Property Meeting the Challenges of the Commons in South Africa

Abstract

Within South African private law various categories of commons exist, particularly in relation to Law of Property/Law of Things. Commons emerge within the classification of things/objects relating to whether one or more persons, or whether an individual or a community or the public as a whole, has access or rights in relation to a particular object or resource. The approach to categories and the categories themselves also depend on whether the South African Private Law applies or whether the South African customary law applies, be it official indigenous law or unofficial (living) indigenous law. Among things that cannot be owned privately are air and running water and State-owned objects such as public roads, bridges, and seashore. The commons includes natural resources and common land used for pasture. The concept of commons is well-known in South African law, flowing from the common law (Roman-Dutch law), South African customary (indigenous) law, and legislation. Academic debate is ongoing concerning the content of the concept.