文档介绍：NUMERUS CLAUSUS AND THE DEVELOPMENT OF NEW REAL RIGHTS IN SOUTH AFRICAN LAWThis article is an extended and slightly revised version of a paper read at staff seminars at the University of Nijmegen on 21 June 1999 and Maastricht University on 22 June 1999.
. de Waal (University of Stellenbosch, South Africa)
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Abstract
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 rol