The Faculty of Law at the University of Pretoria is proud to announce that Dr Gustav Muller, a senior lecturer in the Department of Private Law, was announced the winner of the best maiden article published in the 2018 Journal of Contemporary Roman-Dutch Law (Tydskrif vir Hedendaagse Romeins-Hollandse Reg Joernaal - THRHR). The winning article is titled “To fell or not to fell: The impact of NEMBA on the rights and obligations of a usufructuary” 2018 THRHR 529.
The definition of a usufruct is a legal right given by an owner to someone who is not the owner, to use the owner’s property for a certain period, usually for the remainder of that person’s life. The person who holds the usufruct, also known as the usufructuary, has the right to make use of the property and enjoy its profits and benefits provided the property is not damaged or altered in any way. At the end of the stipulated period, the usufructuary must hand the property back over to the rightful owner or heirs.
Gustav states in this article that ‘[a]t present it appears that both the common law and NEMBA could apply to the determination of the rights of a usufructuary: specifically, whether certain trees may be felled and their branches collected for firewood; or whether an enabling environment may be created where certain trees can grow without impediment. Put differently, two parallel systems of law exist that regulate the rights of a usufructuary to fell and/or grow trees. This position is problematic because these parallel systems of law in terms of the common law and NEMBA lead to a fragmented system of law.’
Dr Muller concludes that ‘[t]he usufruct is a common phenomenon and fulfils and important social function in the agriculture and farming sectors of South Africa. The usufruct is also an important institution to create access to land in addition to affording the usufructuary a lifelong income from the property. However, in those instances where the usufruct has a an orchard or a wood as its object, the common law draws a pragmatic, but ultimately outdated and incomplete, distinction between silva caedua and silva non caedua based on the rate at which these respective trees grow. In this article he argued that this distinction should be updated through a constitutionally-inspired and doctrinally-driven development of the common law to bring it in line with the regulatory scheme of NEMBA.’
The Journal of Contemporary Roman-Dutch Law is the oldest and best-known bilingual legal journal and can be purchased from LexisNexis South Africa.