NUMERUS CLAUSUS AND THE DEVELOPMENT OF NEW REAL RIGHTS IN SOUTHAFRICAN LAWI M.J. de Waal (University of Stellenbosch, South Africa) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in anmy form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract In this article, the numerus clausus principle and its application in South african law are discussed. The author introduces the discussion with a general explanation of South African law as a so-called mixed'legal system. This means that, although the found ation of South African law is Roman-Dutch law(that is, a civilian system), there has been a marked influence of English law in many areas of the law. However, one of the areas of South African private law in which the principles of Roman-Dutch law have been preserved to a large extent is the law of property. In the article, the focus is on an aspect of trad itional property law, namely the numerus clausus principle. It is explained that South African law does not adhere to this principle in the sense that new, hitherto unknown, real rights can be developed The criteria used by the courts the process of development of new real rights are discussed and their application is illustrated with reference to three examples from case law. The conclusion is that these criteria do not work satisfactorily when applied in practice. As a consequence, a degree of legal uncertainty exists with regard to the creation of new real rights by the courts. Finally, It is acknowledged that policy considerations should play a role in the recognition or not of new real rights. Policy considerations, and more specifically considerations of social policy, have indeed been decisive in the recent creation of new real rights by the South African legislature Contents 1 Introduction: South African law as a legal system 2. The South African law of property and the numerus clausus principle 3. The application of thesubtraction from the dominium'test: Three brief case stud ies 3.1 General 3. 2 Lorente y Melle and Others 3. 3 Pearly Beach Trust v Registrar of Deeds 3. 4 Denel(Pty )Ltd. V Cape Explosive Works Ltd. and Another This article is an extended and slightly revised version of a paper read at sta ff sem inars at the University of Nijmegen on 21 June 1999 and Maastricht University on 22 June 1999
NUMERUS CLAUSUS AND THE DEVELOPMENT OF NEW REAL RIGHTS IN SOUTH AFRICAN LAW1 M.J. de Waal (University of Stellenbosch, South Africa) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract In this article, the numerus clausus principle and its application in South African law are discussed. The author introduces the discussion with a general explanation of South African law as a so-called ‘mixed’ legal system. This means that, although the foundation of South African law is Roman-Dutch law (that is, a civilian system), there has been a marked influence of English law in many areas of the law. However, one of the areas of South African private law in which the principles of Roman-Dutch law have been preserved to a large extent is the law of property. In the article, the focus is on an aspect of traditional property law, namely the numerus clausus principle. It is explained that South African law does not adhere to this principle in the sense that new, hitherto unknown, real rights can be developed. The criteria used by the courts in the process of development of new real rights are discussed and their application is illustrated with reference to three examples from case law. The conclusion is that these criteria do not work satisfactorily when applied in practice. As a consequence, a degree of legal uncertainty exists with regard to the creation of new real rights by the courts. Finally, It is acknowledged that policy considerations should play a role in the recognition or not of new real rights. Policy considerations, and more specifically considerations of social policy, have indeed been decisive in the recent creation of new real rights by the South African legislature. Contents 1. Introduction: South African law as a ‘mixed’ legal system 2. The South African law of property and the numerus clausus principle 3. The application of the ‘subtraction from the dominium’ test: Three brief case studies 3.1 General 3.2 Lorentz v Melle and Others 3.3 Pearly Beach Trust v Registrar of Deeds 3.4 Denel (Pty.) Ltd. V Cape Explosive Works Ltd. and Another 1This article is an extended and slightly revised version of a paper read at staff seminars at the University of Nijmegen on 21 June 1999 and Maastricht University on 22 June 1999
4. Conclusion and evaluation 1. Introduction: South African law as a ' legal system Any contribution on South African private law should, at the outset, make it clear that South African law is a so-called ' mixed' legal system. This means that it is a legal system at the intersection of civil law and common law.2 From the time that the settlement at the cape was established as an outpost of the dutch East India Company (v.o.C. )in 1652, the law in this region was Roman-Dutch law(that is, a civilian system). This did not formally change with the two British occupations in 1795 and 1806. The reason is that the new rulers decided to retain the Roman-Dutch law as the law of the Cape and not to replace it with English law. 3 The British occupation nevertheless had a profound influence on the nature of South African law The broad pattern that emerged under British rule was a general movement towards English law and institutions. 4 This trend was particularly noticeable in the fields of the administration of justice, procedural law, the law of evidence and commercial law(for example, company law and the law of negotiable instruments. )However, private law was not insulated from this proces One therefore finds the influence of English law in many areas of private law, for example, the law of contract, the law of delict, the law of succession(especially in the context of formalities) and the law of agency. The reception of the English trust into South African law(though not in its English form) also provides an interesting example of the interaction between civil law and common law in the South african context 5 One of the areas of South African private law in which the principles of Roman-Dutch law have been preserved to a large extent is the law of property(or the law of things as it should preferably be called )6 Roman law, as received into and developed in the province of Holland dt urIng seventeen nth and eighteenth centuries therefore still forms the dogmatic basis of the modern South African law of property. 7 It should be borne in mind, however, that much of the dogmatic and systematic refinement of modern South African property law can in fact be traced to the work of the German Pandectists of the nineteenth century. The Roman-Dutch law of property, as transplanted to South Africa, has of course been further refined by the legislator and the courts. English law played a very minor role in this process of refinement and development 2R. Zimmermann and D Visser "South African Law asa Mixed Legal System'in R. Zimmermann andD. Visser (eds )Southern Cross: Civil Law and Common Law in South Africa Clarendon Press, Oxford(1996)1 at2 3H. R. Hahlo and E. Kahn The South African Legal System and Its Background Juta and Co., Cape Town(1973) 575ff 4Hahlo and Kahn(n 3)576 5See, in general, T Honore Trustin Zimmermann and Visser(eds )(n 2)849ff 6See, in general, C G. van der Merwe Sakereg(2nd ed. )Butterworths, Durban (1989)6 7C. G. van der Merwe and M.J. de Waal The Law of Things and Servitudes Butterworths, Durban (1993)sect. 6
4. Conclusion and evaluation 1. Introduction: South African law as a ‘mixed’ legal system Any contribution on South African private law should, at the outset, make it clear that South African law is a so-called ‘mixed’ legal system. This means that it is a legal system ‘at the intersection of civil law and common law’.2 From the time that the settlement at the Cape was established as an outpost of the Dutch East India Company (V.O.C.) in 1652, the law in this region was Roman-Dutch law (that is, a civilian system). This did not formally change with the two British occupations in 1795 and 1806. The reason is that the new rulers decided to retain the Roman-Dutch law as the law of the Cape and not to replace it with English law.3 The British occupation nevertheless had a profound influence on the nature of South African law. The broad pattern that emerged under British rule was a general movement towards English law and institutions.4 This trend was particularly noticeable in the fields of the administration of justice, procedural law, the law of evidence and commercial law (for example, company law and the law of negotiable instruments.) However, private law was not insulated from this process. One therefore finds the influence of English law in many areas of private law, for example, the law of contract, the law of delict, the law of succession (especially in the context of formalities) and the law of agency. The reception of the English trust into South African law (though not in its English form) also provides an interesting example of the interaction between civil law and common law in the South African context.5 One of the areas of South African private law in which the principles of Roman-Dutch law have been preserved to a large extent is the law of property (or the law of things as it should preferably be called).6 Roman law, as received into and developed in the province of Holland during the seventeenth and eighteenth centuries, therefore still forms the dogmatic basis of the modern South African law of property.7 It should be borne in mind, however, that much of the dogmatic and systematic refinement of modern South African property law can in fact be traced to the work of the German Pandectists of the nineteenth century. The Roman-Dutch law of property, as transplanted to South Africa, has of course been further refined by the legislator and the courts. English law played a very minor role in this process of refinement and development. 2R. Zimmermann and D. Visser ‘South African Law as a Mixed Legal System’ in R. Zimmermann and D. Visser (eds.) Southern Cross: Civil Law and Common Law in South Africa Clarendon Press, Oxford (1996) 1 at 2. 3H.R. Hahlo and E. Kahn The South African Legal System and Its Background Juta and Co., Cape Town (1973) 575ff. 4Hahlo and Kahn (n. 3) 576. 5See, in general, T. Honoré ‘Trust’ in Zimmermann and Visser (eds.) (n. 2) 849ff. 6See, in general, C.G. van der Merwe Sakereg (2nd ed.) Butterworths, Durban (1989) 6. 7C.G. van der Merwe and M.J. de Waal The Law of Things and Servitudes Butterworths, Durban (1993) sect. 6
Although the basis or foundation of South African property law remains Roman-Dutch, the role of legislation in the development of this area of the law warrants special mention. Indeed, an important dimension of South African property law is made up by what can be called statutory property law. Examples of legislation promulgated over the years affecting the law of property include environmental legislation influencing the use and exploitation of both public and private property, legislation dealing with the problem of informal housing (squatting), legislation dealing with mineral rights and legislation relating to sectional titles, time-sharing and real securIty As is the case with virtually every aspect of South African law, the law of property has also not been left untouched by the countrys new constitutional order. In this regard one does not only think of the constitutional property clause as such but also of recent legislation dealing with issues like restitution and redistribution of land and the provision of security of tenure to large numbers of, especially rural, land dwellers. 9 In this article, the focus will fall on an aspect of traditional property law, namely the numerus clausus principle. In particular the place and status of this principle and its effect on the development of new real rights in South African law will be discussed. This will be done, first by explaining the dogmatic treatment of the numerus clausus principle within the context of South African property law and, secondly, by illustrating the South African approach with a brief discussion of three specific examples from case law. In conclusion the treatment of the numerus clausus principle in South African law will be critically assessed, also with reference to one development within the context of recent statutory property law 2. The South African law of property and the numerus clausus principled The basic civilian character of the South African law of property is explained as follows by Van der merwe Roman law still forms the dogmatic basis of the modern [ South African] law of things Roman law influence is perceived in the clear distinction between ownership and possession and that between ownership and limited real rights; the perception of ownership as an indivisible right which confers on an individual the widest possible ownership in a movable; the various forms of real security; and the majority of the or powers with regard to a thing; the emphasis on delivery as a prerequisite for transfer original modes of acquisition of ownership 8Sect. 25 of the Constitution of the Republic of South Africa Act 108 of 1996 9As to this legislation, see further sect. 4 below tOThe exposition in this section dra ws heavily on the corresponding section in M.J. de Waal The Uniformity of Ownership, Numerus Clausus and the Reception of the Trust into South African Law, paper read at a conference on Trusts in Mixed Legal Systems at Utrecht University on 18 June 1999 I In Van der Merwe and De Waal(n 7)sect. 6
Although the basis or foundation of South African property law remains Roman-Dutch, the role of legislation in the development of this area of the law warrants special mention. Indeed, an important dimension of South African property law is made up by what can be called ‘statutory property law’. Examples of legislation promulgated over the years affecting the law of property include environmental legislation influencing the use and exploitation of both public and private property, legislation dealing with the problem of informal housing (‘squatting’), legislation dealing with mineral rights and legislation relating to sectional titles, time-sharing and real security. As is the case with virtually every aspect of South African law, the law of property has also not been left untouched by the country’s new constitutional order. In this regard one does not only think of the constitutional property clause8 as such but also of recent legislation dealing with issues like restitution and redistribution of land and the provision of security of tenure to large numbers of, especially rural, land dwellers.9 In this article, the focus will fall on an aspect of traditional property law, namely the numerus clausus principle. In particular the place and status of this principle and its effect on the development of new real rights in South African law will be discussed. This will be done, first, by explaining the dogmatic treatment of the numerus clausus principle within the context of South African property law and, secondly, by illustrating the South African approach with a brief discussion of three specific examples from case law. In conclusion the treatment of the numerus clausus principle in South African law will be critically assessed, also with reference to one development within the context of recent ‘statutory property law’. 2. The South African law of property and the numerus clausus principle10 The basic civilian character of the South African law of property is explained as follows by Van der Merwe:11 Roman law still forms the dogmatic basis of the modern [South African] law of things. Roman law influence is perceived in the clear distinction between ownership and possession and that between ownership and limited real rights; the perception of ownership as an indivisible right which confers on an individual the widest possible powers with regard to a thing; the emphasis on delivery as a prerequisite for transfer of ownership in a movable; the various forms of real security; and the majority of the original modes of acquisition of ownership. 8Sect. 25 of the Constitution of the Republic of South Africa Act 108 of 1996. 9As to this legislation, see further sect. 4 below. 10The exposition in this section draws heavily on the corresponding section in M.J. de Waal ‘The Uniformity of Ownership, Numerus Clausus and the Reception of the Trust into South African Law’, paper read at a conference on Trusts in Mixed Legal Systems at Utrecht University on 18 June 1999. 11In Van der Merwe and De Waal (n. 7) sect. 6
One of the basic principles of the civil law of property is the numerus clausus principle 12 This means that only real rights, means of delivery of movables and modes of original acquisition of ownership that fall into one of the recognized categories, the numerus clausus, will be countenanced by the law. 13 Any new or additional real right thus falls outside the closed system (or numerus clausus) As far as the creation of new real rights is concerned, however, South African property law does not strictly adhere to this basic civilian principle. As a point of departure South African law falls back on the traditional categories of real rights acknowledged in Roman law(for example ownership, servitudes, mortgage and pledge). At the same time it accepts that new rights can be added and that within the framework of recognized categories new types can evolve. 14 Concerning the creation of new real rights, examples that have been added over the years include the lease of land, mineral rights and real rights in respect of units in a sectional title scheme Within the framework of the recognized categories of real rights mentioned above, several new types have evolved. In the context of servitudes one can mention new praedial servitudes which have developed due to typical South African cond itions(for example, the right of trekpath, the right of outspan and so-called restrictive cond itions in township developments), as well as a new type of personal servitude(the so-called servitudes irregulares). i5 In the sphere of real security the cession of registered mortgages as well as notarial bonds over movables have developed The abovementioned categories and extensions thereof received statutory recognition in the Deeds Registries Act, 16 in that the Act makes provision for the registration of these rights. 17 It should be pointed out that, in order for a right in land to have real effect, it must be registered in terms of the Act. The Act therefore deals with rights in land and it stipulates that only real rights in land are registrable. 18 However, the Act makes provision for the registration of real rights not specifically referred to in the Act 19 Consequently, a testator or a party to a contract is not 12Van der Merwe(n. 6)11f Van der Merwe and De Waal(n. 7)sect. 8 13/bid I4For the exposition that follows, see a lso Van der Merwe and De Waal(n. 7)sect. 45 SServitutes irregulares are personal servitudes with the contents of typical praedial serv itudes(for example, the rights of passage or pasturage ), but esta blished in favour of a particular person and not for the benefit of a dominant tenement 16Act47of1937 17Sect. 3(1) &Sect. 63(1 ). This section conta ins a proviso that a personal right may be registered if it is, in the opinion of the Registrar of Deeds, complementary or otherwise ancillary to'a registrable right. Such registration does not however, convert the personalright into a real right: D.G. Kleyn and A. Boraine Silberberg and Schoeman's The Law of Property (3rd ed. ) Butterworths, Durban(1992)162; N.J.J. Olivier, G.J. Pienaar and A J. van der Walt Law of Property: Students' Handbook(2nd ed. )Juta and Co., Cape Town(1992)236; Van der Merwe(n 6)477 19Sect. 3(1r)
One of the basic principles of the civil law of property is the numerus clausus principle.12 This means that only real rights, means of delivery of movables and modes of original acquisition of ownership that fall into one of the recognized categories, the numerus clausus, will be countenanced by the law.13 Any new or additional real right thus falls outside the closed system (or numerus clausus). As far as the creation of new real rights is concerned, however, South African property law does not strictly adhere to this basic civilian principle. As a point of departure South African law falls back on the traditional categories of real rights acknowledged in Roman law (for example, ownership, servitudes, mortgage and pledge). At the same time it accepts that new rights can be added and that within the framework of recognized categories new types can evolve.14 Concerning the creation of new real rights, examples that have been added over the years include the lease of land, mineral rights and real rights in respect of units in a sectional title scheme. Within the framework of the recognized categories of real rights mentioned above, several new types have evolved. In the context of servitudes one can mention new praedial servitudes which have developed due to typical South African conditions (for example, the right of trekpath, the right of outspan and so-called restrictive conditions in township developments), as well as a new type of personal servitude (the so-called servitutes irregulares).15 In the sphere of real security the cession of registered mortgages as well as notarial bonds over movables have developed. The abovementioned categories and extensions thereof received statutory recognition in the Deeds Registries Act,16 in that the Act makes provision for the registration of these rights.17 It should be pointed out that, in order for a right in land to have real effect, it must be registered in terms of the Act. The Act therefore deals with rights in land and it stipulates that only real rights in land are registrable.18 However, the Act makes provision for the registration of real rights not specifically referred to in the Act.19 Consequently, a testator or a party to a contract is not 12Van der Merwe (n. 6) 11f.; Van der Merwe and De Waal (n. 7) sect. 8. 13Ibid. 14For the exposition that follows, see a lso Van der Merwe and De Waal (n. 7) sect. 45. 15Servitutes irregulares are personal servitudes with the contents of typical praedial servitudes (for example, the rights of passage or pasturage), but established in favour of a particular person and not for the benefit of a dominant tenement. 16Act 47 of 1937. 17Sect. 3(1). 18Sect. 63(1). This section contains a proviso that a personal right may be registered if it is, in the opinion of the Registrar of Deeds, ‘complementary or otherwise ancillary to’ a registrable right. Such registration does not, however, convert the personal right into a real right: D.G. Kleyn and A. Boraine Silberberg and Schoeman’s The Law of Property (3rd ed.) Butterworths, Durban (1992) 162; N.J.J. Olivier, G.J. Pienaar and A.J. van der Walt Law of Property: Students’ Handbook (2nd ed.) Juta and Co., Cape Town (1992) 236; Van der Merwe (n. 6) 477. 19Sect. 3(1)(r)
restricted to a numerus clausus of real rights but is in principle entitled to establish new, hitherto unrecognized, rights in respect of his or her land. This made it essential for the courts to devise criteria to determine whether such a new right is real and thus registrable, or merely personal. In practice these criteria have therefore been developed by the courts in the context of the registration of real rights in respect of land What is more, the development of new real rights land is confined to limited real rights(that is, real rights with regard to someone else's property) New or additional kinds of ownership(such as the beneficial or equitable ownership of English law) could not be developed in this way in South african law. 20 Finally, it should be pointed out that the statement that there is no numerus clausus of real rights in South African law is also true with regard to real rights in movables. There is, however, no example of a new type of real right developed by the courts in the sphere of movables. here the categories of real rights remain the trad itional ones of ownership, personal servitudes and pledge the courts have developed the following two criteria or requirements. I real and thus registrable To determine whether a particular right or cond ition in respect of land (a) the intention of the person who creates the real right(testator or contracting party) must be to bind not only the present owner of the land, but also his successors in title; and (b) the nature of the right or cond ition must be such that registration of it results in a subtraction from the dominium of the land against which it is registered The first requirement does not, generally speaking, present any difficulties. It is purely subjective in nature and entails an interpretation of, for example, the will or contract in question in order to determine the intention of the party or parties who created the right The intention to create a real right is not, however, enough. A right which, according to its inherent nature, is highly personal cannot be converted into a real right by intention alone. 22 Obviously there is also a need for an objective criterion which can be used in the process of determining whether or not a particular right can at all be classified as a real right. The second requirement mentioned above, the o-called subtraction from the dominium'test, 23 has been developed in case law to fulfil this function. However, as will be illustrated in the next section, the formulation of this requirement or test is easier than its practical application 3. The application of the subtraction from the dominium'test: Three brief case studies Like other civilian legal systems, South African law adheres to the unitary concept of ownership(or the uniform ity of ownership). This means that there is only one kind of ownership and that ownership cannot be fragmented, in the sense that there cannot be intermediate degrees of ownership 2I Van der Merwe in Van der Merwe and De Waal(n. 7)sect. 46. This exposition of the criteria was approved by the highest court in Erlax Properties(Pty )Ltd. v Registrar ofDeeds 1992(1)SA 879(A) 22 Hollins v Registrar of Deeds 1904 TS 603: Lorent: v Melle and Others 1978(3)SA 1044(T); chiloane v Maduenyane 1980(4)SA 19(W) 23The expressions dim inution of ownership, "burden on the land'or" charge upon the land'are also sometimes used
restricted to a numerus clausus of real rights but is in principle entitled to establish new, hitherto unrecognized, rights in respect of his or her land. This made it essential for the courts to devise criteria to determine whether such a new right is real and thus registrable, or merely personal. In practice these criteria have therefore been developed by the courts in the context of the registration of real rights in respect of land. What is more, the development of new real rights in land is confined to limited real rights (that is, real rights with regard to someone else’s property). New or additional kinds of ownership (such as the ‘beneficial’ or ‘equitable’ ownership of English law) could not be developed in this way in South African law.20 Finally, it should be pointed out that the statement that there is no numerus clausus of real rights in South African law is also true with regard to real rights in movables. There is, however, no example of a new type of real right developed by the courts in the sphere of movables. Here the categories of real rights remain the traditional ones of ownership, personal servitudes and pledge. To determine whether a particular right or condition in respect of land is real and thus registrable, the courts have developed the following two criteria or requirements:21 (a) the intention of the person who creates the real right (testator or contracting party) must be to bind not only the present owner of the land, but also his successors in title; and (b) the nature of the right or condition must be such that registration of it results in a ‘subtraction from the dominium’ of the land against which it is registered. The first requirement does not, generally speaking, present any difficulties. It is purely subjective in nature and entails an interpretation of, for example, the will or contract in question in order to determine the intention of the party or parties who created the right. The intention to create a real right is not, however, enough. A right which, according to its inherent nature, is highly personal cannot be converted into a real right by intention alone.22 Obviously there is also a need for an objective criterion which can be used in the process of determining whether or not a particular right can at all be classified as a real right. The second requirement mentioned above, the so-called ‘subtraction from the dominium’ test,23 has been developed in case law to fulfil this function. However, as will be illustrated in the next section, the formulation of this requirement or test is easier than its practical application. 3. The application of the ‘subtraction from the dominium’ test: Three brief case studies 20Like other civilian legal systems, South African law adheres to the unitary concept of ownership (or the ‘uniformity of ownership’). This means that there is only one kind of ownership and that ownership cannot be fragmented, in the sense that there cannot be intermediate degrees of ownership. 21Van der Merwe in Van der Merwe and De Waal (n. 7) sect. 46. This exposition of the criteria was approved by the highest court in Erlax Properties (Pty.) Ltd. v Registrar of Deeds 1992 (1) SA 879 (A). 22Hollins v Registrar of Deeds 1904 TS 603; Lorentz v Melle and Others 1978 (3) SA 1044 (T); Chiloane v Maduenyane 1980 (4) SA 19 (W). 23The expressions ‘diminution of ownership’, ‘burden on the land’ or ‘charge upon the land’ are also sometimes used
3.1 General Although this test was already applied in the late nineteenth century, 4 one finds its classic formulation in the case of Ex parte Geldenhuys: 25 One has to look not so much to the right, but to the correlative obligation. If that obligation is a burden upon the land, a subtraction from the dominium, the correspond ing right is real and registrable; if it is not such an obligation, but merely an obligation binding on some person or other, the corresponding right is a personal right, or right in personam,and it cannot as a rule be registered It is generally accepted that this is also the test which the legislature uses in section 63 (1)of the Deeds Registries Act. 26 This section, without its proviso, 27 reads as follows No deed, or cond ition in a deed, purporting to create or embodying any personal right of immovable proper/y, shall be capable of registration . 2e sht of ownership in respect and no cond ition which does not restrict the exercise of anmy ri This test presupposes that a person's ownership of land is diminished or curtailed by the granting to another of a real right with regard to the land Put differently a real right which another person holds with regard to one's own land brings about a subtraction from or diminution of the normal powers of use, enjoyment, alienation or disposal inherent in one's ownership Only right which has this effect on a persons ownership of land is by nature real and thus registrable The practical application of this test will now be illustrated on the basis of three reported cases The first two cases deal with the question whether the right to demand payment of a sum of money from a landowner can be classified as a real right which can be registered against the title deed of the land. In the third case the question is whether the right to restrict the use and exploitation of land and the right to repurchase land which has been sold, are real and therefore gistrable 3.2 Lorentz v Melle and Others 29 Lorentz and Van Boeschoten acquired a farm in co-ownership and agreed to a division of part of the property. In terms of the agreement, each one of them would receive transfer of a specific e, for example, Consistory of Steytlerville v Bosman 1893 (10)SC 67 251926OPD155at164 26Act47of1937 27As to the proviso, see n 18 above 291978(3)SA1044(T)
3.1 General Although this test was already applied in the late nineteenth century,24 one finds its classic formulation in the case of Ex parte Geldenhuys: 25 One has to look not so much to the right, but to the correlative obligation. If that obligation is a burden upon the land, a subtraction from the dominium, the corresponding right is real and registrable; if it is not such an obligation, but merely an obligation binding on some person or other, the corresponding right is a personal right, or right in personam, and it cannot as a rule be registered. It is generally accepted that this is also the test which the legislature uses in section 63(1) of the Deeds Registries Act.26 This section, without its proviso,27 reads as follows: No deed, or condition in a deed, purporting to create or embodying any personal right, and no condition which does not restrict the exercise of any right of ownership in respect of immovable property, shall be capable of registration . . . 28 This test presupposes that a person’s ownership of land is diminished or curtailed by the granting to another of a real right with regard to the land. Put differently: a real right which another person holds with regard to one’s own land brings about a subtraction from or diminution of the normal powers of use, enjoyment, alienation or disposal inherent in one’s ownership. Only a right which has this effect on a person’s ownership of land is by nature real and thus registrable. The practical application of this test will now be illustrated on the basis of three reported cases. The first two cases deal with the question whether the right to demand payment of a sum of money from a landowner can be classified as a real right which can be registered against the title deed of the land. In the third case the question is whether the right to restrict the use and exploitation of land and the right to repurchase land which has been sold, are real and therefore registrable. 3.2 Lorentz v Melle and Others29 Lorentz and Van Boeschoten acquired a farm in co-ownership and agreed to a division of part of the property. In terms of the agreement, each one of them would receive transfer of a specific 24See, for example, Consistory of Steytlerville v Bosman 1893 (10) SC 67. 251926 OPD 155 at 164. 26Act 47 of 1937. 27As to the proviso, see n. 18 above. 28My emphasis. 291978 (3) SA 1044 (T)
portion of the farm -Lorentz of portion'A and Van Boeschoten of portion"B' The further provided that " if Lorentz lays out a township on his portion, Van Boeschoten shall have one-half of the net profits arising from the sale of such township payable from time to time as each lot or erf is sold...'. The same right was stipulated in favour of lorentz over the portion registered in Van Boeschoten's name. It is important to note that, according to the agreement, these rights were also to operate in favour of the two parties'"heirs, executors and assigns. The agreement was contained in a notarial deed which was registered against the title deeds of the respective properties and also of further subdivisions thereof. Melle( the respondent in the case) was one of Van Boeschoten's successors-in-title. She intended to sell her portion to a company for the purposes of establishing a township thereon Obviously she wanted to ensure that the purchaser would not be obliged to pay over half the profits which might accrue to it from the establishment of a township. She therefore approached the court for a declaratory order that the township clause only created personal rights in favour of Lorentz and Van Boeschoten(and their heirs, executors and assigns). The rights accord ingly had no real effect in the sense that they could also bind later purchasers such as the company to which she intended to sell her portion The court a quo granted the order. The present case was an appeal against the decision of the court a quo On appeal the appellant argued that the agreement and subsequent registration of the notarial deed d id in fact create real rights in the form of praedial servitudes. They therefore bound all successors-in-title of the original parties, including later purchasers of the land. This argument African law.30 On the basis of this analysis the court rejected the argument that praedial servitudes were created in casu. The court concluded that the rights created were merely ersonal 31 The right [and obligation] under consideration, so it appears to me, is essentially a personal one sound ing in money.. The cond itional obligation to pay attaches of rights are curtailed but not in relation to the enjoyment of the land in a physical seno o necessity not to the land [which is not burdened but merely to the owner thereof. Hi The mere fact that these rights were by mistake registered against the title deeds of the properties could not convert them into real rights. Accord ing to the court this was a case where the sanctity of the register'had to yield to the need for deleting the incorrect registration of contingent personal rights.32 Comments on the lorentz case have generally been favourable. 33 It has even been described as 30At1049-1051 31 At 1052D-E 32At1054F 33See, for example, H.J. Delport and N J.J. Olivier Sakereg Vonnisbundel(2nd ed. Juta and Co., Cape Town(1985) 542; Van der Merwe(n 6)76ff
portion of the farm - Lorentz of portion ‘A’ and Van Boeschoten of portion ‘B’. The agreement further provided that ‘if Lorentz lays out a township on his portion, Van Boeschoten shall have one-half of the net profits arising from the sale of such township payable from time to time as each lot or erf is sold . . .’. The same right was stipulated in favour of Lorentz over the portion registered in Van Boeschoten’s name. It is important to note that, according to the agreement, these rights were also to operate in favour of the two parties’ ‘heirs, executors and assigns’. The agreement was contained in a notarial deed which was registered against the title deeds of the respective properties and also of further subdivisions thereof. Melle (the respondent in the case) was one of Van Boeschoten’s successors-in-title. She intended to sell her portion to a company for the purposes of establishing a township thereon. Obviously she wanted to ensure that the purchaser would not be obliged to pay over half the profits which might accrue to it from the establishment of a township. She therefore approached the court for a declaratory order that the township clause only created personal rights in favour of Lorentz and Van Boeschoten (and their ‘heirs, executors and assigns’). The rights accordingly had no real effect in the sense that they could also bind later purchasers such as the company to which she intended to sell her portion. The court a quo granted the order. The present case was an appeal against the decision of the court a quo. On appeal the appellant argued that the agreement and subsequent registration of the notarial deed did in fact create real rights in the form of praedial servitudes. They therefore bound all successors-in-title of the original parties, including later purchasers of the land. This argument compelled the court to analyse the principles relating to the creation of servitudes in South African law.30 On the basis of this analysis the court rejected the argument that praedial servitudes were created in casu. The court concluded that the rights created were merely personal:31 The right [and obligation] under consideration, so it appears to me, is essentially a personal one sounding in money . . . [T]he conditional obligation to pay attaches of necessity not to the land [which is not burdened] but merely to the owner thereof. His rights are curtailed but not in relation to the enjoyment of the land in a physical sense. The mere fact that these rights were by mistake registered against the title deeds of the properties could not convert them into real rights. According to the court this was a case where ‘the sanctity of the register’ had to yield to the need for deleting the incorrect registration of contingent personal rights.32 Comments on the Lorentz case have generally been favourable.33 It has even been described as 30At 1049-1051. 31At 1052D-E. 32At 1054F. 33See, for example, H.J. Delport and N.J.J. Olivier Sakereg Vonnisbundel (2nd ed.) Juta and Co., Cape Town (1985) 542; Van der Merwe (n. 6) 76ff
watershed in respect of the distinction between real and personal rights.34 What the case does illustrate, however, is the essential unreliability of the subtraction from the dominium' test in properly identifying a right as real. The court acknowledged that an uncritical application of the test could have constrained it to reach a different conclusion on the facts of the case before it: 35 [A]s I have attempted to indicate, the mere fact that the prof its clause amounts to a subtraction from the dominium [as i think it does]does not make it.. a real servitude In other words, although an obligation to part with some of the profit gained at the alienation of one's land may amount to a subtraction from ones dominium, the correspond ing right cannot necessarily be classified as real. For the court, the correct test is rather whether the effect of the other's right is that the enjoyment of one's land is curtailed in a physical sense. 36 3.3 Pearly Beach Trust v Registrar of Deeds37 In this case, the applicant sought an order that a certain cond ition embodied in an agreement of sale of immovable property was, in terms of section 3(1(r) of the Deeds Registries Act,38 capable of registration against the title deed of the property In section 3(1(r) the Registrar is authorised, inter alia, to register any real right, not specifically referred to in this sub-section The condition in question provided in essence that the purchaser of the property and/or its successors in title' would be obliged to pay to a third party a certain percentage of any consideration received should the property in future be expropriated or disposed of to any authority with the power of expropriation. The same would have applied to any consideration received in terms of the grant of any option or right to prospect for minerals on the property. It became necessary for the applicant to approach the court because the registrar of Deeds refused to register the aforesaid cond ition. The Registrars refusal was based on section 63 (1)of the Deeds Registries Act39(quoted above ). 40 The Registrar argued that in order to qualify for registration the right must be such as to amount to a subtraction from the dominium of the land Here the right of successive owners of the land to grant mineral rights or to sell the land was not vAn der Merwe in Van der Merwe and De Waal (n 7)sect. 49 35At1052A 36At 1052D-E. This conclusion made it necessary for the court to distinguish earlier cases where the right to demand monetary payment was indeed classified as real and thus registrable. According to the court, the decision Registrar of Deeds ransvaal) v The Ferreira Deep Ltd 1930 AD 169 did not rest on a finding that the right to a share of the licences was capable of becominga real right on registration, but on the fact that registration of this type of deed had been sanctioned by usage and practice in the Transvaal. The decisions in Ex parte Pierce and Others 1950(3)SA 628(O)and Odendaalsrus Gold, General Investments and Extensions Ltd. v Registrar of Deeds 1953 ()SA 600(O), on the other hand, were distinguished on the basis that they were concerned with mine ral rights 371990(4)SA614(C Act 47 of 1937 39Act47of1937 40See subsect 3.1 a bove
‘a watershed in respect of the distinction between real and personal rights’.34 What the case does illustrate, however, is the essential unreliability of the ‘subtraction from the dominium’ test in properly identifying a right as real. The court acknowledged that an uncritical application of the test could have constrained it to reach a different conclusion on the facts of the case before it:35 [A]s I have attempted to indicate, the mere fact that the profits clause amounts to a subtraction from the dominium [as I think it does] does not make it . . . a real servitude. In other words, although an obligation to part with some of the profit gained at the alienation of one’s land may amount to a subtraction from one’s dominium, the corresponding right cannot necessarily be classified as real. For the court, the correct test is rather whether the effect of the other’s right is that the enjoyment of one’s land is curtailed in a physical sense.36 3.3 Pearly Beach Trust v Registrar of Deeds37 In this case, the applicant sought an order that a certain condition embodied in an agreement of sale of immovable property was, in terms of section 3(1)(r) of the Deeds Registries Act,38 capable of registration against the title deed of the property. In section 3(1)(r) the Registrar is authorised, inter alia, to ‘register any real right, not specifically referred to in this sub-section . . .’. The condition in question provided in essence that the purchaser of the property ‘and/or its successors in title’ would be obliged to pay to a third party a certain percentage of any consideration received should the property in future be expropriated or disposed of to any authority with the power of expropriation. The same would have applied to any consideration received in terms of the grant of any option or right to prospect for minerals on the property. It became necessary for the applicant to approach the court because the Registrar of Deeds refused to register the aforesaid condition. The Registrar’s refusal was based on section 63(1) of the Deeds Registries Act39 (quoted above).40 The Registrar argued that in order to qualify for registration the right must be such as to amount to a subtraction from the dominium of the land. Here the right of successive owners of the land to grant mineral rights or to sell the land was not 34Van der Merwe in Van der Merwe and De Waal (n. 7) sect. 49. 35At 1052A. 36At 1052D-E. This conclusion made it necessary for the court to distinguish earlier cases where the right to demand a monetary payment was indeed classified as real and thus registrable. According to the court, the decision in Registrar of Deeds (Transvaal) v The Ferreira Deep Ltd. 1930 AD 169 did not rest on a finding that the right to a share of the licences was capable of becoming a real right on registration, but on the fact that registration of this type of deed had been sanctioned by usage and practice in the Transvaal. The decisions in Ex parte Pierce and Others 1950 (3) SA 628 (O) and Odendaalsrus Gold, General Investments and Extensions Ltd. v Registrar of Deeds 1953 (1) SA 600 (O), on the other hand, were distinguished on the basis that they were concerned with mine ral rights. 371990 (4) SA 614 (C). 38Act 47 of 1937. 39Act 47 of 1937. 40See subsect. 3.1 above
per se restricted in any way. There was merely an obligation to pay over to a third party a share of the proceeds of such grant, sale or expropriation The court rejected the registrar's objection to registration It seems as if two considerations played a role in the courts decision. First, the fact that there was authority for the registration of cond itions which entailed an obligation to pay an amount of money to somebody else. 41 Secondly, and more importantly, the conclusion that the cond ition in question passed the "subtraction from the dominium'test the court motivated this conclusion as follows: 42 In my view one of the rights of ownership is the jus disponendi or right of alienation and if this right is limited in the sense that the owner is precluded from obtaining the full fruits of the disposition it can be said that one of his rights of ownership is restricted Registration of the cond ition was accord ingly allowed It is difficult, if not impossible, to reconcile this decision with that in the Lorentz case. In both allowed and in the other not. One of these decisions must therefore be wrong. Mosx was 0 cases the condition in question entailed payment by a land owner, to a third, of the proceeds received upon disposal of the land(or rights therein). In the one instance, registration commentators agree, 43 albeit for different reasons, that it is Pearly Beach. Criticism against the case includes the views that the subtraction from the dominium' test was not correctly formulated and applied in the case, 4 that a different test should have been employed 45 and that the court did not put sufficient emphasis on the reasoning in the lorent case. 46 Ultimately however, the Pearly Beach case is seen by all these commentators as another demonstration of the fact that the subtraction from the dominium'test does not provide a clear-cut answer to the question whether or not a new type of right in land is capable of registration. 47 3.4 Denel(Pty ) Ltd V Cape Explosive Works Ltd and Another48 In this regard, the court referred to a num ber of decisions, including those discussed and distinguished in the Lorentz case. see n. 34 above 42At617 43For a different view, see AJ. van der Walt 'Personal Rights and Lim ited Real Rights: An Historical Overview and Analysis of Contemporary Problems Related to the Registra bility of Rights'1992 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 170 at 203 44PJ. Badenhorst and P P J. Coetser"The Subtraction from the Dominium Test Revisited 1991 De Jure 375 45J.C. SonnekusSaaklike Regte of Vorderingsregte?-Tradisionele Toetse en'n Petitio Principii'1991 Tydskrif vir die Suid-Afrikaanse Reg 173 46C. G. van der Merwe " Law of Property'1990 Annual Survey of South African Law 192 at 206 47See furthersect. 4 beloy 481999(2)SA419(T
per se restricted in any way. There was merely an obligation to pay over to a third party a share of the proceeds of such grant, sale or expropriation. The court rejected the Registrar’s objection to registration. It seems as if two considerations played a role in the court’s decision. First, the fact that there was authority for the registration of conditions which entailed an obligation to pay an amount of money to somebody else.41 Secondly, and more importantly, the conclusion that the condition in question passed the ‘subtraction from the dominium’ test. The court motivated this conclusion as follows:42 In my view one of the rights of ownership is the jus disponendi or right of alienation and if this right is limited in the sense that the owner is precluded from obtaining the full fruits of the disposition it can be said that one of his rights of ownership is restricted. Registration of the condition was accordingly allowed. It is difficult, if not impossible, to reconcile this decision with that in the Lorentz case. In both cases the condition in question entailed payment by a land owner, to a third, of the proceeds received upon disposal of the land (or rights therein). In the one instance, registration was allowed and in the other not. One of these decisions must therefore be wrong. Most commentators agree,43 albeit for different reasons, that it is Pearly Beach. Criticism against the case includes the views that the ‘subtraction from the dominium’ test was not correctly formulated and applied in the case,44 that a different test should have been employed45 and that the court did not put sufficient emphasis on the reasoning in the Lorentz case.46 Ultimately, however, the Pearly Beach case is seen by all these commentators as another demonstration of the fact that the ‘subtraction from the dominium’ test does not provide a clear-cut answer to the question whether or not a new type of right in land is capable of registration.47 3.4 Denel (Pty.) Ltd. v Cape Explosive Works Ltd. and Another48 41In this regard, the court referred to a number of decisions, including those discussed and distinguished in the Lorentz case: see n. 34 above. 42At 617I. 43For a different view, see A.J. van der Walt ‘Personal Rights and Limited Real Rights: An Historical Overview and Analysis of Contemporary Problems Related to the Registrability of Rights’ 1992 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 170 at 203. 44P.J. Badenhorst and P.P.J. Coetser ‘The Subtraction from the Dominium Test Revisited’ 1991 De Jure 375. 45J.C. Sonnekus ‘Saaklike Regte of Vorderingsregte? - Tradisionele Toetse en ’n Petitio Principii’ 1991 Tydskrif vir die Suid-Afrikaanse Reg 173. 46C.G. van der Merwe ‘Law of Property’ 1990 Annual Survey of South African Law 192 at 206. 47See further sect. 4 below. 481999 (2) SA 419 (T)
In this case, one of the most recent cases on the numerus clausus problem, a number of issues between the parties had to be decided. For purposes of this discussion, the focus will fall on only one, namely the registrability or not of two cond itions which originally appeared in a deed for the sale of a piece of land. In one of these clauses, (clause 6), it was provided that the land could only be used for the manufacture of armaments by the government for any defence or military purpose. In the other, (clause 7), the purchaser granted the seller the first right to repurchase the property In order to answer the question as to the registrability or not of these rights, the court again accepted as correct the two-stage approach described above. 49 This means that the court had to determine, first, whether it was the intention of the parties to create a real right and, secondly, whether the nature of the right was such that it would result in a subtraction from the dominium In casu, the court preferred first to apply the second criterion, the subtraction from the dominium'test. This test. in the words of the court entails the following: 50 One compares the right in question and the correlative obligation to see whether the obligation is a burden upon the land itself or whether it is something which is to be performed by the owner personally. If it is the former, the right is capable of being a real right. If it is the latter. it cannot be a real right. In order to ascertain whether the obligation is a burden upon the land two useful concepts which have been used are that the curtailment of the owner's rights must be something in relation to the enjoyment of the land in the physical sense . or that the obligations affect the land or run with the The application of the test to the two cond itions in question led to different results. With regard to clause 6(the restriction on the use of the land ) the court decided that the cond ition curtailed the right to use the land and that it therefore amounted to a subtraction from the dominium. It therefore"fell squarely within the definition'of section 63(1)of the Registration of Deeds Act 5I and could, in principle, be registered as a real right. The cond ition contained in clause 7(the first right to repurchase), on the other hand, did not constitute a subtraction from the dominium: 52 There is nothing in clause 7 of the agreement which affects the property or which curtails [the] right of enjoyment of the property in the physical sense Clause 7 was therefore clearly'not registrable 53 sEe sect. 2 above 50 At 435E-F. This exposition reflects the classic formulation of the subtraction from the dominium'test in Ex parte Geldenhuys 1926 OPD 155 at 164: see subsect. 3. 1 above 5 Act 47 of 1937. See subsect. 3.1 above 52At437I 53Clause 7 was also not registrable in terms of the proviso to sect. 63(1)of the Act as it was not"complementary or otherwise ancillary to another registrable right. Even if it could be registered in terms of the proviso, it would not have been converted into a real right: see n. 18 above
In this case, one of the most recent cases on the numerus clausus problem, a number of issues between the parties had to be decided. For purposes of this discussion, the focus will fall on only one, namely the registrability or not of two conditions which originally appeared in a deed for the sale of a piece of land. In one of these clauses, (clause 6), it was provided that the land could only be used for the ‘manufacture of armaments by the government for any defence or military purpose’. In the other, (clause 7), the purchaser granted the seller ‘the first right to repurchase the property’. In order to answer the question as to the registrability or not of these rights, the court again accepted as correct the two-stage approach described above.49 This means that the court had to determine, first, whether it was the intention of the parties to create a real right and, secondly, whether the nature of the right was such that it would result in a subtraction from the dominium. In casu, the court preferred first to apply the second criterion, the ‘subtraction from the dominium’ test. This test, in the words of the court, entails the following:50 One compares the right in question and the correlative obligation to see whether the obligation is a burden upon the land itself or whether it is something which is to be performed by the owner personally. If it is the former, the right is capable of being a real right. If it is the latter, it cannot be a real right. In order to ascertain whether the obligation is a burden upon the land two useful concepts which have been used are that the curtailment of the owner’s rights must be something in relation to the enjoyment of the land in the physical sense . . ., or that the obligations ‘affect the land’ or ‘run with the land’. The application of the test to the two conditions in question led to different results. With regard to clause 6 (the restriction on the use of the land), the court decided that the condition curtailed the right to use the land and that it therefore amounted to a subtraction from the dominium. It therefore ‘fell squarely within the definition’ of section 63(1) of the Registration of Deeds Act 51 and could, in principle, be registered as a real right. The condition contained in clause 7 (the first right to repurchase), on the other hand, did not constitute a subtraction from the dominium: 52 There is nothing in clause 7 of the agreement which affects the property or which curtails [the] right of enjoyment of the property in the physical sense. Clause 7 was therefore ‘clearly’ not registrable.53 49See sect. 2 above. 50At 435E-F. This exposition reflects the classic formulation of the ‘subtraction from the dominium’ test in Ex parte Geldenhuys 1926 OPD 155 at 164: see subsect. 3.1 above. 51Act 47 of 1937. See subsect. 3.1 above. 52At 437I. 53Clause 7 was also not registrable in terms of the proviso to sect. 63(1) of the Act as it was not ‘complementary or otherwise ancillary to’ another registrable right. Even if it could be registered in terms of the proviso, it would not have been converted into a real right: see n. 18 above