(Re)Defining the Contours of Ownership: Moving Beyond White Picket Fences
Author Zsa-Zsa Temmers Boggenpoel
Affiliations: Bcom LLB LLD, Professor in Public law, Stellenbosch University
Source: Stellenbosch Law Review, Volume 30 Issue 2, 2019, p. 234 – 249
Ownership is often viewed as superior in the sense that all other rights or interests are seen as subordinate to ownership. It is often viewed in this light because it is a substantial ingredient of the patrimonial rights that make up a legal subject’s entire state of assets. Ownership is also sometimes seen as the mother right because all other rights purportedly derive from ownership. This article attempts to challenge this view by relying on a number of examples that point towards a redefining of the contours of ownership. The owner’s inability to use the rei vindicatio in some instances, his failure to be able to demand removal of an encroaching structure and the ability of other (sometimes constitutional) rights to prevent the enforcement of ownership, arguably calls for a different, changed perspective of ownership in the new constitutional dispensation. It is on this basis that this article questions whether what has always been deemed exceptions, qualifications and caveats to our general understanding of ownership, should in fact point towards a redefining of the contours of ownership.