AN OVERVIEW OF PROPERTY LAW - Pg1
Law, it's interpretation and its implementation evolves over time
and as property professionals, we constantly have to be not only aware
of what the law says but of recent cases, their judgements and
implications as well as being aware of where things are headed.
This section attempts to give the layman a rough understanding of our property law and its origins.
law is the law that is based on tradition and usage that governs the
relationship of people. It is almost "common sense" law based simply on
what is right or wrong. That is why there is so much correlation
between legal precepts laid out in the Bible and what forms the basis
of most common law.
Ancient Roman law from around 750 BC to the sixth
century AD provided powerful dynamic law, legal principles and legal system
that was adopted or adapted by later generations in European countries.
Netherlands was one of many countries that were influenced by the ancient laws
of Rome. Great Dutch scholars in the 17th and 18th centuries debated,
interpreted and wrote commentaries that developed into an extraordinary legal
system of their time. These brilliant Dutch scholars included Hugo Grotius,
Johannes Voet, and van der Linden.
The common law in South Africa
is the legal concepts, principles and rules of the Roman-Dutch law that was
also influenced by English law. These laws were introduced by Jan van Riebeeck
and the Dutch settlers who arrived in 1652 and the British in 1795
respectively. Roman-Dutch law is largely the legal system of the Romans,
changed and modified over centuries and is one of the most important ‘civil law
systems’ of the South African law together with the English ‘common law
Roman-Dutch law also influenced other countries such as Lesotho,
Swaziland, Zimbabwe, Turkey, Japan, Indonesia, Sri Lanka, Scotland and
many others across the globe. English law influenced Roman-Dutch law
and also forms part of our common
Let us look at an example of
tenant-landlord relationship under Roman / Roman-Dutch law. A person who owned a property and was unlawfully dispossessed, had
recourse to a restitutory or mandatory interdict to have possession of the
This common law still applies in South Africa with
the courts adapting it to the changing needs of society. It was recently
included in the Rental Housing Act (May 2008).
Common law is
therefore that part of the law not found in “statutory” law
CASE LAW - LEGAL PRECEDENTS
an application is brought before a court, what procedures are to be
courts, how evidence is to be given and rules that govern court
these are largely based on English law. Specific legal principles
through the courts’ decisions that further shaped the common law.
other words, what the courts decided on a specific case then became
accepted law unless of course challenged in a higher court. The higher
the court, the firmer the decision stands within our own law. Generally
magistrates and judges will not easily overturn a previous judgement
unless there is substantial evidence and reason to do so.
The growth of
the common law was the result of our courts’ application and
the Roman-Dutch law and the English law. The courts’ judgment
became part of our common law as the need arose to resolve matters in
to the ever-changing needs of society.
Legislation is another name for
statutory law or a law enacted by parliament and includes subordinate laws such
as laws made by provincial and local governments. An act of parliament or
legislation can change specific aspects of the common law or introduce new
rules or laws.
The South African parliament
makes laws called statutes (“statutory” law) for various reasons such as the Rent
Control Act to protect tenants and the Group Areas Act to force people to live
in categorised “race groups” in specific localities.
In the democratic
dispensation since 1994, parliament continues to pass laws with emphasis on consultation
with various interest groups and all laws must comply with the provisions of
the Constitution of the Republic of South Africa. The provincial and local
governments can also enact laws or are required to implement national
legislation under specific mandates.
We unfortunatley in South Africa have taken on the nature of all other
socialist minded states that over regulate, over legislate and over
dictate, resulting in an ever increasing red tape and civil servant
The RHA is an example
of a legislation enacted by national government that requires each provincial
housing Minister to apply it by establishing a provincial Rental Housing Tribunal. Initially, the
provincial housing Ministers were required to promulgate (pass law) provincial
regulations but were not allowed to make changes to the RHA. The authority for
regulating subordinate laws was changed in May 2008 and it is the Minister of
national housing who is also responsible for regulations with no powers given
to the provinces to alter or make changes to the RHA and its regulations
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