NUMERUS CLAUSUS AND THE DEVELOPMENT OF NEW REAL RIGHTS IN SOUTH AFRICAN LAW

M.J. de Waal (University of Stellenbosch, South Africa)


In this article, the numerus clausus principle and its application in South African law are discussed. The author introduces the discussion with a general explanation of South African law as a so-called 'mixed' legal system. This means that, although the foundation of South African law is Roman-Dutch law (that is, a civilian system), there has been a marked influence of English law in many areas of the law. However, one of the areas of South African private law in which the principles of Roman-Dutch law have been preserved to a large extent is the law of property. In the article, the focus is on an aspect of traditional property law, namely the numerus clausus principle. It is explained that South African law does not adhere to this principle in the sense that new, hitherto unknown, real rights can be developed. The criteria used by the courts in the process of development of new real rights are discussed and their application is illustrated with reference to three examples from case law. The conclusion is that these criteria do not work satisfactorily when applied in practice. As a consequence, a degree of legal uncertainty exists with regard to the creation of new real rights by the courts. Finally, It is acknowledged that policy considerations should play a role in the recognition or not of new real rights. Policy considerations, and more specifically considerations of social policy, have indeed been decisive in the recent creation of new real rights by the South African legislature.

Cite as: M.J. de Waal, Numerus Clausus and the Development of New Real Rights in South African Law, vol. 3.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 1999), <http://www.ejcl.org/33/art33-1.html>


Contents
1. Introduction: South African law as a 'mixed' legal system
2. The South African law of property and the numerus clausus principle
3. The application of the 'subtraction from the dominium' test: Three brief case studies
3.1 General
3.2 Lorentz v Melle and Others
3.3 Pearly Beach Trust v Registrar of Deeds
3.4 Denel (Pty.) Ltd. V Cape Explosive Works Ltd. and Another
4. Conclusion and evaluation
Notes

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