By Andre van der Walt
Cape Town: Juta
(2016) 1st edition
Price: R 750 (incl VAT)
649 pages (soft cover)
Review by Allen West
A book of this nature dedicated exclusively to servitudes in South Africa was long overdue. The previous monograph to be dedicated exclusively to the law of servitudes was published as far back as 1973. Since then regulatory and constitutional issues have arisen, which made this book imperative. The book affords clear guidance on the nature of servitudes, the acquisition and termination thereof.
The author has gone to great lengths to update the reader with reference to the latest case law, new academic publications and, where relevant, new legislation. Case law, old and new, is extensively discussed and arguments for and against the cases provided.
Not only is the relevant South African law and legislation alluded to, for example the Deeds Registries Act 47 of 1937 and Sectional Titles Act 95 of 1986, but also related foreign law is discussed in suitable places, albeit very brief, but this makes for interesting reading.
In practice, I have personally experienced the confusion that exists pertaining to the nature of servitudes. Personal rights are often confused with personal servitudes and personal servitudes with public servitudes. The discussion on the characteristics of servitudes provides clear guidance as to whether the servitude is a preadial, personal or public servitude, and to this point it eradicates all uncertainty as to the register ability thereof.
The obligations of the usufructuary are also clearly expunged and the uncertainty as to who is liable for rates and taxes and levies on the bare dominium has been put to bed, given the necessary authority confirming that the usufructuary will be liable for such expenses.
This book in my view, is of equal benefit to all legal practitioners, conveyancers, academics, students and deeds office staff, the latter who, almost daily, are confronted with problems pertaining to the register ability of conditions, as well the termination thereof. This book is also of importance to members of the public who wish to familiarise themselves with the law, practice and procedure relevant to servitudes. The book is also a convenient tool and guide to all who wishes to do research on servitudes. The author is to be commended for the meticulous attention paid to all relevant case law and legislation.
In summary, I conclude that this book is an instrumental treatise to establish the correct state of law on servitudes, seen in the context of its historical development in South Africa, as well as the effect of the constitution on the development of private law.