Browsing by Author "De Waal, M. J."

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    A comparative perspective on the "joint-action rule" in the context of business trusts
    (Juta Law Publishing, 2014-01) De Waal, M. J.; Du Plessis, I.
    The "joint-action rule" in South African trust law entails that all trustees must act jointly in order to bind the trust. Non-compliance with the rule will most often lead to the invalidity of a contract between the trustees and an outsider. Hence, in the context of business trusts, the application of the rule may be particularly problematic. We submit that the main reason why the business trust remains a useful institution is that the trust brings with it, through the importation of certain standard features, important advantages that need not be specifically bargained for. However, normal rules of trust law, such as the joint-action rule, must also be complied with. Hence, mechanisms to ameliorate some of the problematical effects of this rule can be put in place, such as provisions stipulating that decisions can be taken by a majority of the trustees, or that the trustees can delegate certain defined duties or powers. It is clear, however, that difficulties remain and that South African courts are still facing challenges in developing this area of trust law. But South Africa is not the only trust jurisdiction where the joint-action rule applies and where mechanisms have been developed to address the difficulties experienced with this rule. Comparing the position in South Africa to that in England, Scotland and Canada (including Québec), a remarkable degree of similarity between South Africa, on the one hand, and the other jurisdictions, on the other, as far as the basic application of the joint-action rule is concerned, can be noted. However, there are a number of differences as well. In many of the other jurisdictions legislation generally plays a much bigger role than in South Africa and it may provide a rich source of ideas for the development of this area of South African trust law.
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    Die vereistes vir die vestiging van grondserwitute in die Suid-Afrikaanse reg
    (Stellenbosch : Stellenbosch University, 1989) De Waal, M. J.; van der Merwe, C. G.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: As the law does not recognise a numerus clausus of praedial servitudes, it is necessary to provide certain criteria with which rights must comply to qualify as praedial servitudes. The purpose of these criteria is to prevent land ownership from becoming excessively encumbered through a proliferation of praedial servitudes. The criteria must, however, be flexible enough to allow the development of new praedial servitudes when the needs of a modern legal system so require. In this dissertation the requirements for the establishment of praedial servitudes in South African law are investigated against the background of their historical development and by means of comparative research. The historical investigation focuses on Roman law, the European Romanists, Roman-Dutch law and Pandectist law. German law and the law of the Netherlands are used for comparative research. Regarding the law of the Netherlands, the treatment of praedial servitudes in both the Burgerlijk Wetboek and the Nieuwe Burgeriijk Wetboek is analysed. As no statutory definition of praedial servitudes exists in South African law, the requirements for establishing praedial servitudes and the application of these requirements, are formulated with reference to case law and legal literature. On the basis of this research it is suggested that there are only three requirements for the establishment of praedial servitudes in South African law: (i) Two tenements: this requirement provides the basis for praedial servitudes as a legal concept and also effectively distinguishes them from personal servitudes. (ii) Utilitas (benefit, advantage): this is a positive criterion in that it indicates the required contents of a praedial servitude. It is clear that the elements of vicinitas (vicinity) and perpetua causa (permanent basis) are completely covered by utilitas. They should therefore no longer be treated as separate and independent requirements. (iii) Passivity: this is a negative requirement in that it indicates what may not be included in the contents of a praedial servitude. Although this requirement is based upon the fundamental distinction between personal and real rights, it should nevertheless still be regarded as a separate requirement for the establishment of praedial servitudes, as it provides a further necessary safeguard against proliferation. The applicable chapters of the dissertation show that these requirements, as reformulated and elucidated, are indeed suitable to regulate the establishment of praedial servitudes by keeping their contents within defined limits. Furthermore, other modes of regulation are shown to be incapable of fulfilling this basic function. It is also argued, with reference to a number of practical examples, that these requirements are flexible enough to regulate and accommodate new developments in the law of servitudes. However, an amendment to section 63 (1) of the Deeds Registries Act 47 of 1937 is proposed to facilitate the imposition of maintenance duties with real effect on the owners of servient tenements in clearly defined instances, in addition to the servitus oneris ferendi. This amendment can be modelled upon a comparable provision in the German code.