Vonnisbespreking: Die (ongegronde) grondslag vir die klassifisering en werking van retensieregte in die Suid-Afrikaanse reg United Building Society v Smookler’s Trustees and Golombicks Trustees 1906 TS 623
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Authors
Wiese, Mitzi
Issue Date
2017
Type
Article
Language
Afrikaans
Keywords
United Building Society v Smookler’s Trustees and Golombicks Trustees 1906 TS 623 , foundation of classification of liens , grondslag vir klassifikasie van retensieregte , saaklike reg , persoonlike reg , personal right , real right
Alternative Title
Abstract
In principle, South African law distinguishes between enrichment liens and debtor and
creditor liens. Enrichment liens are classified as real security rights, but debtor-creditor liens
are not. It seems illogical that the same concept in law, a lien, is classified as a real security
right in some instances only. This case discussion analyses the origin of this illogical
classification of liens, namely United Building Society v Smookler’s Trustees and
Golombick’s Trustee 1906 TS 623. In this case, Bristowe J classified liens on the basis of
their enforceability against third parties. He concluded that a lien for useful and necessary
expenses is always an enrichment lien and thus a real security right.
This case discussion evaluates the facts, legal arguments and finding in United Building
Society v Smookler’s Trustees and then provides a critical analysis of the judgment. Each
relevant statement of the judge is discussed, followed by an interpretation of the statement.
The interpretations are supported by references to relevant case law, legislation and academic
writings. The judge’s references to Voet are analysed and evaluated by examining them in
their proper context in the works of Voet. The definition of a lien and the distinction between
a lien and a tacit hypothec, as well as their legal nature, are discussed. Next, attention is given
to the type of expenses that may be incurred in respect of a thing and the different liens that
serve as security for such expenses. Lastly, the judge’s understanding of third-party operation
(real operation) is dealt with.
The conclusion is that the court erred when it held that the builder concerned had an
enrichment lien, which gave him preference over the bank’s claim. It is clear from the
writings of Voet and the applicable provisions of the Insolvency Act 24 of 1936 that no
distinction should be made between an enrichment lien and a debtor-creditor lien with regard to its third-party operation and preference. Accordingly, all liens have third-party operation
and enjoy preference over other creditors’ claims.
Description
Citation
Wiese, M “Vonnisbespreking: Die (ongegronde) grondslag vir die klassifisering en werking van retensieregte in die Suid-Afrikaanse reg United Building Society v Smookler’s Trustees and Golombicks Trustees 1906 TS 623” 2017 LitNet Regte vol 14 no 1 304-321
Publisher
LitNet Regte
License
Journal
Volume
Issue
PubMed ID
DOI
ISSN
1995-5928