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

In the first part of the article the distinction between real and personal rights for purposes of the provisions of the Deeds Registries Act1 (‘DRA’) were discussed. The theoretical distinctions between real and personal rights and the limitations of these distinctions were also discussed in the first part of this article. In practice, a so-called twofold test,2 namely the subtraction from the dominium test and the intention test, have been developed and are used by the courts as a priori criteria to determine whether a right is real and, therefore, registrable in the deeds registry.3 As will be indicated, 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.4 The main emphasis of the present discussion will, however, be on the subtraction from the dominium test