The Distinction between Real Rights and Personal Rights in the Deeds Registration System of South Africa – Part Two: Pragmatic Distinction between Real Rights and Personal Rights

Abstract

The second part of this article deals with the pragmatic approach of the South African courts to determine whether a right is real and, therefore, registrable in the deeds registry. The courts use a two-fold test to distinguish between real and personal rights, namely the subtraction from the dominium test and the intention test. It is indicated that the first test focuses on the impact of the right under investigation upon ownership while the second test focuses on the intention of the parties regarding the nature of the right when it was created. The application of the subtraction from the dominium test by the courts is discussed against the backdrop of a newly suggested classification of entitlements of ownership of land that are relevant within the context of the registrability of real rights. It is concluded that the common law distinctions between personal and real rights, and between ownership and limited real rights, still provide a solid conceptual basis in post-apartheid South African property theory.