UNIVERSITY OF SOUTH AFRICA
College of Law
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LPL4805: Notarial Practice
Assignment 1 | Semester 2, 2026
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LPL4805
Module Code:
Notarial Practice
Module Name:
Assignment 1
Assignment:
Semester 2, 2026
Semester:
26 August 2026
Due Date:
Submitted in partial fulfilment of the requirements for Notarial Practice, UNISA 2026
, UNISA | LPL4805 Notarial Practice: Assignment 1
Question 1: Registration and the Enforceability of a Servitude Agreement
Joseph and Peter appeared before you, a notary, to execute and register a
servitude agreement. Due to your large volume of work, you erroneously forgot
to register the servitude agreement at the Registrar of Deeds office. Will the
unregistered agreement establish an enforceable servitude agreement? Explain.
(5)
A servitude is a limited real right which entitles its holder to exercise a specific power over
the property of another, or to prevent the owner of that property from exercising one or more
of the ordinary incidents of ownership.1 Because it derogates from ownership, South African
law insists on a formal method of creation before a servitude attains the status of a real right
enforceable against the whole world.
1.1 The Distinction Between a Personal Right and a Real Right
An agreement between two landowners to create a servitude, however clearly drafted and
signed, does not by itself bring a real right into existence. Section 63(1) of the Deeds Reg-
istries Act 47 of 1937 requires a servitude over immovable property to be registered in a
deeds registry before it constitutes a right that binds successors in title and the world at
large.2 Until registration takes place, the agreement generates only a personal right, enforce-
able in contract between Joseph and Peter as the original contracting parties, and not a real
right in the land itself.
The Appellate Division explained this distinction definitively in Registrar of Deeds (Transvaal) v
The Ferreira Deep Ltd, holding that a contract creating a burden on immovable property gives
rise to a personal right only, which is converted into a real right solely by registration.3 An
agreement to register a servitude is accordingly described as creating merely an inchoate
right, a right to demand registration, rather than the servitude itself.4
1
PJ Badenhorst, JM Pienaar and H Mostert, Silberberg and Schoeman’s The Law of Property (5th edn, Lexis-
Nexis 2006) 322.
2
Deeds Registries Act 47 of 1937, s 63(1).
3
Registrar of Deeds (Transvaal) v The Ferreira Deep Ltd 1930 AD 169, 180.
4
CG van der Merwe, Sakereg (2nd edn, Butterworths 1989) 489.
Page 2 of 10
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LPL4805: Notarial Practice
Assignment 1 | Semester 2, 2026
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LPL4805
Module Code:
Notarial Practice
Module Name:
Assignment 1
Assignment:
Semester 2, 2026
Semester:
26 August 2026
Due Date:
Submitted in partial fulfilment of the requirements for Notarial Practice, UNISA 2026
, UNISA | LPL4805 Notarial Practice: Assignment 1
Question 1: Registration and the Enforceability of a Servitude Agreement
Joseph and Peter appeared before you, a notary, to execute and register a
servitude agreement. Due to your large volume of work, you erroneously forgot
to register the servitude agreement at the Registrar of Deeds office. Will the
unregistered agreement establish an enforceable servitude agreement? Explain.
(5)
A servitude is a limited real right which entitles its holder to exercise a specific power over
the property of another, or to prevent the owner of that property from exercising one or more
of the ordinary incidents of ownership.1 Because it derogates from ownership, South African
law insists on a formal method of creation before a servitude attains the status of a real right
enforceable against the whole world.
1.1 The Distinction Between a Personal Right and a Real Right
An agreement between two landowners to create a servitude, however clearly drafted and
signed, does not by itself bring a real right into existence. Section 63(1) of the Deeds Reg-
istries Act 47 of 1937 requires a servitude over immovable property to be registered in a
deeds registry before it constitutes a right that binds successors in title and the world at
large.2 Until registration takes place, the agreement generates only a personal right, enforce-
able in contract between Joseph and Peter as the original contracting parties, and not a real
right in the land itself.
The Appellate Division explained this distinction definitively in Registrar of Deeds (Transvaal) v
The Ferreira Deep Ltd, holding that a contract creating a burden on immovable property gives
rise to a personal right only, which is converted into a real right solely by registration.3 An
agreement to register a servitude is accordingly described as creating merely an inchoate
right, a right to demand registration, rather than the servitude itself.4
1
PJ Badenhorst, JM Pienaar and H Mostert, Silberberg and Schoeman’s The Law of Property (5th edn, Lexis-
Nexis 2006) 322.
2
Deeds Registries Act 47 of 1937, s 63(1).
3
Registrar of Deeds (Transvaal) v The Ferreira Deep Ltd 1930 AD 169, 180.
4
CG van der Merwe, Sakereg (2nd edn, Butterworths 1989) 489.
Page 2 of 10
