Rights and relationships
It can be said that the concept of the constitutional protection of property is a wide concept. Briefly
discuss this statement and identify the different rights in view of the set of facts above that could be
protected in terms of the constitution.
The rights in property protected by the Constitution include not only ownership but all rights in
property, including at least lawful holdership of corporeal and incorporeal things. Unlawful
holdership and possession cannot qualify as rights at all, and will not necessarily be included in this
protection, although some unlawful
occupiers of land could be protected in terms of the Constitution and land reform laws. The rights
that could be protected in terms of the Constitution are : ➢ Peter and Jenny’ right over the farm
(Real Rights) ➢ Mr and Mrs Khumalo (Limited Real right -habitation) ➢ Mr and Mrs Williams in terms
of their lease (Ceditor’s right) ➢ Ben in terms of a lease (creditor’s right) ➢ Lerato (Limited real right
in the form of a pledge) ➢ Blue bank (Limited Real Right)
Identify and describe the nature of the right that Mr. and Mrs. Khumalo have with regard to the
farmstead on Peter and Jenny’s farm.
The Khumalo’s have “habitation” which is a personal servitude which is a limited real right . In this
case, the right of habitatio allowed the Khumalo’s to live in the smaller homestead on the farm for as
long as they lived, even though Peter and Jenny were the co-owners of the property. This personal
right was duly registered against the title deed of the farm of Peter and Jenny, which means that it
was a legally recognized right. Therefore, when the Khumalo’s returned to the homestead, they were
exercising their legal right to use and enjoy the property. This personal servitude was described in
para 6 of the Hendricks v Hendricks (2016) decision. The right to habitation as a servitude is a limited
real right which confers on the holder the right to dwell in the house of another, without detriment
to the substance of the property. “Our courts have long recognised habitatio as a personal servitude
which is a limited real right
Identify, describe and apply the test t Geldenhuys hat was formulated in Ex Parte to determine the
nature of the rights that the Khumalos and Williamses have with regard to the respective properties.
in Ex Parte Geldenhuys (1926 OPD 155) the court formulated a test to determine the distinction
between personal rights and real rights. The court formulated the following test: “One has to look
not so much to the right, but also to the correlative obligation. If that obligation is a burden on the
land, a subtraction from the dominium, the corresponding right is real and registrable, it is not such
an obligation, but merely an obligation binding on some person or other, the corresponding right is a
personal right, or a right in personam, and it cannot as a rule be registered” The subtraction from the
dominium test is applied to determine whether a right is a real right which is registrable in the deeds
office in terms of section 63(1) of the Deeds Registries Act 47 of 1937
Identify the type of real security right that the Blue Bank has over Peter and Jenny’s property and
explain what Blue Bank’s recourse would be if Peter and Jenny should fail to pay the whole debt.
It can be said that the concept of the constitutional protection of property is a wide concept. Briefly
discuss this statement and identify the different rights in view of the set of facts above that could be
protected in terms of the constitution.
The rights in property protected by the Constitution include not only ownership but all rights in
property, including at least lawful holdership of corporeal and incorporeal things. Unlawful
holdership and possession cannot qualify as rights at all, and will not necessarily be included in this
protection, although some unlawful
occupiers of land could be protected in terms of the Constitution and land reform laws. The rights
that could be protected in terms of the Constitution are : ➢ Peter and Jenny’ right over the farm
(Real Rights) ➢ Mr and Mrs Khumalo (Limited Real right -habitation) ➢ Mr and Mrs Williams in terms
of their lease (Ceditor’s right) ➢ Ben in terms of a lease (creditor’s right) ➢ Lerato (Limited real right
in the form of a pledge) ➢ Blue bank (Limited Real Right)
Identify and describe the nature of the right that Mr. and Mrs. Khumalo have with regard to the
farmstead on Peter and Jenny’s farm.
The Khumalo’s have “habitation” which is a personal servitude which is a limited real right . In this
case, the right of habitatio allowed the Khumalo’s to live in the smaller homestead on the farm for as
long as they lived, even though Peter and Jenny were the co-owners of the property. This personal
right was duly registered against the title deed of the farm of Peter and Jenny, which means that it
was a legally recognized right. Therefore, when the Khumalo’s returned to the homestead, they were
exercising their legal right to use and enjoy the property. This personal servitude was described in
para 6 of the Hendricks v Hendricks (2016) decision. The right to habitation as a servitude is a limited
real right which confers on the holder the right to dwell in the house of another, without detriment
to the substance of the property. “Our courts have long recognised habitatio as a personal servitude
which is a limited real right
Identify, describe and apply the test t Geldenhuys hat was formulated in Ex Parte to determine the
nature of the rights that the Khumalos and Williamses have with regard to the respective properties.
in Ex Parte Geldenhuys (1926 OPD 155) the court formulated a test to determine the distinction
between personal rights and real rights. The court formulated the following test: “One has to look
not so much to the right, but also to the correlative obligation. If that obligation is a burden on the
land, a subtraction from the dominium, the corresponding right is real and registrable, it is not such
an obligation, but merely an obligation binding on some person or other, the corresponding right is a
personal right, or a right in personam, and it cannot as a rule be registered” The subtraction from the
dominium test is applied to determine whether a right is a real right which is registrable in the deeds
office in terms of section 63(1) of the Deeds Registries Act 47 of 1937
Identify the type of real security right that the Blue Bank has over Peter and Jenny’s property and
explain what Blue Bank’s recourse would be if Peter and Jenny should fail to pay the whole debt.
