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case summary for Ex Parte Geldenhuys, Lorentz v Melle and Pearly beach trust
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summaries of Ex parte Geldenhuys, Lorentz v Melle and Pearly beach trust.
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Case Summaries:EX PARTE GELDENHUYS:
This case deals with a situation where the husband and wife left a portion of land to their
children in undivided shares in a will. One of the clauses read that the surviving spouse
would have the land divided when the eldest child reached the age of majority. There was
however an unusual condition. The property was to be divided using lots (what a way to
divide property!) and the child who drew the lot where the house was would have to pay the
other children an amount of money as a means of compensating them for their loss of the
house( weird obligation). There were two conditions imposed by the will: 1. The subdivision
of the land had to be done at a specific time and in a specific manner and 2. That the child
with the portion of the house should compensate the others. The logical question that stems
from this is what sort of right the children have against the child with the house real right or
creditor’s right. The Registrar of Deeds refused to acknowledge the conditions or register
them on the basis that these did not create any real rights because s 63 of the Deeds Registries
Act stipulates that only real rights can be registered.
The court held that in such a case one must look at what obligation is created by the right and
to look at the effect and intention of the obligations. With regards to the effect, the case is
proposition for the following which constitute the subtraction from dominium test: Rights are
seen as a burden and where this burden rests is how one sees the effect. An obligation that An obligation that
burdens the land is a subtraction from the dominium (another word for ownership) which
creates a real right. When we speak of a subtraction from dominium this is what we mean –
ownership is a bundle of rights i.e. the right to use, enjoy, destroy, sell etc. and these all come
with being the owner. When an obligation affects this bundle of rights for instance by
limiting the right to use the land, then we have subtracted from the dominium and a real right
is created which affects not just the person who owns the land then but anyone who steps into
his position again. It affects owners to come and thus binds them to honor the obligation that
comes with it. “take me as I am and love me for who I am” has never found better application
than in this case! An obligation that A burden that rests on a person in their personal capacity creates a personal
right which means it cannot be registered. It does not affect or bind future successive owners
of the land since them right follows the person. An obligation that NOTE the importance of the intention of the
parties in both elements, the court held that one should consider it. What about when the
intention is against the law i.e. the law does not permit such registration, would intention
matter?
The court held that in respect of the first obligation of limiting the right of subdivision was in
fact a burden that attached to future owners and present owners alike meaning that it would
bind them in title-thus it was a real right. The second obligation however, placed a burden on
only child (the one who drew the lot with the house) and followed that child only. It had no
intention to bind anyone else but him and so was seen as personal right. The court then
changed the course of our law by stating that because this condition was so closely connected
to the first real right, they should be registered together for convenience. So this is an
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