Philosophiae Doctor - PhD / The thesis examines the characteristics of land tenure among African families with freehold title who trace their relationship to the land to their forebears who first acquired title in the mid-nineteenth century. The evidence was drawn from two field sites in the Eastern Cape, Fingo Village, Grahamstown and Rabula in the Keiskammahoek district of the former Ciskei. The evidence, supported by evidence in other Anglophone countries, shows that African familial relationships reminiscent of ‘customary’ concepts of the family, were not, and are not extinguished when title is issued, though they are altered. Africans with title regard the land as family property held by unilineal descent groups, challenging the western notion of one-to-one proprietal relationships to the land and its devolution. By exploring the intersection between tenure, use and devolution of land, the main findings reveal that local conceptions of land and use diverge considerably from the formal, legal notion of title. Title holders conceive of their land as the property of all recognised members of a patrilineally defined descent group symbolised by the family name. Because freehold is so intimately linked with inheritance, the findings significantly illuminate the social field of gender and kinship. The implications of the findings are that differing concepts of the ‘family’ and ‘property’ are fundamental to the lack of ‘fit’ between the common-law concept of ownership and what I term in the thesis ‘African freehold’. The thesis dissects the implications of culturally constructed variability in familial identities for recognition and transmission of property. Title is legally regulated by Eurocentric notions of both family and property, which lead to significant divergence between western and African interpretations of ownership, transmission and spatial division of land. The deficiencies of the South African legal mindset with regard to property law are thus fundamentally affected by the deficiencies in recognising the broader field of gender and kinship relations. The findings fundamentally challenge the dualistic paradigm currently prevalent in much of South African legal thinking, since the factors that are found to affect land tenure relationships cannot be reduced to the binary distinctions that are conventionally drawn in law, such as ‘western’ vs. ‘customary’ or ‘individual’ vs. iii ‘communal’ tenure. Instead, the important sources of validation of social (importantly, familial) and property relationships are found to be common to all property relationships, but are arranged and calibrated according to different normative patterns of recognition. In the case of the subjects in the field sites, these do not fit into the main ‘categories’ of property defined in law. Neither of the main bodies of official law, the common law and customary law, adequately characterise the relationships among the African freehold title holders. The source of legitimation is, therefore, not the ‘law’ but locally understood norms and practices. The findings suggest that the practices of the freeholders, derived from constructed ideas of kinship and descent, have relevance for a wide range of diverse African land tenure arrangements and categories, and not only ‘African freehold’. The findings therefore have significant implications for law reform more broadly. The thesis suggests that law reform should move away from models that do not match reality, and in particular should heed the warnings that titling policies as presently designed are particularly poorly aligned with the realities presented in the thesis.

The South African legal system is dualistic in nature with the one part consisting of the Western common law and the other consisting of African customary law. Although these two legal systems enjoy equal recognition, they regularly come into conflict with each other due to their divergent value systems. It is especially within the context of the South African criminal law that this conflict becomes apparent, because an accused's conduct can be viewed as lawful in terms of African customary law, but unlawful in terms of the South African common law. In such cases the accused may attempt to raise a cultural defence by putting forth evidence of his cultural background or values to convince the court that his prima facie unlawful conduct is actually lawful and that he should escape criminal liability. Alternatively, an accused may put forth evidence of his cultural background or values in an attempt to receive a lighter sentence. The question which therefore arises is whether a so-called "cultural defence" exists in the South African criminal law, and if so, what the influence of such a defence on the South African criminal law is. The conflict between African Customary law and the South African common law in the context of the criminal law arises due to the fact that the indigenous belief in witchcraft, (including witch-killings), the indigenous belief in the tokoloshe and the use of muti-medicine (including muti-murders), as well as the phenomenon of "necklacing" and the custom of ukuthwala can result in the commission of various common law crimes. In the case of witch-killings, the perpetrators can be charged with the common law crimes of murder or, if the victim survives, attempted murder, common assault or assault with intent to do grievous bodily harm. Similarly, necklacing, as a method used for killing witches, can also result in the commission of these common law crimes. What is more, the perpetrators of witch-killings can also be charged with the statutory crimes of accusing someone of witchcraft, pointing the victim out as being a witch or wizard or injuring a person based on information received from a traditional healer, or similar person. The indigenous belief in the tokoloshe can lead to the commission of the common law crimes of murder or, if the victim survives, common assault or assault with intent to do grievous bodily harm. The perpetrators of mutimurders can also face charges of murder or attempted murder, if the victim survives. The indigenous custom of ukuthwala can result in the commission of common law crimes such as abduction, kidnapping and common assault, as well as the statutory crime of rape. A perusal of South African case law dealing with the indigenous beliefs and customs above reveals that the accused in such cases have indeed attempted to put forth evidence of their indigenous beliefs or customs to persuade the criminal courts that they should escape criminal liability for a particular crime. In fact, these arguments were raised within the context of the existing common law defences such as private defence, necessity, involuntary conduct and a lack of criminal capacity. However, the South African criminal courts have up till now in general been unwilling to accept arguments of indigenous beliefs and customs to serve as a defence, either alone or within the context of the existing defences above, for the commission of a common law or statutory crime. They have, however, been more willing to accept evidence of an accused's indigenous belief or custom to serve as a mitigating factor during sentencing. The extent to which an accused's cultural background will serve as a mitigating factor will, of course, depend on the facts and circumstances of each case. As a result an accused who is charged with the commission of a culturally motivated crime has no guarantee that his cultural background and values will in fact be considered as a mitigating factor during his criminal trial. It is thus ultimately concluded that a so-called "cultural defence" does not exist in the South African Criminal law. The indigenous beliefs and customs above not only result in the commission of common law or statutory crimes, but also in the infringement of various fundamental human rights in the Constitution. Witch-killings result in the infringement of the constitutional right to life and the right to freedom and security of the person. However, witches and wizards who are persecuted for practising witchcraft are also denied their right to a fair trial entrenched in the Constitution. Similarly, muti-murders and necklacing also result in the infringement of the right to life and the right to freedom and security of the person entrenched in the Constitution. The custom of ukuthwala results in the infringement of the right to equality, the right to freedom and security of the person, the right to live in an environment that is not harmful to health or well-being, the right not to be subjected to slavery, servitude or forced labour, the right to basic education and other constitutional safeguards aimed at protecting children. In light of the constitutional right to freedom of culture and the right to freely participate in a cultural life of one's choosing the question can be asked whether the time has come to formally recognise a cultural defence in the South African criminal law. In this study it is argued that these constitutional rights do not warrant the formal recognition of a cultural defence. Instead, it is recommended that the conflict between African customary law and the South African common law can be resolved by bringing indigenous beliefs and customs in line with the values that underpin the Constitution as the supreme law of South Africa. Of course, this does not mean that the courts should ignore cultural considerations during a criminal trial if and when they arise. In fact, as pointed out in this study, the courts have a constitutional duty to apply African customary law when that law is applicable. It goes without saying that, when an accused attempts to escape criminal liability for his unlawful conduct by raising arguments of his cultural background, African customary law will be applicable and must be considered by the court. This in turn raises the question as to how the criminal courts can ensure that they give enough consideration to the possibility that an accused's criminal conduct was culturally motivated so as to comply with their constitutional mandate referred to above. Although it would be nearly impossible to formulate a perfect or flawless approach according to which a judicial officer can adjudicate criminal matters involving culturally motivated crimes, the author suggests the following practical approach which may provide some guidance to judicial officers in dealing with cases involving culturally motivated crimes: • Step 1: Consider whether the commission of the crime was culturally motivated or not. If it seems as though the accused did not commit a culturally motivated crime, the trial can continue on that basis. If, however, it is evident that the accused indeed committed a culturally motivated crime, step 2 follows. • Step 2: Once it has been determined that the commission of the crime was culturally motivated, the next step is to determine which indigenous belief or custom led to the commission of the crime. Once the relevant indigenous belief or custom has been identified, step 3 follows. • Step 3: When it is clear which indigenous belief or custom led to the accused's commission of the crime, the next step is to determine whether arguments pertaining to that particular indigenous belief or custom may be raised within the context of the existing defences in the South African Criminal law in order to exclude the accused's criminal liability. If an accused relies on one of the existing defences in the South African criminal law, he will have to lay a proper evidential foundation for his defence before the court. In assessing the evidence put forth by the accused, the judicial officer must consider the judgment and reasoning in previous cases dealing with the particular indigenous belief or custom. A judicial officer must also consider the values underpinning the Constitution when conducting such an assessment. If a judicial officer upholds an accused's defence, the accused is acquitted. However, if the judicial officer rejects an accused's defence, the accused must be convicted and step 4 follows. • Step 4: Once an accused has been convicted, a court should consider whether arguments of his cultural background can serve as an extenuating circumstance, mitigating the punishment to be imposed on him. However, the practical approach above merely serves as a suggestion to judicial officers in dealing with culturally motivated crimes and ultimately it will be up to the judiciary to develop both the Western common law and African customary law to resolve the criminal law conflicts between these two legal systems. The research for this study was concluded in November 2013. / LLD, North-West University, Potchefstroom Campus, 2014

The South African legal system is dualistic in nature with the one part consisting of the Western common law and the other consisting of African customary law. Although these two legal systems enjoy equal recognition, they regularly come into conflict with each other due to their divergent value systems. It is especially within the context of the South African criminal law that this conflict becomes apparent, because an accused's conduct can be viewed as lawful in terms of African customary law, but unlawful in terms of the South African common law. In such cases the accused may attempt to raise a cultural defence by putting forth evidence of his cultural background or values to convince the court that his prima facie unlawful conduct is actually lawful and that he should escape criminal liability. Alternatively, an accused may put forth evidence of his cultural background or values in an attempt to receive a lighter sentence. The question which therefore arises is whether a so-called "cultural defence" exists in the South African criminal law, and if so, what the influence of such a defence on the South African criminal law is. The conflict between African Customary law and the South African common law in the context of the criminal law arises due to the fact that the indigenous belief in witchcraft, (including witch-killings), the indigenous belief in the tokoloshe and the use of muti-medicine (including muti-murders), as well as the phenomenon of "necklacing" and the custom of ukuthwala can result in the commission of various common law crimes. In the case of witch-killings, the perpetrators can be charged with the common law crimes of murder or, if the victim survives, attempted murder, common assault or assault with intent to do grievous bodily harm. Similarly, necklacing, as a method used for killing witches, can also result in the commission of these common law crimes. What is more, the perpetrators of witch-killings can also be charged with the statutory crimes of accusing someone of witchcraft, pointing the victim out as being a witch or wizard or injuring a person based on information received from a traditional healer, or similar person. The indigenous belief in the tokoloshe can lead to the commission of the common law crimes of murder or, if the victim survives, common assault or assault with intent to do grievous bodily harm. The perpetrators of mutimurders can also face charges of murder or attempted murder, if the victim survives. The indigenous custom of ukuthwala can result in the commission of common law crimes such as abduction, kidnapping and common assault, as well as the statutory crime of rape. A perusal of South African case law dealing with the indigenous beliefs and customs above reveals that the accused in such cases have indeed attempted to put forth evidence of their indigenous beliefs or customs to persuade the criminal courts that they should escape criminal liability for a particular crime. In fact, these arguments were raised within the context of the existing common law defences such as private defence, necessity, involuntary conduct and a lack of criminal capacity. However, the South African criminal courts have up till now in general been unwilling to accept arguments of indigenous beliefs and customs to serve as a defence, either alone or within the context of the existing defences above, for the commission of a common law or statutory crime. They have, however, been more willing to accept evidence of an accused's indigenous belief or custom to serve as a mitigating factor during sentencing. The extent to which an accused's cultural background will serve as a mitigating factor will, of course, depend on the facts and circumstances of each case. As a result an accused who is charged with the commission of a culturally motivated crime has no guarantee that his cultural background and values will in fact be considered as a mitigating factor during his criminal trial. It is thus ultimately concluded that a so-called "cultural defence" does not exist in the South African Criminal law. The indigenous beliefs and customs above not only result in the commission of common law or statutory crimes, but also in the infringement of various fundamental human rights in the Constitution. Witch-killings result in the infringement of the constitutional right to life and the right to freedom and security of the person. However, witches and wizards who are persecuted for practising witchcraft are also denied their right to a fair trial entrenched in the Constitution. Similarly, muti-murders and necklacing also result in the infringement of the right to life and the right to freedom and security of the person entrenched in the Constitution. The custom of ukuthwala results in the infringement of the right to equality, the right to freedom and security of the person, the right to live in an environment that is not harmful to health or well-being, the right not to be subjected to slavery, servitude or forced labour, the right to basic education and other constitutional safeguards aimed at protecting children. In light of the constitutional right to freedom of culture and the right to freely participate in a cultural life of one's choosing the question can be asked whether the time has come to formally recognise a cultural defence in the South African criminal law. In this study it is argued that these constitutional rights do not warrant the formal recognition of a cultural defence. Instead, it is recommended that the conflict between African customary law and the South African common law can be resolved by bringing indigenous beliefs and customs in line with the values that underpin the Constitution as the supreme law of South Africa. Of course, this does not mean that the courts should ignore cultural considerations during a criminal trial if and when they arise. In fact, as pointed out in this study, the courts have a constitutional duty to apply African customary law when that law is applicable. It goes without saying that, when an accused attempts to escape criminal liability for his unlawful conduct by raising arguments of his cultural background, African customary law will be applicable and must be considered by the court. This in turn raises the question as to how the criminal courts can ensure that they give enough consideration to the possibility that an accused's criminal conduct was culturally motivated so as to comply with their constitutional mandate referred to above. Although it would be nearly impossible to formulate a perfect or flawless approach according to which a judicial officer can adjudicate criminal matters involving culturally motivated crimes, the author suggests the following practical approach which may provide some guidance to judicial officers in dealing with cases involving culturally motivated crimes: • Step 1: Consider whether the commission of the crime was culturally motivated or not. If it seems as though the accused did not commit a culturally motivated crime, the trial can continue on that basis. If, however, it is evident that the accused indeed committed a culturally motivated crime, step 2 follows. • Step 2: Once it has been determined that the commission of the crime was culturally motivated, the next step is to determine which indigenous belief or custom led to the commission of the crime. Once the relevant indigenous belief or custom has been identified, step 3 follows. • Step 3: When it is clear which indigenous belief or custom led to the accused's commission of the crime, the next step is to determine whether arguments pertaining to that particular indigenous belief or custom may be raised within the context of the existing defences in the South African Criminal law in order to exclude the accused's criminal liability. If an accused relies on one of the existing defences in the South African criminal law, he will have to lay a proper evidential foundation for his defence before the court. In assessing the evidence put forth by the accused, the judicial officer must consider the judgment and reasoning in previous cases dealing with the particular indigenous belief or custom. A judicial officer must also consider the values underpinning the Constitution when conducting such an assessment. If a judicial officer upholds an accused's defence, the accused is acquitted. However, if the judicial officer rejects an accused's defence, the accused must be convicted and step 4 follows. • Step 4: Once an accused has been convicted, a court should consider whether arguments of his cultural background can serve as an extenuating circumstance, mitigating the punishment to be imposed on him. However, the practical approach above merely serves as a suggestion to judicial officers in dealing with culturally motivated crimes and ultimately it will be up to the judiciary to develop both the Western common law and African customary law to resolve the criminal law conflicts between these two legal systems. The research for this study was concluded in November 2013. / LLD, North-West University, Potchefstroom Campus, 2014

The title of this thesis is: The Customary Law of Intestate Succession. The African customary law relating to intestate succession has always been known to discriminate against women. The thesis therefore focuses on the customary law of intestate succession in the countries of South Africa, Ghana and Swaziland and the inroads they have made in improving the rights of women in this discriminatory field of African customary law. This thesis consists of six chapters. Chapter 1 introduces the reader to the topic of the research. It highlights the organisation of the intended research which comprises: a statement of the problem, the legal framework, research methodology and a summary of the chapter. Chapter 2 defines the general terms and concepts used in the customary law of intestate succession. This facilitates an understanding of the general principles comprising the body of law known as the customary law of intestate succession and lays the foundation for the country specific issues that are investigated in the following chapters. Chapter 3 discusses the recognition, application and development of the customary law of intestate succession in the country of South Africa. Chapter 4 considers the rules and laws of the customary law of intestate succession in the West African country of Ghana. Chapter 5 explains the current rules and laws of the customary law of intestate succession prevailing in the Kingdom of Swaziland. Finally, chapter 6 brings the thesis to a meaningful end, by criticizing the approaches adopted by the countries of South Africa, Ghana and Swaziland in improving the rights of women as far as the customary law of intestate succession is concerned. The chapter also presents various recommendations for improving the rights of women in this discriminatory field of the law. / Public, Constitutional, & International / LL.D.

The title of this thesis is: The Customary Law of Intestate Succession. The African customary law relating to intestate succession has always been known to discriminate against women. The thesis therefore focuses on the customary law of intestate succession in the countries of South Africa, Ghana and Swaziland and the inroads they have made in improving the rights of women in this discriminatory field of African customary law. This thesis consists of six chapters. Chapter 1 introduces the reader to the topic of the research. It highlights the organisation of the intended research which comprises: a statement of the problem, the legal framework, research methodology and a summary of the chapter. Chapter 2 defines the general terms and concepts used in the customary law of intestate succession. This facilitates an understanding of the general principles comprising the body of law known as the customary law of intestate succession and lays the foundation for the country specific issues that are investigated in the following chapters. Chapter 3 discusses the recognition, application and development of the customary law of intestate succession in the country of South Africa. Chapter 4 considers the rules and laws of the customary law of intestate succession in the West African country of Ghana. Chapter 5 explains the current rules and laws of the customary law of intestate succession prevailing in the Kingdom of Swaziland. Finally, chapter 6 brings the thesis to a meaningful end, by criticizing the approaches adopted by the countries of South Africa, Ghana and Swaziland in improving the rights of women as far as the customary law of intestate succession is concerned. The chapter also presents various recommendations for improving the rights of women in this discriminatory field of the law. / Public, Constitutional, and International / LL. D.

La réforme et l’harmonisation du droit des sûretés mobilières sont à l’ordre du jour de plusieurs organisations internationales, car il est admis qu’un régime de sûretés efficient favorise l’accès au crédit à de faibles coûts. L’harmonisation de ce droit comporte deux volets. D’une part, dans l’Occident industrialisé, les efforts d’harmonisation vont de la réforme des droits internes à l’établissement de régimes spéciaux relativement à des biens spécifiques (principalement les biens mobiles de grande valeur, tels les aéronefs, le matériel ferroviaire roulant et les satellites, et les biens incorporels, comprenant les créances, valeurs mobilières, actifs financiers et titres intermédiés). Ces efforts d’harmonisation démontrent que d’un point de vue systémique, malgré quelques différences notables, les régimes nord-américains et européens sont fondés sur des principes similaires et atteignent des résultats comparables. En résulte l’émergence d’un ordre juridique transnational en droit des sûretés mobilières, fondé sur les principes de la primauté de l’individu et la reconnaissance du droit de propriété de l’individu dans ses biens, mis en œuvre grâce à l’État de droit. D’autre part, les institutions financières internationales encouragent l’établissement de régimes de sûretés dans les pays en voie de développement qui obéissent aux mêmes critères que ceux de l’Occident, en insistant sur les réformes institutionnelles et juridiques visant l’établissement d’une bonne gouvernance et l’État de droit. Cependant, une transposition des régimes occidentaux ne peut se faire sans heurts dans les pays en voie de développement, notamment pour des raisons socio-culturelles et politiques. Lorsque les principes de la primauté de l’individu, de la propriété individuelle et de l’État de droit ne sont pas reconnus dans un pays donné, la réforme et l’harmonisation du droit des sûretés s’en trouvent compromis. La démonstration de l’état d’avancement de la réforme et de l’harmonisation du droit des sûretés dans les pays occidentaux industrialisés est faite grâce à une comparaison du Uniform Commercial Code, du Code civil du Québec, des Personal Property Security Acts des provinces canadiennes de common law, des principes des droits français et anglais, de l’influence du droit communautaire sur les pays membres de l’Union Européenne. Sont analysés, aussi, dans cette optique, les principaux instruments de l’harmonisation du droit émanant des organisations internationales. Par ailleurs, deux études de cas relatifs à la réforme du crédit foncier en Égypte et à la réforme de l’urbanisme et de l’habitat en République démocratique du Congo, viennent étayer les difficultés que rencontrent les institutions internationales, telles la Banque mondiale et l’ACDI, dans le cadre de projets de réformes visant la bonne gouvernance et l’instauration d’un véritable État de droit, en partie à cause d’un pluralisme des ordres juridiques de ces pays. / The reform and harmonization of secured transactions on movable (or personal) property is fostered by international organizations, on the assumption that an efficient regime of secured transactions will give access to affordable credit to a large number of persons and corporations. Such reform and harmonization process can be explained according to its two main features. Firstly, in Western and developped countries, the focus is on endeavours to harmonize the various regimes internally and to establish special regimes with respect to specific assets (for instance, high value mobile equipment, such as aircrafts, rolling stock or satellites, on the one hand, or incorporeal property, including securities, financial assets or security entitlements, on the other hand). Even though some differences remains from a systemic point of view, north american and european regimes are based on similar principles and achieve comparable results. It is therefore possible to see the emergence of a transnational legal order in the law of secured transactions, based on individuals and the enforcement of their rights of ownership, ascertained by the Rule of Law principle. Secondly, international financial institutions are encouraging the implementation of secured transactions regimes in developing countries along the same criteria as those used in Western developed countries, in the context of institutional and legal reforms under governance and rule of law projects. However, Western regimes must be adapted and customized before they are transplanted into a developing country. Indeed, for socio-cultural and political reasons, it is not possible to establish the same kind of regime therein. When individual rights and freedoms, including the right of ownership and the Rule of Law, are not recognized, the reform and harmonization of secured transactions is not likely to happen. The status of advancement of the reform and harmonization of secured transactions in the developed world is illustrated by a comparison between the Uniform Commercial Code, the Civil Code of Québec, the Personal Property Security Acts of canadian common law provinces, the applicable principles under both French and English Law, and the influence of European Law on its member states. An analysis of the main harmonization instruments proposed by international organizations is also conducted. Finally, the pitfalls of governance and rule of law reform projects are well described by two case studies. The first one deals with real estate and mortgage law reforms in Egypt, with a goal to encourage affordable access to housing; the second one is about urban planing and housing reforms in the Democratic Republic of Congo. The existence of a multiplicity of legal orders in these countries explains the difficulties encountered in such reform processes.

La réforme et l’harmonisation du droit des sûretés mobilières sont à l’ordre du jour de plusieurs organisations internationales, car il est admis qu’un régime de sûretés efficient favorise l’accès au crédit à de faibles coûts. L’harmonisation de ce droit comporte deux volets. D’une part, dans l’Occident industrialisé, les efforts d’harmonisation vont de la réforme des droits internes à l’établissement de régimes spéciaux relativement à des biens spécifiques (principalement les biens mobiles de grande valeur, tels les aéronefs, le matériel ferroviaire roulant et les satellites, et les biens incorporels, comprenant les créances, valeurs mobilières, actifs financiers et titres intermédiés). Ces efforts d’harmonisation démontrent que d’un point de vue systémique, malgré quelques différences notables, les régimes nord-américains et européens sont fondés sur des principes similaires et atteignent des résultats comparables. En résulte l’émergence d’un ordre juridique transnational en droit des sûretés mobilières, fondé sur les principes de la primauté de l’individu et la reconnaissance du droit de propriété de l’individu dans ses biens, mis en œuvre grâce à l’État de droit. D’autre part, les institutions financières internationales encouragent l’établissement de régimes de sûretés dans les pays en voie de développement qui obéissent aux mêmes critères que ceux de l’Occident, en insistant sur les réformes institutionnelles et juridiques visant l’établissement d’une bonne gouvernance et l’État de droit. Cependant, une transposition des régimes occidentaux ne peut se faire sans heurts dans les pays en voie de développement, notamment pour des raisons socio-culturelles et politiques. Lorsque les principes de la primauté de l’individu, de la propriété individuelle et de l’État de droit ne sont pas reconnus dans un pays donné, la réforme et l’harmonisation du droit des sûretés s’en trouvent compromis. La démonstration de l’état d’avancement de la réforme et de l’harmonisation du droit des sûretés dans les pays occidentaux industrialisés est faite grâce à une comparaison du Uniform Commercial Code, du Code civil du Québec, des Personal Property Security Acts des provinces canadiennes de common law, des principes des droits français et anglais, de l’influence du droit communautaire sur les pays membres de l’Union Européenne. Sont analysés, aussi, dans cette optique, les principaux instruments de l’harmonisation du droit émanant des organisations internationales. Par ailleurs, deux études de cas relatifs à la réforme du crédit foncier en Égypte et à la réforme de l’urbanisme et de l’habitat en République démocratique du Congo, viennent étayer les difficultés que rencontrent les institutions internationales, telles la Banque mondiale et l’ACDI, dans le cadre de projets de réformes visant la bonne gouvernance et l’instauration d’un véritable État de droit, en partie à cause d’un pluralisme des ordres juridiques de ces pays. / The reform and harmonization of secured transactions on movable (or personal) property is fostered by international organizations, on the assumption that an efficient regime of secured transactions will give access to affordable credit to a large number of persons and corporations. Such reform and harmonization process can be explained according to its two main features. Firstly, in Western and developped countries, the focus is on endeavours to harmonize the various regimes internally and to establish special regimes with respect to specific assets (for instance, high value mobile equipment, such as aircrafts, rolling stock or satellites, on the one hand, or incorporeal property, including securities, financial assets or security entitlements, on the other hand). Even though some differences remains from a systemic point of view, north american and european regimes are based on similar principles and achieve comparable results. It is therefore possible to see the emergence of a transnational legal order in the law of secured transactions, based on individuals and the enforcement of their rights of ownership, ascertained by the Rule of Law principle. Secondly, international financial institutions are encouraging the implementation of secured transactions regimes in developing countries along the same criteria as those used in Western developed countries, in the context of institutional and legal reforms under governance and rule of law projects. However, Western regimes must be adapted and customized before they are transplanted into a developing country. Indeed, for socio-cultural and political reasons, it is not possible to establish the same kind of regime therein. When individual rights and freedoms, including the right of ownership and the Rule of Law, are not recognized, the reform and harmonization of secured transactions is not likely to happen. The status of advancement of the reform and harmonization of secured transactions in the developed world is illustrated by a comparison between the Uniform Commercial Code, the Civil Code of Québec, the Personal Property Security Acts of canadian common law provinces, the applicable principles under both French and English Law, and the influence of European Law on its member states. An analysis of the main harmonization instruments proposed by international organizations is also conducted. Finally, the pitfalls of governance and rule of law reform projects are well described by two case studies. The first one deals with real estate and mortgage law reforms in Egypt, with a goal to encourage affordable access to housing; the second one is about urban planing and housing reforms in the Democratic Republic of Congo. The existence of a multiplicity of legal orders in these countries explains the difficulties encountered in such reform processes.