The applicability of the Placaeten (passed by the Estates of Holland on 26 September 1658 and re-enacted thereafter on 24 February 1696) to rural tenements, or to both rural and urban tenements has long been a contentious and controversial issue in South

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PLACAETEN: DOES IT EXTEND TO URBAN PROPERTY?

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TABLE OF CONTENTS

  1. Introduction                                                                                2

                                                                

  1. Historical background and development                                                2

                                

  1. Application in South African case law                                                3

  1. Current position                                                                        8

  1. Academic view                                                                        9

  1. Conclusion                                                                                10

  1. Bibliography                                                                                11                                        

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1. INTRODUCTION

The applicability of the Placaeten (passed by the Estates of Holland on 26 September 1658 and re-enacted thereafter on 24 February 1696) to rural tenements, or to both rural and urban tenements has long been a contentious and controversial issue in South African law. It is a question that has enjoyed much attention and deliberation by both our courts and academic writers alike.

If the Placaeten is to be applied correctly in our law and if the correct interpretation is to be followed, the historical development and reception thereof into South African law need to be understood, and a thorough understanding of the nature and application of the Placaeten in our law need to be sought.

2. HISTORICAL BACKGROUND AND DEVELOPMENT

Before the introduction of the Placaeten in 1658, the prevailing Roman Dutch law determined the legal position of the lessee when it came to his/her rights with regards to removal of or compensation for improvements made to the property of the lessor. Roman Dutch law determined that the lessee is entitled to remove useful and luxurious improvements, provided that they can be removed without leaving the property in a worse condition then it was at the inception of the lease. The lessee was also not entitled to remove necessary improvements, but would have a claim for his/her expenses in this regard.

These common law rules were significantly altered by a large number of new laws that were enacted from and after 1580 by the States of Holland and West Friedland. These enactments were more commonly known as edicts or placaats and were all recorded in the Groot Placaet-Boeck, of which there are ten volumes.

In practise there are very few of these placaats that are still in force today, as legislation had repealed many of the old Dutch statutes, and others have been abrogated by disuse, and lost their force through non-application.

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One placaeten that still is in force and applied in our law is the Placaeten of 1658, and apart from the penalties, article 9 to 13 of this placaeten have been received into our law. Article 11 stated that compensation payable for structures was restricted to bare materials, excluding sand and lime and excluding cost of labor as well.Article 12 dealt with structures erected without the landlord’s consent. No compensation could be claimed, but lessees were allowed to break the structures down and remove the material before the end of the lease.  According to Article 13, a lessee’s right to claim for plants and trees were limited to those planted on the instructions of the owner and then only the original cost of the plants.

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The most important one for our present purposes is Article 10 which stated: “Provided, nevertheless, that whenever the owner of any lands, takes them for himself, or lets them to others, he is bound to pay the old lessee, or his heirs, compensation for the structures, which the lessee had erected with the consent of the owner, as well as for ploughing, tilling, sowing and seed corn, to be taxed by the court of the locality, without, however, the lessees being allowed to continue occupying and using the lands, after the expiration of the term of the lease, under the ...

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