REAL RIGHTS A right is a legally recognized, valued claim by a subject to an object An object is anything in regard to which a person can

acquire or hold rights A subject is a bearer of rights can be natural or juristic persons) Distinction between real rights and personal rights Real right rights to something; Chetty case; most comprehensive right Personal right rights to performance; a claim to act positively or refrain; not considered as a property right Limited real rights rights protected where person enjoys property of another person (mortgage, lease, servitude) i.Mortgageii. Leaseiii. Servitude: Praedical adjacent property used for others; Personal servitude usufructi v. Mineral rights Lebowa Mineral Forum; mineral rights is not property (rather usufruct); but court has denied this; First Certification Judgment v. Liens right of retention exercised by a person who had done work for on another persons property May include patrimonial rights and immaterial property rights (copyright, patents, trademarks)B) Categories of real rights Real right without restriction is ownership; all other real rights are limited Roman law knew a closed system of real rights; not Roman-Dutch law South Africa does not have a closed system (new real rights can develop) Mortgage (hypotheca) Perpetual Lease (emphyteusis) Servitude:i.Praedical adjacent property used for othersii.Personal servitude usufruct Mineral rightsi.Lebowa Mineral Forumii.mineral rights are not property (rather usufruct) however thecourts have denied thisiii.First Certification Judgment 9 Liens right of retention exercised by a person who had done work for onanother persons property

MortgagesC) Characteristics of real rights Must consider the intention of the person creating the real right doesntonly bind the current owner, but also future owners, Fine Wool Products Case Ex Parte Geldenhuys Felix v Nortier Kain v Kahn Pearly Beach Trust CaseD) Requirements for recognition of new real rights There are a number of types of real rights not a closed system in SouthAfrica Arguable that we should return to a closed list of items S3(1)(r) of Deeds Act long list of real rights; registrar can further register any rights that are on the list S16 of Conveyance law ownership can be conveyed only through a deedof sale S63 of Deeds Act NB!i.Ex Parte Geldenhuysii.Have laid down certain requirements for the registration of realrightsiii.Section is couched in negative termsE) Registration of real rights Right is adequately protected in registration Ownership in land must be conveyed from one person to another processof publicizing and recording Registration has a dual functioni.Indicates the act of delivery in respect of acquisition of immovablesii.Provides a public record of real rights Deeds Registries Act is fundamentalF) Classes of Personal Rights Odendaalrus case S102 of Deeds Registries Act provides definitions including rightswhich become real on registration Rights of pre-emptioni.Crous v Utilitas

Revisionary rights10 i.Land sold by government, where property was sold in condition if not used in accordance to rules, would revert to the localgovernment Registrar of Deeds v Ferreira Deep S20 of Alienation Act sale of residential property (registered against titledeeds)G) Registration of personal rights S63 of the Deeds Registries Act must be registered in deeds registry,subject to exceptions; however, generally not registered unless in proviso (if they are complimentary they may be registered) Personal rights may be ancillary to real rights they are so intimatelyconnected with the real right (Ex Parte Geldenhuys) S63(1) does not related to lease, mortgage bonds or grantsH) Registrability of rights and changing face of property law Meaning is found in definition section of Alienation Acti.In relation to land means it is capable of being registered as asubject of separate titleii.All laws relating to registration must be complied withiii.It must be capable of being transferred Registrabilityi.Only real rightsii.Personal rights are only registered under certain conditionsiii.Hollins v Registrar of Deeds Distinction between Personalist and Classicalist approachesi.PersonalistFocus on person against the right is exercised Real rights are absolutePersonal rights are relative to enforcement and situation right to pursuit to claim stolen goods (Chetty case) Criticisms A)A fiction to regard real rights as creating a universalobligation (which all outsiders must not interferewith)B)Will not always operate absolutelyC)Some personal rights are absolute Solomon v DuPreez; Dunn caseii.Classicalist Real and personal rights in regard to the object of the right

Real rights - relationship between a person and an object;give rise to power and control of corporeal things; directcontrol11

Personal rights relationship between persons; give rise toa claim against another person; governs relationship betweenACQUISITION OF REAL RIGHTSA) Publicity Principle Real rights are absolute, so the holder may claim control over the object of the right Hence it is desirable that people are aware that someone owns the right So it is best if the world at large are aware that the real right is owned by acertain person hence advertised If it is the transfer of movable property must be publicized to the outsideworld; but rebuttable presumption of law that the possessor of a movablething is also the owner thereof (so possession)In the case of immovable property effect is found in the deedsregistration act everyone is given access to these records (registration) So calleddoctrine of constructive notice B) Modes of acquisition of real rights It can either be newly created without the co-operation of the predecessor in title; or it is already in existence and merely transferred from one toanother, or created without the cooperation of a predecessor in title original and derivative acquisition Original acquisition (unilateral) includes occupation of unowned things,accession, specification, mingling, mixing and prescription; not affected by infirmities in the title of a predecessor Derivative acquisition (bilateral) result of a bilateral transaction with co-operation from a predecessor in title Derivative acquisition:Dichotomy between contract and deliveryoIf a right already exists then the transfer constitutes the performance of a contract; but still a separate legal transactionoWhereas if there is an already existing right then it istransferred in delivery Derivative acquisition:Elements in the transfer of rightsoThe object of the real right must be a thing in commerceoTransferor must be legally competent to be transfer the object(contractual requirements)12

oTransfer must be effected by the holder of the real right (cannotcontract to transfer something that doesnt belong to that person)oFor transferor Mvusi v MvusioTransferee must be competent to acquire the rightoOnly transferee can accept the transfer oOnly through recognizable forms of delivery or registrationoMere physical deliver or registration is insufficient must also be intention to be boundoOnly on payment of the contract will the transfer take placeoMust be based on just cause Derivative acquisition: Abstract and causal theories of transfer oIf the transfer is based on a contract then it is viewed as part of a causal theory of transfer if the cause for the transfer isdefective, the real right will not passoOpposite approach to causal theory is the abstract theory provided agreement to transfer real right its valid, the real rightwill pass in the pursuance (regardless of the defective cause of the contract)oCausal system was originally applied, but now this has changedto the abstract approach (Commissioner of Customs case)oInAir-Kel casecourt held that the abstract system should beused, except this case only really dealt with the transfer of movable property; but this has been developed to immovable inBrits v Eaton NO Derivative acquisition: Just cause giving rise to transfer and theoriesoBecause the abstract theory doesnt make a transfer of realrights dependant on the validity of the contract, therefore, nowwhether a putative cause should be required for theeffectiveness of a transfer oTherefore, arguable that there must be some real agreement between the parties Derivative acquisition:Real agreement (vitiating circumstances) somecontracts are not regarded as being viable and valid in South AfricaoContracts which have an illegal objectoContracts, not illegal in themselves, but the law does not regardas sufficiently importantoContracts which are unenforceable because the law requires parties to comply with conditionsoIn individual cases are voidable as a result of mistake,misrepresentation, undue influence or duressC) Good Faith or Doctrine of Noticenobody will be allowed to derive a benefit from his own bad faith 13 Doctrine of notice acquisition from a counter-balancing considerationwith notice an earlier personal right transferred cannot be permitted todefeat the other persons personal right Application of the doctrine if the purchaser acquires ownership of something sold knowingoIt was previously sold to another (successive sales) thisshould be known at the time of transfer or deliveryoOf the undertaking of a predecessor in title to grant a servitudeto

the owner of a dominant tenement (unregistered servitudes) purchaser will have to have the servitude registeredoThat the acquisition is in conflict with the right of option, pre-emption (these will be declared void)oOf the right of the lessee to occupy the thing soldoOf an earlier undertaking by the predecessor in title toconstitute a mortgage of the propertyoSales in conflict with right of security Foundation and requirements of the doctrine of noticeoFraud was regarded as the theoretical basis for the doctrine however, developed, and now mere knowledge of the prior right is sufficientoRequirements Existence of prior personal right Infringement of a personal right by the subsequentacquirer Knowledge of the existence of the prior personal rightD) Extra stuff oSpecificity principles real rights can only exist in respect of specific things; owners do not have general rightsoTransmissibility on death, the heirs gain the property; highly personal rights cannot be transferred freely; unless restricted by registration (i.e. right of pre-emption)