Abstract:
This article analyses the South African legal framework
governing security rights in movable property with a view to
inspire law reform. The analysis is based on a comparison of the
current South African framework with the UNCITRAL Legislative
Guide on Secured Transactions, a soft-law instrument
containing international best practice. The problematic aspects
of the South African framework benchmarked against the
UNCITRAL Guide are: (1) not having a common legal framework
that applies equally to all types of (including quasi-) real security
transactions; (2) the scope of the current framework not being
comprehensive (inclusive) enough; (3) not having an efficient
enough method of creating the security right; (4) the current
publicity method, particularly concerning special notarial bonds,
being overly cumbersome and not providing effective public
notice to third parties; and (5) the current enforcement measures
potentially not being the most efficient. Finally, regarding each
of these problem areas, the article makes proposals on how the
South African legislature could reform the current framework into
one that is legally efficient and in step with international best
practice.
