4

PROPERTY RIGHTS, REAL RIGHTS AND

CHAPTER

PERSONAL RIGHTS

1 Introduction

As stated earlier, the property rights of a person or a legal subject include

rights in both corporeal and incorporeal things and rights deriving from the
performance of an obligation by another person. The distinction between
corporeal and incorporeal things has already been dealt with in chapter 3
(paragraph 8.4.1) with regard to the various categories of rights that
constitute the property rights of a person. Hosten,1 with reference to the
various legal objects to which a legal subject might have a right, classifies
rights into four broad categories, namely, real rights, personality rights,
personal rights and immaterial or industrial property rights. In this context he
defines a real right as the right that vests in the holder an immediate control
or right over corporeal or material things; examples of real rights are
ownership, servitude and pledge. A real right may also be defined as a claim
of a legal subject to a thing as against other persons.2 A personality right may
be defined as the right that a person has to certain aspects of his or her
personality, for example, his or her body or reputation, and also the right to
privacy. If the object of a right is a performance or action by another person,
this right or claim is classified as a personal right. This may arise, for example,
from a contractual obligation or a delict. The last category of rights is referred
to as immaterial, incorporeal or industrial property rights. These are rights
that a person may have over his intellectual property, such as copyright,
patent and trade mark.

The above represents a brief explanation of the various categories of

property rights. For present purposes, it is only necessary to point out that
although these various categories of property rights exist in Namibian law,
the methods of acquisition, control and protection are different. In this
regard, a clear understanding of the difference between a real and a personal

1 WJ Hosten et al Introduction to South African law and legal theory 2nd ed (1997) 544.
2 PJ Badenhorst et al Silberberg and Schoeman’s the law of property 5th ed (2006) 47.

45
46 Property law in Namibia

right is essential, especially in view of the provisions of section 63(1) of the

Deeds Registries Act.

The following examples illustrate that the determination of whether the

right derived from a particular legal relationship is a personal right or a real
right will affect the formalities to be complied with, the protection of the
rights, and the applicable law.

The purchase of a house involves the transfer of a real right, namely

ownership in immovable property. Transfer of ownership in immovable
property resulting in the alienation of that property is effected by
registration. The relevant areas of the law in terms of which immovable
property is transferred are the law of property, conveyancing and contract.
Section 63(1) of the Deeds Registries Act provides for the registration of real
rights and limited real rights. A deed or a condition in a deed, purporting to
create or embodying any personal right, as a matter of principle, shall not be
capable of registration. However, a deed containing such a condition may be
registered if, in the opinion of the registrar, such condition is complementary
or otherwise ancillary to a registrable condition or right contained or
conferred in such deed.

The creation of a servitude vests in the holder of the servitude a limited

real right. In terms of section 63(1) of the Deeds of Registries Act, as stated
earlier, this right is capable of registration and the formalities regulating the
process of registration are governed by the rules of conveyancing. The
registration of the servitude attracts certain consequences which determine:
the legal relationships between the owner of the property and holder of the
right of servitude; between the said owner and third parties; and between
the owner and any successor in title. The principles governing these
relationships are not only covered by the law of contract but also the law of
property.

The principles governing the purchase of a car, for example, involve the
interplay of the law of purchase and sale and the law of property. The
conclusion of the contract confers certain rights and obligations on the
parties. The seller has the obligation to deliver a thing, and the corresponding
right to receive payment. These rights and obligations are enforceable at the
instance of the parties themselves and therefore constitute creditors’ rights,
falling under the larger category of subjective rights3 known as personal
rights, and are generally governed by the law of contract and specifically
under the law of purchase and sale. Delivery constitutes the transfer of the
real right of ownership from the seller to the purchaser by which the

3 A subjective right may be defined as a legally recognised and valid claim by a subject to a
certain object. When a legal subject acquires a right in a thing or object as a result of a
lawful real relationship with the thing, the right is a subjective right. There are four
categories of subjective rights, each distinguishable from the others by the nature of the
object attaching to the right. These are real rights, personal rights, personality rights and
immaterial property rights.
 Chapter 4: Property rights, real rights and personal rights 47

obligation of the seller to effect such transfer is satisfied. Upon transfer of the
thing the purchaser becomes the owner of the thing. The principles relating
to the right of ownership are governed by the law of property.

2 Categories of real rights

A real right is a subjective right to a material (or immaterial) thing, such as a

book, a table, a motor car, a cow, a dog, a house, a farm, et cetera. The holder
of a real right is entitled to exercise immediate control over the material thing
(the object of the right). A real right, like any other subjective right, is
enforceable against the whole world; everybody must respect it. The
following are examples of real rights: ownership, servitudes, pledge,
mortgage, right of trekpath, right of outspan, lease of land, statutory
leasehold, mineral rights and sectional title unit.

2.1 Ownership

Ownership is the most complete real right in the sense that the holder of such
right, the owner, in principle, has the widest powers in respect of a thing but
it must be borne in mind that ownership may sometimes be limited by
another (limited) real right, such as usufruct held by a person who is not the
owner of the thing.

If Joseph grants his neighbour, Andrew, the right to use a road over
Joseph’s farm, Andrew acquires the right to a certain limited use of Joseph’s
property, while Joseph’s ownership remains intact although it is diminished
temporarily by the existence of a servitude. Joseph’s right of ownership is
diminished in the sense that he can no longer exclude Andrew from using the
road as determined by the servitude.

The important point is that a limited real right empowers the holder of
such right to use and enjoy property belonging to someone else, thereby
causing the diminution of the owner’s entitlements of use and enjoyment.
Long term leases and mineral rights are registered as immovable incorporeal
property. It is sometimes difficult to decide whether rights which were
created in a contract or a will and which pertain to corporeal things are
limited real rights or creditors’ rights (personal rights).

The Deeds of Registries Act governs the registration of deeds pertaining

to rights in immovable property. According to section 63(1) of the Act only
rights in immovable property may be registered. Therefore, if it is a creditor’s
right, it may not be registered. Real rights are registrable in the Deeds
Registry because they pertain to rights and obligations over legal objects or
res in commercio and need to be documented. In the case of personal rights,
the necessity for registration may not be as imperative as in the case of real
rights because they pertain to legal actions or legal relationships between
48 Property law in Namibia

legal subjects. The following are examples of rights that have been recognised
as limited real rights.

2.2 Servitudes

A servitude is a limited real right over the property of another. The holder of
the servitude has certain powers of use and enjoyment over the property, or
the power to prevent its owner from exercising one or more of the powers of
an owner.4

A servitude is an ius in re aliena; it diminishes the owner’s dominium in a

thing.

One must distinguish between personal and praedial servitudes.

A personal servitude can exist over land (immovable property) or over

movable property in favour of a particular person (res servit personae). That
person is the holder of the servitude. The servitude vests in such holder in his
or her personal capacity and cannot be alienated.

A personal servitude normally ceases to exist, at the latest, on the death,

in the case of a natural person, of the holder of the servitude. It is important
to note that although this servitude is known as a personal servitude, it is not
a personal right but a real right, because the object of this real right (the
servitude) is a thing and not a performance, as in the case of a personal right.
The expression ‘personal’ servitude denotes that the right vests in a person in
his or her personal capacity, unlike a praedial servitude where the right also
vests in a person but in his or her capacity as owner of the dominant
tenement. A servitude may be personal but it is still a burden upon the land,
and may be enforced against any and every possessor of the land.5

Usufruct is a classic example of a personal servitude.

A praedial servitude, also known as a real servitude, is a burden on land

(the servient tenement) in favour of another piece of land (the dominant
tenement). It can only exist over land and cannot be transferred and be
separated from the land to which it is attached.6 The owner of the dominant
tenement is the holder of the servitude. If ownership of the dominant
tenement is transferred to a new owner, the new owner becomes the holder
of the servitude. The servitude is incidental to and passes with the ownership
of the dominant land to which it is inseparably attached, while it burdens the

4 Lorentz v Melle & Others 1978 3 SA 1044 (T).

5 See also AF Maasdorp & CG Hall Maasdorp’s Institutes of Cape Law, book 2, ch 16, para 5.
6 Webb v Beaver Investments (Pty) Ltd & Another 1954 1 SA 13 (T) 25.
 Chapter 4: Property rights, real rights and personal rights 49

servient land irrespective of who the owner is.7 In this case res servit rei is
created. The servitude exists as long as the land exists.

The distinctive feature of a praedial servitude is that it burdens the land

to which it relates and that it provides some permanent advantage to the
dominant land as distinct from serving the personal benefit of the owner
thereof.8 The usual manner of establishing a praedial servitude is by
agreement in the form of a notarial deed between the owners of the two
tenements, followed by its registration against the title deed of the servient
land. It is an ius in re aliena and, for the sake of clarity, it could also be
registered against the title deed of the dominant land.9 The mere fact of
registration of a notarial deed does not, however, create any rights of a
servitudal character.10 It may be that only personal rights are created and
that registration should not have taken place.

There are various types of praedial servitudes and among these are
various servitudes of way, namely servitude of foot-path, right of trekroad,
which grants a right to drive cattle over the land of another, and a general
right of way. In Namibia, on account of ecological conditions, there is a
scarcity of grazing land and water. Consequently, cattle owners and farmers
enter into various types of agreements granting grazing and water rights over
the servient tenement. These include a servitude of grazing, a servitude
pertaining to water and a servitude of outspan. A servitude of outspan is a
servitude whereby the owner of the dominant tenement has a right to graze
and give water to his cattle on the servient tenement.

2.3 Pledge

A pledge is a limited real right which a debtor creates in favour of a creditor

over movable property to secure the repayment of a debt. It is a security over
property and creates limitations on the right of ownership and therefore is a
limited real right. If the debtor fails to fulfill his or her obligation to the
creditor, the creditor has the legal right to sell the pledged property in
execution. In the event of the debtor’s insolvency, the creditor enjoys the
preference on the proceeds of the pledged property.

2.4 Mortgage

A mortgage is a limited real right in respect of the immovable property of

another, securing a principal obligation between a creditor and a debtor. This

7 HR Hahlo & E Kahn The Union of South Africa; The development of its laws and constitution
(1960) 601.
8 Hahlo & Khan (n 7 above) 602.
9 Van Vuren & Others v Registrar of Deeds 1907 TS 289 and 295; CG Hall & EA Kellaway
Servitudes 3rd ed (1973)27.
10 Hollins v Registrar of Deeds 1904 TS 603 607; Schwedhelm v Hauman 1947 1 SA 127 (E)
136; Van der Merwe v Wiese 1948 4 SA 8 (C) 26.
50 Property law in Namibia

real right is created by registration in the deeds registries pursuant to an

agreement between the parties.11 The agreement is normally known as the
mortgage bond which contains the rights and liabilities of the mortgagee and
the mortgagor. As indicated in the Namibian case of Namib Building Society v
Du Plessis12 a mortgagee should in principle be entitled to realise the
property over which a mortgage bond was registered for the very purpose of
securing the debt on which he or she sued. Such a mortgagee has advanced
money on the understanding that he would have a preferential claim on the
proceeds of the mortgaged property.

2.5 Lease

Letting and hiring (conductio or huur en verhuring) is a contract whereby one

person (the lessor) agrees to give another (the lessee) the use of a thing, or
his own services or those of another human being or of an animal, and the
lessee agrees to pay the lessor an amount of money (the rent) in return.13
A contract of this nature is termed a lease.14 In terms of a contract of lease
pertaining to property, the lessor’s right of ownership is limited to the extent
that the lessee acquires a limited real right to the lessor’s property which
allows him or her (the lessee) the temporary use and enjoyment of the
property in return for payment of rent.15 In Namibia, leases are governed by
common law and the provisions of the Formalities in Respect of Leases of
Land Act 18 of 1969.

2.6 Statutory leasehold

Statutory leasehold is a right of leasehold over state land granted in terms of

statutory provisions, normally for a period of 99 years. In Namibia, for
example, under the provisions of the Communal Land Reform Act 5 of 2002,
rights of leasehold for 99 years have been provided for and can be granted
over communal land.16

2.7 Mineral rights

In Namibia mineral rights are governed by the provisions of article 100 of the
Namibian Constitution and the Minerals (Prospecting and Mining) Act 33 of
1992. As a consequence of the rights of sovereignty created by article 100 of
the Namibian Constitution ownership of natural resources vests in the

11 Roodepoort United Main Reef GM Co Ltd (In Liquidation) & Another v Du Toit NO 1928 AD
66.
12 1990 NR 161 (HC).
13 De Jager v Sisana 1930 AD 71.
14 F du Bois Wille’s principles of South African law 9th ed (2007) 907.
15 WE Cooper Landlord and tenant (1994) 2. PJ Badenhorst et al (n 2 above) 427.
16 See sec 19 and 34 of the Communal Land Reform Act 5 of 2002
 Chapter 4: Property rights, real rights and personal rights 51

state.17 In terms of section 2 of the Minerals (Prospecting and Mining) Act any
right in relation to the reconnaissance, prospecting, mining, sale, disposal and
the exercise of control over any mineral or group of minerals vests in the
state, regardless of any right of ownership that a person may have over any
land.

Strydom ACJ in the case of Namibia Grape Growers and Exporters

Association & Others v Ministry of Mines and Energy & Others18 confirmed
that article 100 of the Constitution vests mineral rights in the state, in so far
as they are not privately owned. In regard to Namibia, mineral rights have
vested in the state ever since Colonial times.19

2.8 Sectional title unit real right

Sectional title unit real right was introduced by the Sectional Titles Act 66 of
1971, which was repealed and replaced by the Sectional Titles Act 95 of 1986.
The Act introduced into South Africa a new concept of ownership which may
be obtained in respect of parts of buildings (so-called sectional title units).
The Sectional Titles Act 66 of 1971 applies in Namibia but Act 95 of 1986 was
not applicable to South-West Africa (Namibia). Namibia has promulgated a
new Sectional Titles Act, the Sectional Titles Act 2 of 2014, which has replaced
the South African Act, the Sectional Titles Act 66 of 1971.

Sectional title entails a res or thing, namely a unit, which comprises a

section of a building and a share in common property. It therefore provides
for both sole ownership and joint ownership.

A person acquiring sectional title ownership acquires ownership of a unit,

which comprises a section together with an undivided share in the common
property, being the land on which the building is situated as well as the rest
of the building which is not included in any sectional unit, such as stairs, lifts,
playrooms, swimming pools, et cetera.

2.9 Water rights

The United Nations General Assembly on 28 July 2010 declared water and
sanitation a human right. The human right to water and sanitation is derived
from articles 11 and 12 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR). Article 11 provides for adequate standard of living.

17 Art 100 of the Namibian Constitution provides that land, water and natural resources
below and above the surface of the land and in the continental shelf and within the
territorial waters and the exclusive economic zone of Namibia shall belong to the state if
they are not otherwise lawfully owned.
18 2004 NR 194 (SC).
19 See the Imperial Mining Ordinances for German South-West Africa, 8 August 1905; and
Proc 21 of 1919; Proc 4 of 1940; Ord 26 of 1954; Ord 20 of 1968; and presently the
Minerals (Prospecting and Mining) Act 33 of 1992.
52 Property law in Namibia

It recognises the right of everyone to an adequate standard of living. This

includes, but is not limited to, the right to adequate food, clothing, housing,
and ‘the continuous improvement of living conditions’.20 The right to
adequate food, also referred to as the right to food, is interpreted as requiring
‘the availability of food in a quantity and quality sufficient to satisfy the
dietary needs of individuals, free from adverse substances, and acceptable
within a given culture’.21 This must be accessible to all, implying an obligation
to provide special programmes for the vulnerable.22 This must also ensure an
equitable distribution of world food supplies in relation to need, taking into
account the problems of food-importing and food-exporting countries.23 The
right to adequate food also implies a right to water.24

Article 12 of the Covenant recognises the right of everyone to ‘the

enjoyment of the highest attainable standard of physical and mental
health’.25 ‘Health’ is understood not just as a right to be healthy, but as a right
to control one's own health and body (including reproduction), and be free
from interference such as torture or medical experimentation.26 States must
protect this right by ensuring that everyone within their jurisdiction has
access to the underlying determinants of health, such as clean water,
sanitation, food, nutrition and housing, and through a comprehensive system
of healthcare, which is available to everyone without discrimination, and
economically accessible to all.27

Similarly, under the Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW). States Parties are enjoined to take
all appropriate measures to eliminate discrimination against women in rural
areas in order to ensure, on a basis of equality of men and women, that they
participate in and benefit from rural development and, in particular, to
ensure to such women the right to enjoy adequate living conditions,
particularly in relation to housing, sanitation, electricity and water supply,
transport and communications.28

Namibia is the driest country in sub-Saharan Africa and the country’s

water resources are extremely fragile. In economic terms Namibia is highly
dependent on its natural resource base for its principal productive activities:
mining, agriculture, pastoralism, fishing and wildlife-based tourism as well as

20 Article 11.1 of the International Covenant on Economic, Social and Cultural Rights.
21 ‘Committee on Economic, Social and Cultural Rights (CESCR) General Comment 12: The
right to adequate food’ UN Economic and Social Council, 12 May 1999, para 8.
22 CESCR General Comment 12, paragraph 13.
23 ICESCR, article 11(2)(b).
24 CESCR General Comment 15: The right to water, UN Economic and Social Council,
20 January 2003, para 3.
25 ICESCR, article 12(1).
26 CESCR General Comment 14: The right to the highest attainable standard of health, UN
Economic and Social Council, 11 August 2000 para 9.
27 CESCR General Comment 14, paras 11-12.
28 Article 14(1) and (2). See also article 24 of the Convention on the Rights of the Child (CRC);
and article 28 Convention on the Rights of Persons with Disabilities (CRPD).
 Chapter 4: Property rights, real rights and personal rights 53

urban supplies and manufacturing. Water is therefore the single most

important across-the-board contributor to the country’s development
prospects; conversely, its vulnerability and inadequate management
constitute the country’s single most important development constraint. It is
also important to ensure water security, and to sustain supplies to urban
centres while extending services in the rural areas.

Considering the water needs of Namibia and the right to water

recognised as a human right by the International Covenant on Economic,
Social and Cultural Rights (ICESCR) as indicated above, equitable and
sustainable water management by an appropriate legal regime and policy
cannot be over-emphasised. The right to water has to be regulated to ensure
equity and sustainability.

At the time of independence, however, Namibia inherited a water

management regime that had served the political, economic and social
priorities of those then in power and underpinned by water law derived from
Roman-Dutch common law principles of riparian ownership which was
incorporated in legislation, the Water Act of 1958. This legal regime was not
only suited to a water-rich environment, such as for example well-watered
countries of Europe, but it also deprived the country’s majority population of
access to reliable water supplies and inhibited productive and sustainable use
of the resource.29 The Roman-Dutch common law doctrine of riparian
ownership is based on the principle that any person who owns and occupies
land on the bank of a natural stream acquires water use rights which are
referred to as riparian rights by virtue of the occupation of the land and
therefore the right to water is appurtenant to the riparian land. As a corollary
therefore riparian rights cannot be acquired or alienated without the riparian
land. Given the skewed tenure system Namibia inherited at the time of
independence, the continued application of the riparian ownership regime
without any amendments would have meant the perpetuation of the
deprivation of the vast majority of the population, especially those who live
in the communal areas, the right to water resources.30 There was therefore
the need for the shift from the water resources management paradigm to
one based on equity and sustainability of water resources.

The National Water Policy White Paper succinctly puts the position as
follows:

The existing law (namely the South African Water Act No 54 of 1956) and the
regulatory regime it underpinned similarly reflected a policy of support to the
same elite social and economic interests. Ownership of land was regarded as
conferring exclusive right to the use of water resources located on or under such
land. The development of these water resources was largely unregulated by the

29 See National Water Policy White Paper Republic of Namibia, Ministry of Agriculture, Water
and Rural Development, August 2000, pp 19-20.
30 National Water Policy White Paper (n 29 above) pp 13-14.
54 Property law in Namibia

state with the notable exception of ground-water control areas. The entire
institutional framework for the development and management of water
resources and the provision of water services, including the functions of
licensing, pricing and subsidy provision, served the same set of priorities.31

As stated above, at the time of independence, the primary legislation relating

to ownership, allocation, rights to access, and management of the resource
was the Water Act 54 of 1956. This legislation was designed for South Africa
and selectively applied to what was then South West Africa. The existing legal
regime was therefore not suited to either the country’s hydrological
conditions or to the political, social and economic realities of the post-
apartheid era.32

The Water Act of 1956 provides for and draws a distinction between two
forms of water, namely ‘private water’ and ‘public water’.33 The Act however
does not define private water or public water but does provide for the use of
private water. Private water may be defined as the water which rose or fell
naturally on any land, or which naturally drained, or which was led on to one
or more pieces of land which were subject of separate grants, but was not
capable of common use for irrigation purposes. Furthermore, whenever an
owner of land obtained, by artificial means on his or her own land, a source
of water which was not derived from a public stream, such water was
deemed to be private water.

Private water therefore included (a) spring water (b) rain water, surface
water and drainage water before it joined a public stream; (c) water flowing
or found in or derived from a stream that was not a public stream; (d) ground
water which was not flowing or found in, or derived from, the bed of a public
stream, after it was abstracted, and (e) public water left a public stream
naturally, for example, water that was discharged from the river onto a level
area due to the river banks that disappeared or water overflowing the banks
of a public stream during a flood.34

Public water is defined as the water flowing or found in, or derived from,
the bed of a public stream, whether visible or not. The essence of the
definition is that if a stream was a public stream, all the water flowing or
found in, or derived from, the bed of that stream was public water. Any water
that did not flow or was not found in, or derived from, the bed of a public
stream, could not be public water. Public water further consisted of normal
flow and surplus water.

31 National Water Policy White Paper (n 29 above) p 13.

32 National Water Policy White Paper (n 29 above) p 19. See also the General Note to the
Water Act 54 of 1956.
33 Section 5.
34 H Thompson Water Law: A practical approach to resource management & the provision of
services (2018) 73.
 Chapter 4: Property rights, real rights and personal rights 55

A public stream was a natural stream of water which flowed in a known

and defined channel and the water had to be capable of common use for
irrigation on two or more pieces of land riparian thereto which were the
subject of separate original grants. A stream which fulfilled these conditions
only in a section of its course, was regarded as a public stream for that section
only.35

The Act36 provides that the sole and exclusive use of and enjoyment of
private water is vested in the owner of the land on which such water,
designated as private water, is found.37 It is an offence for any person to
wilfully or negligently act in a manner that can pollute the water.38

The owner does not have to take the needs of other persons into
consideration while using the water. However, this right does not deprive
downstream owners their right to a reasonable share of water rising on
upstream land flowing down to their land in a known and defined channel or
along the boundary of the land situated beyond the land upon which such
private water rises, if such downstream owners have used the water
beneficially for at least 30 years.39 There are restrictions imposed on the sale
and other forms of disposal of private water. A person who is entitled to use
private water can only under the authority of a permit from the Minister
convey that water beyond the boundaries of the land on which it is found, sell
it, donate it, or otherwise dispose of it to any other person for use on any
other land. This can only be done to the extent allowed by the Minister as
provided for by the conditions of the permit.40 Furthermore, a person
entitled to use private water under the authority of a permit from the
Minister, is not permitted to construct any water work other than a water
work constructed in terms of a direction contained in an order under section
4 of the Soil Conservation Act 76 of 1969 to impound or store such water or
impound or store more than 20 000 cubic meter of such water.41 In terms of
the section the Minister may, by means of a direction, order the owner of
land to construct the soil conservation works referred to in such direction
either on land belonging to such owner or on land belonging to another
person, in such manner and within such period as may be mentioned in such
direction, if the Minister is of the opinion that the construction of such soil
conservation works is necessary in order to achieve any object of this Act in
respect of the land belonging to such owner.

35 Thompson (n 34 above) 65.

36 Water Act 54 of 1956.
37 Section 5(1).
38 Section 23.
39 Proviso clause to section 5(1) and Thompson (n 34 above) 90.
40 Section 5(2)(a).
41 Section 5(2)(b).
56 Property law in Namibia

The other water rights provided for by the Act are the rights to
subterranean water42 and various types of servitudes.43 The owner of land is
entitled to abstract or obtain any subterranean water under the land or
derived from the land for his or her own use for any purpose on the land and
subterranean water is defined as water which exists naturally underground
and water other than public water which is derived in any manner
whatsoever from natural underground sources and which is contained in an
area declared to be a subterranean water control area by the President.44

In order to promote the optimal and effective use of the rights to public
water and subterranean water, the Act avails a person, who has the right to
the use of public water or subterranean water, the right to claim temporarily
or in perpetuity servitudes of abatement, aqueduct, drainage or storage.45 A
servitude of abutment is the right to occupy by means of a dam, weir,
protecting wall or embankment, pump, turbine or power house and its
appurtenances, the bed or banks of a public stream or land adjacent thereto
belonging to another; a servitude of aqueduct is the right to occupy the land
belonging to another as may be necessary for or incidental to the passage of
water; servitude of drainage means the right to occupy the land belonging to
another for the drainage of land or disposal of water by means of a dam, weir
or other work into the nearest public stream or natural channel and servitude
of storage is the right to occupy land belonging to another by submerging it
with water by means of a dam, weir or other work.46

The Act47 therefore, incorporates by legislation the Roman – Dutch

principle of riparian ownership, which, as indicated above, effectively
excludes non-land owners – comprising the majority of the population-from
having adequate and equitable access to water. It perpetuates discrimination
against the black majority since the apartheid era, as indicated earlier,
resulted in most of the land belonging to the white minority.48 Consequently
in 1998, the Government of the Republic of Namibia (GRN) decided to initiate
a Water Resources Management Review and an appropriate legal regime
informed by the principles of equity and integrated water resources
management to rectify the injustices of the past.

A new piece of legislation, the Water Resources Management Act 11 of

2013, has been promulgated to replace the Water Act 54 of 1956.49 The

42 Section 30(1).
43 Sections 139-142.
44 Sections 27 & 28; See generally Namib Plains Farming & Tourism v Valencia Uranium (Pty)
Ltd & Others Case 25/2005 (Supreme Court), para 29.
45 Section 141(1).
46 Section 139.
47 Section 5 of the Water Act 54 of 1956.
48 National Water Policy White Paper (n 29 above) p 19.
49 It must be noted that for a considerable period of time after its promulgation, the Water
Act 54 of 1956 is still in force as the regulations to the Water Resources Management Act
11 of 2013 have not been promulgated.
 Chapter 4: Property rights, real rights and personal rights 57

underlying constitutional principle of the Act50 pertaining to the use and

ownership of natural resources, including the right to water, is the public
trust doctrine derived from article 100 of the Namibian Constitution, which
as a corollary to the sovereign right of States to natural resources, vests
ownership of the natural resources in the State unless they are otherwise
lawfully owned. The Namibian Constitution, therefore regards natural
resources as common resources. Consequently, the new Act51 has done away
with the principle of riparian ownership and has introduced the public trust
doctrine, by which doctrine the State is vested with the right of ownership of
the natural resources in trust and for the benefit of the people of Namibia. It
is worth noting, however, that the riparian right doctrine operates in so far as
international water courses are concerned. The new Act focuses on
management, protection, development, use and conservation of water
resources. 52 Since the riparian right principle is incontinent with the doctrine
of public trust, the water rights provided for by the Act pertain generally to
the rights to the abstraction and use of water and the common servitudes of
water such as the servitude of abutment, aqueduct and submersion.

Access to water may be obtained by means of abstraction and use of

water as follows. Firstly, provisions are made for holders of licences issued by
the Minister to operate as service providers to distribute water to end-
consumers and to operate water treatment facilities.53 Secondly, a person is
entitled to abstract water from a water resource for domestic use without a
permit to abstract and use water.54 Thirdly, the abstraction of water and use
of water from a water resource not for domestic use requires a licence issued
by the Minister.55

In terms of servitudes of water, the Act permits a person who, holds a

licence issued under the Act to abstract and use water or discharge
wastewater or effluent, to claim a servitude of abutment, aqueduct or
submersion to the extent necessary to give effect to the licence.56 These
servitudes are defined as follows: (a) a servitude of abutment is defined as
the right to occupy the bed or banks of a stream, or adjacent land belonging
to another person, by means of waterwork; (b) a servitude of aqueduct as the
right to occupy land belonging to another person by means of a waterwork
for abstracting or leading water or discharging effluents; and (c) servitude of
submersion as the right to occupy land belonging to another person by
submerging it under water.57 As stated earlier, Namibia is sub-Saharan
Africa’s driest country because roughly 90 per cent of its area consists of
desert, arid and sub-arid land and the only perennial rivers to which Namibia

50 The Water Resources Management Act 11 of 2013

51 Section 4 of the Water Resources Management Act 11 of 2013.
52 Preamble to the Water Resources Management Act 11 of 2013.
53 Section 40(1)(a).
54 Section 38(1).
55 Section 44(1).
56 Section 107(1)(a).
57 Section 106.
58 Property law in Namibia

has access, lie on its northern and southern borders and are shared with
neighbouring countries. More than 70 per cent of the population lives in the
rural areas and a considerable proportion is dependent on the Kunene and
Kavango watercourses or on boreholes, which they recharge. The sources of
these rivers lie in Angola. The northern border follows the Kunene River in the
extreme north-west and the Kavango River, Zambezi River and Kwando/
Linyanti/Chobe River system along part of its north-eastern stretch. The
country’s only other perennial source, the Orange River, forms the Southern
border with South Africa. The capital city and seat of Government, Windhoek,
is in the centre of the country, far from these rivers. The fact that all the
perennial rivers to which Namibia has access are shared with neighbouring
states means that international agreements are required regarding their use
and management.58

The Act takes cognisance of this fact and therefore the functions of the
Minister extend to the management of internationally shared water resource
one of which is the furtherance of the objectives of the Southern African
Development Community Revised Protocol on Shared Watercourses with
regard to regional integration, economic growth and poverty alleviation.59
The contemporary jurisprudence relating to water resources management,
including international waters which Namibia subscribes to, consists of the
principles of limited territorial sovereignty; the principle of equitable and
reasonable utilisation; an obligation not to cause significant harm; principles
of notification, consultation, negotiation, cooperation and information
exchange and peaceful settlement of dispute. These principles are recognised
by international conventions, judicial decisions and international treaties and
they form the basis of the 1996 Helsinki Rules on the Uses of Water of
International Rivers and the 1997 UN Convention on Non-Navigable Uses of
International Watercourses.

3 Registration of real rights

As stated earlier, under section 63(1) of the Deeds Registries Act, only real
rights can be registered. The section provides that no deed or condition in a
deed purporting to create or embodying any personal right, and no condition
which does not restrict the exercising of any right of ownership in respect of
immovable property, shall be capable of registration. There is a proviso that
permits the registrar to register a personal right if such right is
complementary or ancillary to a registrable condition, specifically a real right
or a limited real right.

58 National Water Policy White Paper (n 29 above) p 10.

59 Section 28(b).
 Chapter 4: Property rights, real rights and personal rights 59

3.1 The classical and personalist theories

There are two theories that have been propounded to explain the differences
between personal rights and real rights: the classical theory and the
personalist theory.

3.1.1 The classical theory

According to the classical theory rights may be classified in accordance with

the differing nature of their objects. In terms of this classification the object
of a real right is a thing. The thing itself is bound to the holder of the right. A
real right consequently establishes a direct legal connection between a
person and a thing, the holder of the right being entitled to control that thing
within the limits of his rights ‘zonder noodigh opzicht op een ander mensch’,
particularly ‘without necessary relation to another man’. In terms of a
personal right, on the other hand, a person becomes bound to the holder of
the right to render a particular performance, specifically to do or not to do
something, the performance itself being the object of the right. It never
establishes a direct legal connection between its holder and the thing, if any,
in respect of which a performance has to be rendered.60

3.1.2 The personalist theory

The personalist theory, on the other hand, distinguishes between real rights
and personal rights with regard to the persons against whom the respective
rights are enforceable. The holder of a real right has a right to a thing which,
as a general rule, is enforceable against all other persons, particularly against
any person who seeks to deal with the thing to which a real right relates in
any manner which is inconsistent with the exercise of the holder’s power to
control it, and in so far as a person may have a limited real right to another
person’s thing, that limited real right is also enforceable against the owner of
the thing. Real rights, therefore, belong to the category of rights known as
absolute rights.

In contradistinction to the absoluteness of a real right, a personal right is

usually said to be enforceable only against a particular person or association
of individuals on the basis of a special legal relationship, such as a contract,
the commission of a delict or some other good or sufficient cause.
Consequently, personal rights are often referred to as being relative rights.
The protection granted to the holder of a real right in respect of his interests
in the thing which is the object of his right is consequently compared with the
protection granted to the holder of a personal right in respect of his or her
interests in a thing in connection with which a performance, for example,

60 Badenhorst et al (n 2 above) 50-51.

60 Property law in Namibia

delivery has to be rendered, the performance and not the thing itself, being
the object of the right.

3.2 Evaluation of the theories

As theories, the classical and personalist theories do not provide answers to

all questions relating to the distinction between personal rights and real
rights. As indicated by AJ van der Walt & GJ Pienaar,61 generally speaking,
neither the classical nor the personalist theory has provided a simple and
consistent solution to the practical problems presented by the distinction
between real and creditor’s (personal) rights. In many cases the failure of
these theories can be attributed to misunderstandings and inconsistent
applications of the theories but it is also true that both socio-economic
circumstances and the understanding of rights in general have changed
considerably since these theories were originally formulated. A number of
alternative theoretical approaches have been suggested recently, but none of
them succeeded entirely.

With regard to the classical theory, Silberberg and Schoeman62 express

the criticism that the theory ignores the fact that real rights also constitute
legal relationships between legal subjects mutually, and on the other hand,
that certain personal rights (such as a lease of a movable thing) also, to some
extent, affect control over a thing.

3.3 Criteria or requirements developed by the courts to

determine the capability of a right to be registered

In addition to the two theories to illustrate the distinction between real rights
and personal rights (or creditor’s rights), given above, the courts have
developed their own approach to this problem. The following criteria or
requirements were laid down in the case of Cape Explosive Works Ltd &
Another v Denel (Pty) Ltd & Others.63

The intention of the person who creates the real right must be to bind, not only
the present owner of the land, but also his successors in title; and
The nature of the right or condition must be such that registration of it results in
a ‘subtraction from the dominium’ of the land against which it is registered.

61 AJ van der Walt & GJ Pienaar Introduction to the law of property 6th ed (2009) 29.
62 DG Kleyn et al Silberberg and Schoeman’s the law of property 3rd ed (1993) 43.
63 2001 3 SA 569 at 578.
 Chapter 4: Property rights, real rights and personal rights 61

3.3.1 The intention of the parties

This test was laid down by Nestadt J in the case of Lorentz v Melle & Others64
as follows:

Whether a contractual right amounts in any given case to a servitude – whether

it is real or only personal – depends upon the intention of the parties to be
gathered from the terms of the contract construed in the light of the relevant
circumstances. In case of doubt, the presumption will always be against a
servitude: the onus is upon the person affirming the existence of one to prove it.

In Willoughby's Consolidated Co Ltd v Copthall Stores Ltd65 Innes CJ said:

I would add that I do not read the passage and authorities quoted as meaning
that the parties’ intention (as gathered from the terms of the contract) is the sole
criterion in deciding the issue. If a contractual right is of such a nature that it is
incapable of constituting a servitude, then obviously the intention of the parties
(as expressed) to do so, is irrelevant.

This was reiterated by Streicher JA in Cape Explosive Works 66 who stated that
the intention with which transfer was given and received was required for the
transfer of the property subject to the conditions creating the rights in
question.

There is the necessity to interpret the will or the contract in question to

determine the intention of the party or parties who created the right.67 Apart
from its subjectivity, intention of the parties is not the sole criterion in
determining whether a term of a contract creates a real or personal right.

From the Ex parte Geldenhuys68 decision it may be inferred that such an

intention cannot override principles of law. Regardless of the intention, it is
impossible to create a real right if the right in question clearly places the
obligation upon the debtor in his or her personal capacity. However,
wherever possible, the intention of the parties is an important clue which
might help the court in deciding whether the obligation was supposed to be
real or personal.

64 n 4 above, 1050.
65 1918 AD 1 16. See also Hotel De Aar v Jonordan Investment (Edms) Bpk & Others 1972 2 SA
400 (A) 406 and Elelor (Pty) Ltd v Champagne Castle Hotel (Pty) Ltd & Another 1972 3 SA
684 (N) 689-690.
66 n 23 above.
67 See also Hollins v Registrar of Deeds (n 10 above); Chiloane v Maduenyane 1980 4 SA 19
(W).
68 1926 OPD 155.
62 Property law in Namibia

3.3.2 The subtraction from the dominium test

3.3.2.1 The formulation of the test in Ex parte Geldenhuys

The subtraction from the dominium test was formulated in – Ex parte

Geldenhuys.69 In the process of this formulation, the court had to consider
the following issues:

(1) the effect a condition that creates a servitude has on the right of dominium;
(2) whether the obligation to pay money to someone constitutes a real right or
a personal right; and
(3) whether the mere intention to create a real right satisfies the criterion
necessary to create such a right.

In this case, by the mutual will of Adriaan Geldenhuys and his wife, certain
land was bequeathed to their children in equal shares subject to the usufruct
of the surviving testator or testatrix. The will further provided that as soon as
the first child reached his or her majority the survivor of the testators would
be bound to divide the said land in equal portions and distribute it among the
children, such distribution to be made by the survivor and the major child
concerned by drawing lots, and that the child who by such lot obtained the
portion comprising the homestead of the farm should, within a specified
period of time, pay the sum of £200 to the other children. The testatrix died
in 1923 and the applicant, who was the surviving testator and the executor of
the estate of the deceased testatrix, asked the court for an order instructing
the Registrar of Deeds to register the said land in undivided shares in the
names of the children, subject to the conditions of the mutual will. The
Registrar of Deeds had no objection to a mere transfer of the farm to the
children in undivided shares but he objected to the registration against the
title deed of the conditions pertaining to the subdivision, the drawing of lots
and the payment of £200. The grounds of his objection were, firstly, that the
said conditions merely created ‘personal rights’, and, secondly, that the
conditions, even if registered, would only be binding on the legatee, and not
on any transferees to whom the legatees might transfer their undivided
shares.

3.3.2.2 The formulation of the test in the context of servitudes or usufructs

In his judgment, De Villiers JP in confirming the subtraction from the

dominium test as a criterion to draw the distinction between personal rights
and real rights, referred to the statement of Innes CJ in Hollins v Registrar of
Deeds70 that only real rights may be registered against the title deed of land,
specifically rights constituting a burden upon the servient land and are a

69 As above.
70 n 10 above.
 Chapter 4: Property rights, real rights and personal rights 63

deduction from the dominium, and that that statement represents the
correct position of the law in regard to registrable rights. In arriving at this
conclusion, the court had to consider the nature of a usufruct to determine
its registrability and noted that a usufruct is a personal servitude, but it is also
a burden upon the land and it ‘may be enforced against any and every
possessor of land’.71 Some servitudes are personal because they are
constituted in favour of a particular individual without reference to his being
the owner of any particular land. Other servitudes are praedial because they
are constituted in favour of a particular piece of land but all servitudes are
real rights and burdens upon the land which is subject to them. Consequently,
as a general principle, a usufruct can be registered against the title deed
except in certain exceptional cases. Generally speaking, therefore, any validly
constituted usufruct could be registered against the land, just as any other
real right in land may be so registered. Servitudes which are said to be
constituting personal rights may not be registered, because the rights are
merely binding on the present owner of the land and do not bind the land
itself, and thus do not constitute iura in re aliena over the land, and do not
bind the successors in title of the present owner. These are the personal
rights which are not registrable.72 The determining criterion is for one not to
look so much at the right but to the correlative obligation. If that obligation is
a burden upon the land, a subtraction from the dominium, the corresponding
right is real and registrable; if it is not such an obligation but merely an
obligation binding on some or other person, the corresponding right is a
personal right, or right in personam, and it cannot as a rule be registered.

3.3.2.3 Application of the test to determine registrability of conditions in

the will

Applying that distinction in the case, the court pointed out that each of the
legatees, while being an owner of an undivided share of the land, was subject
to certain conditions or obligations. With regard to the first condition that the
land be subdivided into defined portions to take place at a specified time,
specifically as soon as the eldest surviving child reaches his or her majority,
and in a certain manner, that is by means of a drawing of lots, which is to be
performed by the surviving testator and such major child, the court held that
the limitations formed a real burden, an ius in re,on each undivided share and
not merely an obligation on the person of each child and consequently that
the condition was registrable against the title deeds of the undivided shares.
This conclusion was based on the consideration that those limitations as to
time and mode of subdivision so directly affected and adhered to the
ownership that they had to be regarded as forming a real burden or
encumbrance on that ownership. This reasoning was based on the common
law principles of co-ownership. By the common law, each owner of an

71 See also Maasdorp (n 5 above).

72 The Hollins case (n 10 above) and the case of Kotze v Civil Commissioner of Namaqualand
(17 CSC 37).
64 Property law in Namibia

undivided share has the right to claim a subdivision at any time, and can claim
that it be effected either by agreement or by the court. The will, therefore,
modified the common law right of ownership (or dominium) held by an owner
of an undivided share. That this can validly be done by a will, and presumably
also by agreement inter vivos, is clear in principle, because the rights in an
undivided share are not sacrosanct or unalterable any more than the rights in
a defined share are. Portions of the dominium of an owner of an undivided
share can be parted with as undoubtedly as portions of the dominium of an
owner of a defined share can be parted with. This position is supported by
Grotius,73 who states that an owner of an undivided share can by will be
deprived for a specified time of his right to claim a partition. The rights of a
joint owner in regard to partition can therefore be validly limited, by last will
at any rate, and the limitations now under discussion, strictly speaking,as to
the time of partition and as to the drawing of lots, are therefore valid. This
position is also supported by the case of Ex parte Mulder74 where the court
ordered that land should be transferred to certain legatees in undivided
shares subject to the condition imposed by the will; that upon partition a
certain one of those legatees should receive the homestead and certain land
round it.

3.3.2.4 Obligation to pay money to someone else and registrability of

personal rights intimately connected to real rights

The court, in Geldenhuys then proceeded to determine the registrability of

the other condition that, upon partition in the manner stipulated in the will,
the child who got the homestead should pay £200 to the remaining children
within five years after reaching majority. In order to make this determination
the court had to consider whether the condition (or obligation) to pay the
money constituted an ius in personam or an ius in re forming a burden on the
undivided shares. The court held that it was an ius in personam and said:

[F]or the obligation to pay money cannot easily be held to form a jus in re, unless
it takes the form of a duly constituted hypothec; moreover the obligation is
altogether uncertain and conditional, for it is impossible to foretell what the
drawing of lots will decide. This direction of the will therefore does not
constitute a real right and is not per se registrable. And yet it is intimately
connected with a direction which is registrable, as already decided. If the
direction as to the time of the partition and the drawing of lots were registered,
without the direction as to the payment of the £200, the result would be an
incorrect representation, and an imperfect picture of the testamentary direction,
which would be most misleading to strangers who may purchase undivided
shares from the children before the partition takes place. It seems to me
therefore that in the special circumstances of the case the difficulty can only be
solved by registering the entire clause of the will.75

73 Grotius 3.28.6, AF Maasdorp and CG Hall Maasdorp’s Institutes of Cape Law, bk2, ch 14.
74 4 Prentice-Hall G 3.
75 n 68 above, 165-166.
 Chapter 4: Property rights, real rights and personal rights 65

However, as stated by RamsbottomJA in the case of Nel NOv Commissioner

for Inland Revenue76 an ius in personam if registered, on the principle applied
in the Geldenhuys77 case, would not convert into an ius in re. Innes CJ had
earlier stated in the case of British South Africa Company v Bulawayo
Municipality78 that an ius in personam does not become an ius in re because
it is erroneously placed upon the register.

This decision by the court concerning the right of payment of a sum of

money has been interpreted to mean that the right to a one-off payment of
money which affects a person personally and not in his capacity as owner of
the land in question can never be a real right. However, subsequent cases
where the issue of the obligation to pay money was considered in order to
determine whether such an obligation constituted a real right or a personal
right – a determination which had to be made in order to make a finding as
to its registrability – involved other aspects of such conditions, namely
whether other rights to receive payment of money, which are not one-off
payments but periodic payments, and rights to either one-off or periodic
payments, that rest upon persons in their capacity as owners of the land in
question and not on them personally, are real rights or personal rights. For
example in the Nel case79 Ramsbottom JA had to decide whether a burden,
imposing an obligation to pay money, that will bind successors in title, either
for a definite or ascertainable time or in perpetuity, can in South African law
be imposed upon land and registered against the title.

This question was addressed in several later cases, three of which are
discussed below.

Lorentz v Melle and Others80

This case was an appeal from the grant by a single judge, sitting in the
Transvaal Provincial Division, of certain declaratory orders in favour of the
first respondent, Melle. During 1905, Johannes Gerard van Boeschoten, the
father of Melle, and one Herincus Lorentz, the father of Lorentz (the
appellant), were about to acquire in co-ownership certain immovable
property situate in the district of Pretoria and being the remaining portion of
the middle portion of the farm Zwartkop. Prior to the registration of the farm
in their names, they, on 7 April 1905, executed a notarial deed. In terms of
this deed the parties recorded that they had agreed to a division of a portion
of the property to be acquired so that Van Boeschoten would receive transfer
of portion ‘B’ of the middle portion of the farm, whilst Lorentz would receive
transfer of the contiguous portion ‘A’ of the farm.

76 1960 1 SA 227 (A).

77 As above.
78 1919 AD 84 93.
79 n 76 above, 232.
80 n 4 above.
66 Property law in Namibia

The remainder of the ground was to remain their joint property. In terms
of the deed Van Boeschoten and ‘his heirs, executors and assigns’ would have
certain other rights over portion ‘A’. The deed 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, but Van Boeschoten shall not be entitled
to any share in such profits until Lorentz shall have reimbursed himself for all
expenses of such township out of the proceeds of stands sold …’. The deed
provided for similar rights in favour of Lorentz over the portion registered in
Van Boeschoten`s name. The notarial deed was registered simultaneously
with the title deed and therefore also registered against the title deeds. The
provisions of the notarial deeds remained registered against the title deeds
of the owners of certain of the subdivisions of Van Boeschoten’s and
Lorentz’s portions, including the subdivisions registered in the names of
appellants and respondents. First respondent Melle was one of Van
Boeschoten’s successors’ in title and intended to sell her portion to a
company for the purposes of establishing a township thereon. She wanted to
ensure that the purchaser would not be obliged to pay more than half of the
profits which might accrue from the establishment of a township. She applied
for an order declaring, inter alia, that the rights created by the township
clause created personal rights to Van Boeschoten and Lorentz which could
only be transferred to their ‘heirs, executors, administrators 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. A single judge granted the application.

The respondent's case was based on two alternative submissions.

According to the first submission the notarial deed had created a praedial
servitude and none of the orders sought could therefore be granted. The
second submission was based on the argument that, even if mere personal
rights and obligations had come into existence, these were freely
transferable to and binding upon all Van Boeschoten's and Lorentz's
successors in title, the applicant, would therefore, not, even in relation to
portion 203, be entitled to an order declaring that the township clause had
not conferred any rights on the respondent, though she was entitled to some
of the other orders sought.

In terms of the first submission the court was obliged to decide the case
on the basis of the principles relating to the nature and creation of servitudes
because if a praedial servitude had been created, then clearly the appeal had
to succeed.

The court in principle confirmed the ‘subtraction from the dominium’ test
formulated as follows in Geldenhuys:

If an obligation is a burden upon land, a subtraction from the dominium, the

corresponding right is real and registrable; if it is not such an obligation, but
 Chapter 4: Property rights, real rights and personal rights 67

merely an obligation binding on some person, the corresponding right is a

personal right, and it cannot, as a rule, be registered.81

The court held that:

The right (and obligation) under consideration, so it appears to me, is essentially

a personal one sounding in money and cannot be equated to the servitudes
referred to … and this for the reason that the conditional obligation to pay
attaches of necessity not to the land (which is not burdened) but merely to the
owner thereof. His rights are curtailed but not in relation to the enjoyment of the
land in the physical sense.82

The court held further that:

In particular, I do not regard them as deciding that a monetary obligation

imposed on an owner of land of the type we are dealing with necessarily
constitutes an encumbrance against such land.
In the result I am of the opinion that that part of the notarial deed under
consideration, namely the township clause, confers only personal rights, which,
even on (their incorrect) registration, were not capable of becoming and did not
become a praedial servitude. Because of the basis of this conclusion, which is
arrived at irrespective of what the intention of the parties as expressed in the
deed was, it is unnecessary to consider the various submissions which were
respectively made on behalf of both parties and which were founded on what
was contended to be the proper construction thereof and in particular of the
township clause. I repeat what was said above, namely that, if a contractual right
is of such a nature that it is incapable of constituting a servitude, then the
intention of the parties (as expressed) to do so, cannot avail.83

In other words, the mere fact that these rights were erroneously 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
contigent personal rights.

The novelty of this case in the formulation of the test to determine the
distinction between a real right and a personal right is that even if the
condition amounts to a subtraction from the dominium, the right created by
such condition will only constitute a real right if the owner’s entitlements to
the land are curtailed in the physical sense. In this regard, this case adds
another standard to the original test laid down in the Geldenhuys case and
within this limited application creates a numerus clausus (a closed list) of real
rights. As pointed out by Van der Walt & Pienaar this limited test tends to
produce a result which conflicts with the nature and effect of many

81 Headnote of Geldenhuys; and Lorentz 1050.

82 Lorentz (n 4 above) 1052.
83 Lorentz (n 4 above) 1055.
68 Property law in Namibia

traditionally recognised limited real rights, such as mortgage bonds and

mineral rights.84

Pearly Beach Trust v Registrar of Deeds85

The applicant applied to court for an order declaring that a certain condition
embodied in a deed of sale was capable of registration in terms of section
3(1)(r) of the Deeds Registries Act. The Registrar of Deeds had refused to
register the deed in question which provided that a third party was entitled
to receive from the transferee and its successors in title one third of the
consideration received from the grantee of any option or rights to prospect
for minerals on the property, and one third of the compensation received in
consequence of expropriation.

The Registrar, who objected to the application, based his objection on

the following statutory provisions:

(1) Section 3(1) (r) of the Act in terms of which the Registrar is required to
register ‘any real right, not specifically referred to in this subsection’.
(2) Section 63(1), a general provision relating to rights in immovable property, in
terms of which ‘(n)o deed, or condition in a deed, purporting to create or
embodying any personal right, and no condition which does not restrict the
exercise of any rights of ownership in respect of immovable property, shall be
capable of registration’.

In terms of s 63(1) neither a personal right nor a condition which does not
restrict the exercise of any right of ownership of immovable property, is
capable of registration.

It was common cause that, insofar as the condition in this case would
bind not only the owner of the land, but also his successors in title, it did not
create a personal right.

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.
Consequently, since in this particular case 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, the condition created merely an obligation to pay over to a third
party a share of the proceeds of such grant, sale or expropriation. The
condition did not restrict any right of ownership in the land and was therefore
on that ground not registrable.

The basis of the Registrar’s objection was that: in order to qualify for
registration the right had to be such as to amount to a subtraction from the
dominium of the land; in this case the right of successive owners of the land
to grant mineral rights or to sell the land was not per se restricted in any

84 Van der Walt & Pienaar (n 61 above) 33.

85 1990 4 SA 614 (C).
 Chapter 4: Property rights, real rights and personal rights 69

manner; there was merely an obligation to pay a third party a share of the
proceeds of such grant, sale or expropriation; there was no obligation on the
owner to grant any rights to the land; and as far as expropriation was
concerned there was no limitation of rights of the owner until expropriation
would occur and that would only constitute a personal liability to share the
compensation, and a similar liability would arise with regard to disposal of the
land. The condition did not restrict any right of ownership in the land and was
therefore on that ground not registrable.

King J, in his judgment, referred to and confirmed the test for

determining whether or not a right is personal and therefore not capable of
registration laid down by De Villiers JP in Geldenhuys86 as follows:

One has to look not so much to the right, but to the correlative obligation. If that
obligation is a burden upon the land, a subtraction from the dominium, the
corresponding right is real and registrable; if it is not such an obligation, but
merely an obligation binding on some person or other, the corresponding right is
a personal right, or right in personam, and it cannot as a rule be registered.

After reviewing relevant authorities on the issue, the court in applying the
subtraction form the dominium test, rejected the Registrar’s objection and
held that one of the rights of ownership was the ius disponendi and if this
right was limited in the sense that the owner was precluded from obtaining
the full fruits of the disposition, it could be said that one of the rights of
ownership was restricted. Consequently, the condition creating such
limitation was capable of registration in terms of section 3(1) of the Act. This
case thus confirmed the subtraction from the dominium test as perhaps the
primary benchmark to determine the distinction between personal and real
rights and their registrability.

The following conclusions may be made from this case.

Firstly, this decision implies a rejection of the restrictive test laid down in
Lorentz and the reaffirmation of the original Geldenhuys test. Consequently,
adherence to the restricted standard laid down in Lorentz would have
resulted in a different conclusion. Secondly, since it did not restrict the
owner’s right to the use of the property physically, the condition could not
have resulted in the creation of a real right. Thirdly, the decision lays down
the principle that some obligations to pay money could constitute limited real
rights. This position has been criticised for its potentially negative impact on
land owners and the economy.

86 At 164.
70 Property law in Namibia

Cape Explosive Works Ltd & Another v Denel (Pty) Ltd & Others87
This was an appeal against a judgment in the Transvaal Provincial Division
reported as Denel (Pty) Ltd v Cape Explosive Works Ltd & Another.88 The main
issue to be decided in this appeal was whether certain conditions registered
in a title deed and erroneously omitted from subsequent title deeds were
binding on the then current (present) owner of the relevant property.

During 1973 the first appellant, Cape Explosive Works Ltd (‘Capex’) sold
two immovable properties to the second respondent, the Armaments
Development and Production Corporation of South Africa Limited, whose
name was subsequently changed to the Armaments Corporation of South
Africa Limited (‘Armscor’). The properties were Farm No 1065, measuring 459
6830 ha, and Portion 3 of the Farm Helderberg Sleeper Plantation No 787,
measuring 11 3903 ha. Both properties were situated in the Administrative
District of Stellenbosch. In terms of clause 6 of the deed of sale Armscor
undertook that the properties would only be used for the development and
manufacture of armaments and in terms of clause 7(a) thereof Armscor
granted to Capex the ‘first right to repurchase’ the properties, at a price to be
determined in a prescribed manner, in the event of the properties no longer
being required for the use set out in clause 6. Armscor agreed in terms of
clause 7(a)(vii) to the registration of the right conferred on Capex in terms of
clause 7(a) against its title deeds to the properties in the Deeds Office. Clause
7(b) provided that in the event of Capex repurchasing the properties Capex
would have the right to purchase all or any of the improvements and other
facilities erected on the properties which Armscor was desirous of selling, at
a price and on such further terms as might be agreed upon between Capex
and Armscor.

A dispute arose between Capex and Denel as to whether Capex would be

entitled to repurchase that portion of Erf 635 which formed part of Farm 1065
in the event of it no longer being required for the use set out in condition 1.
As a result Denel applied for an order declaring that its ownership of Erf 635
was not in respect of any portion thereof subject to condition 2. Capex, in a
counter-application, applied for an order directing the Registrar of Deeds,
Cape Town to rectify the Certificate of Consolidated Title T 33717/77, the
Deed of Transfer T 75861/92 and the Certificate of Consolidated Title T 1178/
94 so as to include conditions 1 and 2 in so far as they related to the portions
of Farm 1065 which had been incorporated into the Remaining Extent of Erf
635 Firgrove; an order directing the Registrar of Deeds to rectify Certificate of
Registered Title T1179/1994 so as to include the conditions; orders declaring
that Denel was bound to comply with the conditions; an order interdicting
Denel from failing to comply with the provisions of the conditions; and an
order interdicting Denel from selling or transferring the restricted properties
to any person without complying with condition 2.

87 n 63 above.
88 1992 2 SA 419 (T).
 Chapter 4: Property rights, real rights and personal rights 71

The court a quo found that clause 6 was registrable in terms of section
63(1) of the Deeds Registries Act in that it restricted the exercise of Armscor’s
right of ownership in respect of the properties but the parties did not intend
the restriction to be binding on Armscor’s successors in title and specifically
agreed not to register it against the property.89 Clause 7 did not affect the
property or curtail Armscor’s right of enjoyment of the property in the
physical sense. On its own it was not registrable in terms of section 63(1). It
was not ancillary to clause 6 and therefore not registrable on that basis
either.

On the strength of these findings the court a quo dismissed the counter-
application and granted an order declaring that Denel’s right of ownership in
erven 635 and 637 Firgrove was in no way encumbered by condition 2.

3.3.2.5 Requirements to determine registrability of conditions

Streicher JA, in his judgment found as a fact that Armscor intended to receive
transfer of the properties subject to conditions 1 and 2. Denel similarly did
not allege that Capex and Armscor had not intended to pass and receive
transfer of the properties subject to conditions 1 and 2. The matter therefore
had to be decided on the basis that Capex and Armscor intended to pass and
receive transfer subject to conditions 1 and 2. The issue which had to be
decided on that basis was whether conditions 1 and 2 were capable of being
registered and what the effect of their omission from subsequent title deeds
was.

In terms of section 3 of the Deeds Registries Act all real rights in respect
of immovable property are registrable. To determine whether a particular
right or condition in respect of land is real the court restated that two
requirements must be satisfied:

(1) The intention of the person who creates the real right must be to bind not
only the present owner of the land, but also his successors in title; and
(2) The nature of the right or condition must be such that the registration of it
results in a ‘subtraction from dominium’ of the land against which it is
registered.90

The court a quo further elucidated the dictates of this test as follows:

One compares the right in question and the correlative obligation to see whether
the obligation is a burden upon the land itself or whether it is something which is

89 Section 63(1) of the Deeds Registries Act provides as follows: ‘No deed, or condition in a
deed, purporting to create or embodying any personal right, and no condition which does
not restrict the exercise of any right of ownership in respect of immovable property, shall
be capable of registration: Provided that a deed containing such a condition as aforesaid
may be registered if, in the opinion of the registrar, such condition is complementary or
otherwise ancillary to a registrable condition or right contained or conferred in such deed’.
90 See also Erlax Properties (Pty) Ltd v Registrar of Deeds & Others 1992 (1) SA 879 (A) 885.
72 Property law in Namibia

to be performed by the owner personally. If it is the former, the right is capable

of being a real right. If it is the latter, it cannot be a real right. In order to
ascertain whether the obligation is a burden upon the land, two useful concepts
which have been used are that the curtailment of the owner’s rights must be
something in relation to the enjoyment of the land in the physical sense … or
that the obligations ‘affect the land’ or ‘run with the land’.91

In applying the test to the two conditions in question, the court held that with
regard to clause 6 (the restriction on the use of the land) the condition
curtailed the right to use the land and that it therefore amounted to a
subtraction from dominium. It therefore fell squarely within the definition of
section 63(1) of the Deeds Registries Act and could in principle be registered
as a real right. The condition contained in clause 7, the first right to
repurchase, did not constitute a subtraction from the dominium.

The court, however, explained that the use restriction according to

condition 1 was materially different from the use restriction according to
condition 1 read with condition 2. The two conditions were not independent
of one another and they could not be separated. They formed a composite
whole. They were specifically stated to be binding on the transferee, being
Armscor, and its successors in title. Furthermore, they constituted a burden
upon the land or a subtraction from the dominium of the land in that the use
of the property by the owner thereof was restricted. The right embodied in
conditions 1 and 2, read together, therefore, constituted a real right which
could be registered in terms of the Deeds Registries Act.

Accordinlgy, Capex was entitled to orders interdicting Denel from acting

contrary to the provisions of conditions 1 and 2. Denel was interdicted from
selling or transferring the restricted properties to any person without
compliance with pre-emptive conditions and restrictions on rights of
dominium.

This case demonstrates the application of the test of the intention of the
parties by the court to determine whether a condition creates a real right or
a personal right. The court’s decision not to separate conditions 1 and 2 was
based on the intention of the parties to bind the successors in title of Armscor
as embodied in the original agreement. The position of the court not to
regard the two conditions as mutually exclusive, and to hold that both
collectively constituted a real right, is a further demonstration of the
unsettled status of the test in Lorentz, and the degree of recognition accorded
to it by the courts.

91 Denel (n 87 above) 435.

 Chapter 4: Property rights, real rights and personal rights 73

4 Summary and observations

In the cases discussed above, the conditions purporting to create limitations

on rights of ownership were created in either a contract, notarial deed, or a
will. In order to determine their registrabilty in compliance with the dictates
of section 63(1) of the Deeds Registries Act, the courts had to draw
distinctions between real and personal rights. Almost invariably, the courts
determined the issues from the premise of the creation of a servitude. If the
impact of the conditions amounted to the creation of a servitude, then it
would clearly lead to a burden on the land, and thus satisfy the subtraction
from the dominium test and the requirements for their registrability. In the
context of payment of money, the obligation to pay a sum of money that does
not come out of the fruits of the property will be lacking in the essential
features of servitudes and therefore cannot constitute a subtraction from the
dominium. Looked at from this premise, therefore, payment of money, as
one-off payment, cannot amount to a real right. In fact the criterion of the
condition curtailing the ius fruendi or the owner’s entitlement of use and
enjoyment in the physical sense laid down in Lorentz eliminates the
possibility of the burden to pay money to someone constituting a real right.
From this point of view, a numerus clausus of real rights has potentially been
created. In order to put the debate over the creation of a numerus clausus of
real rights in perspective, it may be useful to quote from the judgment of
Nestadt J in Lorentz92 when he stated as follows:

At first sight every personal obligation in terms of which an owner undertakes to

deal – or not to deal – with his property in a particular manner restricts him in
the exercise of his dominium so that the corresponding right which another
person acquires as a result of such an undertaking would prima facie be a
potential real right. However, the law of property would disintegrate if every
personal right relating to a thing could be converted into a real right, while on
the other hand, circumstances might arise which make it desirable that a further
type of ‘mere’ personal right should be added to those which are capable of
being converted into real rights.

The position inSouth African law and to that extent Namibian law is that there
is no numerus clausus of real rights. Consequently, the restrictive test in
Lorentz may not stand the test of time.

A final point that may be added with respect to the registration of rights
is the statement made by Wessels J in Hollins93 that neither by the common
law nor by Proclamation (legislation) can one have registration of a right, the
birth of which is dependent upon a contingency.

92 Lorentz (n 4 above) 1051, quoting from Silberberg The Law of Property.

93 n 10 above, 608