CLASSIFICATION OF THINGS & OWNERSHIP
TEXTBOOK: CHAPTER 2 & 5
LEARNING OUTCOMES:
In this introductory section, we introduce you to how things (or property) are classified, as well as
some of the forms of .ownership that exist in our law. By the end of this unit, through drawing on the
reasoning and substance of applicable law, you should be able to:
- Understand the concept of a thing and explain each of the distinguishing characteristics.
- Understand the basic concepts of co-ownership and sectional title ownership.
- Understand the different forms of ownership that exist in South Africa.
- Understand the way in which alternative registers of ownership may be marginalised by a
dominant, individual form of ownership.
Cases
Council for the Advancement of the South African Constitution v Ingonyama Trust 2022 (1)
SA 251 (KZP)
Laguna Ridge Scheme No 152/1987 v Dorse 1999 2 SA 512 (D)
Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal
Authority and Others 2012 (6) SA 32 (CC)
Coetzee v Coetzee [2016] ZAWCHC 115 (8 September 2016)
Law
Sectional Titles Act 95 of 1986
Communal Property Association Act 28 of 1996 Subdivision of Agricultural Land Act 70 of
1970
Recommended texts
LAWSA Vol. 27 paras 408 to 414
High Level Review report (November 2017) on CPAs
Sandile Mbatha & Mvuselelo Ngcoya ‘Peri-urban land transactions: the new geographies and
cultures of peri-urban land in eThekwini Municipality’ 99 Transformation: Critical
Perspectives on Southern Africa (2019) 1-36.
Van der Walt AJ & Dhliwayo P “The notion of absolute and exclusive ownership: A doctrinal
analysis” (2017) 134 SALJ 34-52
Introduction
- The legal objects at the centre of property law are things or property.
- The meaning attached to property in different settings makes a legal definition precarious
(dependent on chance/uncertain).
o The terminological difficulties affect lawyers’ understanding of the scope of property.
- Once one knows what may qualify as property or things, it is possible to understand the scope of
property law much better.
- A cumulative definition of things allows one to determine exactly what is regulated by the law of
property.
o This chapter thus explores the characteristics usually displayed by the things protected
under the rules of property law.
o It deals with the various ways in which such things can be classified in law.
o It also deals with the relationship that may exist in respect of things, and how these
relationships are seen and treated in law.
The characteristics and definition of things
- The scope of property law is determined by the extent to which legal objects qualify as things.
- Roman jurists divided property law into three categories, namely:
1. The law relating to persons,
2. The law relating to actions, and
3. The law relating to things (i.e., res).
- Everything other than persons and actions fell into this latter category of things.
- The understanding of the concept ‘thing’ (i.e., res) in Roman law was thus very broad.
o It included physical and nonphysical (corporeal and incorporeal) legal objects, the latter
referring to rights.
- This broad definition was carried forward into Roman-Dutch law, and hence applies in the South
African context.
- However, because of the Pandectist influence on South African property law, some scholars, on
dogmatic grounds, reject the idea that incorporeal property (i.e., rights) can be regarded as things.
Characteristics
- These different approaches render a clear definition of the core concept of property law
problematic.
o Yet, it is necessary to understand which sorts of objects are governed by property law and
which are not.
- As a point of departure, it is helpful to recognise what qualifies as property in the private law
sense.
o Constructing a working definition of the concept of thing is thus necessary.
- The objective is to know when a proprietary remedy can be used and when not.
o A proprietary remedy (or proprietary claim) is one which attaches to specific property (as
opposed to a 'personal remedy' i.e., a damages claim for money).
- If the object does not qualify as property in the private law sense, then no proprietary remedy lies.
- However, in the constitutional and public law sense, a much broader notion of property applies.
- The approach here is to examine more closely the characteristics of the type of legal object
governed by property law.
- For now, the legal object is referred to by the term ‘thing’.
- The discussion below indicates how these characteristics are to be employed to define the thing as
a legal object.
- Typical characteristics are corporeality, an impersonal nature, independence, appropriability,
and use and value.
- In other words, the distinction between property in private law, and an object that cannot be
regarded as property in private law, is that the former nearly always has these characteristics.
Corporeality and incorporeality
It is the ownership of a thing that has physical existence and is capable of being seen and
touched. Ownership of land, money, machine, or building is corporeal ownership. On the other
hand, incorporeal ownership is the ownership of a right. For example, ownership of intellectual
property is incorporeal ownership.
- Corporeality, as a characteristic of things, has proved to be controversial.
- An object can be labelled corporeal if it is tangible.
o i.e., if it can be felt or touched, or perceived by any of the five senses and if it occupies
space.
- Non-physical types of property (i.e., incorporeal property or intangible interests in property with a
distinct economic value) are, however, becoming increasingly important in the private,
commercial and public spheres of life.
- Intangible objects include forms of energy such as heat, light, sound, radioactivity or electricity.
- Incorporeal objects may also refer to rights.
- It is not yet settled in South African law whether energy may qualify as a thing.
- Similarly, the question whether incorporeal objects can qualify as things has given rise to
various academic opinions.
Only corporeal objects may qualify as things Incorporeals incorporated in the definition of things
In the opinion of some authorities (Van de Merwe), only Some authorities (Silberberg) argue in favour of
corporeal objects may qualify as things. incorporating incorporeals in the definition of things.
Incorporeals as things?
- In the opinion of some authorities (Van de Merwe), only corporeal objects may qualify as things.
- They advance the following reasons for excluding incorporeal objects from the definition of
things:
1. Acknowledging incorporeals as things would render it difficult to distinguish between various
kinds of rights as required by the doctrine of legal subjectivity. The doctrine dictates that
rights should be distinguished from one another according to their objects so that the nature of
the object is decisive for the classification of the particular right.
2. It would be illogical and jurisprudentially impossible to acknowledge that one right could be
the object of another right (i.e., that a person may have rights over rights).
3. The nature of the relationship between a person with a real right and the thing itself does not
permit incorporeality since this would conflict with the idea that a real right confers direct
physical powers over the thing in favour of that person.
- Although all the above objections against including incorporeals in the definition of things are
valid and dogmatically sound, they do not account for the pragmatic approach of the courts and
legislature, which has been to include incorporeals in the ambit of things on various occasions.
- So, for instance, a right in other rights has been acknowledged by the courts and the legislature in
the context of a usufruct in respect of mineral rights, and real security rights in respect of real
rights to land such as long leases, personal servitudes, mineral rights and leases of mineral rights.
- A purchaser’s personal right to a traded-in vehicle (forming part of the purchase price) in terms of
his credit agreement with a third party was recognised as an incorporeal thing for purposes of a
contract of sale.
- Furthermore, the courts have occasionally recognised (and occasionally rejected) the idea that one
can possess incorporeals, and protect them with proprietary remedies.
Things include incorporeals
- Accordingly, some authorities (Silberberg) argue in favour of incorporating incorporeals in the
definition of things.
- Acknowledging that ‘not all rights can function as things’, these scholars nevertheless choose to
view the many instances in which incorporeals were protected as things in the law not as
exceptions, but as an indication that the definition of the legal concept at the core of property law
should be flexible, rather than strict.
- This approach is justified …
Impersonal nature
- True to the doctrine of legal subjectivity, humans are not regarded as things.
- They function as legal subjects, not objects.
- Slavery, which permitted humans to be treated as property, was abolished in SA in 1834.
- All humans are regarded as having an inherent and inalienable right to dignity, as enshrined in s
10 of the Constitution.
o Slavery is a gross violation of this right because it denies humanity of the enslaved
person.
- In a similar vein, human body parts are not negotiable.
- However, advances in medical and dental science, together with the desire to live longer, have
resulted in an increasing commodification of the human body.
o Blood may be extracted and used in transfusions.
o Organs are transplanted.
o Sperm and ova may be frozen and used for fertilisation in vitro or in utero.
- In each case, the human body parts are donated, rather than sold, which preserves the line
between negotiability and non-negotiability.
- The National Health Act deals with donations and use of human tissue, blood, and reproductive
matter from living and deceased persons.
o It prohibits cloning of human beings.
o It also reaffirms the status of such tissue or body parts as beyond the parameters of
commerce.
o however, renewable body pats may be dealt with in the open market under certain
conditions.
Hair may thus for instances be sold for wig making.
Independence
- A thing must have an independent legal existence.
o For example, a house generally does not exist separately and independently from the land
upon which it is built and to which it is firmly attached.
o Also, a key by itself most often has no particular meaning, but has to be seen as an
instrument of access to another object, such as a house, a post box or a vehicle.
- The law does not require that things be physically independent from their environment.
- Juridical independence suffices.
o This means that the law may intervene by rendering independent something which
otherwise would physically be part of another thing.
o So, for instance, land is rendered juridically independent once it has been surveyed and
indicated on the diagram or general plan required to enable transfer of such land to an
individual.
- To return to the example of the house built upon land.
o The law has instituted mechanisms by which land may be separated and become
negotiable by demarcation (separation/boundary/dividing line/distinction/division)
thereof, and by which parts of a building may be sectionalised and acquired by different
owners as apartments upon compliance with certain statutory provisions.
- Components of a composite entity lack legal independence until they are physically or juridically
individualised.
o So, for instance, a house is usually alienated with all its fixtures and fittings.
o One may, however, exclude certain items in the contract of sale. For instance, a
chandelier attached to a ceiling or a mirror attached to wall may be contractually excluded
and then removed (or it may be physically removed before the house is put up for sale).
o However, items that are built in, such as a bath or toilet bowl, and which can be
physically removed only by damaging the fabric of the building, may usually not be
excluded.
Appropriability
- A thing must be susceptible to human control.
o Control here refers to the possibility of enforcing and protecting the right in the thing.
o The sun, moon and stars thus will not qualify as things because they cannot be
appropriated.
- The air that we breathe is also not susceptible to control.
o However, air compressed in a gas cylinder may function as a thing because it has been
brought under human control.
Use and value
- A thing must be of use and value to a person.
- It must have an economic or a sentimental value.
- To determine use and value, the object must be considered in context: a dead leaf may not have
any particular value to anyone, but a collection of dead leaves and other plant matter may be
negotiable as compost.
- Dangerous or unwanted objects, such as industrial or chemical waste, may also qualify as things,
even though their value would be negative.
Strict/narrow approach Broader/more flexible approach
In the opinion of some authorities (Van de Merwe), where Some authorities (Silberberg) argue that the five
all five characteristics mentioned contribute to the characteristics mentioned are regarded as guidelines rather
determination of whether a legal object qualifies as a thing. than prerequisites in the determination of whether a legal
object is a thing.
2 different approaches to defining the concept of a thing in South African law
Content and forms of ownership
Content of ownership
- Some form of ownership is important in all modern-day societies, especially those with a
capitalist market economy.
- The centrality of the role of ownership is, however, intrinsically linked to the particular
ideological, socio-political and economic foundation of the society in question.
o This means, therefore, that ownership has different meanings in different societies, and its
content varies according to the role and function that ownership plans in the particular
context.
- A plausible explanation for the origin of the notion of ownership is that it emerged, with the
expansion of general trade, from use rights.
- In hunter-gatherer societies, even the simplest tools could be used only by one person at a time.
- It seems sensible, therefore, that use rights, including the right of exclusion, must have enjoyed
some protection to avoid unnecessary conflicts between members of the group.
- As agrarian societies established themselves, the nature of herding and agriculture would have
required that the use rights be protected for longer and longer periods.
- Scarcity of resources, including materials for tools, would have played a role too.
- Goods became important for their exchange value, relative to other goods in the market, which
led to competition and trade.
- Ultimately, the need for legal regulation led to the notion of ownership, which in turn led to the
creation of other legal institutions such as succession rules, methods of transacting in the
marketplace (contract rules), as well as the concepts of legal subjects, legal objects and matters of
capacity.
- As is quite apparent in the modern world, ‘ownership, wills, contracts, legal personality and
property provide a conceptual framework that can be applied in diverse economic and social
contexts’.
- In the South African context, the content of ownership, as well as the ability to exercise it, was
affected by the race-based policies of the apartheid era.
- Consequently, ownership, especially of land, has been and remains contentious.
- The origin of the South African ownership concept is essentially Roman-Dutch with some
influence from the absolutist theories of the Pandectist movement of the latter part of the
nineteenth century.
- The traditional conceptualisation of ownership may be encapsulated in the phrase, plena in re
potestas, i.e., the owner has the power to do as she pleased with the property owned, within the
limits imposed by law.
o This view expresses the idea that ownership is the name given to the most extensive legal
relationship possible between a person and property; it also acknowledges, however, that,
by definition, ownership is not limitless.
- The concept of ownership has never been absolute, not even in Roman times.
- The institution of ownership includes the knowledge that anyone (within the boundaries of the
prevailing law) can own property.
- …
- More recently, the new constitutional dispensation has revived debate about the content of
ownership.
- The property clause is underpinned by the continued existence of the notion of private
ownership, but its provisions indicate clearly that arguments in favour of the absoluteness of
ownership are no longer sustainable, if they ever were.
- The property clause sets out a framework that regulates the context and manner in which
deprivation and expropriation of property can take place, thus indicating that private ownership
continues to exist.
- …
Forms of ownership
- Two forms of common law ownership can be distinguished, namely:
1. Individual title
2. Co-ownership
- Legal developments in the past 30 years or so have created statutory forms of ownership that
comprise interesting and useful amendments to core elements of each form of common law
ownership.
o E.g., time-sharing
- More recently, land reform measures have contributed further innovation, especially in relation to
landownership.
Individual title
- Individual title (also callused freehold title) vests in one person only.
- The single owner has the sum total of entitlements in relation to the property, moveable or
immovable, subject to the particular relevant limitations.
- Individual title is also affected by legislative measures, especially those dealing with land reform
matters, in relation to immovable property.
o In this regard, reference may be made to land reform legislation that provides new
mechanisms for vesting individual title that, nevertheless, retain the common law
characteristics of ownership.
- For example, the Land Reform (Labour Tenants) Act regulates the acquisition of rights in land in
particular circumstances.
Co-ownership
The undivided co-ownership share
- The undivided co-ownership share in the co-owned property is distinguishable from the property
itself.
- The undivided share reflets each co-owner’s interest in property.
- Where free co-ownership exists, the undivided share in the property may generally be dealt with
as the particular co-owner wishes.
- The undivided share may be alienated or burdened independently, i.e., without the consent or
collaboration of the other co-owner(s).
- When the undivided share is alienated to a third party, it vests in the third party, who replaces the
previous co-owner, by stepping, as it were, into his shoes.
- This challenge in itself has no impact on the commonly owned property as it is the undivided
share that has been alienated rather than the property.
- An undivided share may also be encumbered to the extent of the co-owner’s share, for instance by
granting a limited real right of security to a third party.
- If a co-owner can generally do as she pleases with her undivided share, a relevant question is
whether this has any effect on the commonly owned property.
