The relevance of the South African sectional titles law in interpretation and application of the sectional titles legislation of Botswana : an analysis of provisions pertaining to establishment of schemes

[摘要] ENGLISH ABSTRACT: The concept of sectional ownership has been unknown in the Botswana common lawbecause of the maxim superficies solo cedit, which does not recognize separate ownershipof apartments in a building. The law must always serve the felt and real needs of the times,and in order to give effect to those needs, the Botswana Sectional Titles Act was enacted in1999. It is based on the South African Sectional Titles Act of 1986, as amended, whichrepealed the 1971 Act.In this thesis, a comparative analysis of the South African and Botswana sectional titles lawis made to determine whether and, if so, how the existing position in the South Africansectional titles law could aid interpretation and application of the sectional titles legislationof Botswana, specifically pertaining to aspects of establishment of sectional title schemes.The main focus is on the legislative provisions of both jurisdictions. However, SouthAfrican case law is also considered.Landownership and sectional titles is discussed, to determine whether sectional ownershipis genuine ownership. This entails a discussion on the publicity principle, which in the caseof land is normally achieved by means of registration in the Deeds Registries. The thesisanalyses the Botswana and South African statutes on the requirements and proceduresinvolved in the establishment of sectional title schemes to bring to light any shortcomingsthat may exist in either of the two statutes. An understanding of the shortcomings of theSouth African statute is relevant to the interpretation and application of the Botswanastatute. An examination of the procedural aspects of establishment of a sectional titlescheme, as well as the roles of the parties involved in the establishment thereof isundertaken, so as to identify consequences that may ensue if they fail to comply with therequirements of either of the statutes. Consequently, a comparative analysis on the effect ofregistration of the sectional plan and opening of the sectional title register is made.Although it is not suggested that the Botswana Act should be completely similar to theSouth African Act, as Botswana may have its own peculiar circumstances, suggestions as tothe amendment of the Botswana statute are made. Amendments would make the BotswanaAct even more flexible, and would open up the possibilities of development to achieve greater access to land. Further more improvements to the Act will have to be made, somebefore its implementation, and some after a period of application of the Act, as realpractical problems become apparent.

[发布机构] Stellenbosch University