A J van der Walt, PROPERTY IN THE MARGINS Oxford: Hart Publishing (www.hartpub.co.uk), 2009. xxix + 272 pp. ISBN 9781841139630. £35.
| Pages | 343-345 |
| DOI | 10.3366/elr.2010.0018 |
| Published date | 01 May 2010 |
| Date | 01 May 2010 |
| Author | David Carey Miller |
This searching, theoretical, but rule-based text proceeds from the premise of a “rights paradigm”, inherent to property law systems, which secures and tends to anchor “extant property holdings on the assumption that they are lawfully acquired, socially important and politically and morally legitimate” (viii). The author sums up the goal of his book as “to gauge the lasting power of the rights paradigm by investigating its effects in the margins of property law and of society” (viii). Focusing on the landowner's rights to evict and exclude, the study measures the efficacy of reformist laws which seek to protect users and occupiers by according them rights in denial of what would otherwise be part of the landowner's traditional bundle.
The author is a distinguished South African scholar and the leading writer on the new constitution-based property law of that country. One can see that the theme of the present book runs close to the tension between, on the one hand, the controlling reforms – long promoted by the suppressed majority people but only assuming legal force in the constitutionally adjusted norm base of the new South Africa of the 1990s – and, of course, on the other hand, the relatively simple Roman-Dutch common law model reflecting a traditional powerful right of ownership with significant capacity to exclude infringers.
While this book's primary database in South African, it is a comparative work which examines the tensions concerned in a range of contextual manifestations in South Africa, England and Germany, with occasional forays into Dutch, US and European sources. In the second chapter a comparison of eviction cases from the three primary jurisdictions considered is used to illustrate the hypothesis that “this conflict is a fruitful locus for a theoretical debate about stability and change in property law, particularly in a transformative setting, where both policy and property issues often pivot on residential housing interests” (41). Readers of this journal have already had the benefit of a sample of the author's argument for a theoretical approach to eviction issues (“Ownership and eviction: constitutional rights in private law” (2005) 9 EdinLR 32).
The relatively radical reining-in of the common law rights of South African landowners was a consequence of the replacement of the Roman-Dutch property
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