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

practice.

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.

 

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