Absoluteness of Ownership Essay

1740 WordsApr 18, 20147 Pages
Is the idea of absolute ownership appropriate in a modern legal system? Introduction In South Africa, we depend on the common law concept of ownership. The principle of plena in re potestas encapsulates that an owner has the power to do with his property as he desires, which means that ownership is an absolute real right. It is necessary to determine whether the common law definition still applies in current South African law. It is paramount that before answering this question, we have to explore the definition of ownership and absoluteness. It is also necessary to have to look at the history of common law ownership to have a better understanding of the current position of ownership in South Africa. Ownership consists of entitlements and limitations, absoluteness is based on the notion that ownership only consists of entitlements as the party may do with his property as he pleases, free of limitations, however if it is revealed that ownership cannot be considered to be absolute it will not only consist of entitlements but limitations as well. Lastly, it should be determined whether the limitations imposed on ownership are justifiable in terms of the limitation clause in section 36 of the Constitution. The definition of “ownership” and the “absoluteness” of ownership According to AJ van der Walt & GJ Pienaar: “The common law description of ownership is defined in various decisions as the most complete real right that a legal subject can have regarding a thing, or as the real right which gives the owner the most complete and absolute entitlements to a thing.” The “absoluteness” of ownership implies that it is an unrestricted right or a plena in re potestas. History In South Africa, the roots of ownership are embedded in Roman law. Initially, there was only one real right in Roman law known as dominium (ownership). However a new form of ownership emerged,

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