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