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.
COMMON LAWCommon 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 systems’.
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 law.
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 premises restored.
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 PRECEDENTSHow an application is brought before a court, what procedures are to be followed in courts, how evidence is to be given and rules that govern court proceedings, these are largely based on English law. Specific legal principles developed through the courts’ decisions that further shaped the common law.
In 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 interpretation of the Roman-Dutch law and the English law. The courts’ judgment (precedents) became part of our common law as the need arose to resolve matters in response to the ever-changing needs of society.
STATUTORY LAWLegislation 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 staffing burden.
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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