A comparative overview of the legal reform of non-possessory real security rights over movables in South Africa and Belgium with specific reference to the legal nature of the security object and court intervention

• Jurisdiction: South Africa
• Author: Lefa Ntsoane
• Date: 20 August 2019
• Pages: 325-352
• Published date: 20 August 2019

A COMPARATIVE OVERVIEW OF THE

LEGAL REFORM OF NON-POSSESSORY REAL

SECURITY RIGHTS OVER MOVABLES IN

SOUTH AFRICA AND BELGIUM WITH

SPECIFIC REFERENCE TO THE LEGAL

NATURE OF THE SECURITY OBJECT AND

COURT INTERVENTION

LEFA NTSOANE*

Lecturer, Department of Private Law, University of South Africa

MITZI WIESE

†

Senior Lecturer, Department of Private Law, University of South Africa

Abstract

South Africa and Belgium have acknowledged the economic need for

legal reform of the law regulating real security rights over movable

property. South Africa enacted the Security by Means of Movable

Property Act 53 of 1993 (SMPA), which provides for a f‌ictitious pledge,

and Belgium enacted the new Belgian Pledge Act 11 of 2013, which

provides for a registerpand. This article examines the historical back-

ground, development and legal reform of non-possessory real security

rights over movables in both legal systems. The research focuses on the

difference in the legal position regarding the security object of the

non-possessory real security right and court intervention in realising the

security. South African law excludes incorporeal property, revolving

assets, and future property from the strong legal protection offered to

debtors and creditors by the SMPA. Belgian law, by contrast, has an

inclusive as opposed to exclusive approach to the legal nature of the

security object. The new Belgian Pledge Act is applicable to all corporeal

and incorporeal movable property. The position of summary execution

clauses under the new Belgian Pledge Act is the opposite of that under

South African law. The South African summary execution clauses

principle, as developed in Roman-Dutch law, has in recent years been

*LLB LLM (UNISA).

†

LLB (UP) LLM (Child law) (UP) LLD (UNISA).

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interpreted more strictly with the result that its application is limited.

The aim of the Belgian reform is to simplify the creation and realisation

of a ‘pledge without possession’. The Belgian Pledge Act now grants the

pledgee the right to sell, rent, or appropriate the security object without

court intervention. Court intervention is only required if the pledgor is a

consumer.

Keywords: electronic pledge register; f‌ictitious pledge; non-possessory

real security right; pledge; publicity principle; registerpand; registration;

special notarial bond; summary execution

I INTRODUCTION

Traditionally, movable property has, in general, not been as valuable as

immovable property. However, in today’s world where the cost of a

motor car can exceed that of a house, the increasing value of movable

things makes it a popular and appropriate security object. In order to

promote commerce, ongoing comparative research on ways to reform

and develop the law of real security rights over movable property is

urgently needed. This article analyses the legal reform of non-possessory

real security rights over movable property, specif‌ically special notarial

bonds (f‌ictitious pledge) in South African law, and registerpand (regis-

tered pledge) in Belgian law. Furthermore, it provides a comparative

analysis of the nature of the security object of the non-possessory real

security right as well as of the court intervention in the process of

realising the real security right. Belgian law is relevant to the develop-

ment of South African law because of both its Roman-law origin and its

recent reform of real security rights over movable property.

1

1

The law of property in Belgium is based on the Belgian Civil Code. See Bergkamp, ‘The

concept of Private Property in European Legal History: The Aristorian and Belgian cases’ 2014

UCULR 279–296. Articles regulating real security rights are spread throughout the Civil Code.

The Code is based on the French Civil Code of Napoleon, which was introduced in 1831 —

the year of Belgian independence. See ‘Real Property Law Belgium-Draft Lawfort 29

September 2004’ available at http://www.eui.eu/Documents/DepartmentsCentres/Law/

ResearchTeaching/ResearchThemes/EuropeanPrivateLaw/RealPropertyProject/Belgium.

PDF, accessed on 19 November 2015. The provisions of the Belgian Civil Code resemble the

corresponding provisions of the French Civil Code as it existed before the 2006 reform. As a

result of the adoption of the Napoleonic Code, the Roman legal heritage is ref‌lected in

contemporary European legal systems (Natalie van Leuven, 9781849804158 Elgar Encyclopae-

dia of Comparative Law 2 ed (Belgium) Online, accessed on 17 February 2016). Roman-law

principles of property law and real security rights form the foundation of Belgian law in this

regard. See Bocken & De Bondt, Introduction to Belgian Law (Kluwer Law International 2001)

204–221. Although there have been minor changes to the regulation of the law of property)

for economic reasons (eg, privileges accorded landowners under the ancient regime), the Civil

Code remains the basic source for the law of property in Belgian law.

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