page_title: South African property law
section_title: History
hierarchical_section_title: South African property law / History
caption_attribution_description: Afrikaans: Jan van Riebeeck land in Tafelbaai in April 1652.English: Jan van Riebeeck arrives in Table Bay in April 1652.Русский: Прибытие Яна ван Рибека в Столовую бухту в апреле 1652 года.Українська: Шарль Девідсон Белл. Прибуття Яна ван Рібека у Столову бухту у квітні 1652.
context_page_description: South African property law regulates the "rights of people in or over certain objects or things." 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. Among the formal functions of South African property law is the harmonisation of individual interests in property, the guarantee and protection of individual rights with respect to property, and the control of proprietary relationships between persons, as well as their rights and obligations. The protective clause for property rights in the Constitution of South Africa 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.
context_section_description: 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.
caption: Painting of an account of the arrival of Jan van Riebeeck, by Charles Bell.
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