Page 54 - University of Pretoria Research Review 2017

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Real Security Law
– property rights
and securing
payment of debts
Reghard Brits, Department of Mercantile Law
Dr Reghard Brits, senior lecturer in the Department of Mercantile Law, was awarded the Vice-Chancellor’s Book Award for his monograph, Real Security Law, published by Juta and Company. The monograph contains a comprehensive investigation into the category of property rights, referred to as real security rights. The last comparable book on this topic, in South Africa, was published in the 1980s. The purpose therefore was to reinvestigate forms of real security in light of more recent developments.
Perhaps the best known example of a real security right is the one created when a mortgage bond is registered over immovable property that serves as collateral for the repayment of a loan, as is typical with home loans. Other examples include pledges and notarial bonds over movable property, security cessions of intangible assets, the landlord’s tacit hypothec, rights of retention and various statutory security rights.
A particular focus of the book is to provide a contem- porary update in view of South Africa’s Constitution
of 1996, and detailed attention is given to ways in which the constitutional rights of the parties involved have had an impact on the law. The book also considers the implications of other novel statutes,
such as the National Credit Act of 2005, and includes comprehensive and detailed references to case law and legislation that set out the legal rules surrounding real security rights, and the views of other authors.
The theoretical and practical value of the book is well illustrated by the fact that it, along with some of the author’s other publications, has been cited by the Constitutional Court in Jordaan v Tshwane in 2017, and contributed to the resolution of that dispute. The case concerned the correct interpretation of section 118(3) of the Local Government: Municipal Systems Act of 2000, which provides municipalities with a real security right over a person’s land if there are outstanding property taxes and other fees payable. There was, however, great uncertainty as to whether the municipality
could enforce its security right by having the property attached and sold to settle the debt, even after the property in question had been transferred to a new owner. Dr Brits argued in this monograph, as well as
in two other publications, that this interpretation is incorrect, and that the municipality can only enforce the security right against the current owner who actually incurred the debt. The Constitutional Court agreed and expressly referred to Dr Brits’ work.
In light of the fact that the book has been relied on by the highest court in South Africa, and has already been cited by other academic scholars, it is clear that it strikes a good balance between theoretical rigour and practical relevance. For the informed reader and scholar, it
also provides valuable comparative perspectives of important developments in other jurisdictions.
The purpose of the category of property rights in law, referred to as real security rights, is to secure the payment of outstanding debts. If the debtor cannot pay, the secured creditor – that is, the one who holds a real security right − will have access to the value of the particular asset to settle its claim.