The Modern Concept of Ownership of Land
![handle is hein.journals/actj1985 and id is 253 raw text is: THE MODERN CONCEPT OF OWNERSHIP OF LAND
I INTRODUCIlON
Judicial statements about the nature of the right, ownership, are few and far
between. But the following examples, it is submitted, are a fair reflection of the
views of our courts as to this apparently hallowed concept:
'In every scientific system of law there is, and must be, a distinction between
dominium and obligatio-between ownership and the right to demand from
another payment or the performance of an act. What, however, is the exact
scope of dominium has been a matter of controversy for centuries....
Savigny's definition may be accepted as of high authority. Dominium is the
unrestricted and exclusive control which a person has over a thing (Savigny
System [des heutigen r6mischen Rechts], vol 1, sec 59, p 367). Inasmuch as the
owner has the full control, he also has the power to part with so much of his
control as he pleases. Once the owner, however, he remains such until he has
parted with all his rights of ownership over the thing.' (Per Wessels J in
Johannesburg Municipal Council v Rand Townships Registrar & others 1910
TS 1314 at 1319.)'
'Eiendomsreg is die mees volledige saaklike reg wat 'n persoon ten opsigte
van 'n saak kan h. Die uitgangspunt is dat 'n persoon, wat 'n onroerende
saak aanbetref, met en op sy eiendom kan maak wat hy wil. Hierdie op die
oog af ongebonde vryheid is egter 'n halwe waarheid. Die absolute
beskikkingsbevoegdheid van 'n eienaar bestaan binne die perke wat die reg
daarop plaas .... Geen eienaar het dus altyd 'n onbeperkte bevoegdheid om
na vrye welbehae en goeddunke sy eiendomsbevoegdhede ten aansien van sy
eiendom uit te oefen nie. So verklaar bv Sohm The Institutes 3de uitg. [trans
J C Ledlie] te 309:
Ownership is a right, unlimited in respect of its contents, to exercise
control over a thing. The difference, in point of conception, between
ownership, however susceptible of legal limitations (eg through rights of
others in the same thing) is nevertheless absolutely unlimited as far as its
own contents are concerned. As soon therefore as the legal limitations
imposed upon ownership-whether by the rights of others or by rules of
public law-disappear, ownership at once, and of its own accord, re-
establishes itself as a plenary control. That is what is sometimes described
as the 'elasticity' of ownership. '
(Per Spoelstra AJ in Gien v Gien 1979 (2) SA 1113 (T) at 1120.)
'It may be difficult to define dominium comprehensively . . . but there
can be little doubt . . . that one of its incidents is the right of exclusive
possession of the res, with the necessary corollary that the owner may claim
his property whenever found, from whomsoever holding it. It is inherent
in the nature of ownership that possession should normally be with the
owner, and it follows that no other person may withhold it from the owner
unless he is vested with some right enforceable against the owner (eg, a
right of retention or a contractual right). . . . If there be doubt whether there
is an existing right enforceable against the owner, the right of ownership
must prevail.' (Per Jansen JA in Chetty v Naidoo 1974 (3) SA 13 (A) at 20
and 23.)](ViewImageLocal?handle=hein.journals/actj1985&div=16&collection=&method=preview&ext=.png&size=3)
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The Modern Concept of Ownership of Land
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