Department of Private Law

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Browsing Department of Private Law by browse.metadata.advisor "Boggenpoel, Zsa-Zsa"

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    Trading rights as a novel category of servitudes in South African law
    (Stellenbosch : Stellenbosch University, 2019-12) Kiewitz, Leigh-Ann; Boggenpoel, Zsa-Zsa; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This dissertation sought to determine whether it is possible to recognise trading rights as a category of servitudes; what its nature and content would be if such recognition is possible; and, under which conditions such servitudes could be registered. South African case law has revealed the courts’ willingness to regard the right of an individual to trade on another’s land, and a right to prevent another person from trading on their own land, as a praedial or a personal servitude. However, the relevant case law is not equally clear in all instances, especially in terms of whether the requirements of servitude law would be complied with. This dissertation provides a methodology that courts should follow to ensure that the particular right complies with all the requirements. When the subtraction from the dominium test as developed by case law is applied, it is clear that trading rights could amount to real rights because they place a burden on land by means of restricting the owner of the servient tenement’s enjoyment in a physical sense. For purposes of positive and negative praedial trading servitudes, the crucial issue for compliance with the utilitas requirement is that the dominant tenement must be developed, appointed and used in a way that would render the servitude useful for the dominant land on a durable basis. Negative servitudes in restraint of trade are a contested matter based on the fact that they could stir up anti-competitiveness. However, convincing policy arguments exist for the recognition of such servitudes. Moreover, if negative trading rights can be recognised as real rights, legislation will be necessary to ensure that the rights of the parties benefiting from the servitude and affected thereby are balanced adequately. Accordingly, it is concluded that a legislative framework should be adopted containing conditions under which these negative servitudes in restraint of trade should be registered as limited real rights. If a negative trading right does not comply with the requirements for the establishment of a praedial servitude, it is conceivable that a personal servitude may be established. In seeking alternatives to structuring trade agreements, a positive right to trade could be established as either a lease agreement or an innominate contract. It has also been discovered that a restraint of trade agreement could alternatively be set up as a restrictive covenant. After having evaluated all the possible legal constructs, it is concluded that it is preferable to secure a positive right to trade by means of a praedial servitude, personal servitude or a registered long-term lease agreement. This is because an individual’s rights will certainly be better protected in the form of a limited real right because it is stronger than a personal right as it will be enforceable erga omnes. Due to the synonymous content of a restrictive covenant and a negative servitude in restraint of trade, this dissertation shows that a servitude would suffice to secure this negative right. Furthermore, restrictive covenants are precarious in nature and have essentially become redundant in South African law. Therefore, structuring restraint of trade agreements as a servitude would arguably be more suited.