At the core of the common law of property is the distinction between real and personal rights.

A
real right is usually described as a right where a person has a complete title or exclusive control
over a thing or property and an object of a real right is usually corporeal. Personal right on the
other hand can be described as a right against another person for the performance of an
obligation and it usually originates from an obligation such as contract or delict. The distinction
between personal and real rights is at times so thin and even ambiguous. It is difficult to
differentiate between real and personal rights but the courts have attempted to make the
distinction by applying a two-part criterion, whether there is a legal relationship that binds not
only the present owner but also the successor in title, and the nature or the condition of the right.
Various jurists have also come up with the personalist theory and the classical theory. Hence,
the variance between these two rights, also affect their registrability. It is therefore, the aim of
the foregoing discussion to explain and describe real and personal rights and how the distinction
between real and personal rights affects their registrability, through theories, case law and even
legislation.

Case law
Judicial developments have resulted in advancement of another criterion to try and distinguish
the two rights due to the unsatisfactory explanations of the scholarly theories, which have left a
trail of unclear grey areas. The case of Ex parte Geldenhuys1 is the leading authority in cases that
have tried to distinguish real rights and personal rights. It came up with what is known as the
‘subtraction from dominion’ test. It was stated at page 164 that;

“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 real right is
registerable; if it is not such an obligation but merely an obligation binding upon some person or
other, the corresponding right is a personal right, or a right in personam, and it cannot as a rule
be registered.”

1
1926 OPD 164
For a right to qualify as a real right it has to place a burden upon the land, subtraction from the
dominium. A personal right on the other hand merely places a burden on a specific person for the
performance of an obligation rises from various causes.

In the case of Cape Explosive Works Ltd v Denel (Pty) Ltd and Others2it was stated that;

‘’ To determine whether a particular right or condition in respect of land is real, 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.” 3

Because a real right places a burden upon the land, it also binds not only the present owner of the
land but also the successors in title. Once registration of a right fails to be a subtraction from the
land itself if seizes to be a real right but a personal right.

Another landmarks case went on to clarify on the difference between a real and a personal right.
In the case of Nel v Commissioner of Inland Revenue4where a will of a father stated that a son
had to pay the surviving spouse (the mother) an allowance monthly. The mother then sought to
have the right registered purporting it to be a subtraction from the land. The court dismissed this
notion guided by the case of Ex parte Geldenhuys5 mentioning that the right has to place a
burden on the land itself directly and bind its successors in title for it to be a real right that is
registrable.

Acts of Parliament

2
2001 (3) SA 569 (SCA).
3
1950 (4) SA 490 (E).
4
1960 (1) SA 227.
5
1926 OPD 155.
The legislature has also developed its own description of these problematic rights. The main law
in this regard is the Deed Registries Act. 6 In article 2 of the Law, a real right is described as "any
right that becomes a real right upon registration". This description is poorly worded. In fact, no
meaningful understanding of what personal or property rights are can be derived from such an
explanation. However, what can be clearly deduced from the description in section 2 is that it is
only a real right that can be registered and personal rights, by implication, cannot be registered.
Exceptions to the relative nature of personal rights add on to the confusion.

Registrability of Rights.
In accordance with statutory law, which also goes hand in hand with the common law of service
doctrine, only a real right can be registered, as opposed to a personal right. In Zimbabwe, as in
South Africa, the registration of property rights is the prerogative of the Registrar of Deeds.
Section 2 the Deed Registries Act7, in its interpretation of real rights, clearly alludes to the fact
that only real rights are registrable. As we have seen in the Ex parte Geldenhuys case supra,
personal rights cannot be registered. Only real rights enjoy this registrability privilege.

Importance of registration of rights

The reason why only real rights can be registered versus personal rights must be understood.
Real rights, which can be enforced against the whole world, are supposed to be notified to the
world. In terms of the doctrine of the notice, which was well articulated and set forth in the
Machiva v CBZ8 case, the effect of the search is that all those seeking to occupy the property are
considered aware of the fact who is the actual owner of the property. In fact, the public can have
unhindered access to the title deeds of all properties registered with the deed registry office for a
fee9.

It needs be noted that registration has been equated with delivery when it comes to movables 10.
As such, just as one cannot be considered the owner of movable property that is not in his

6
[Chapter 20:05].
7
Ibid.
8
2000 (1) ZLR302 (H).
9
In Frye’s (Pty) Ltd v Ries 1957 (3) SA 575 at 583F
10
Ex parte Geldenhuys supra
possession, a person who has not registered his name is not considered the owner of real
property. In Chapeyama v Chapeyama11 it was rightly pointed out that registration should not be
treated as a mere question of form, but rather conveys real rights over those in whose name the
property is registered12. This real right, as discussed above, is the sum total of all possible rights
to a thing.

The difference between property rights and personal rights that has been tried above, together
with the importance and main purpose of registration, clearly show that it is only necessary to
register property rights. Real rights affect everyone and therefore it is imperative that they be
notified to it. It is not possible to tell the whole world about your real rights and the only way to
do that is by registering with a public office where anyone can have access to the records. On the
other hand, personal rights only affect a single person or a single association of people. They
affect only the parties to the agreement and not anyone else. Therefore, it is obvious that the
registration of such rights would have no real purpose in law. Property rights are a burden on
property and not merely binding on any person. Once this reason is understood, it is clear that it
is not necessary to register personal rights.

Only real rights are registrable?

.However, the conclusion that only real rights can be registered is not without any criticism. It
can be seen that, in some cases, even personal rights have been deemed registrable 13. The most
obvious of all the examples is the ability to register a Sales Agreement 14. When it is registered, it
becomes a deed of sale. It should be noted that a sales agreement entitles a personal right
between the prospective seller and the prospective buyer. Despite all this, that right can still be
registered.

There have also been a number of cases that have come up with a type of personal rights, which
are registrable. These are those personal rights known as jura in personam ad rem acquirendum.

11
2000(2) ZLR 103(S)
12
Machiva v CBZ (supra).
13
Registrar of Deeds v Ferreira Deep Ltd1930 AD 169 at 180
14
Registrar of Deeds v Ferreira Deep Ltd 1930 AD 169 at 180
De Villiers CJ aptly summarized the issue about these rights (as he then was) in an oft-quoted
passage of his judgment in Registrar of Deeds (Transvaal) v The Oceana Consolidated Ltd
(supra) when he said:

“That personal rights, jura in personam, are not capable of registration is a truism. The
definition of such rights excludes their registration. However, that does not apply to the class of
personal rights known as jura in personam ad rem acquirendum. As contracts, with a few
exceptions, give rise only to personal rights, this class of rights, although relating to immovable
property, is a personal right until registration when it is converted into a real right by such
registration.”

This argument underlines the fact that all rights in rem always start as rights in personam and
become rights in rem at the time of registration. In this sense, the question of registering rights in
rem may seem an illusion. What is always registered is a personal right, but it is this registration
that converts that personal right into a real right. In fact, the phrase iura in personam ad rem
acquirendum refers to personal rights to which something is claimed, or to "personal rights in
relation to real rights subject to registration". 15 In other words, real rights never begin this way.
This point is aptly supported by the description of a real right that is in section 2 of the Deeds
Registries Act16. That description clearly shows that it is the registration that converts a right into
a real right. As such, the conclusion that can be reached is that there appears to be a very thin line
between real rights and personal rights

This approach has been criticized. The critics of this argument have argued that it is not
registration per se which causes a right to acquire real effect, but that a real right is created,
registration being one of the requirements for its creation. As such, doubt is cast over whether
registration of a personal right can, as a general rule, have the effect of constituting a real burden
on the property concerned. Again, it has been held that registration of personal rights does not
make them real as in the case of jura ad rem acquirendum. They remain personal between the

Odendaalrus Gold v Registrar of Deeds (supra)

15
16
In that section a real right is described as ‘ any right that becomes real upon registration.’ Again in Jones and Nel
Conveyancing208 it is stated that, “it is now trite that rights in the class iura in personam ad rem
acquirendumbecome real rights upon registration” (my emphasis)
contracting parties or between the parties bound17. In any case, it was unknown an phenomenon
in Roman law and our common law for a personal right to have real effect18.

In trying to preserve the field of real rights and their registrability, the courts have stated
categorically that such registration does not change such a right into a real right. For a personal
right to be registrable it has to be so intimately connected with a registrable right, and by
registrable right, it is meant a real right 19. Only if it is intimately connected to the real right can it
be registrable.

It is also to be noted that there are also purely personal rights, which do not bind successors in
title, which by immemorial practice and custom are allowed to be included in the deeds and thus
be registered e.g. pre-emptive rights, reversionary rights and restraints in alienation. It has been
held that the general prohibition in relation to the registration of personal rights was never
intended to upset the practice of generations20.

Conclusion
.
Therefore, in conclusion it is also clear from the above discussion that the distinction between
registering and not registering real rights and personal rights is not, respectively, definitive. The
best advice on real rights and personality rights is to consider all the facts and consequences of
these rights before deciding whether they are real or personal rights. However, the logical
conclusion that can be drawn from the above discourse is that only real rights can be recorded,
regardless of how they are described and explained.

17
Nel NO v Commissioner of Inland revenue 1960 (1) SA 227 (A)
18
Silberberg and Shoeman, 3 ed, at page 71
19
Ex Parte Geldenhuys1926 OPD 155
20
Ex Parte Zunckel 1937 NPD 295
REFERENCE

L Mhishi, “A Guide to the Law and Practice of Conveyancing in Zimbabwe”, First

Edition, Legal Resources Foundation 2004.

Nel H. S, “Conveyancing in South Africa”, Fourth edition, Juta and company Limited, 1991.

Kleyn D.G. and Boraine A, “Silberberg and Schoeman’s The Law of property”, Third edition,
Butterworths 1993