syscon part 3 topic 3

3 classical characteristics of ownership

absolute, exclusive, abstract

what is western ideal of ownership

Private individual control

Exercised in a free-market

With minimal state interference

“Owner may do with their property as they please”

Roman law idea of ownership

Not the same as modern ideas of ownership

Ownership served different social functions

Multiple overlapping forms of property rights depending on: citizenship, type of land, social status, and practical circumstances

Roman law were flexible and shaped by the social function and use of property, rather than by one abstract theory of ownership

Restrictions on ownership existed, seen as natura

Roman-Dutch Law idea of ownership

Early modern thinkers shifted attention toward:

individual person

personal freedom

individual rights

Grotius created the distinction between:

ownership

limited real rights

personal rights

According to Van der Walt, it was Grotius who helped create the modern idea:

only one true form of ownership

ownership is the highest and most complete property right

ownership exists mainly to protect individual freedom and control over property

19th century philosophy on ownership

Ownership becomes linked to:

personal autonomy

freedom of will

the individual’s ability to use property freel

German Pandectists idea of ownership

German legal scholars create:

distinction between real rights and personal rights

hierarchy between ownership and limited real rights

the idea of ownership as absolute, exclusive and abstract

OWNERSHIP WAS GIVEN THE AUTHORITY AND STRUCTURE OF A SUPPOSEDLY OBJECTIVE SCIENTIFIC SYSTEM

Van der Walts conclusion on ownership

Modern ownership law is historically constructed

It is not universal or timeless

Thus, it can be changed

summary of all

The idea of the Western model of ownership as absolute, exclusive and abstract is not neutral and it is not inevitable either. It was shaped by specific historical and political ideas,especially liberal individualism. This means it can be criticized and reformed. 

Southern Rhodesia case facts

Prior to the British, territory consisted of Matabeleland and Mashonaland under King Lobengula

In 1890 the Company occupied Mashonaland

In 1893 a conflict broke out between the Company and Lobengula’s forces

Court found that this was a real war and the land was conquered

Southern Rhodesia case legal issues

1. Did the Company own the unalienated lands?

2. Did the Crown own lands after conquest even without formal annexation?

3. Did indigenous peoples retain ownership rights?

4. Was the Company entitled to reimbursement for administrative expenses?

Southern Rhodesia case ratio

A chartered company may conquer and administer territory

Sovereignty and title belongs to the Crown

Indigenous land systems receive no protection under colonial doctrine

what did South Africa consist of after the Union in 1910

Cape Colony, Transvaal, Orange Free State, Natal (the colonies had different approaches to voting rights, black political participation, land ownership)

what is the native question

The native question: How should Black South African be governed politically and economically?

Qualified franchise

Associated with Jan Smuts (United Party) and the 'liberal position' voting rights are linked to property ownership, regardless of race

to vote, must have property worth £25

segregationist position

Associated with Louis Botha (National Party)

white South Africans should own most of the land

purpose of 1913 land act

Two main purposes:

Solve the 'native question' by determining how much land could be held by Black South Africans and where they could own it

Manage industrialization - need for cheap labour, economic growth and controlled urbanization

Territorial segregation (creation of homelands)

Racial land allocation (90% (white) 7% (Black)

Massive dispossession (removed from land with no compensation)

who was sol plaatjie

Madlanga J in Daniels v Scribante 2017 (4) SA 341 (CC):

"Mr Sol Plaatje, one of the early, notable heroes in the struggle for freedom in South Africa who lived during the time this Act was passed, says of it, "Awaking on Friday morning June 20, 1913, the South African native found himself, not actually a slave, but a pariah in the land of his birth""