Many LLB students will complain about just how complicated – and frankly – at times boring property law can be. So when I recently saw the“pop law” book Mine!How the hidden rules of ownership control our livesby Micheal Heller and Jim Salzman, I was curious. I have met Micheal Heller at a conference in the Netherlands once, and he was a gripping speaker with interesting stories and ideas.
I was not disappointed. The book is filled with fun and interesting stories that many can relate to – from reclining aeroplane seats to divorce settlements.
This post is not an attempt at a book review but rather a sharing of the argument they make and how that might change the way we think about our contemporary property rights issues in South Africa.
The book focuses on the moral and the legal intricacies of ownership by looking at how our definition of what is “mine!” has changed over time and the impact this had on us as a society. It essentially asks the question: “who gets what and why … what people consider ‘mine’ is not something fixed or natural. It’s always a choice and always up for grabs. Then understanding that these stories are utilised to achieve specific goals.”
How ownership is defined can have profound implications. The one story, for instance, deals with the Amazon kindle option of “buy now” when you are, in fact, not buying a book. You don’t own it, and it is possible that the book can disappear from your Kindle without your permission. But you can’t share it like you can a paperback. And you can’t burn it out of protest. One of the many relatable examples showing how the binary between what is mine and what is not mine gets a bit blurry at the best of times.
The 6 stories
Heller explains that there are six basic arguments for ownership or rules to claim ownership. Below I explain each one of them very briefly, with a short indication of how I think it can be applied in our coversations in South Africa.
“I had it first!”
The first one is the rule of “first in time”, or, as children will have it, the “I had it first” rule. What is interesting in this context is the statement that they make, namely that the idea of “first” is not an empirical fact. Think of the stories we tell about who were first on the land – it is precisely that – stories. Because who and how do we decide what counts as “first”? What activities count as first?
Using the American example of land being claimed, the law defined as “first” the person who chopped down trees and planted it rows and put up fences, not the Native Americans who used the land for other purposes. (This, of course, goes with the Lockean idea of ownership through labour.)
We, of course, also know this argument in South Africa, especially with arguments that white settlers settled on “empty land” or the argument that Bantu speaking South Africans migrated to find the Khoi and San occupying the land.
They draw this rule back to the Hammurabi code that stated that “If a chieftain or a man leaves his house, garden, and field… and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and use it shall continue to use it”.
Property law students are now whispering “nec vi, nec clam, nec precario“, which are the rules for becoming owner through prescription (which in South Africa is 30 years).
Other people may now and whisper, “possession is nine-tenths of the law”.
What is interesting here, however, is how the gig economy – Uber, Airbnb, etc., are influencing this. No longer do companies have to own things to make money. “The property is at the interface“, reads a byline in the Independent.
And no longer do you have to own a car, to get around. So, it may be nine-tenths at times, but is it losing relevance?
In South Africa, this rule is often used to justify rights in land through “conquer”. Interestingly, a recent case in the Supreme Court of Appeal made me think of this rule in the context of eviction law. It was not a case of competing ownership stories – but rather a case where longtime possession lead to the court exercising its discretion in deciding that eviction would not be “just and equitable”, even if the unlawful occupiers did not have a legal right to the property. While the possession did not give ownership, it (temporarily) trumped the ownership right.
Ah, you reap what you sow. It is mine because I have worked for it.
The discussion here goes to patent and copyright, asking if the overprotection of property in this context does not come with costly consequences.
It also then links in with the “First” argument – where the court in Johnson v McIntosh stated that who counts as first depends on the type of labour engaged in. Native American labour that was based on living lightly on the land didn’t matter. For settler judges, productive labour was practising row agriculture. Looking back today, this can be construed as taking land without compensation (and it was). But it depends on the ownership story.
In South Africa, we hear stories about people who paid for land with sweat and blood and therefore have a claim to the land above the original inhabitants who were here first (also depending on what “being first” means).
Attachment is a story we often hear – it is mine because it is attached to something that is mine. If I own land, and I build a house, the house on the house on the land is also mine.
We often ask more pertinent questions here – how far up in the air, and how far down in the ground, does this right go? The authors warn of a hidden quality of this – which we in South Africa are very aware of: if the landowners are entitled to what lies underneath, there is a lot of attachment of resources to existing owners (thereby concentrating wealth in the hands of few). In South Africa, we have addressed that by placing the minerals in the custodianship of the state to distribute.
The discussion in the book starts with drones – and the question of whether owners can shoot down drowns that “trespass” in the airspace above the property. I have seen similar questions on our neighbourhood Whatsapp groups with people flying drones for recreation. Still, as drones might become the delivery mechanism of the future, it does raise interesting questions.
There are countless interesting examples here – from planting and chopping trees to extending coastal property.
A recent case in South Africa dealt with the question of who is the owner of the offspring of cows (ok, it was a bit more complicated, but also not). Interestingly in the context of the amendment of section 25 is that that the proposed amendment speaks of “land and improvements”, which speaks to this principle of attachment.
But does it always make sense? Why must the owner of the cow and not the bull become the owner of the offspring? And also, there are countries where you are not the owner of the land, yet you may be the owner of whatever is build on the land. I remember reading that Ethiopian law, for instance, treats land and buildings as two different kinds of immovable property. The land belongs to the state, buildings to individuals. But trees and crops will be considered part of the land.
Makes one think, doesn’t it?
The part on self-ownership raises interesting questions when it gets to body parts. The rule is always that what is part of a human cannot be property—a tough conversation to have in the context of slavery.
The moral questions arise when we view our bodies as the core of who we are. Can one “own” that, but more pertinently, can you sell the resources that your body produce. We have different rules for different body parts, and it is not always clear where the line is drawn. Here they suggest thinking of it as a dimmer switch (from sacred to profane), where we weigh up the market benefits with protecting the sacred, rather than a clear fast “on/off” switch. For instance, the selling of hair is not frowned upon. You can donate many organs, but selling them is generally not allowed. When it comes to reproduction, there are many different rules about sperm donation and “womb rental”. Handmaids.
This is a long topic on its own and often intertwined with the idea of what makes a family.
This brings us to the last story – family – also dating back centuries, and many a strive is recorded in the Bible. Family ties can play a role in ownership because ownership passes at various times in family histories – upon marriage, divorce, and death. When we think about inheritance, for instance, we can see how the rules of succession (be it by will or intestate) can lock in wealth. So “family ties” is a critical ownership story for many.
Recently when my colleague Prof Pierre de Vos made the argument that wealth transfer through inheritance increases inequality – and in South Africa is has a specific racial edge to it. He asked that we reimagine how we deal with the transfer of intergenerational wealth. This is an important conversation also from a property law perspective.
If one accepts that there is not a natural understanding of how ownership works (and I acknowledge that there might be people that dispute this), then ownership is, as they say, “up for grabs”. What story will win, and why, is part of ownership design. They list a handful of design tools that helps us solve some of the dilemmas of what story wins when.
South African stories
Apart from the examples above, while I was reading, I thought of the various South African cases that could make for exciting stories. There is the neighbour law story of a peacock and a cherry tree; the golfballs and the windows in a golf estate; and numerous cases about ownership of a view (or a right to a view).
Recently there was also a (strange) case of pregnant cattle delivered as part of the payment for immovable property. The deal fell through, leading to a court case. In-between all this, babies were born, leaving the question: who is the owner of the offspring? The legal owner of the cows, or the person who was in possession before the proceedings. And does it matter if the possessor possessed the cattle in good or bad faith? It turns out it does!
And there many LLB students thought property law is boring!
Moral of the stories
As you can gather, I enjoyed reading the book. It was good to read about ownership battles in the American context to get some distance from the contestations in South Africa. We tend to navel-gaze a lot.
The book also uses interesting, fun examples to illustrate an argument made in 1999 by the late AJ van der Walt about the choices we make in the South Africa context and the hierarchies of power. In short: policy choices in land reform indicates the kind of property rights (not just ownership) that are privileged. The choices show what type of property rights we prefer over others – and this, in turn, is linked to the legal, social, economic and political system in the country. This system always has (mainly through the common law) privileged the institution of ownership. That was the way that apartheid land laws were designed.
Somewhere in an unpublished paper, I argue that we need to “rethink how other relationship and contestations in other spheres rather than property law, influence the whole system”. This book inspired me to revisit that article and to finish it.
Maybe then the call that Van der Walt made almost 25 years ago, that “the only justification for a provision concerning land rights in a bill of rights might be that the relevant clause could provide general security of tenure to all land rights without doing so in terms of the traditional ownership paradigm … some sort of property clause that will provide the landless and holders of ‘lesser’ rights with greater and secure land rights is necessary. The best option then seems to be a property clause that provides, in wide terminology, for the protection not of ownership but of all rights.”