Attorneys at Law

South Africa

 
 

 
 Property

The most popular use of the word "property" in South Africa refers to immovable property; called "real estate" in America. In fact property, in law, refers to anything to which you can attach a right. In law proprietary rights fall into a few different categories: They can be fixed or movable and they can be corporeal or incorporeal. The different rights are dealt with in different ways. Sometimes these categories are not easy to follow, for example:

An air-conditioned built into a window frame could be movable; An air-conditioned installed in a building and intended to remain there permanently, will be fixed. The one will be included in the price of the building and the other not.

Copyright is also property. It is intellectual incorporeal property.

Ownership is transferred in all but exceptional cases by agreement, in other words by a contract.

Immovable Property - Land
 
The transfer of ownership in immovable property in South Africa (and in most countries) is a carefully documented procedure dealt with in South Africa by attorneys who are also conveyancers. The idea is to have a record of the first recorded ownership of a piece of land recorded and traced through a system of written titles to its latest owner.

Transactions involving the transfer of land from one person to another must be in writing. The Deeds Registry records the changes in ownership.

In South Africa, unless there is an error in the recording of a transaction, or some other exception like a land claim, or an Act of Parliament, registration guarantees ownership. This system gives people who loan money to purchase land the comfort that the registration of their security for payment (called a "bond") is permanent and cannot be attacked by any other person who may claim an interest in the land.

It may be a cheap solution to take free advice regarding some of these issues but it should be obvious that they sometimes require the assistance of a practicing attorney, paid to provide objective advice.

Movable Property

Ownership in movable property is a lot easier to transfer and does not usually require a written agreement. This presents a problem in that stolen goods can easily be traded and can be difficult, if not impossible to identify. For this reason there are laws that attempt to keep track of the trading of second-hand goods. It is important to appreciate that simply because you acquire second-hand goods does not mean that ownership is transferred to you. Ownership can only be validly transferred by the owner of the goods and not by a thief or a person who has acquired the goods from a thief, even if the person who acquired the property did not know they were stolen. It may sound strange at first, bit remember that ownership can only be transferred by the owner. One cannot be deprived of one's property except by Parliament or in certain very exceptional circumstances, like prescription after 30 thirty years, or abandonment.

A car, for example, is movable property and ownership can validly be transferred without registration of the vehicle in your name. He problem of course is that you will not be able to comply with the laws necessary to permit you to use the vehicle on the roads.

On the other hand ownership of a vehicle is not necessarily transferred because the vehicle is registered in your name. We know that with a small bribe, a stolen vehicle can easily be registered. It is obvious that such an illegal chain of events will not result in a valid claim to ownership of the vehicle.