action, estoppel blocks its vindicatory function. Ownership is not disputed, but the owner may not regain possession for the duration of the estoppel. This amounts to a suspension of the owner’s entitlement to vindicate his property—he is estopped from vindicating it—but it is important to note that it does not vest that entitlement on the defendant. Mostly estoppel is deployed in respect of movable property, but it may also be used for immovable property. It is required for estoppel that the owner have negligently or culpably made a misrepresentation, through conduct or otherwise, that the property had been transferred to the controller, so that the controller had the power to transfer it in turn. The person who raises the estoppel must have acted on that misrepresentation and suffered harm or loss as a result.
As for statutory limitations, the Insolvency Act provides that property sold and transferred after an insolvency action cannot be subject to the rei vindicatio, while, in terms of the Magistrates Courts Act, a sale in execution of property cannot be impeached against a good-faith purchaser in the absence of a defect.
There are several constitutional limitations on the application of the rei vindicatio to immovable property. Constitutional intervention has resulted in legislation relating to eviction, redistribution and the regulation of tenure.
The Constitution holds that no-one may be evicted from his home without a court order. The procedure to be followed is set out in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), which excludes the rei vindicatio and other common-law remedies. It was decided in Ndlovu v Ngcobo; Bekker v Jika that PIE has application also where the occupation was lawful to begin with but became unlawful later. Different procedures are set out under PIE for private owners, urgent applications and organs of state. Notice must be given within fourteen days of the hearing and should include the following:
notification that proceedings have been instituted;
the date of the hearing;
the grounds for the proceedings; and
information as to the right of appearance.
In the case of private owners, the court will consider the length of the occupation. If it has been less than six months, an eviction order will be made only if it is “just and equitable” to do so, “after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.” If it has been more than six months, the eviction order must still be just and equitable, but the circumstances to consider are compounded by the question of “whether land has been or can reasonably be made available for the relocation of the unlawful occupier.” An exception to this is “where the land is sold in a sale of execution pursuant to a mortgage.”
Urgent applications are granted where harm is eminent “to any person or property if the unlawful occupier is not forthwith evicted from the land,”, where “the likely hardship to the owner or any other affected person exceeds the likely hardship to the unlawful occupier,” and where no other effective remedy is available.
In Residents of Joe Slovo Community v Thubelisha Homes, an application was brought by the authorities in Cape Town seeking the eviction of persons in the Joe Slovo informal settlement under of PIE, arguing that the property was needed for the development of affordable housing for poor people. The High Court granted the order, and the residents appealed to the Constitutional Court on the grounds that they were not unlawful occupiers, having obtained the consent of the authorities, and therefore could not be evicted. The court granted the eviction but ordered that alternative accommodation be provided to the occupiers.
In Port Elizabeth Municipality v Various Occupiers, the municipality sought an eviction order against unlawful occupiers of municipal land, at the behest of adjacent land owners. The High Court granted the order, but on appeal to the Supreme Court of Appeals the order was quashed. The Municipality, in turn, appealed to the Constitutional Court, which held that there is no unqualified constitutional duty on local government to provide alternative housing in terms of PIE. “In general terms, however,” wrote Sachs J, “a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme.”
In Blue Moonlight Properties v Occupiers of Saratoga Avenue, the respondent, a private landowner, served a notice of eviction on the occupiers. They resisted, claiming protection under PIE and alleging that they were entitled to continue their occupation until the City of Johannesburg Metropolitan Municipality provided alternative accommodation. The City disputed this duty; the respondents argued that its policy was arbitrary and discriminatory. The issue, then, was whether private landowners are obliged to provide alternative accommodation to unlawful occupiers in terms of PIE, or whether the burden should fall on the city. The court found that it should balance the rights of property owners under the Constitution with those of indigents and occupiers, and ruled that the landowners’ right to equality would be infringed if the state were to burden them with providing alternative accommodation without compensation. The obligation to provide access was the City’s, and the City could not transfer that obligation to private landowners. The court ordered compensatory relief to Blue Moonlight Properties and found that the City was in breach of its constitutional duty to provide adequate housing on a progressive basis. It was obliged to make monetary payment each month until such accommodation was found.
The Extension of Security of Tenure Act applies to occupiers
who have the necessary consent to occupy;
who do not use the occupied land for commercial purposes; and
whose income is less than R5,000.
The Act distinguishes between occupiers as of 4 February, 1997, and occupiers after that date. The procedures for and limitations on eviction are set out in section 9: “Not less than two calendar months’ written notice [must be given] of the intention to obtain an order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based.” The “just and equitable” principle is invoked repeatedly.
The Land Reform (Labour Tenants) Act, which regulates the establishment of landownership by “labour tenants,” also places certain limitations on eviction. The procedures for eviction (which must, again, be just and equitable) are set out in sections 7 and 15.
Actio negatoria
The actio negatoria permits the owner to resist or deny the existence of an alleged servitude or other right for the defendant to cause physical disturbance of the land. It can also be used when movable property has been alienated without the owner’s consent, and delivered notwithstanding, pending the institution of the rei vindicatio; and in situations where a person has interfered with the owner’s enjoyment, to compel that person to restore the status quo ante. With the actio negatoria, the owner may demand the removal of any structures that have been unlawfully placed on the land (that is, without his consent).
The remedy can be used to obtain a declaration of rights, to claim damages or to obtain security against any future disturbance of the claimant’s rights. The claimant must prove the following essential elements in order to be successful in bringing the action:
that he has ownership of the property in question;
that the property exists and is identifiable; and
that the defendant’s conduct infringes upon his rights of ownership, either because it amounts to an excessive exercise of an acknowledged limited real right, or because the defendant is making the erroneous assumption that a real right in the property exists.
Delictual remedies
Delictual remedies offer the owner compensation or damages for interference with the exercise of his rights of ownership. Most often the delict is a wrongful alienation resulting in financial loss. Delictual remedies are appropriate where physical restoration of the property is impossible: that is, where the property has been lost or destroyed or damaged, in which case the owner is entitled to be compensated for his patrimonial loss. Three delictual remedies are relevant to the law of property: the condictio furtiva, the actio ad exhibendum and the actio legis Aquiliae. They are all personal remedies rather than real ones.
Condictio furtiva
The condictio furtiva is used in cases where property has been stolen, in order to recover the patrimonial loss. The action is available only against the thief, but it may be brought by all persons with a lawful interest in the property. It is essential, however, that the claimant be the owner or have the lawful interest at all relevant times: that is, the interest must exist at the time of the theft and must still endure at the time the action is instituted.
Actio ad exhibendum
The actio ad exhibendum is a general personal action with a delictual function. It is instituted by the owner of the property against the person who wrongfully and deliberately disposed of it. The claim is for the value of the property which cannot be recovered, and the basis for liability is bad faith (mala fide). There are several requirements:
ownership;
bad faith; and
patrimonial loss.
Actio legis Aquiliae
Whereas the condictio furtiva and the actio ad exhibendum each has its own particular application (theft and bad-faith disposal respectively), the actio legis Aquiliae is a general delictual action to claim compensation in all cases where property has been destroyed or damaged by the defendant in a wrongful and culpable manner. The usual requirements for delictual liability pertain: There must be (i) an action or omission (ii) performed with a culpable disposition (intent or negligence) which (iii) results in damage or injury to the owner.
Unjustified enrichment
Remedies for unjustified enrichment apply when a person other than the owner receives benefit at the expense of the owner. The owner may institute an action (condictio sine causa) against one who has benefited, without cause, from the possession of his property, when that benefit ought to have accrued to him. The benefit could derive from consumption or alienation of the property, and the claim may be made only in situations where no consideration was given (ex causa lucrativa); that is, where no money changed hands. In certain circumstances, the condictio sine causa may be the only remedy available to the owner, especially in respect of bona fide possessors who consumed or alienated the property.
To be successful in his enrichment claim, the owner must show
that he has been impoverished, in the sense that what should have accrued to him has not;
that the defendant has been enriched at his expense;
that this financial shift was without a legal basis (sine causa); and
that the defendant acted bona fide.