Question 2

(a)

In South African law, nuisance can be classified broadly into two categories: nuisance in
the narrow sense and nuisance in the wider sense. Nuisance in the narrow sense involves
interference with the use and enjoyment of land, while nuisance in the wider sense extends
to unreasonable interference with the comfort, convenience, or health of others. John's
situation falls under nuisance in the wider sense due to the impact of slate waste on his
citrus farm.

The criterion for determining whether there is nuisance in this instance involves assessing
whether Magnificent Mining Ltd's activities unreasonably interfere with John's use and
enjoyment of his land. The principles guiding this assessment include considering the
severity of the interference, the character of the neighborhood, and the utility of the
defendant's conduct.

In *Linden v Linden*, the court emphasized that the interference must be substantial and
unreasonable. If John proves that the slate waste has caused significant damage to his
land and threatens his ability to grow citrus crops, this could constitute an unreasonable
interference.

The remedy available to John, if successful in court, could include an injunction to stop
Magnificent Mining Ltd from allowing further slate waste spillage onto his land.
Alternatively, he could seek compensation for the damage caused to his land and crops. In
the *Kloppers case, the court highlighted the availability of both injunctive relief and
damages as remedies for nuisance.

(b)

Assuming John co-owns the farm with his son Jeff under a partnership agreement, they
would be considered co-owners in terms of joint ownership. Joint ownership implies that
each co-owner has an undivided share in the whole property. This means neither John nor
Jeff can claim exclusive ownership of any particular part of the farm.

The implications of joint ownership include the requirement for unanimous consent for
major decisions affecting the property, such as its sale or significant alterations. Each co-
owner also has the right to use and enjoy the property, subject to the rights of the other co-
owners. In the Von Abo case the court reaffirmed that joint owners must act in concert
regarding the use and management of the property.
(c)

Regarding John's sale of the farm to Magnificent Mining Ltd and the condition in the deed of
sale, the registrar of deeds refused to register it, arguing it creates a personal right rather
than a real right. The “subtraction from dominium test” determines whether a condition
creates a real right or a personal right. Real rights affect the dominium, or right of
ownership, over the property itself and are enforceable against the world at large. Personal
rights, on the other hand, are enforceable only against specific individuals.

In the Geldenhuys case, the court emphasized that for a condition to constitute a real right,
it must directly diminish the dominium of the property owner. The condition in Geldenhuys
was found to create a personal right because it imposed an obligation on a specific lessee
rather than affecting the owner’s broader dominium.

In the *Bosch case, the court applied the subtraction from dominium test to decide
whether a condition created a real right or a personal right. The test assesses whether the
condition subtracts from the dominium (full ownership) of the property. If it does, it
typically creates a real right.

Applying this to John’s situation, the condition in his deed of sale does not appear to
subtract from his dominium over the land itself. Instead, it imposes an obligation on
Magnificent Mining Ltd to compensate a third party upon specific events. Therefore, this
condition is likely construed as creating a personal right, enforceable against Magnificent
Mining Ltd but not altering the fundamental dominium of John’s property.

Consequently, the registrar of deeds’ refusal to register the condition seems justified under
the principles that aim to distinguish between real rights and personal rights in property
transactions. This ensures clarity and predictability in property law, safeguarding the
integrity of property rights and their enforceability in various contexts.

In conclusion, the application of the “subtraction from dominium test” in John’s case
supports the registrar’s decision, aligning with established legal principles governing the
distinction between real rights and personal rights in South African property law.