NUMERUS CLAUSUS AND THE DEVELOPMENT OF NEW REAL RIGHTS IN SOUTHAFRICAN LAWI M.J. de Waal (University of Stellenbosch, South Africa) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in anmy form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract In this article, the numerus clausus principle and its application in South african law are discussed. The author introduces the discussion with a general explanation of South African law as a so-called mixed'legal system. This means that, although the found ation of South African law is Roman-Dutch law(that is, a civilian system), there has been a marked influence of English law in many areas of the law. However, one of the areas of South African private law in which the principles of Roman-Dutch law have been preserved to a large extent is the law of property. In the article, the focus is on an aspect of trad itional property law, namely the numerus clausus principle. It is explained that South African law does not adhere to this principle in the sense that new, hitherto unknown, real rights can be developed The criteria used by the courts the process of development of new real rights are discussed and their application is illustrated with reference to three examples from case law. The conclusion is that these criteria do not work satisfactorily when applied in practice. As a consequence, a degree of legal uncertainty exists with regard to the creation of new real rights by the courts. Finally, It is acknowledged that policy considerations should play a role in the recognition or not of new real rights. Policy considerations, and more specifically considerations of social policy, have indeed been decisive in the recent creation of new real rights by the South African legislature Contents 1 Introduction: South African law as a legal system 2. The South African law of property and the numerus clausus principle 3. The application of thesubtraction from the dominium'test: Three brief case stud ies 3.1 General 3. 2 Lorente y Melle and Others 3. 3 Pearly Beach Trust v Registrar of Deeds 3. 4 Denel(Pty )Ltd. V Cape Explosive Works Ltd. and Another This article is an extended and slightly revised version of a paper read at sta ff sem inars at the University of Nijmegen on 21 June 1999 and Maastricht University on 22 June 1999NUMERUS CLAUSUS AND THE DEVELOPMENT OF NEW REAL RIGHTS IN SOUTH AFRICAN LAW1 M.J. de Waal (University of Stellenbosch, South Africa) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract In this article, the numerus clausus principle and its application in South African law are discussed. The author introduces the discussion with a general explanation of South African law as a so-called ‘mixed’ legal system. This means that, although the foundation of South African law is Roman-Dutch law (that is, a civilian system), there has been a marked influence of English law in many areas of the law. However, one of the areas of South African private law in which the principles of Roman-Dutch law have been preserved to a large extent is the law of property. In the article, the focus is on an aspect of traditional property law, namely the numerus clausus principle. It is explained that South African law does not adhere to this principle in the sense that new, hitherto unknown, real rights can be developed. The criteria used by the courts in the process of development of new real rights are discussed and their application is illustrated with reference to three examples from case law. The conclusion is that these criteria do not work satisfactorily when applied in practice. As a consequence, a degree of legal uncertainty exists with regard to the creation of new real rights by the courts. Finally, It is acknowledged that policy considerations should play a role in the recognition or not of new real rights. Policy considerations, and more specifically considerations of social policy, have indeed been decisive in the recent creation of new real rights by the South African legislature. Contents 1. Introduction: South African law as a ‘mixed’ legal system 2. The South African law of property and the numerus clausus principle 3. The application of the ‘subtraction from the dominium’ test: Three brief case studies 3.1 General 3.2 Lorentz v Melle and Others 3.3 Pearly Beach Trust v Registrar of Deeds 3.4 Denel (Pty.) Ltd. V Cape Explosive Works Ltd. and Another 1This article is an extended and slightly revised version of a paper read at staff seminars at the University of Nijmegen on 21 June 1999 and Maastricht University on 22 June 1999