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LAW OF PROPERTY

A. INTRODUCTION: DEFINITION, CLASSIFICATION, COMPONENTS


I. Definition of Property

The term ‘property’ is one that has defied any precise, exhaustive or accurate definition. Its meaning
therefore depends upon the context within which it is used. Generally, the term is used to denote two
legal concepts:-

a. The objects of rights, e.g. a house, land, etc - when used to signify the objects of legal rights,
the word ‘property’ refers to everything which is susceptible of pecuniary evaluation, that is,
everything which has monetary value or can constitute an asset in an estate. In that sense, the
concept ‘property’ thus not only includes corporeal or material objects like land, houses etc,
but also incorporeal (without body, cannot be touched) or immaterial objects like shares and
patent rights.
b. The rights which persons have in respect of objects/things e.g. ownership, servitudes, leases,
possession.

Subject matter and significance of the law of property

The law of property consists of a system of legal rules which regulates legal relationships between
legal subjects with regard to a specific legal object, namely a thing. This relation can either be factual
(as in the case of possession or detention) or legal (as in the case of ownership and limited real rights).
A study of the law of property involves:

i. the determination of the characteristics of a thing and the various classifications of things;

ii. the determination of a real right and the various categories of real rights;

iii. the study of ownership and the various categories of limited real rights in respect of their
constitution, nature, content, termination and the protection accorded by law; and

iv. a study of the concepts of possession and detention and the distinction between these
concepts and ownership.

The law of property plays a dynamic role in a society which guarantees individual property rights and
in which economic activities are curtailed to a minimum. For this reason, the law of property is highly
developed in a capitalist society which guarantees private ownership and where commercial life is
influenced purely by motives of profit.

The last ten years have witnessed numerous changes in the law of property in Zimbabwe. The impact
of the land reform programme and state policies in relation to indigenization on classical principles of
the law of property cannot be understated.

Some authorities use ‘Law of Property’ and the ‘Law of Things’ interchangeably. (Silberberg, p.2)

See C. G. van der Merwe and M J de Waal The Law of Things and Servitudes at pages 5 – 6 for a
discussion on the difference between the law of property and the law of things.

See Silberberg and Schoeman’s The Law of Property at pages 4 – 7 for a discussion on the
development/changing face of the law of property.

The importance of property rights

Freedom of property or the right to property is recognised domestically and internationally as a


fundamental human right. Section 16 of the Constitution of Zimbabwe provides for the protection from
the deprivation of property. (although there have been inroads which will be discussed and critically
analysed in further detail later in the course.) Article 17 of the Universal Declaration of Human Rights
provides as follows:

1. Everyone has the right to own property alone as well as in association with others.

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2. No one shall be arbitrarily deprived of his property.

It will be noted that the law of property places emphasis on the first generation human rights as
opposed to second generation.

A ‘thing’ as a legal concept

The term ‘res’ is usually used to denote a thing e.g. res litigiosa.

A thing is generally defined as ‘a corporeal object external to man which is an independent legal entity
susceptible to private ownership and valuable and useful to mankind.’ See van der Merwe & de Waal,
at p. 12.

Characteristics of a thing

a. Corporeality

It must be material. Thus incorporeal objects, such as real and personal rights, are excluded from the
definition of a ‘thing’.

b. Impersonal nature

It is external to man. A living human body and its members or parts are generally regarded as incidents
of one’s personality and therefore, not things in the legal sense. These items have traditionally been
regarded as res extra commercium and free commerce in human tissue of parts of the body has always
been regarded as contra bonos mores.

c. Individuality/independence

A thing must constitute an independent entity with a well-defined existence in space. The atmospheric
air, the sea, running waters and gaseous substances do not satisfy this test and are not things.

d. Susceptibility to appropriation or human control

Examples include farms, motor vehicles and furniture. Examples of objects which are not susceptible
to appropriation or human control include the moon, the stars etc.

e. Intrinsic value and usefulness to mankind

Only physical objects which are of value to man can give rise to legal relationships between legal
subjects. Examples of objects which are as a rule without any value to mankind include a dead leaf, a
grain of sand or an insignificant stone.

II. Classification of Things

Things are traditionally classified (according to Grotius) according to their relation to man and
according to their nature.

1. A classification of things according to their relation to man relates to whether the particular thing
being classified is susceptible of private ownership or not. In this regard, a distinction is made
between:

a. things in commerce (res intra commercium) i.e. things which are susceptible of private
ownership ; and
b. things out of commerce (res extra commercium) i.e. things which are not susceptible of
private ownership.

2. Classification of things according to their nature relates to distinguishing things according to their
nature e.g. corporeals and incorporeals, consumables and non-consumables.

The significance of these categories or divisions is that different rules apply to different categories of
things e.g. movables and immovables.

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A. Classification of things according to their relation to man

a. “Things in commerce” and “things out of commerce”

This division is derived from Roman Law. Under Roman Law, this division corresponded to a
division between things that were susceptible of ownership and things that were not
susceptible of ownership.

i. ‘Things in commerce’ (i.e. things which can be privately owned) are divided into further
categories, as follows:

I. The first division relates to things belonging to individuals (res singulorum) and
things belonging to corporate bodies (res universitatis) like companies, banks,
building societies and associations not for gain.

II. The second division of things in commercio is the division into things which beling
to someone (res alicuitus) and things that, although capable of being owned, belong
to no-one at a particular time (res nullius). Examples of res nullius are wild animals,
birds, fish, shells, rainwater when it falls and res derelictae.

ii. “Things out of commerce (i.e. things insusceptible to private ownership) are divided into
three categories, namely, common things, public things and religious things.

I. Common things (res omnium communes)

These are things that by natural law are common to mankind and therefore
insusceptible of private ownership e.g. air, running water. These are to be enjoyed in
common by all persons. Although common things can not be owned in their entirety,
they are nevertheless susceptible of individual ownership when reduced to a
controllable state e.g. when air is compressed in a gas cylinder or running water is
collected in a container.

In classical Roman Law, the air, running water, the sea and sea-shore were
considered things common to all. Every individual was allowed to enter and use the
sea-shore and the sea as he pleased. Some Roman jurists classify the air and sea as
examples of common things but the majority of Roman jurists regard the sea-shore as
a public thing. In modern law, both the sea and sea-shore are regarded as public
things because they belong to the state. Thus, the air and running water are the only
remaining examples of common things. However, a landowner is allowed specific
rights in respect of the air column above his land and the use of running water is, to a
certain extent, governed by the Water Act. In respect of the sea-shore, see the case of
Surveyor-General (Cape) v Estate De Villiers 1923 AD 588 at 593, where Innes CJ
stated that under the influence of the feudal system, the sea shore came to be
regarded as res publica which vested in the sovereign.

II. Public things (res publicae)

These are things which belong to the state but are destined to be used by the general
public e.g. roads, airports. Like common things, public things can be used freely by
the general public. However, unlike common things, public things do not belong to
the community as a whole but to the state.

Public things are regarded as extra commercium because they may be used freely by
the general public and the state does not have private ownership of them e.g. public
roads, airports etc.

It is important to note two points on the distinction between common things and
public things:

 Because public things belong to the state, greater limitations can be placed upon
them by the state than on common things.

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 As earlier stated, portions of common things can be appropriated by individuals
which would not be possible with public things.

III. Religious things (res divini iuris)

Roman divided religious things into the following categories:

Res secrae – were things dedicated to the gods above e.g. temples, altars, treasures of
the temple.

Res religiosae – were things dedicated to nether gods e.g. tombs, sepulchres and
graveyards.

Res sanctae – were not consecrated to, but placed under the protection of the gods
e.g. gates and walls of cities and the boundaries of land.

The importance of religious things has been affected, firstly by the Reformation and
the subsequent secularisation of society. Today temples and churches are the private
property of congregations and private individuals. Cemeteries may belong to
municipalities or owners of land. But violation of graves is still considered a criminal
offence.

B. Classification of things according to their nature

a. Corporeals and incorporeals

The distinction between corporeals and incorporeals has its foundations in Roman law.

Corporeals (res corporales)

Corporeals are material objects which can be felt or touched e.g. land, clothes, furniture.

Incorporeals (res incorporales)

Incorporeals are objects which have no physical existence but have a pecuniary value e.g.
various kinds of rights e.g. usufruct, mortgage of a lease, pledge, lease of mineral rights –
usually evidenced by documents or an agreement.

b. Single and composite things; aggregates of things and aggregates of assets

Single things are material objects such as stones, pieces of metal, wood, birds etc which
appear to be an entity.

Composite things consist of several parts which have lost their individuality on being united
organically or mechanically into a single entity e.g. a house or a motor-vehicle.

Juridically, a composite thing is deemed to be a single res. The owner owns the house as a
whole, that is, he is not deemed to be the owner of every individual component of it.

Composite things are distinguished from aggregates or collections of similar things. An


aggregate is composed of several things, single or composite, which form an economic unit.
Examples are a flock of sheep, a herd of cattle and an art collection. The several individual
things comprising the aggregate do not their individuality but continue to have an independent
juridical existence. Since the aggregate exists only in fact, ownership and other real rights
attach to the individual things rather than the aggregate.

c. Fungibles and non-fungibles

Fungibles are things which, according to the law or the intention of the parties are
interchangeable.

Non-fungibles are things that are not interchangeable. According to Silberberg and Schoeman
the intention of the parties is determinative in deciding whether a particular thing is fungible

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or non-fungible e.g. a purchaser of a motor-vehicle will usually select a specific one, but
nothing prevents him from ordering a vehicle of a particular make without selecting a specific
specimen. On the other hand, some authorities suggest that a thing which is by nature non-
fungible cannot be made fungible by agreement.

At the end of the day, things which have not been individually determined but are handled in
commerce with reference to weight, measure or numbers e.g. quantity of wine or cloth or a
number of horses are fungibles. On the other hand, non-fungible things have such individual
qualities that they cannot be replaced by identical objects e.g. a particular house or a particular
motor vehicle.

Since only specific things can be the object of ownership, possession and limited real rights,
this distinction is of little importance to the law of things.

d. Consumables and non-consumables

Consumables are things that cannot be used without being expended or consumed or without
their substance being changed e.g. food, beverages, candles, cigarettes. Money is also
regarded as a consumable and is considered ‘consumed’ whenever it is spent or mixed in such
a manner that the individual coins or notes can no longer be identified.

Non-consumables are things which may be enjoyed without alteration of their substance,
although their substance may be diminished or deteriorated naturally by time or the use to
which they are applied e.g. land, animals, furniture, motor-vehicles, books etc. Only non-
consumable things may be the object of a loan for use. Thus in the case of a loan for use, the
identical thing must be returned.

e. Divisible and indivisible things

Divisible things are those capable of being divided into two or more portions without
destroying or substantially diminishing their function or value e.g. a beast, a house, a motor-
vehicle.

The importance of the distinction lies in the fact that, in proceedings between co-owners for
the partition of things held in common. Divisible things can be partitioned physically while
indivisible things must be sold and the proceeds shared equally or proportionately.

f. Movables and immovables

This is arguably the most important classification of things.

I. A thing is movable if it can be moved from one place to another without being
damaged and without losing its identity e.g. motor-vehicles, bicycles, furniture,
animals.

II. Immovable things are things which cannot be moved from one place to another
without damage or change of form e.g. a house, land. A movable may also be
attached to movable in such a way that it becomes an integral part of the immovable
e.g. a doorframe.

g. Incorporeal movables and immovables

Incorporeal things may also be classified as movables or immovables. In Roman-Dutch law,


the criteria for determining whether an incorporeal is movable or immovable is the nature of
the object to which it relates. Thus all real rights over immovable things are classified as
immovable property; while all real rights over movables and personal rights are regarded as
movables, even if the performance involved consists for example in the transfer of immovable
property.

Importance of the distinction between movables and immovable’s

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The distinction is relevant not only to the law of things or of property but to other branches of the law
as well. The significance of this classification lies fundamentally in the fact that different legal rules
apply to immovables from those applicable to movables. See the following examples:

a. According to private international law, immovables are governed by the law of the place
where the immovables are situated (lex loci rei sitae) whereas movables are governed by the
law of the place where the owner of the movables is domiciled. (lex loci domicilii).

b. The movable or immovable nature of the thing claimed in judicial proceedings determines the
jurisdiction of the court. The court usually has a wider discretion in the case of movables to
take other considerations into account in deciding the issue of jurisdiction.

c. Special formalities are required for the alienation and hypothecation of immovables, namely
registration in the deeds registry by the registrar of deeds. On the other hand, a movable is
transferred or pledged by delivery.

d. The process of execution with regard to immovables differs from that with regard to
movables. A judgment debtor’s movable property is attached first and only if it is insufficient
to satisfy the judgment debt, can execution be levied against his immovable property. See
Order 40 R. 326 of the HC Rules.

Further, the formalities for the attachment and sale in execution of immovables differ
substantially from those for the attachment and sale of movables. See Order 40 R. 346 – 367.

e. Persons with the power to administer the property of another are in general allowed to alienate
movables more easily than immovable’s.

f. In the field of criminal law, theft can be committed only in respect of movable property,
whereas arson can only be committed in respect of immovable property.

III. Components of a Thing

1. A composite thing (universitas rerum cohaerentium) may consist of various elements. These
elements usually fall into one or any of the following categories:

a. The principal thing,

b. Accessories; and

c. Auxiliaries

e.g. A house consists of the (i) basic framework (the principal thing); (ii) the roof, doors and
windows (accessories); (iii) keys to the doors of the house (auxiliaries).

A motor-vehicle consists of a chassis (principal thing); an engine (accessory); a spare wheel


(auxiliary).

2. Accessories and auxiliaries are things which have previously enjoyed a separate existence, have
become associated with a principal thing. In the case of accessories, their association with the principal
thing is of a physical or functional nature. As for auxiliaries, they have a mere economic connection
with the principal thing. However, not all things that are associated with a principal thing are
necessarily accessories or auxiliaries e.g. furniture used in a house remains an individual thing despite
its association with the house. A blanket or roll of tissue kept in a motor vehicle during winter remains
an individual thing despite its association with the house or motor-vehicle.

3. A principal thing is a distinct entity which can as such be the object of legal rights. It differs from
accessories and auxiliaries in that it is not only part of or accessory to a thing but has an independent
legal existence.

4. An accessory, on the other hand, becomes a component or an integral part of the principal thing by
being incorporated into the principal thing. On being attached to the principal thing, the accessory
surrenders its separate identity and becomes part and parcel of the principal thing. Examples of

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accessories are things firmly attached to land such as buildings and other constructions, trees, plants,
seeds sown in the land etc.

Things firmly attached to buildings or other constructions e.g. plumbing, heating, electrical
installations, are also considered accessories. Also, things incorporated into movables such as an
exhaust system or a wheel fitted into a motor-vehicle.

How does a thing become an accessory?

In the past, a very firm or strong physical attachment was required so that only things which could not
be separated from the principal thing without damage to themselves or the principal thing without
damage to themselves or the principal thing without damage to themselves or the principal thing were
considered to be accessories.

However, with the advanced technology, that test cannot be sound hence a wider test has been accepted
to include things which have a purely functional connection with the principal thing as accessories.
Now, in determining whether a particular thing must be classified as an accessory, the customs, usages
and practices prevailing in society are relevant e.g. a lift installed in a building or an engine fitted into a
motor-vehicle can be removed without damage to either the building and the lift or the motor-vehicle
and the engine. Yet the lift and engine are considered accessories.

See J. L. Cohen Motors SWA (Pty) Ltd v Alberts 1985 (2) SA 427 (SWA); Melcorp SA (Pty) Ltd v
Joint Municipal Pension Fund 1980 (2) SA 214 (W).

How does one decide which of the two component of a thing is the principal and which is the
accessory?

If something is attached to land, the land is always considered to be the principal thing and the fixture
the accessory. In the case of movables, an accessory is usually considered to be the thing, which serves,
complements or decorates the principal thing. If this test proves inapplicable for some reason, the more
valuable or the more bulky component if the value is nearly is considered to be the principal thing.

Significance of distinguishing the principal thing from the accessory

An accessory which is physically or functionally attached to a principal thing ceased to be a distinct


thing and becomes part of the composite thing. The law does not recognise individual ownership of
component parts. An accessory therefore ceases to be the object of separate ownership and the owner
of the principal thing becomes the owner of the accessory as well.

Transfer or encumbrance of the principal thing with a real right encompasses its accessories, whatever
the intention of the parties was e.g. the law would not permit a person to transfer land with a
reservation of the roof of a house on the land and the cowshed for himself, or vice versa.

Auxiliary

Things may, without losing their independence or individuality, exist in a relationship of subordination
to a principal thing, as in the case of keys to the doors of a house, and spare wheels of a motor-vehicle.
The subordinate thing is thus an auxiliary of the principal thing.

Generally, therefore, an auxiliary is a thing which, while preserving its individuality or independence,
is destined to serve the economic purpose of the principal thing permanently and not merely
temporarily. See Smyth v Furter (1907) 2 SC 424; Van Wezel v Van Wezel’s Trustee 1924 AD 409 at
414; Lewis v Ziervogel 1924 CPD 310. See also the article by Van der Merwe 1983 Annual Survey of
SA Law at 231.

An auxiliary must thus be destined to be of permanent utility to the principal thing and necessary for
the effective use or exploitation of the principal thing.

Legal character of an auxiliary

1. On the one hand, an auxiliary remains a distinct legal entity. In this sense, it may be possessed
separately and can be acquired separately by prescription. Further, an auxiliary is not

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delivered automatically with the principal thing but may be delivered separately before
ownership in the auxiliary passes. Auxiliaries must also be vindicated separately from the
principal thing.

2. On the other hand, an auxiliary sometimes follows the destination of the principal thing,
unless a contrary intention or surrounding circumstances, customs and usages of the
concerned society indicate otherwise. See Falch v Wessels 1983 (4) SA 172 (T) in which the
court held that considering the surrounding circumstances, a term should be implied ex lege
that a stove was included in the subject matter of the sale of a house. In that case, the court
also held that a stove should be regarded as an auxiliary to a house.

Differences between accessories and auxiliaries

The main differences between accessories and auxiliaries are as follows:

a. Accessories are so closely connected with the principal thing that they invariably follow its
juridical vicissitudes; auxiliaries follow the legal vicissitudes of a principal thing only in
certain circumstances. Although the sale or encumbrance of a principal thing extends as a rule
over accessories and auxiliaries alike, auxiliaries may be excluded from the sale or
encumbrance by agreement between the parties or exclusion may be implied from the
surrounding circumstances and the customs and usages of the community concerned.

b. Accessories never have an independent legal existence apart from the principal thing to which
they are attached. Consequently, an accessory may not be separately owned and it may not
become the object of a separate legal right. In contrast, auxiliaries retain their individuality
and, if an owner so prefers, he may for instance sell or pledge the spare wheel of a motor
vehicle independently from the vehicle.

c. Accessories on being attached to a principal thing become the property of the owner of the
principal thing. The former owner may, however, have a remedy against the owner of the
principal thing. An auxiliary on being associated with a principal thing does not become the
property of the owner of the principal thing.

d. Accessories can only become distinct entities again by being physically detached from the
principal thing. In contrast, the connection between a principal thing and an auxiliary is
discontinued if the owner withdraws the auxiliary from its economic relationship with the
principal thing.

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