South African property law
[12] 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;[13] (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.
Meanwhile, some more simple property rules, such as streamlined land-registration system had been implemented under John Cradock, 1st Baron Howden,[17] and in the early 20th century registration practices were codified by the Deeds Registries Acts of 1918 and 1937.
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.
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.
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’.
[23] 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.
[29] This elevation, and at the same the subservience of customary law to the Constitution, was made apparent in the judgments of the Constitutional Court in the dispute between the Richtersveld community and the diamond miner Alexkor, concerning the restoration of ancestral lands to an indigenous community; in Bhe v Magistrate, Khayelitsha,[30] with its finding that male primogeniture is unconstitutional; and in Gumede v President of Republic of South Africa,[31] which struck down on grounds of inequality certain provisions in legislation dealing with the property regime of customary marriages.
[58] The procedure to be followed is set out in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE),[59] which excludes the rei vindicatio and other common-law remedies.
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.
"[65] 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."
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 issue, then, was whether private landowners are obliged to provide alternative accommodation to unlawful occupiers in terms of PIE,[78] or whether the burden should fall on the city.
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.
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.
The claimant must prove the following essential elements in order to be successful in bringing the action: Delictual remedies offer the owner compensation or damages for interference with the exercise of his rights of ownership.
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.
To reduce this risk, the law has devised a process which offers some protection to the lender, so that he may recover the money he is owed in the event that the borrower does not meet his obligations.
It is customary, though, to express the debt as one sounding in money for a liquid amount, which gains the advantages of provisional sentencing proceedings to facilitate the satisfaction of the creditor’s claim if the debtor defaults or becomes insolvent.
[128] A notarial bond can only be taken over movable property and merely grants the bondholder a right of preference (prior ranking) over unsecured creditors and hypothec holders at the debtor’s insolvency.
In the rest of the country, the principles set out in Cooper v Die Meester[134] were applicable, so that the special notarial bondholder ranked equally with all other creditors in cases of insolvency.
To create a real security right, the lessor must perfect the tacit hypothec by obtaining a court order which interdicts the alienation or removal of the invecta et illata, or else attaches them.
The writ serves as a warrant which authorises the sheriff to attach the debtor's movable or immovable property, which creates a real security right in favour of the creditor.
It was held in Linvestment v Hammersley[141] that the court may be required to reinterpret servitudes which have existed for a generation in a different setting to render them continuously useful for modern society.
In determining utilitas, the following factors are considered: The rights and duties of the dominant and servient owners depend primarily on the terms of the agreement that constitutes the servitude.
Specific duties may be enforced by way of interdict, and damages may be awarded by a court where either party has exceeded the terms of the servitude and has suffered patrimonial loss.
A usufruct is a limited real right, typically employed when a testator wishes to provide for surviving family members after his death, but wants the property to go to someone other than the usufructuary.
The following remedies, therefore, are generally available to a servitude holder: Restrictive conditions are a unique set of limited real rights which are utilised in the context of town planning and the management of land use.
The procedure stipulates, inter alia, that the application must be in a prescribed form and accompanied by payment of fees and notice in the provincial gazette, to provide for the raising of objections.
Two of the most important of these are the protection of the natural environment and the achievement of Black Economic Empowerment: Right-holders are responsible for rehabilitating and managing negative environmental impacts, while the MPRDA seeks to expand substantially and meaningfully the opportunities for historically-disadvantaged persons, including women, to enter the mineral and industries.
A water-services authority, responsible for ensuring access to water services, is a municipality, including a district or rural council, as defined in the Local Government Transition Act.
