Doctoral Degrees (Public Law)

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Browsing Doctoral Degrees (Public Law) by Author "Grobler, Lizette"

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    The salva rei substantia requirement in personal servitudes
    (Stellenbosch : Stellenbosch University, 2015-12) Grobler, Lizette; Van der Walt, A. J.; Stellenbosch University. Faculty of Law. Department of Public Law
    ENGLISH ABSTRACT : The research question addressed in this dissertation is whether sufficient reasons exist for embracing a flexible approach to the salva rei substantia requirement in usufruct law. In South African law the requirement is generally approached in a rigid way, although there seems to be indications that an equitable outcome would be favoured where a usufructuary is vulnerable and subject to unreasonable treatment. A shift towards a flexible approach finds some support from comparative, policy, theoretical and constitutional considerations. Comparative law indicates that the nature of and conceptions regarding family wealth have changed to promote support of the surviving spouse. Additionally, pragmatic considerations require empowering the usufructuary to allow for the development of usufructuary property to maintain or increase its value. Theoretical arguments also support a shift to flexible rules for the sake of efficiency and sharing. As an example of governance property, usufructuary property requires flexible governance norms and coordination devices. Finally, non-property constitutional provisions require a mandatory shift to a flexible approach in certain circumstances. This shift would entail enlarging exceptions to the obligations of the usufructuary or not enforcing those obligations strictly, especially when it would result in termination of a usufruct. A shift towards greater flexibility would result in a deprivation of the bare owner’s property right, but this deprivation would not be arbitrary. Courts have the common law power to develop the law of usufruct to bring about the required shift.