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South African property law regulates the "rights of people in or over certain objects or things."〔Mostert & Pope 5.〕 It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law.〔A "legal object" is something in respect of which a person may hold a right (Mostert & Pope 7). Although in some circumstances the term may signify purely one's right of ownership in a legal object, in others it refers to the legal object (tangible or incorporeal) to which that right pertains.〕 Among the formal functions of South African property law is the harmonisation of individual interests in property, the guarantee and protection of individual (and sometimes group) rights with respect to property, and the control of proprietary relationships between persons (both natural and juristic), as well as their rights and obligations.〔Mostert & Pope 6.〕 The protective clause for property rights in the Constitution of South Africa〔s 25.〕 stipulates those proprietary relationships which qualify for constitutional protection. The most important social function of property law in South Africa is to manage the competing interests of those who acquire property rights and interests. In recent times, restrictions on the use of and trade in private property have been on the rise.〔Wille 406.〕〔Mostert & Pope 6.〕 Property law straddles private and public law,〔Mostert & Pope 8.〕 and hence "covers not only private law relations in respect of particular types of legal objects that are corporeal or incorporeal, but also public law relations with a proprietary character, and the resultant rights and interests."〔Mostert & Pope 12.〕 Property in the private-law sense refers to patrimonial assets: those, that is, which comprise a person's estate. The law of property defines and classifies proprietary rights (for instance, as either real or personal), and determines the methods whereby they are acquired, lost and protected, as well as the consequences of their exercise and the limitations imposed by factual proprietary relationships which do not qualify as rights.〔Mostert & Pope 12.〕 ==History== Until the Constitution was passed in 1994, South African property law was most heavily influenced by the reception of English property law and principles of civil law theory. The Dutch East India Company had established the Cape colony from 1652. Land was traded for by European settlers from native African inhabitants. As the British slowly assumed control from 1795 to 1806, and was pronounced the owner of the Cape Colony at the Congress of Vienna in 1815. Descendants of the Dutch moved away into the interior to establish their own colonies, the Orange Free State, trading for the land from native people. Conflicts grew over the later half of the 19th century, as the rich mineral wealth of South Africa became evident. In 1867, diamonds were discovered in the Kimberley and in 1886 gold was discovered in Johannesburg. In 1889, the British South Africa Company was given a Royal Charter to further seek out and exploit areas across Southern Africa where mining could be profitable. Meanwhile, some more simple property rules, such as streamlined land-registration system had been implemented under John Cradock, 1st Baron Howden,〔Proclamation on Conversion of Loan Places to Quitrent Tenure.〕 and in the early 20th-century registration practices were codified by the Deeds Registries Act. In 1910, the Union of South Africa Act united the post Boer War British and Afrikaans communities, but excluded black South Africans from political involvement.〔The Hertzog Act 1936 finally stripped the limited franchise from Cape Africans that still remained.〕 Indian or "coloured" South Africans were also excluded, prompting a younger Mohandas Gandhi to leave in 1914. From this point a series of laws secured white control of South African land and civic property. The Land Act 1913 reserved 92 per cent of South Africa's territory for whites, and only 8 per cent for blacks. This was enlarged to around 13.6 per cent by the Native Trust and Land Act, 1936, although the population of the country that was black stood around 61 per cent. In the Urban Areas Act 1923, it was decreed that blacks could only enter into towns to work. In the 1930s, ideas of racial supremacy became stronger among many white South Africans, and after the war the Afrikaner National Party won a majority at the 1948 election. From this point, the apartheid system was built up through legislation. In the Group Areas Act 1950 the country was categorised into various race-based regions, leading to forced removals and evictions of black people from their homes.〔Jackson & Wilde 334–340. See also the Immorality Act 1950 which prohibited sex and marriage between different races.〕 The Group Areas Development Act, 1955 excluded non-white people from living in white areas altogether. The Reservation of Separate Amenities Act 1953 stated that separate toilets, parks and beaches were allocated.〔See also the Bantu Education Act, 1953, which aimed to educate black people only enough to be able to serve whites.〕 As the Apartheid regime continued, the Bantu Homelands Citizenship Act 1970 and the Bantu Homelands Constitution Act 1971 purported to "constitutionalise" the separate states within the South African state, where black South Africans had to live. Through the 1980s, the world's condemnation of the regime, the slow recognition of its deep injustice unsustainability, and the mounting civil disobedience led to a referendum and new constitution. By 1991 there had been approximately 17,000 statutory measures implemented to regulate land control and racial diversity.〔Jackson & Wilde 334–336.〕 The Discriminatory Legislation regarding Public Amenities Repeal Act, 1990 and the Abolition of Racially Based Land Measures Act, 1991 started a process leading to the constitution. This "excessive law making and manipulation of existing notions of property resulted in the collapse of administrative and legal certainty and, moreover, massive underdevelopment," and left the post-1994 dispensation with "a severely compromised system of land rights."〔Mostert & Pope 12.〕 The new constitution explicitly protects the right to property, including land, in section 25(1), under the Bill of Rights. Section 25(2) and (3) states how property can be regulated and expropriated, with limited compensation from people who were dispossessed after 1913 by racial discrimination. Under section 26, the Constitution created a fundamental right to housing. In 2000, in ''Government of the Republic of South Africa v Grootboom'',〔() (ZACC 19 )〕 the Constitutional Court held that although there was a justiciable right under section 26 to housing, this had to be interpreted in the light of administrative difficulties of achieving social and economic rights in practice. The claimant, Irene Grootboom, had been living temporarily in a shack on land that was being repossessed for redevelopment. It was accepted in the course of argument that she would be given temporary housing, but the court did no more than state that the government should aim to fix the housing and slum crisis. In political terms, the 1997 White Paper on Land Policy has been influential in setting up objectives. These were said to be to (1) redress apartheid-era inequities (2) nurture national reconciliation and stability (3) to support economic growth; and (4) to improve welfare and relieve poverty.〔At v.〕 The new constitutional arrangement supports the regulation and protection of property, mandates the reform of land law, provides explicitly for basic rights like access to housing, and gives equal recognition to common- and customary-law principles. A host of policies have been implemented, and statutory measures promulgated, in the fulfilment of this mandate, which "has already had a significant influence on property law."〔Mostert & Pope 15.〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「South African property law」の詳細全文を読む スポンサード リンク
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