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Development of the common law of servitude

dc.contributor.authorVan Der Walt, A. J.en_ZA
dc.date.accessioned2013-07-03T08:35:06Z
dc.date.available2013-07-03T08:35:06Z
dc.date.issued2013-01
dc.identifier.citationVan Der Walt, A. J. 2013. Development of the common law of servitude . South African Law Journal, 130(4):722-756.en_ZA
dc.identifier.issn1996-2177 (online)
dc.identifier.issn0258-2503 (print)
dc.identifier.urihttp://hdl.handle.net/10019.1/85059
dc.descriptionCITATION: Van Der Walt, A. J. 2013. Development of the common law of servitude . South African Law Journal, 130(4):722-756.en_ZA
dc.descriptionThe original publication is available at https://journals.co.za/content/journal/ju_saljen_ZA
dc.description.abstractThis article explores the implications of the Constitution for the development of the common law of servitude. Following from an analysis of two recent servitude cases in which the courts might have developed the law of servitude for doctrinal or policy reasons (the court controversially decided in both cases that development was unnecessary because the desired result could be reached on the basis of the law as it stands), it will be argued that the question whether the common law should apply to a particular dispute at all and whether it should be developed (because its outcome is for some reason unacceptable) are constitutional issues and not purely common-law ones. Both questions have to be answered in view of fundamental constitutional principles such as the supremacy of the Constitution, the single-system-of-law principle enunciated by the Constitutional Court, and the subsidiarity principles developed by that court. Having argued that this holds even in instances where no legislation applies to the dispute, the article distinguishes between situations where the decision to develop the common law follows from direct constitutional obligations and situations where that decision is taken purely on policy or doctrinal grounds. The final section of the article identifies section 25 issues possibly resulting from a decision to develop the common law of servitude and indicates how those issues can be approached in view of the FNB methodology for the analysis of section 25 disputes.en_ZA
dc.publisherJuta Lawen_ZA
dc.subjectcommon lawen_ZA
dc.subjectcommon law of servitudeen_ZA
dc.subjectconstitutional obligationsen_ZA
dc.subjectconstitutional policy developomenten_ZA
dc.titleDevelopment of the common law of servitudeen_ZA
dc.typeArticleen_ZA
dc.description.versionPublishers versionen_ZA
dc.rights.holderJuta Lawen_ZA


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