Ex parte Geldenhuys 1926 OPD 155

 Ex parte Geldenhuys 1926 OPD 155

Issue: Whether a court has the power to order the rectification of a deed of transfer to reflect a real right that was not included in the original deed of transfer.

Facts:

Geldenhuys sold a farm to his son, but the deed of transfer did not include a servitude of right of way over the farm in favor of Geldenhuys's remaining property. Geldenhuys applied to the Orange Free State Provincial Division (OFSPD) for an order rectifying the deed of transfer to include the servitude of right of way.

Key Facts:

• Geldenhuys sold a farm to his son.
• The deed of transfer did not include a servitude of right of way over the farm in favor of Geldenhuys's remaining property.
• Geldenhuys applied to the OFSPD for an order rectifying the deed of transfer to include the servitude of right of way.

Court's Decision:

The OFSPD held that it had the power to order the rectification of a deed of transfer to reflect a real right that was not included in the original deed of transfer. The OFSPD reasoned that a real right is a right that exists independently of the deed of transfer and that the deed of transfer is merely evidence of the real right.

The OFSPD also reasoned that it is in the public interest to ensure that the deeds register accurately reflects the real rights that exist over land.

Application of the Law to the Facts of the Case:

The OFSPD applied the law to the facts of the case and found that Geldenhuys had a real right of servitude of right of way over the farm that he had sold to his son. The OFSPD ordered the deed of transfer to be rectified to include the servitude of right of way.

Conclusion:

The OFSPD's decision in Ex parte Geldenhuys 1926 OPD 155 is a significant case because it establishes the principle that a court has the power to order the rectification of a deed of transfer to reflect a real right that was not included in the original deed of transfer. The decision also provides guidance to landowners and their legal advisors on the importance of carefully drafting and reviewing deeds of transfer to ensure that all relevant real rights are created and registered.