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Name: Primrose Tom Reg No: R186405L COURSE: Property Law Faculty: Law LECTURER: Advocate Musarurwa DUE DATE: 30 November 2020

This document contains a summary of the key principles regarding real rights in civil law and common law. It discusses how real rights refer to rights attached to property rather than a person, including ownership, use, pledge, usufruct, mortgage, habitation and predial servitude. It also examines the requirements for a right to be considered a real right, namely the intention to bind successors in title and that is subtracts from the owner's dominium (complete control) over the property. The document contrasts real rights with personal rights, and discusses different theories on distinguishing between the two.

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79 views6 pages

Name: Primrose Tom Reg No: R186405L COURSE: Property Law Faculty: Law LECTURER: Advocate Musarurwa DUE DATE: 30 November 2020

This document contains a summary of the key principles regarding real rights in civil law and common law. It discusses how real rights refer to rights attached to property rather than a person, including ownership, use, pledge, usufruct, mortgage, habitation and predial servitude. It also examines the requirements for a right to be considered a real right, namely the intention to bind successors in title and that is subtracts from the owner's dominium (complete control) over the property. The document contrasts real rights with personal rights, and discusses different theories on distinguishing between the two.

Uploaded by

Tinotenda Fred
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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NAME: Primrose Tom

REG NO: R186405L


COURSE: Property Law
FACULTY: Law
LECTURER: Advocate Musarurwa
QUESTION:
DUE DATE: 30 November 2020
In civil law a real right refers to aright that is attached to a thing rather than a person.
Real rights include ownership, use, pledge, usufruct, mortgage; habitation, and predial
servitude
At the heart of the common law of property is the distinction between “real” and
“personal” rights. Ownership is complete control “dominium” over a thing.Real rights
are best understood as legally “parcelled off” aspects of an owner’s complete
control over a thing.They either restrain the owner of the property from doing
something with it, or they give their holder aright (stronger than the owner’s) to do
something with or on the subject property.Accordingly, in the applicable case law,
real rights have been characterised as “subtractions from the dominium” an owner
has over a thing. In Ex Parte Geldenhuys, De Villiers JP, in characterising
whether a right is a “subtraction from dominium”had this to say –“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 real
right is registerable; if it is not such an obligation but merely an obligation
binding upon some person or other, the corresponding right is a personal right, or a right
in personam, and it cannot as a rule be registered.
Wits Property Law, 20132So, for example, if Jacksells land to Vusion condition that if
Vusi later sells the land again, the purchase price may not be morethan Vusipaid for it,
the right created is not a real right, because it only binds Vusi, and not the subsequent
purchaser. The intention to bind successors in title is not present. The condition only
binds person B.
This example is taken from Fine Wool Products of South Africa v Director of
Valuations 1950 (4) SA 490 (E)(referred to in Pearly Beach Trust v Registrar of
Deedsat 616F-J).The above requirements forthe existence of a real right are
summarised by the Supreme Court of Appeal in Cape Explosive Works Ltd v
Denel (Pty) Ltd and Othersat paragraph 12 –“To determine whether a particular
right or condition in respect of land is real, two requirements must be satisfied –
(1)The intention of the person who creates the real right must be to bind not only the
present owner of the land, but also his successors in title; and(2)The nature of the
right or condition must be such that the registration of it results in a “subtraction
from dominium” of the land against which it is registered.”Personal RightsIf a right
created between parties does not meet both of these criteria, then it is a merely
“personal” or “creditor’s” right, which is only effective against the person to whom
it applies. In the Fine Woolsexample given above, Person A’s right is only
against person B. He cannot stop anyone who owns the land after person B
from selling it for more than Person B bought it. A personalpropertyright
preventsanother person from dealing with property in a given manneror requires them to
deal in a given manner with the property.
In ascertaining the legal nature of a real right ,different theories are advanced to
distinguish between real rights and personal rights these are the classical theory and
the personalist theory.
The general principles governing the derivative acquisition of real rights are further
considered
in this chapter. However, the various modes of acquiring real rights are primarily dealt
with
under ownership as some of them, more particularly some of the original modes, will
hardly find
application in the case of limited real rights. Where applicable, and also where the
requirements
for acquiring a particular limited real right differ from those applying to ownership,
reference is
again made to these modes in the various chapters on the respective limited real rights.
For the
sake of convenience, the general principles governing the acquisition of real rights by
registration are dealt with separately in chapter 10.
5.3.1 Original acquisition of real rights
Original methods of acquiring real rights include occupation in the case of an unowned
thing,
accession, specification, mingling, mixing and prescription’s As a general rule therefore,
the
original acquisition of a real right is constituted by a unilateral act or series of such acts
by the
person who acquires it. The tide of the acquirer is not derived from that of any
predecessor and
is, consequently, not affected by infirmities in the title of a predecessor
Derivative acquisition, on the other hand, is always the result of a bilateral transaction
as it
involves the co-operation of a predecessor in tide, or a person acting in his or her stead.
As an
acquirer in terms of a derivative method of transfer derives his or her tide from that of
the
predecessor, his or her title will be subject to any infirmities in the predecessor’s title.

If a legal system makes the transfer of a real right dependent on a valid underlying
contract it is
said to adhere to the causal theory, while the opposite approach is based on the so-
called abstract
theory. The causal theory lays down that, if the cause for the transfer of a real right is
defective,
the real right will not pass, notwithstanding that there has been delivery or registration of
a
thing.” In terms of the abstract theory, provided that the agreement to transfer a real
right (the
real agreement) is valid, the real right will, in general, pass in the pursuance and on
implementation thereof, notwithstanding that the cause (underlying contract) is
defective.
Initially the causal system was applied in our law, but in Commissioner of Customs and
Excise v
Randle, Brothers and Hudson Ltd” it would appear that the Appellate Division was of the
opinion that the effectiveness of an act of transfer must be determined separately from
any
preceding cause. This is, of course, characteristic of the abstract system of transfer. In
this case,
the question arose whether importers of cloth had validly transferred the ownership in
that cloth
to a firm of manufacturers when the sole object of the arrangements between the
parties was to
avoid the payment of customs duty on the import of the cloth into South Africa.
The transaction
was described as a sale but since no attempt had been made to disguise its true nature
or to
conceal its object, the court took the view that if parties openly and honestly devise a
transaction
to avoid the prohibitions of a statute or a tax liability, it will be interpreted according to its
tenor
and then the only question is whether, so interpreted, it falls within or without the
prohibition or
the tax. Here the crux of the matter was whether the manufacturers had effectively
acquired
ownership of the cloth. If they had done so, then no import duty was due; if they had not
done
so, then the duty had to be paid. However, the commissioner of customs argued that,
even
though the parties had not acted to evade the law (in fraudem legis), the arrangement
between
them was not sufficient to support their claim that ownership had passed. Watermeyer
JA dealt
with this argument on the following basis: If the parties desire to transfer ownership and
contemplate that ownership will pass as a result of the delivery, then they in fact have
the
necessary intention and the ownership passes by delivery. It was contended, however,
on behalf
of the appellant that delivery accompanied by the necessary intention on the part of the
parties to
the delivery is not enough to pass ownership; that some recognised form of contract (a
causa
habilis, as Voet, 41.1.35, puts it) is required in addition . I do not agree with that
contention. The
habilis causa referred to by Voet means merely an appropriate causa, that is, either an
appropriate reason for the transfer or a serious and deliberate agreement showing an
intention to transferThe formulation of a just cause (iusta causa) or suitable cause
(causa habilis) by Centlivres JA
also strongly implied the application of the abstract system. He stressed that a wide
meaning
must be given to these concepts: The legal transaction preceding the traditio may be
evidence
of an intention to pass and acquire ownership, but there may also be direct evidence of
an
intention to pass and acquire ownership and, if there is, there is no need to rely on a
preceding
whether ownership passed depends on the intention of the parties and such intention
may be
proved in various ways’ (our emphasis).
As far as the transfer of ownership of movables is concerned, any uncertainty that might
still
have existed in our law about the prevailing system has been clarified in inter alia the
subsequent cases of Trust Bank van Afrika Bpk v Western Bank Bpk” and Air-Kel h/a
Merkel
Motors v Bodenstein. Also, in the earlier case of MCC Bazaar v Harris and Jones (Pty)
Ltd’’ the
question whether ownership could have passed despite the invalidity of a preceding
contract was
answered in the affirmative. Trengove AJA confirmed this in the Trust Banes case. He
states
unequivocally: According to our law ownership in a movable thing passes to another
where the
owner thereof delivers it to another, with the intention of transferring ownership to him,
and the
other takes the thing with the intention of acquiring ownership thereof. The validity of the
transfer of ownership is independent of the validity of the underlying contract.
In the Air-Kel case Jansen JA explicitly accepted the abstract system of transfer of
ownership as
part of our law,” although in this case the court was also only concerned with the
transfer of a
movable. However, in Brits v Eaton NO62 and Merck NO v Van Zyl and Maltz NNO and
Related Cases” it was accepted that the abstract system is applicable to movables and
immovables alike.”

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