The abandonment of landownership in South African and Swiss law
Authors Richard Cramer
Affiliations: Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 870 – 906
The possibility of the abandonment of land in South African law has received relatively little attention from academics. This article seeks to engage with the arguments proposed by academics who have written on this question in order to attempt to bring some clarity to the issue. Whether abandonment of ownership in land is possible needs to be determined from an evaluation of the relevant common-law principles as well the relevant provisions of the Deeds Registries Act 47 of 1937, in light of the principle of publicity. It is not, however, sufficient to determine whether abandonment of land is possible. It also needs to be asked whether such abandonment should be permitted in the first place and, if so, in what circumstances. In order to answer these questions, it is useful to engage in comparative research. Switzerland provides an example of a jurisdiction with a permissive regime in respect of the abandonment of land (Dereliktion). While there are a number of lessons that can be learnt from the Swiss approach, its permissive model is not necessarily an ideal one for South Africa to adopt.