From a conveyancing point of view and for the ensuing reasons it is imperative to distinguish between a pre emptive right proper and a pre emptive right condition which prima facie appears to be a consumable pre emptive right, but binds successors in title or is enforceable in perpetuum.
A right of pre emption proper is a right affording the grantee a preference to buy a particular property should the grantor (owner) wish to sell it (Hirschowitz v Moolman 1985 (3) SA 739 (A)). It must always be interpreted restrictively, that is, in favour of the obligator and against the obligee (Bellairs v Hodnett and Another 1978 (1) SA 1109 (A)).
In the case of Rodgers v Philips 1985 (3) 183 ECD the court held that a pre emptive right is personal to the pre emptor and the owner, and the fact that such right is registerable does not affect the issue (see also Ex parte Zunckel 1937 NPD 295). In the Rodgers case it was further held that where the pre emptor(s) refuses to purchase the property, it may be sold to anyone free from the restriction.
A right of pre emption (proper) as opposed to a condition binding successors in title or enforceable in perpetuum will lapse where:
A pre emptive right condition usually binds successors in title or takes on the form of a praedial servitude. Such condition constitutes a real right and is not merely personal to either the pre emptor or the owner.
A pre emptive right condition is usually worded along the following lines:
“The owner or his successors in title are not permitted to alienate the within mentioned land without firstly offering it to B or his successors in title.”
If a condition is so worded, it can only lapse where:
With due regard to what has been stated above, the wording of a condition needs be carefully studied ad hoc so as to determine whether such condition lapses, upon its being pre emptive right (proper) or whether it needs be carried forward into the new deed of transfer, upon its being a condition binding successors in title, etc.
Property Law Specialist
Why must sec 68(1), which applies only to the lapsing of personal servitudes, be invoked when a right of pre-emption proper lapses (whether by agreement or waiver), if such right is not a servitude, but a registrable personal right? RCR16/2008 merely confirms RCR15/2007, and RCR15/2007 refers only to personal servitudes (i.e. real rights).
I must concur that section 68 only refers to personal servitudes. However, given RCR17/1974 the provisions of section 3 (1) (v) may also be invoked as an alternative.