Much is being speculated about the legal approach that Parliament will follow in amending section 25 of the Constitution. This follows the Joint Constitutional Review Committee’s adoption of the report on the expropriation of land without compensation.
The talk comes about because of anxiety, in some sectors, about the effect, from the legal standpoint, that this amendment will have on South African property law. I so happened to pose this question to a property law lecturer. Without hesitation, the lecturer indicated that South Africa would have to change its overall property law. But how would this be so for legal purposes, I asked further.
This turned out to be a challenging question. Instead of responding to the question, the lecturer went to town about how the impending section 25 amendments will frighten investors. He retorted further that the South African government is generally corrupt and thus cannot be trusted with the expropriation process.
If we look at the recent reports on the Guptas, VBS and now Bosasa scandals, which all implicate senior government officials, there is a reason to accept the lecturer’s averments. However, what these scandals — which the lecturer quite eloquently articulated — do not reveal are the likely legal ramifications of the section 25 amendments on the law of property in South Africa.
Herein is my endeavour to enunciate this impact. When society thinks of property, the first thing that comes to mind is ownership. Is the property mine, do I own it or do I only possess it? Not many people delve into the legal underpinnings relating to the acquisition of this ownership to the point that they could say, as Van Warmelo once observed, “it is mine or it is mine according to the law of Quirites”?
One thing to remember about ownership is that it is a concept that was developed over a period of time. As such, it is common cause that South African law of property is generally Roman-Dutch. In other words, this body of law was transmitted through various teachings that commenced in old Rome and made its way to the Dutch legal system. Because of this, a proper comprehension of ownership as an essential notion in the law of property is only possible if the developments that characterise this concept are investigated. This includes its study in Roman-Dutch law and relevance that it has to the South African legal system.
The notion of ownership (dominium) was conceived in classical Roman law. In pre-classical Roman law, ownership was characterised only in terms of actions (action in rem and action in personam). These actions granted protection to a person, usually a house father or manus under whose control the property “belonged”. The term ‘belong’ is crucial because it signified the connection between a person and a thing. However, it did not connote ownership of a thing. Thus, it was only in classical Roman law that the notion of ownership was conceptualised.
This ownership had to do with the individual rights that a person had over those things that are of economic value to him. From 350 AD until 550 AD, the classical Roman law meaning of ownership was modified. Specifically, ownership was compared with or had a similar meaning to possession (possidere). Importantly, it was a phenomenon that could be acquired by either natural or civil law. There is no doubt that this modification in the meaning of ownership was an irritation to classical Roman law jurists. As such, this period said to represent a dark era wherein the radiance and lucidity of ownership were drained of substance and void of any precise meaning.
An attempt to retain the classical idea of ownership was made in old Germanic law. In this period, ownership signified the fullest right in respect of a thing in its entirety. However, the individualistic nature of this right was omitted. Instead, it was conceded that ownership vested in tangible pieces of the outer world which belonged to people as a group.
To demonstrate this by means of an example, people were allowed to seize the property and consequently own it as a collective. In addition, it was possible for one person to own a house and another person to own the land on which the house was built. Again, the Germanic idea of ownership — coupled with its classical Roman law formulations — was diluted and frustrated by the development of Frankish law, that is, the practices by West German tribes across the Rhine.
This law was a radical step in the understanding of ownership. Particularly, a system (feudal system) was established in terms of which ownership of a thing (fief) was regulated. In terms of this system, ownership was vested in a king (the so-called Lord). Accordingly, the king could bestow to the vassal or peasant only certain rights (droit) over a certain property. In turn, the vassal’s rights to property were that of a holder or possessor and these rights could not be transferred to another person.
An attempt to revive the classical Roman law meaning of ownership was furthermore made by the Romanists and, to some extent, the canonists. For example, the Glossators (Roman law intellectuals in Bologna, Italy between 1100 and 1250 AD) stated that ownership connotes a right in property (ius in rem). To this end, they aborted the idea of associating the property with actions as was the case in pre-classical Roman law. The right in property granted to the owner the complete control of the property and unqualified disposal of the object (ius perfecte disponere). In other words, the owner had an absolute right over the property and which right was enforceable against the entire world.
Indeed, there is justification to the view that the canonists also followed the Glossators’ idea of ownership. However, they distinguished between ownership of a heavenly origin and those granted by positive or human law. In relation to the former, the canonists argued that God has complete ownership. Because of this, the property of a heavenly origin, for example, the earth, sun and sea, was ascribed for common nourishment by all humans. In other words, there is no human who can claim ownership over the property of heavenly origin. As regards the latter, canonists, for example, Gratian, were of the view that individual rights to property existed. However, the emperor, as the creator of this dominium, determined the manner of exercising this ownership.
A further innovation in the law relating to ownership occurred in the 16th century. The Mos Italicus (the Italian law), Mos Gallicus (Humanistic thinking) and the moral philosophers, for example, St Thomas Aquinas, characterised this development. As such, these 16th-century developments paved the way for the Pandectists’ and Dutch theories of the law of property.
Importantly, jurists such as Hugo de Groot (1583-1645), followed the Romanists’ idea of property. They said that property is an object that generates individual rights (gerechtigheid) to the owner. These rights are subjective in nature in that they come into being through a relationship that a person has with a thing. This, in my view, is the meaning of ownership that is adopted in South African courts. For example, the notion of rights in property (real, personality, immaterial property and personal rights) forms the basis of the study of ownership in South Africa.
The workings of these private rights did not prevent the advent of public law rights to property, in the form of section 25 of the Constitution. Specifically, this innovation required that South African courts extend the ambit of rights to property to also cater to the property rights that are introduced by public law.
Now, what we see from the above-mentioned is that the law of property is a living system of law. This system is both dynamic and flexible in that it is capable of being adapted and developed to respond to existing societal factors. For example, Frankish law was developed at a time when society was experiencing social strife, under-development and exploitation of the peasantry. As such, the individualistic nature of ownership of property was regarded as the magnifier of these challenges. For this reason, it was felt that some form of control was needed to ensure a fair and equitable distribution of property.
In South Africa, our courts have, over the years, been instrumental in extending the essence of property law to also regulate those things that were traditionally recognised to be incapable of being owned. For instance, in Cooper v Boyers No and Another 1994 (4) SA 521 (CPD), the court developed the principles of the law of property by stating that ownership of shares is possible in South Africa. In addition, the notion of rights in property is no longer only limited to private law rights. Conversely, it is also extended to public law rights.
The current property landscape in South Africa can be described as being inimical to the majority of South Africa. The individual nature of ownership doesn’t appear to diminish or alleviate this state of affairs. Instead, a vast majority of South Africans remain landless. Because of this, they are continuously concentrated in small pieces of land where there are poverty and under-development. Coupled with this under-development is the increasing fissure between the rich and the poor.
I argue that the amendments to section 25 of the Constitution will not result in the absolute disregard or change of the property law framework in South Africa. Instead, they will lead to a principled way of adapting the law dealing with ownership in a manner that responds to the specific needs of the South African society.
For example, the needs of the South African society are, among others, preventing the current state of landlessness among Africans, eradicating poverty and extreme hunger, and alleviating the elongating gap between the rich and the poor (rich/poor divide).
Accordingly, a developing of the principles will or should not be concerning for South Africa. This is the case because South Africans, as guardians of our democracy, will continue to ensure that due diligence is maintained in applying the amendments. More important, they will guarantee that the section 25 amendments promote the spirit, purport and of the object of Chapter 2 of the Constitution. DM
Mzukisi Njotini is an associate professor in the Department of Private Law, Faculty of Law, University of Johannesburg.