Abstract:
This article aims to determine whether Bitcoin could be classified as a
‘thing’ in the South African common law of things. The key motivation
behind this article is to determine whether the Pandectist focus on the
corporeality requirement in the classification of things is outdated in
the modern, technologically driven era. Bitcoin, which is classified as a
decentralised convertible virtual currency has been received positively
in South Africa over the course of the last few years, as Bitcoin
adoption has grown exponentially. South Africa has also seen the
implementation of important regulatory reforms surrounding virtual
currencies; primarily the recognition of virtual currency as a financial
product and its traders as financial service providers. Given the positive
reception of virtual currencies, particularly Bitcoin, in South Africa,
this article explores the recognition of Bitcoin as a ‘thing’ in South
Africa law, as well as the significance of this classification. From this
evaluation, it will become clear that the incorporeal nature of Bitcoin
poses a challenge to its common law recognition, albeit not an
insurmountable one. In this regard, two arguments — the doctrinal
argument and the exception argument — are proposed whereby Bitcoin
could be recognised as a thing despite its incorporeality.
Description:
This paper is a shortened version of my LLB dissertation, under the supervision of
Dr Clireesh Joshua, see B Geyer ‘The legal status of Bitcoin in South African and
Namibia: A property law perspective’ unpublished LLB dissertation, University of
Pretoria, 2022.