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The distinction between real rights and personal rights in the deeds registration system of South Africa – part one: Statutory and theoretical distinction between real rights and personal rights

Version 2 2024-06-03, 18:09
Version 1 2021-08-17, 11:20
journal contribution
posted on 2024-06-03, 18:09 authored by Pieter BadenhorstPieter Badenhorst
Real rights in respect of land are registrable in the deeds registration system of South Africa, while personal rights may not be registered. The Deeds Registries Act 47 of 1937, which allows an open system of real rights, does not define real rights and personal rights properly, and does not draw a distinction between such rights. In this article in two parts the view is expressed that the nature of these rights is determined by distinguishing real rights from personal rights, especially in terms of the doctrine of subjective rights, and by distinguishing between ownership and limited real rights by application of the subtraction from the dominium test (as supplemented by the intention test). Both fundamental distinctions are founded in the South African common law and still form the basis for a modern theory of real rights.

History

Journal

African Journal of International and Comparative Law

Volume

29

Pagination

450-462

Location

Edinburgh, Scot.

ISSN

0954-8890

eISSN

1755-1609

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

Issue

3

Publisher

Edinburgh University Press

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