ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 4, 2024, p. 77-79
None
ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 4, 2024, p. 80
None
ISSN: 2517-9543
Affiliations: Dean: Faculty of Law, Thompson Rivers University
Source: Juta’s Insurance Law Bulletin, Volume 27 Issue 4, 2024, p. 80
None
ISSN: 1996-2177
Affiliations: Arbitrator and Consultant, Johannesburg
Source: South African Law Journal, Volume 142 Issue 1, p. 1-13
https://doi.org/10.47348/SALJ/v142/i1a1
The principle that, in pledge, the debtor has the right to redeem the pledged property by paying the debt, even after default and up to the moment that the property passes into the ownership of another upon realization, was affirmed in 1919 by the Appellate Division in Mapenduka v Ashington. However, in 2003, some doubt emerged as to whether the principle applies in the context of the conditional sale, which has long been regarded as a valid alternative to the invalid pactum commissorium. This doubt arose due to interpretations of a somewhat cryptic obiter dictum in Graf v Buechel to the effect that Mapenduka should not be seen as authority for the proposition that the debtor should still be willing to proceed with the sale after default. This note examines these dicta in their correct doctrinal context and proposes an interpretation of the Graf dictum that reconciles the apparent conflict between the two.
ISSN: 1996-2177
Affiliations: N/A
Source: South African Law Journal, Volume 142 Issue 1, p. 14-27
https://doi.org/10.47348/SALJ/v142/i1a2
In South African law, a borrower’s obligation to repay a loan for consumption, which is typically a loan of money, can be secured using a myriad of common-law and statutory security rights created in favour of the lender. If, applying the pledge theory of cession in securitatem debiti, the security right takes the form of a pledge and cession in securitatem debiti of a personal right, the borrower or other security provider retains its dominium in the right. At the same time, the lender temporarily acquires and holds, for as long as the loan remains unpaid, a limited security interest therein. The lender’s right to repayment of its loan is thereby secured in that the lender can exercise its security rights if the borrower defaults on its loan repayment obligation. Complex issues regarding certain security rights available to lenders are analysed, including their purpose, function, classification, nature and operation. It is recommended that the UNCITRAL Model Law on Secured Transactions could be drawn on to streamline South Africa’s current piecemeal approach to security rights.