General Provisions (ss 60-61)

60.     Restriction on registration of rights in immovable property

            (1) No deed, or condition in a deed, purporting to create or embodying any personal right in respect of immovable property shall be capable of registration.

            (2) No condition imposed after the commencement of this Act, purporting to restrict the exercise of any right of ownership in respect of immovable property shall be included in any title deed of such property tendered for registration in the deeds registry unless such condition is capable of being enforced by some person who is mentioned in, or if not mentioned therein, is ascertainable from, the said title deed or from other evidence available to the Registrar.

61.     Certificates of registered real rights

            (1) Any person who either before or after the commencement of this Act has transferred land subject to the reservation of any real right in his favour (other than a right to minerals) may on application in writing to the Registrar accompanied by the title deed of the land obtain a certificate of registration of that real right as nearly as practicable in the prescribed form.

            (2) Such person shall not separately mortgage or otherwise deal with such right or transfer a share thereof (if transferable) unless he has obtained such certificate in the manner aforesaid.

            (3) The provisions of section 35(2) to (5) inclusive shall mutatis mutandis apply in respect of such certificate.

Personal Servitudes (ss 62-66)

62.     Registration of notarial deed creating personal servitude

            (1) Except as provided in section 60(2) or in any other law, a personal servitude may be created by means of a deed executed by the owner of the land encumbered thereby and the person in whose favour it is created, and attested by a notary public:

            Provided that-

      (i)     in the case of a servitude in favour of the public or of all or some of the owners or occupiers of pieces of land in a township or settlement, the Registrar may, if in his opinion it is impracticable to require such deed to be executed by the persons in whose favour the servitude is created, register such deed notwithstanding the fact that it has not been executed by such persons;

      (ii)     where it is desired to register a road or thoroughfare in favour of the public at the same time as the registration of a subdivision which it serves, it shall in like manner and without the registration of a notarial deed be permissible to register it in the deed relating to the subdivision and also to endorse the deed of the remainder accordingly.

            (2) Such deed shall contain a sufficient description of the land encumbered by the servitude and shall mention the title deed of such land.

            (3) For the registration of such a deed, the title deed of the land and, if the land is mortgaged, the bond and the consent in writing of the legal holder thereof to the registration of the servitude free of the bond, shall be produced.

63.     Restriction on registration of personal servitude

            No personal servitude of usufruct, usus or habitatio purporting to extend beyond the lifetime of the person in whose favour it is created shall be registered, nor shall a transfer or cession of such personal servitude to any person other than the owner of the land encumbered thereby, be registered.

64.     Reservation of personal servitudes

            A personal servitude may be reserved by condition in a deed of transfer of land, if the reservation is in favour of the transferor, or in favour of the transferor and his spouse or the survivor of them, if they are married in community of property, or in favour of the surviving spouse if transfer is passed from the joint estate of spouses who were married in community of property.

65.     Registration of lapse of personal servitude

            (1) If for any reason a personal servitude has lapsed, the Registrar shall, if satisfied as to such lapse and on the application of the owner of the land encumbered thereby, note the fact to such lapse on the title deed of the land and on the title deed of the servitude, if any.

            (2) Cancellation of the registration of a personal servitude in pursuance of an agreement between the owner of the land encumbered and the holder of the servitude shall be effected by notarial deed:

            Provided that no such deed shall be registered if the servitude is mortgaged unless the mortgagee consents in writing to the cancellation of the bond or the release of the servitude from its operation.

66.     Transfer and mortgage of land with personal servitude thereon or subject to a fideicommissum

            (1) If the owner of land subject to a personal servitude and the holder of that servitude have disposed of the land or any portion thereof together with the rights of servitude to another person, they may together give transfer thereof to the person acquiring it.

            (2) The transfer deed shall describe the transferors as the owner of the land and holder of the servitude respectively, but no mention of the servitude shall be made in the description of the land therein.

            (3) The owner of land subject to a personal servitude and the holder of that servitude may together mortgage the land to the full extent of their respective rights therein.

            (4) The owner of the land and the holder of the servitude may either of them as principal debtor mortgage the land or the servitude respectively and the other of them may in the same bond mortgage the servitude or the land as surety.

            (5) Subsections (1) to (3) shall mutatis mutandis apply to land subject to a fideicommissum.

Rights to Minerals (ss 67-71)

67.     Separation from ownership of rights to minerals

            (1) Rights to minerals may be separated from the ownership of land by reservation under section 68 or 69 in a condition contained in a transfer of such land or by exclusion from a partition of such land in terms of section 70 or by cession of those rights by the owner of the land to another person.

            (2) Such separation from the ownership may take place in respect of a portion of a registered piece of land, or of a share in the whole or a portion of a registered piece of land, and may be in respect of all minerals generally, or of a particular mineral or minerals.

            (3) Notwithstanding anything to the contrary contained in any other law, whenever rights to minerals have been separated from the ownership of land under any provision of this Act, such rights to minerals and the land shall thereafter each be held under a separate title even though the holder of the rights to minerals is also the owner of the land:

            Provided that where the owner of the land is also the owner of all the mineral rights and such rights are unencumbered, it shall be competent to register a merger on application by the owner.

68.     Certificates of reservation of rights to minerals

            (1) Any person who transfers land subject to a reservation in his favour of rights to minerals thereon, or on whose land a township or settlement is established subject to such reservation, shall simultaneously with the passing of transfer or the opening of a register in the deeds registry for such township or settlement, as the case may be, take out a certificate of rights to minerals in the prescribed form in respect of the rights so reserved; where the register has been opened, a certificate may be taken out in respect of the remainder of the township or settlement.

            (2) Upon the written application to the Registrar of any person who has, before the commencement of this Act, transferred land subject to a reservation in his favour of rights to minerals thereon and who is the holder of such rights, the Registrar shall, on production of the title deed under which the land is held, issue to such person a certificate of rights to minerals in the prescribed form in respect of the rights so reserved.

            (3) The holder of the title deed shall upon the demand and at the expense of the applicant produce the title deed to the Registrar.

            (4) Any person who transfers land in the manner described in subsection (1) or who is an applicant under subsections (2) and (3) shall, if the Registrar so requires, lodge with him a diagram showing the area in respect of which the rights to minerals are reserved.

            (5) A certificate of rights to minerals referred to in subsection (1) or (2) shall-

     (a)     set forth the rights to minerals to which it relates and any rights ancillary to such rights;

     (b)     be signed by the Registrar and be registered against the title deeds of the land in respect of which such rights to minerals have been reserved, and when so signed and registered shall be the title to the said rights to minerals.

            (6) If the rights to minerals are subject to a registered mortgage bond, lease or other deed affecting such rights, the said certificate shall not be issued except upon production of the bond, lease or other deed, and the Registrar shall, when issuing the certificate, endorse-

     (a)     upon the bond, lease or other deed that a certificate of rights to minerals has been substituted for the title under which such rights were formerly held; and

     (b)     upon the certificate of rights to minerals that these rights have been hypothecated, leased or otherwise dealt with in accordance with such bond, lease or other deed,

and shall make the necessary entries in the registers; and thereupon the said rights to minerals shall be deemed to be as fully and effectually hypothecated, leased or otherwise dealt with as if they were still held under the former title.

            (7) No rights to minerals reserved before the commencement of this Act, and still held under the title deed of the land shall, until a certificate of rights to minerals has been issued in respect thereof, be hypothecated, leased or dealt with otherwise than by way of cession of all such rights.

69.     Certificate of rights to minerals reserved by State

            The provisions of section 68 shall mutatis mutandis apply in respect of a grant of land by the State made subject to a reservation of rights to minerals in favour of the State.

70.     Exclusion of rights to minerals from partition of land

            (1) If in any partition of land held in joint ownership the agreement of partition excludes from partition any rights to minerals in the land, the partition transfers shall set forth that exclusion.

            (2) If rights to minerals are excluded from partition in accordance with subsection (1) there shall be lodged with the Registrar together with the deeds of partition, a certificate or certificates of rights to minerals in the prescribed form in respect of the rights so excluded.

71.     Undivided share of rights to minerals

            Section 32(1) shall mutatis mutandis apply in respect of persons who jointly hold a certificate or deed of cession of rights to minerals.

Praedial Servitudes (ss 72-73)

72.     Creation of praedial servitude by notarial deed

            (1) A praedial servitude whether in perpetuity or for a limited period may be created by means of a deed executed by the owners of the dominant and servient tenements and attested by a notary public.

            (2) If the servient tenement is mortgaged or subject to any other real right with which the servitude may conflict, the bond or other registered deed by which such right is held shall be produced together with the consent in writing of the legal holder thereof to the registration of the servitude.

            (3) If it is sought to cancel a servitude, and the dominant tenement is mortgaged, the bond shall be produced together with the consent in writing of the legal holder thereof to the registration of the cancellation.

            (4) Section 62(2) and (3) shall mutatis mutandis apply in respect of praedial servitudes.

73.     Conditions of registration of praedial servitudes

            (1) A praedial servitude whether in perpetuity or for a limited period may be created in a transfer of land only if the servitude is imposed on the land transferred in favour of other land registered in the name of the transferor, or is imposed in favour of the land transferred on other land registered in the name of the transferor:

            Provided that if-

     (a)     the land to be transferred is admitted by the person seeking to pass transfer thereof to be subject to unregistered rights of servitude in favour of land registered in a third person's name;

     (b)     the person to whom the transfer is to be passed had knowledge of the existence of the said rights of servitude at the time when he acquired the right to the land or consents in writing to such servitude being embodied in the transfer; and

     (c)     such third person appears either in person or by duly authorized agent before the Registrar at the time of execution of the transfer and accepts the servitude in favour of his land,

the servitude may be embodied in such transfer.

            (2) The appearance of such third person as aforesaid and his acceptance of the servitude shall be recited in the deed of transfer and the title deed of the dominant tenement shall be produced for endorsement thereon of the terms of the servitude.

            (3) If the servitude is imposed on other land in favour of the land to be transferred, and that other land is mortgaged or is subject to any other registered real right with which the servitude may conflict, the consent in writing of the legal holder of the bond or of such other right, to the registration of the servitude shall be produced, together with the bond or other deed evidencing such other right and the title deed of the servient tenement.

            (4) In registering the deed of transfer in which the servitude is embodied the Registrar shall endorse the terms of the servitude and the number and date of the transfer on the title deed of the other tenement and if a bond or other deed is produced, as aforesaid, also thereon.

            (5) In the subdivision of land which is entitled to a servitude over other land, it shall be competent for the owner when transferring such subdivision to stipulate in his power of attorney that the exercise of the rights is restricted to the land still held by him, and in that event the transfer of the portion in question shall make no reference to the servitude, nor shall it be necessary to record on the title of the servient tenement that the rights are so restricted.

            (6) If in the subdivision of land which is subject to restrictive conditions in favour of a statutory body, such body consents to the subdivision contemplated, the consent shall in the absence of anything to the contrary therein contained, involve the application of all such restrictive conditions to each subdivision so authorized, and on registration of title of the subdivision the deed shall be drawn accordingly.

Leases (ss 74-79)

74.     Registration of leases and sub-leases

            (1) Except where provision to the contrary is made in any law, any lease or sub-lease of land or of any rights to minerals in land and any cession of such a lease or sub-lease intended or required to be registered in the deeds registry, shall be executed by the lessor and the lessee or by the lessee and the sub-lessee or by the cedent and the cessionary, as the case may be, and shall be attested by a notary public.

            (2) If the land or right leased or sub-leased is mortgaged or subject to rights of any other person it shall not be necessary for purposes of registration of the lease or sub-lease or any cession thereof to produce the bond or the other deed whereby such rights are held or the consent of the legal holder thereof.

75.     Termination of registered lease

            (1) When a registered lease or sub-lease has terminated the Registrar shall, on written application by the owner of the land affected thereby, or the holder of the lease, as the case may be, accompanied by proof of the termination of the lease or sub-lease and, in the case of the termination of the lease, by the title deed of the land and, if available, the deed of lease, or in the case of the termination of the sub-lease, by the deed of lease and if available the deed of sub-lease, note, in the case of the termination of the lease, on the title deed of the land and on the deed of lease, if produced, or, in the case of the termination of the sub-lease, upon the deed of lease and upon the deed of sub-lease, if produced, that the lease or sub-lease as the case may be, has terminated.

            (2) If the full term, including periods of renewal, of a registered lease or sub-lease has expired, no further transactions affecting that lease or sub-lease shall be registered.

76.     Cessions of leases and sub-leases

            No cession of a lease or sub-lease shall be registered in the deeds registry unless the lease or sub-lease has been registered therein.

77.     Hypothecation of leases and sub-leases

            No hypothecation of a lease or sub-lease shall be registered in the deeds registry unless such hypothecation is effected by means of-

     (a)     a mortgage bond, if the lease or sub-lease is immovable property; or

     (b)     a notarial bond, if the lease or sub-lease is not immovable property.

78.     Notarial bonds hypothecating leases or sub-leases

            (1) For the registration of a notarial bond specially hypothecating a registered lease or sub-lease the deed of lease shall be produced to the Registrar.

            (2) In registering such bond the Registrar shall endorse on the deed that the lease or sub-lease has been hypothecated by the bond.

            (3) Section 54(1) shall mutatis mutandis apply in respect of any lease or sub-lease so hypothecated.

79.     Hypothecation of and settlement lease after exercise of option to purchase

            (1) If in any lease entered into under any law relating to land settlement the lessee is given the option to purchase the property leased or any portion thereof, and he has exercised the option, the rights to the property so acquired by the lessee may, if the lease is registered in the deeds registry and is not subject to an existing bond, be hypothecated by a notarial bond.

            (2) Section 78 shall mutatis mutandis apply in respect of the registration of such a bond.

            (3) If such lease is subject to an existing bond at the date of the exercise of the option the rights acquired by the exercise of such option shall be subject to such bond.

Prospecting Contracts (ss 80-81)

80.     Registration of prospecting contracts

            (1) If the prospecting rights granted under a prospecting contract are granted for a defined period with a right of renewal for any further period, registration of the contract shall be effective for that defined period only:

            Provided that, if the holder of prospecting rights so granted under a registered prospecting contract lodges such contract at the deeds registry before the expiration of the said defined period together with an affidavit in terms of subsection (2), or within one month after the expiration of the defined period together with the grantor's written consent to such endorsement, the Registrar shall endorse upon the register of prospecting contracts and upon the contract and the registry duplicate thereof a statement that the said holder claims to have exercised his right of renewal for the period mentioned in the said affidavit, and the endorsement so made shall, as from the date thereof, be effective notice of the claim to all interested persons, other than the grantor of the prospecting rights, whose written consent to such endorsement has not been produced.

            (2) The affidavit referred to in subsection (1) shall be made by the holder of the prospecting rights under a registered prospecting contract or by his duly authorized agent, and shall state that the holder has fulfilled all such conditions of the contract as entitled him to a renewal of the contract and that he has duly exercised his right to renew the same.

            (3) If at the time when a prospecting contract is tendered for registration the defined period for which the prospecting rights were granted thereunder has already expired but a further period for which there is a right of renewal has not yet expired, the Registrar shall, upon the application of the person who was the holder of the prospecting rights under such contract and with the consent in writing of the grantor of those rights, register the contract, and the registration shall then be effective in respect of the period for which it is claimed that the contract has been renewed.

            (4) If a document purporting to be a prospecting contract contains any ambiguity and such document is in the opinion of the Registrar liable to be interpreted as constituting a grant or lease of a right to minerals, the Registrar may register that document as a prospecting contract if a supplementary document executed by all the parties to the first-mentioned document or by their assigns, or affidavit by such parties, explaining the purport and effect of the prospecting contract is lodged at the deeds registry, and such document or every such affidavit shall thereafter be deemed to form part of the prospecting contract to which it relates.

            (5) Where, in the circumstances provided for in this section, a prospecting contract has been duly registered in the deeds registry, no further prospecting contract or contracts shall be registered against the title deed or title deeds of the same property or properties in respect of the same mineral or minerals until such time as the duly registered prospecting contract has lapsed by effluxion of time or has been cancelled in terms of section 81 or 85.

            (6) For the purposes of this section the grantor of prospecting rights means the person who from the records in the deeds registry appears to be the holder of the rights to minerals in the land in question.

81.     Cancellation of registration on expiry of prospecting contract or failure to renew

            (1) Upon the written request of the grantor of prospecting rights under a prospecting contract-

     (a)     the registration of which has under section 80 ceased to be of effect; or

     (b)     to the renewal of which no claim has been lodged at the deeds registry, or which, if such a claim has been lodged, has lapsed by effluxion of time,

the Registrar shall cancel the entries in the registers relating to the contract and the endorsement of the contract upon the grantor's title deed of the land or the rights to minerals affected by that contract.

            (2) For the purposes of this section the grantor of prospecting rights means the person who from the records in the deeds registry appears to be the holder of the rights to minerals in the land in question.