Real Security Law by R Brits- Reviewed by FWB’s Louis Rood
It has been said that although South Africans achieved freedom under the
Constitution of 1996, they nevertheless remain in bondage. Progress, for
example through investment in property development, housing and
infrastructure, inevitably requires credit, and creditors require their rights to be
secured in the event of default. This may be achieved in a number of ways
including mortgage bonds, notarial bonds, pledges and liens.
Real security law is where property law and credit law meet to regulate the
rights that creditors have to property belonging to their debtors, either as
agreed upon between the parties or by operation of law. Such rights secured
by creditors facilitate affordable borrowing, investment in property and industry,
and thus the promise of economic prosperity.
In South Africa’s ever-changing socio-economic context, a sophisticated
system of both common law and legislation has evolved to maintain a fine
balance between the rights of debtors, creditors, other parties and the general
public. Financial uncertainty, unemployment, rising consumer overindebtedness
and homelessness are some of the critical factors which impact
on this fundamental area of our law. Without insecurity there would presumably
be no need for real security law.
The distinguished author of this key volume in Juta’s Property Law Library
series, Reghard Brits BComm LLB LLD, Senior Lecturer in the Department of
Mercantile Law at the University of Pretoria, describes and analyses the
current state of real security law in South Africa. Published author of numerous
journal articles on the law of property, he expertly draws together legal theory,
constitutional imperatives, commercial realities and the requirements of legal
In addition to all the conventional forms of real security, such as the mortgage
of land, the pledge of movables, general and special notarial bonds, cessions
in security of debt, the landlord’s tacit hypothec and rights of retention, other
security mechanisms imposed by statue are also fully dealt with, for example
municipal charges, embargo powers and the instalment-agreement.
Readers will be well served by the extensive biography of further sources, the
tables of cases and legislation, both domestic and foreign, the comprehensive
index and pertinent footnotes.
The author expresses the hope that “…the foundation laid in this book will also
serve as a platform for future modernisation – not only to keep up with global
trends and ever-expanding technological possibilities, but to develop a system
that is suitable for our particular socioeconomic and political context.”
This meticulously researched yet expansive forward-looking overview of real
security law will be welcomed by a broad spectrum of practitioners, property
owners, financial institutions and business people, straddling as it does
contract law, insolvency, corporate law, banking and finance, consumer
protection and conveyancing practice, all in the wider context of our economic,
social and political systems.
20 Feb 2017
13 Feb 2017
6 Feb 2017
30 Jan 2017