A framework for reforming the South African law of security rights in movable property

Abstract

The thesis examines the legal efficacy of the current South African legal framework governing security rights in movable property. This is done by bench-marking the South African framework against selected international and regional secured transactions law frameworks, making it the first South African study to be conducted in this manner. This vertical comparative study establishes and gives content to the key policy objectives and fundamental principles of each examined legal framework, and considers their interrelationship. Aspects of a secured-transactions-law framework, included in the study as part of key policy objectives and fundamental principles, which should influence reform, include: (1) whether to implement a unitary, non-unitary, or commercially-facilitative approach to establish a single legal framework for security rights in movable property; (2) whether to change the method used to create and allow the third-party effect of the security right; (3) how comprehensive the scope of a legally and commercially relevant legal framework should be; (4) what the preferred publicity method should be; (5) how to develop transparent and predictable priority rules; (6) how to adopt effective enforcement measures; and (7) the extent different types of creditor should be treated equally by the law.

The study presents a robust framework, the first of its kind in South Africa, pivoting on key policy objectives and fundamental principles the South African legislature and policymakers must consider establishing a legally efficient secured transactions law framework.