Practical Approaches to the Numerus Clausus of Land Rights : How Legal Professionals in South Africa and the Netherlands Deal with Certainty and Flexibility in Property Law

In the civil-law jurisdictions of the Netherlands and Germany, it has long been accepted that relationships in respect of property must fit particular forms, and must have predetermined content. This is referred to as the numerus clausus principle. Recent scholarship from both the common-law and civil-law worlds focuses closely on the degree of flexibility that adherence to the principle of the numerus clausus allows. The claim is that the constraints of this principle may be easily evaded with professional legal assistance through, e.g. the practice of “stacking” or combining different types of real rights to deal with modern commercial demands.This paper adopts a comparative approach in scrutinising the role of legal professionals involved in creating and entrenching real rights (specifically in respect of land). It shows how these professionals are instrumental in managing the tension between regimentation and customisation, between certainty and practicability of real rights in respect of land, on the cusp between theory and practice. The paper focuses on the function of the Public Notary, and the Registrar of Deeds, two offices that play a crucial role in the registration of rights to land. In the process it comments on the ostensible theoretical divergences between Dutch and South African law – surprising because of the quite close links between these jurisdictions due to their conjoined legal histories – and the unexpected similarities in legal practice