NUMERUS CLAUSUS AND THE DEVELOPMENT OF NEW REAL RIGHTS IN SOUTH AFRICAN LAW(1)
M.J. de Waal (University of Stellenbosch, South Africa)
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1. Introduction: South African law as a 'mixed' legal system
Any contribution on South African private law should, at the outset, make it clear that South African law is a so-called 'mixed' legal system. This means that it is a legal system 'at the intersection of civil law and common law'.(2) From the time that the settlement at the Cape was established as an outpost of the Dutch East India Company (V.O.C.) in 1652, the law in this region was Roman-Dutch law (that is, a civilian system). This did not formally change with the two British occupations in 1795 and 1806. The reason is that the new rulers decided to retain the Roman-Dutch law as the law of the Cape and not to replace it with English law.(3)
The British occupation nevertheless had a profound influence on the nature of South African law. The broad pattern that emerged under British rule was a general movement towards English law and institutions.(4) This trend was particularly noticeable in the fields of the administration of justice, procedural law, the law of evidence and commercial law (for example, company law and the law of negotiable instruments.) However, private law was not insulated from this process. One therefore finds the influence of English law in many areas of private law, for example, the law of contract, the law of delict, the law of succession (especially in the context of formalities) and the law of agency. The reception of the English trust into South African law (though not in its English form) also provides an interesting example of the interaction between civil law and common law in the South African context.(5)
One of the areas of South African private law in which the principles of Roman-Dutch law have been preserved to a large extent is the law of property (or the law of things as it should preferably be called).(6) Roman law, as received into and developed in the province of Holland during the seventeenth and eighteenth centuries, therefore still forms the dogmatic basis of the modern South African law of property.(7) It should be borne in mind, however, that much of the dogmatic and systematic refinement of modern South African property law can in fact be traced to the work of the German Pandectists of the nineteenth century. The Roman-Dutch law of property, as transplanted to South Africa, has of course been further refined by the legislator and the courts. English law played a very minor role in this process of refinement and development.
Although the basis or foundation of South African property law remains Roman-Dutch, the role of legislation in the development of this area of the law warrants special mention. Indeed, an important dimension of South African property law is made up by what can be called 'statutory property law'. Examples of legislation promulgated over the years affecting the law of property include environmental legislation influencing the use and exploitation of both public and private property, legislation dealing with the problem of informal housing ('squatting'), legislation dealing with mineral rights and legislation relating to sectional titles, time-sharing and real security.
As is the case with virtually every aspect of South African law, the law of property has also not been left untouched by the country's new constitutional order. In this regard one does not only think of the constitutional property clause(8) as such but also of recent legislation dealing with issues like restitution and redistribution of land and the provision of security of tenure to large numbers of, especially rural, land dwellers.(9)
In this article, the focus will fall on an aspect of traditional property law, namely the numerus clausus principle. In particular the place and status of this principle and its effect on the development of new real rights in South African law will be discussed. This will be done, first, by explaining the dogmatic treatment of the numerus clausus principle within the context of South African property law and, secondly, by illustrating the South African approach with a brief discussion of three specific examples from case law. In conclusion the treatment of the numerus clausus principle in South African law will be critically assessed, also with reference to one development within the context of recent 'statutory property law'.
2. The South African law of property and the numerus clausus principle(10)
The basic civilian character of the South African law of property is explained as follows by Van der Merwe:(11)
One of the basic principles of the civil law of property is the numerus clausus principle.(12) This means that only real rights, means of delivery of movables and modes of original acquisition of ownership that fall into one of the recognized categories, the numerus clausus, will be countenanced by the law.(13) Any new or additional real right thus falls outside the closed system (or numerus clausus).
As far as the creation of new real rights is concerned, however, South African property law does not strictly adhere to this basic civilian principle. As a point of departure South African law falls back on the traditional categories of real rights acknowledged in Roman law (for example, ownership, servitudes, mortgage and pledge). At the same time it accepts that new rights can be added and that within the framework of recognized categories new types can evolve.(14)
Concerning the creation of new real rights, examples that have been added over the years include the lease of land, mineral rights and real rights in respect of units in a sectional title scheme. Within the framework of the recognized categories of real rights mentioned above, several new types have evolved. In the context of servitudes one can mention new praedial servitudes which have developed due to typical South African conditions (for example, the right of trekpath, the right of outspan and so-called restrictive conditions in township developments), as well as a new type of personal servitude (the so-called servitutes irregulares).(15) In the sphere of real security the cession of registered mortgages as well as notarial bonds over movables have developed.
The abovementioned categories and extensions thereof received statutory recognition in the Deeds Registries Act,(16) in that the Act makes provision for the registration of these rights.(17) It should be pointed out that, in order for a right in land to have real effect, it must be registered in terms of the Act. The Act therefore deals with rights in land and it stipulates that only real rights in land are registrable.(18) However, the Act makes provision for the registration of real rights not specifically referred to in the Act.(19) Consequently, a testator or a party to a contract is not restricted to a numerus clausus of real rights but is in principle entitled to establish new, hitherto unrecognized, rights in respect of his or her land. This made it essential for the courts to devise criteria to determine whether such a new right is real and thus registrable, or merely personal. In practice these criteria have therefore been developed by the courts in the context of the registration of real rights in respect of land. What is more, the development of new real rights in land is confined to limited real rights (that is, real rights with regard to someone else's property). New or additional kinds of ownership (such as the 'beneficial' or 'equitable' ownership of English law) could not be developed in this way in South African law.(20) Finally, it should be pointed out that the statement that there is no numerus clausus of real rights in South African law is also true with regard to real rights in movables. There is, however, no example of a new type of real right developed by the courts in the sphere of movables. Here the categories of real rights remain the traditional ones of ownership, personal servitudes and pledge.
To determine whether a particular right or condition in respect of land is real and thus registrable, the courts have developed the following two criteria or requirements:(21)
The first requirement does not, generally speaking, present any difficulties. It is purely subjective in nature and entails an interpretation of, for example, the will or contract in question in order to determine the intention of the party or parties who created the right. The intention to create a real right is not, however, enough. A right which, according to its inherent nature, is highly personal cannot be converted into a real right by intention alone.(22) Obviously there is also a need for an objective criterion which can be used in the process of determining whether or not a particular right can at all be classified as a real right. The second requirement mentioned above, the so-called 'subtraction from the dominium' test,(23) has been developed in case law to fulfil this function. However, as will be illustrated in the next section, the formulation of this requirement or test is easier than its practical application.
3. The application of the 'subtraction from the dominium' test: Three brief case studies
This test presupposes that a person's ownership of land is diminished or curtailed by the granting to another of a real right with regard to the land. Put differently: a real right which another person holds with regard to one's own land brings about a subtraction from or diminution of the normal powers of use, enjoyment, alienation or disposal inherent in one's ownership. Only a right which has this effect on a person's ownership of land is by nature real and thus registrable.
The practical application of this test will now be illustrated on the basis of three reported cases. The first two cases deal with the question whether the right to demand payment of a sum of money from a landowner can be classified as a real right which can be registered against the title deed of the land. In the third case the question is whether the right to restrict the use and exploitation of land and the right to repurchase land which has been sold, are real and therefore registrable.3.2 Lorentz v Melle and Others(29)
Lorentz and Van Boeschoten acquired a farm in co-ownership and agreed to a division of part of the property. In terms of the agreement, each one of them would receive transfer of a specific portion of the farm - Lorentz of portion 'A' and Van Boeschoten of portion 'B'. The agreement further provided that 'if Lorentz lays out a township on his portion, Van Boeschoten shall have one-half of the net profits arising from the sale of such township payable from time to time as each lot or erf is sold . . .'. The same right was stipulated in favour of Lorentz over the portion registered in Van Boeschoten's name. It is important to note that, according to the agreement, these rights were also to operate in favour of the two parties' 'heirs, executors and assigns'. The agreement was contained in a notarial deed which was registered against the title deeds of the respective properties and also of further subdivisions thereof. Melle (the respondent in the case) was one of Van Boeschoten's successors-in-title. She intended to sell her portion to a company for the purposes of establishing a township thereon. Obviously she wanted to ensure that the purchaser would not be obliged to pay over half the profits which might accrue to it from the establishment of a township. She therefore approached the court for a declaratory order that the township clause only created personal rights in favour of Lorentz and Van Boeschoten (and their 'heirs, executors and assigns'). The rights accordingly had no real effect in the sense that they could also bind later purchasers such as the company to which she intended to sell her portion. The court a quo granted the order. The present case was an appeal against the decision of the court a quo.
On appeal the appellant argued that the agreement and subsequent registration of the notarial deed did in fact create real rights in the form of praedial servitudes. They therefore bound all successors-in-title of the original parties, including later purchasers of the land. This argument compelled the court to analyse the principles relating to the creation of servitudes in South African law.(30) On the basis of this analysis the court rejected the argument that praedial servitudes were created in casu. The court concluded that the rights created were merely personal:(31)
The mere fact that these rights were by mistake registered against the title deeds of the properties could not convert them into real rights. According to the court this was a case where 'the sanctity of the register' had to yield to the need for deleting the incorrect registration of contingent personal rights.(32)
Comments on the Lorentz case have generally been favourable.(33) It has even been described as 'a watershed in respect of the distinction between real and personal rights'.(34) What the case does illustrate, however, is the essential unreliability of the 'subtraction from the dominium' test in properly identifying a right as real. The court acknowledged that an uncritical application of the test could have constrained it to reach a different conclusion on the facts of the case before it:(35)
In other words, although an obligation to part with some of the profit gained at the alienation of one's land may amount to a subtraction from one's dominium, the corresponding right cannot necessarily be classified as real. For the court, the correct test is rather whether the effect of the other's right is that the enjoyment of one's land is curtailed in a physical sense.(36)3.3 Pearly Beach Trust v Registrar of Deeds(37)
In this case, the applicant sought an order that a certain condition embodied in an agreement of sale of immovable property was, in terms of section 3(1)(r) of the Deeds Registries Act,(38) capable of registration against the title deed of the property. In section 3(1)(r) the Registrar is authorised, inter alia, to 'register any real right, not specifically referred to in this sub-section . . .'. The condition in question provided in essence that the purchaser of the property 'and/or its successors in title' would be obliged to pay to a third party a certain percentage of any consideration received should the property in future be expropriated or disposed of to any authority with the power of expropriation. The same would have applied to any consideration received in terms of the grant of any option or right to prospect for minerals on the property. It became necessary for the applicant to approach the court because the Registrar of Deeds refused to register the aforesaid condition. The Registrar's refusal was based on section 63(1) of the Deeds Registries Act(39) (quoted above).(40) The Registrar argued that in order to qualify for registration the right must be such as to amount to a subtraction from the dominium of the land. Here the right of successive owners of the land to grant mineral rights or to sell the land was not per se restricted in any way. There was merely an obligation to pay over to a third party a share of the proceeds of such grant, sale or expropriation.
The court rejected the Registrar's objection to registration. It seems as if two considerations played a role in the court's decision. First, the fact that there was authority for the registration of conditions which entailed an obligation to pay an amount of money to somebody else.(41) Secondly, and more importantly, the conclusion that the condition in question passed the 'subtraction from the dominium' test. The court motivated this conclusion as follows:(42)
Registration of the condition was accordingly allowed.
It is difficult, if not impossible, to reconcile this decision with that in the Lorentz case. In both cases the condition in question entailed payment by a land owner, to a third, of the proceeds received upon disposal of the land (or rights therein). In the one instance, registration was allowed and in the other not. One of these decisions must therefore be wrong. Most commentators agree,(43) albeit for different reasons, that it is Pearly Beach. Criticism against the case includes the views that the 'subtraction from the dominium' test was not correctly formulated and applied in the case,(44) that a different test should have been employed(45) and that the court did not put sufficient emphasis on the reasoning in the Lorentz case.(46) Ultimately, however, the Pearly Beach case is seen by all these commentators as another demonstration of the fact that the 'subtraction from the dominium' test does not provide a clear-cut answer to the question whether or not a new type of right in land is capable of registration.(47)3.4 Denel (Pty.) Ltd. v Cape Explosive Works Ltd. and Another(48)
In this case, one of the most recent cases on the numerus clausus problem, a number of issues between the parties had to be decided. For purposes of this discussion, the focus will fall on only one, namely the registrability or not of two conditions which originally appeared in a deed for the sale of a piece of land. In one of these clauses, (clause 6), it was provided that the land could only be used for the 'manufacture of armaments by the government for any defence or military purpose'. In the other, (clause 7), the purchaser granted the seller 'the first right to repurchase the property'.
In order to answer the question as to the registrability or not of these rights, the court again accepted as correct the two-stage approach described above.(49) This means that the court had to determine, first, whether it was the intention of the parties to create a real right and, secondly, whether the nature of the right was such that it would result in a subtraction from the dominium. In casu, the court preferred first to apply the second criterion, the 'subtraction from the dominium' test. This test, in the words of the court, entails the following:(50)
The application of the test to the two conditions in question led to different results. With regard to clause 6 (the restriction on the use of the land), the court decided that the condition curtailed the right to use the land and that it therefore amounted to a subtraction from the dominium. It therefore 'fell squarely within the definition' of section 63(1) of the Registration of Deeds Act(51) and could, in principle, be registered as a real right. The condition contained in clause 7 (the first right to repurchase), on the other hand, did not constitute a subtraction from the dominium:(52)
Clause 7 was therefore 'clearly' not registrable.(53)
The next question was whether the parties intended clause 6 to create a real right. On the basis of an interpretation of the deed as a whole, the court concluded that clause 6 was intended to operate only inter partes. In other words, the intention never was to create a real right. The conclusion regarding clause 7 made it unnecessary to inquire into the intention of the parties. Even if the parties intended it to be a real right, their intention could not elevate what was a personal right into a real right. Neither of the conditions was therefore registrable.
In my view, Denel is an illustration of a case where the 'subtraction from the dominium' test worked well, if only because the facts were not problematic. This does not mean that the court did not acknowledge the inherent difficulties with the application of the test. For example, the court stressed that the Lorentz and Pearly Beach cases are 'irreconcilable'.(54) In the court's opinion the Pearly Beach case was wrongly decided because the right in question imposed no more than a personal obligation on the owner of the property. There was 'no restriction in the physical sense of the owner's right to deal with the property'.(55)
4. Conclusion and evaluation
An obvious advantage of the current South African approach towards the development of new categories of real rights is its flexibility. Guided only by the criteria expounded above, the courts may create new real rights as they see fit. The downside, however, is legal uncertainty. It has been illustrated that the 'subtraction from the dominium' test, which is supposed to provide an objective criterion with reference to which the real nature of a right can be judged, does not fulfil its function satisfactorily. It is not only unreliable,(56) but it can also produce wrong results.(57) It actually only works well in cases where the facts are unproblematic.(58)
According to Van der Merwe, the problems encountered with the current approach illustrate that neither legal dogmatics nor precedent provides a workable criterion by which real and personal rights can be distinguished.(59) For him it also shows that the distinction between these rights does not depend on their inherent nature but rather on the rules of the system. And these rules are often the result of historical development and expediency, rather than logic.
It has therefore been suggested that the time is perhaps right for the legislature to draw up a complete list of real rights (which would be tantamount to reintroducing the numerus clausus principle to South African law) or that new real rights should only be created by legislation.(60) Either way the problem of legal uncertainty will be addressed, but the current flexibility of the law would be sacrificed.
There is, in the final instance, a growing conviction that the recognition of new real rights (be it by the courts or the legislature) should be guided by policy considerations. If developments in commerce and society require the creation of new real rights, then the creation of those rights must be promoted as far as possible.(61) Unfortunately, policy considerations have not featured prominently, if at all, in cases where the 'subtraction from the dominium' test had to be applied. This is especially true of those cases dealing with the controversial issue of money payments by a landowner. Is there really a commercial need for real rights of this nature? Would a proliferation of these real rights not seriously handicap future dealings in land?(62) These are important questions which, in my view, should generally point against the recognition of real rights falling in this category.(63)
Policy considerations, and more specifically considerations of social policy, have been decisive in recent legislative attempts to redress the wrongs caused by decades of racial discrimination in South Africa. The overriding aim of two of these pieces of legislation, namely the Land Reform (Labour Tenants) Act(64) and the Extension of Security of Tenure Act,(65) is to provide certain specified occupiers of land with basic and long-term security of title and to prevent their unfair eviction from the land. It has been convincingly argued that the new rights of these occupiers amount to limited real rights: they are specific, defined rights with regard to another's land which also bind successors-in-title.(66)
These Acts thus provide us with examples of a new type of real right created by the legislature. Like all other limited real rights to land, they will undoubtedly burden the affected land. However, as opposed to real rights with a monetary payment as their aim, the burden imposed by these rights seems to be fully justified in policy terms.
1. This article is an extended and slightly revised version of a paper read at staff seminars at the University of Nijmegen on 21 June 1999 and Maastricht University on 22 June 1999.
2. R. Zimmermann and D. Visser 'South African Law as a Mixed Legal System' in R. Zimmermann and D. Visser (eds.) Southern Cross: Civil Law and Common Law in South Africa Clarendon Press, Oxford (1996) 1 at 2.
3. H.R. Hahlo and E. Kahn The South African Legal System and Its Background Juta and Co., Cape Town (1973) 575ff.
4. Hahlo and Kahn (n. 3) 576.
5. See, in general, T. Honoré 'Trust' in Zimmermann and Visser (eds.) (n. 2) 849ff.
6. See, in general, C.G. van der Merwe Sakereg (2nd ed.) Butterworths, Durban (1989) 6.
7. C.G. van der Merwe and M.J. de Waal The Law of Things and Servitudes Butterworths, Durban (1993) sect. 6.
8. Sect. 25 of the Constitution of the Republic of South Africa Act 108 of 1996.
9. As to this legislation, see further sect. 4 below.
10. The exposition in this section draws heavily on the corresponding section in M.J. de Waal 'The Uniformity of Ownership, Numerus Clausus and the Reception of the Trust into South African Law', paper read at a conference on Trusts in Mixed Legal Systems at Utrecht University on 18 June 1999.
11. In Van der Merwe and De Waal (n. 7) sect. 6.
12. Van der Merwe (n. 6) 11f.; Van der Merwe and De Waal (n. 7) sect. 8.
14. For the exposition that follows, see also Van der Merwe and De Waal (n. 7) sect. 45.
15. Servitutes irregulares are personal servitudes with the contents of typical praedial servitudes (for example, the rights of passage or pasturage), but established in favour of a particular person and not for the benefit of a dominant tenement.
16. Act 47 of 1937.
17. Sect. 3(1).
18. Sect. 63(1). This section contains a proviso that a personal right may be registered if it is, in the opinion of the Registrar of Deeds, 'complementary or otherwise ancillary to' a registrable right. Such registration does not, however, convert the personal right into a real right: D.G. Kleyn and A. Boraine Silberberg and Schoeman's The Law of Property (3rd ed.) Butterworths, Durban (1992) 162; N.J.J. Olivier, G.J. Pienaar and A.J. van der Walt Law of Property: Students' Handbook (2nd ed.) Juta and Co., Cape Town (1992) 236; Van der Merwe (n. 6) 477.
19. Sect. 3(1)(r).
20. Like other civilian legal systems, South African law adheres to the unitary concept of ownership (or the 'uniformity of ownership'). This means that there is only one kind of ownership and that ownership cannot be fragmented, in the sense that there cannot be intermediate degrees of ownership.
21. Van der Merwe in Van der Merwe and De Waal (n. 7) sect. 46. This exposition of the criteria was approved by the highest court in Erlax Properties (Pty.) Ltd. v Registrar of Deeds 1992 (1) SA 879 (A).
22. Hollins v Registrar of Deeds 1904 TS 603; Lorentz v Melle and Others 1978 (3) SA 1044 (T); Chiloane v Maduenyane 1980 (4) SA 19 (W).
23. The expressions 'diminution of ownership', 'burden on the land' or 'charge upon the land' are also sometimes used.
24. See, for example, Consistory of Steytlerville v Bosman 1893 (10) SC 67.
25. 1926 OPD 155 at 164.
26. Act 47 of 1937.
27. As to the proviso, see n. 18 above.
28. My emphasis.
29. 1978 (3) SA 1044 (T).
30. At 1049-1051.
31. At 1052D-E.
32. At 1054F.
33. See, for example, H.J. Delport and N.J.J. Olivier Sakereg Vonnisbundel (2nd ed.) Juta and Co., Cape Town (1985) 542; Van der Merwe (n. 6) 76ff.
34. Van der Merwe in Van der Merwe and De Waal (n. 7) sect. 49.
35. At 1052A.
36. At 1052D-E. This conclusion made it necessary for the court to distinguish earlier cases where the right to demand a monetary payment was indeed classified as real and thus registrable. According to the court, the decision in Registrar of Deeds (Transvaal) v The Ferreira Deep Ltd. 1930 AD 169 did not rest on a finding that the right to a share of the licences was capable of becoming a real right on registration, but on the fact that registration of this type of deed had been sanctioned by usage and practice in the Transvaal. The decisions in Ex parte Pierce and Others 1950 (3) SA 628 (O) and Odendaalsrus Gold, General Investments and Extensions Ltd. v Registrar of Deeds 1953 (1) SA 600 (O), on the other hand, were distinguished on the basis that they were concerned with mineral rights.
37. 1990 (4) SA 614 (C).
38. Act 47 of 1937.
39. Act 47 of 1937.
40. See subsect. 3.1 above.
41. In this regard, the court referred to a number of decisions, including those discussed and distinguished in the Lorentz case: see n. 34 above.
42. At 617I.
43. For a different view, see A.J. van der Walt 'Personal Rights and Limited Real Rights: An Historical Overview and Analysis of Contemporary Problems Related to the Registrability of Rights' 1992 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 170 at 203.
44. P.J. Badenhorst and P.P.J. Coetser 'The Subtraction from the Dominium Test Revisited' 1991 De Jure 375.
45. J.C. Sonnekus 'Saaklike Regte of Vorderingsregte? - Tradisionele Toetse en 'n Petitio Principii' 1991 Tydskrif vir die Suid-Afrikaanse Reg 173.
46. C.G. van der Merwe 'Law of Property' 1990 Annual Survey of South African Law 192 at 206.
47. See further sect. 4 below.
48. 1999 (2) SA 419 (T)
49. See sect. 2 above.
50. At 435E-F. This exposition reflects the classic formulation of the 'subtraction from the dominium' test in Ex parte Geldenhuys 1926 OPD 155 at 164: see subsect. 3.1 above.
51. Act 47 of 1937. See subsect. 3.1 above.
52. At 437I.
53. Clause 7 was also not registrable in terms of the proviso to sect. 63(1) of the Act as it was not 'complementary or otherwise ancillary to' another registrable right. Even if it could be registered in terms of the proviso, it would not have been converted into a real right: see n. 18 above.
54. At 437D.
55. At 437C-D.
56. Compare Lorentz v Melle and Others 1978 (3) SA 1044 (T) subsect. 3.2 above.
57. Compare Pearly Beach Trust v Registrar of Deeds 1990 (4) SA 614 (C) subsect. 3.3 above.
58. Compare Denel (Pty.) Ltd. v Cape Explosive Works Ltd. and Another 1999 (2) SA 419 (T) subsect. 3.4 above.
59. Van der Merwe in Van der Merwe and De Waal (n. 7) subsect. 50.
61. Van der Walt (n. 43) 203.
62. Van der Merwe (n. 46) 207. See also the remarks in Schwedhelm v Hauman 1947 (1) SA 127 (E) at 137.
63. Contra Van der Walt (n. 43) 203.
64. Act 3 of 1996.
65. Act 62 of 1997.
66. See in general J.M. Pienaar 'Nuwe Sakeregtelike Ontwikkelings op die Gebied van Grondhervorming' 1997 inaugural lecture published by the University of Stellenbosch, at 10; J.M. Pienaar 'Farm Workers: Extending Security of Tenure in Terms of Recent Legislation' 1998 SA Public Law 423.