Real Security Law

May 1st, 2017

By Reghard Brits

Cape Town: Juta

(2016) 1st edition

Price: R 750 (incl VAT)

680 pages (soft cover)

For any legal practitioner, the law of real security is critical to understand, specifically how this area of law interacts and dovetails with other areas of law such as insolvency, the law of property, as well elements of the National Credit Act 34 of 2005 (NCA), to name a few. This book is highly recommended for attorneys who have contact with the law of real security through these lenses. It simplifies the interface between credit providers and debtors, which makes it a highly accessible publication for any practicing attorney, yet is sufficiently detailed to provide an accurate synthesis of the law of real security in South Africa (SA).

The topic of mortgages, one of the most crucial forms of real security, is covered in great detail in the book. Specifically, cession of rights, foreclosures and executions against a home, with reference to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. Reference is also made to law in foreign jurisdictions where the law is particularly relevant.

The topic of pledge is covered in a significant amount of detail, despite its limited commercial usefulness. The book concisely and accurately describes the recent jurisprudence surrounding the uncertainty in relation to parate executie clauses in the context of pledge.

Another commendable feature of this book is its continuous reference to the provisions of the NCA and its impact on the various forms of real security. However, as a result of this structure, where the book could be mildly faulted is the lack of a dedicated chapter on the NCA for ease of reference.  However, all the relevant information surrounding the NCA and its specific impact, can be found throughout the book, depending on the type of real security it influences.

A particularly strong feature of this publication is the chapter on notarial bonds. The chapter not only emphasises the commercial viability of notarial bonds in comparison to pledge, but highlights the limitations of a general notarial bond, the salient features of a perfection clause and the usefulness thereof. This chapter does an excellent job of navigating the somewhat complicated historical legal treatment of this topic, as well as synthesising the nuanced arguments that emerge from the law reports.

The consistent references throughout the book to the law of real security in various jurisdictions, as well as the careful analysis of the limitations of certain types of security, differentiates it from a pure reference publication. This, in addition to the several references as to the direction in which the law is anticipated to take in this regard makes Real Security Law a fantastic addition to the collection of any legal practitioner.

As far as a step-by-step practical guideline on how to execute against property subject to a notarial bond or mortgage on immovable property, there are arguably better sources available, however, should one be looking for an up to date book, which simply and accurately explains the law relating to real security in SA, one would be hard pressed to find a more comprehensive publication in this area of South African law.

Jenna Leonard is a candidate attorney at Webber Wentzel in Johannesburg.

This article was first published in De Rebus in 2017 (May) DR 60.