QUESTION 1

Distinguishing between real and personal rights is vital, especially when dealing with the
registration of rights against immovable property. The "subtraction from dominium test" is
employed to establish whether a right can be registered as a real right against a title deed.
This essay evaluates the refusal of the registrar of deeds to register conditions imposed by
Themba and Catherine's mutual will as real rights, applying the subtraction from dominium
test alongside pertinent case law. Additionally, it examines a scenario where Themba and
Catherine, still alive and childless, agree to subdivide and register their farm.

The subtraction from dominium test evaluates whether a right sufficiently diminishes the
current owner's dominium to qualify as a real right. Unlike personal rights enforceable
against specific individuals, real rights are registerable and affect the property itself. The
will specifies that the farm must be subdivided among their children, with compensation
for the child receiving the homestead. The registrar's refusal to register these conditions
suggests they do not create real rights.

The will's conditions aim to permanently alter the ownership structure by subdividing the
farm. Real rights must be capable of registration. If the conditions permanently affect
property ownership, they should qualify for registration. In *Ex parte Geldenhuys 1926 AD
59*, the court determined that a right is registerable if it diminishes dominium and binds
successors in title. The conditions outlined in the will appear to meet this criterion. In
*Lorentz v Melle, the court emphasized that real rights impose immediate burdens on
property. The will's conditions, requiring division and compensation, clearly meet this
standard.

The registrar of deeds was partially correct in refusing to register the conditions imposed by
the will. The condition requiring the division of the farm among the children upon the eldest
child’s majority creates a real right, as it subtracts from the dominium of the property.
Therefore, it should be registered. However, the compensation clause creates a personal
right, which is not registrable as a real right.

Catherine and the children can challenge the registrar’s refusal to register the division
condition, as it meets the criteria for a real right under the “subtraction from dominium
test” and relevant case law. However, the compensation clause should be enforced as a
personal right through contractual obligations among the children.

Assuming Themba and Catherine are alive and childless, their agreement to subdivide and
register the farm creates another scenario. Themba later argues that these conditions
created personal rights, not real rights.
The subdivision agreement permanently alters the ownership structure of the farm and the
registration of the notarial deed indicates an intent to create real rights binding future
owners.

In *Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 (3) SA 569 (SCA)*, the court stressed
the importance of registrability for rights passing the subtraction from dominium test. The
registered notarial deed indicates an intent to create real rights.

*Webb v Chesterton 1926 AD 10* held that a right must intend to burden land permanently.
The agreement between Themba and Catherine meets this criterion.The registered
subdivision agreement creates a permanent burden on the property. Applying the
subtraction from dominium test, these conditions qualify as real rights. The distinction
from the will's conditions lies in the explicit registration and clear intention in the second
scenario, aiming to permanently affect the property.

In addressing Chalkey's concern over his sister Melina's noise-making device, installed to
deter blue wildebeest, this analysis determines whether the noise constitutes a legal
nuisance and assesses Chalkey's potential to obtain an interdict against Melina.

Nuisance, refers to unreasonable interference with land use and enjoyment. The
interference must be substantial and exceed normal tolerance levels. Melina's device
emits continuous loud cracking sounds day and night. Pragtigfontein's rural setting implies
a tolerance for some noise, though excessive noise may be deemed unacceptable. The
standard applied is that of an average person and the necessity of Melina's device must be
balanced against the harm caused to Chalkey.

In the *Clifton case, the court ruled that noise could constitute a nuisance if it disrupts
ordinary comfort according to local norms. *Gien v Gien sets the test for nuisance based
on its impact on an average person's property enjoyment and in the Howard case an
interdict was granted for noise nuisance, considering the level of inconvenience.

Chalkey must show that Melina's noise constitutes substantial and unreasonable
interference surpassing local tolerance levels. The continuous loud cracking sounds
affecting Chalkey's sleep and work indicate significant interference.

It must be shown that the device's continuous operation disrupts normal rural noise levels
and that the noise disrupts Chalkey's daily activities beyond what an average person would
deem reasonable, if all these are sufficiently proven, Chalkey may successful obtain an
interdict to stop the noise.