Some Controverted Points of Local Law with Respect to Leases. 2l!» 



A more recent case, Breytenbach v. Fraukel Hoehstadter (1913. 

 T. IS. 801) was decided as recently as May last. In this case it was held 

 that a lease of property for ten years or upwards is a lease in longv/ni 

 tempus and is equivalent to an alienation. It was further held that a 

 contract (in this case a lease for a period of 16 years) alienating minor's 

 property which had been entered into by a guardian on behalf of a 

 minor or by the minor with the assistance of his guardian is not ipso jure 

 null and void, but is merely voidable on the minor's attaining majority. 

 Judge President de Viiliers points out in his judgment that Sande in his 

 treatise on Restraints upon Alienation, contests the doctrine that a lease 

 in longum tempus can be considered to be an alienation, or that, as it 

 were, the dominium was transferred. " Whatever may be the technical 

 view,"' however, he adds, " the views of the Doctors have prevailed and 

 been acted upon for many centuries, viz., that virtually such a lease 

 amounts to an alienation." The same view was taken in an earlier case 

 in the same Court. Canavan and Eivas v. New Transvaal Gold Farms 

 (1904. T. S. 146). And see also Collins v. Hugo and another (Hertzog 

 p. 203) where Mr. Justice Kotze, then Chief Justice of the South African 

 Bepublic, described a lease tor 99 years as ;t separata bonorvum species 

 and to be classed under the category of immovable rather than movable 

 property . 



With such authorities as given above it is hardly necessary further 

 to consider the nature of leases in longum tempus. To make this paper 

 complete, however, it is now necessary to ascertain what is the method 

 whereby the transfer of ownership in immovable property is effected. 

 In cases where such transfer is specially provided by statute, as in the 

 case of the Insolvency Ordinance (See Sec. 49. Ord. 29, 1901) reference 

 need merely be had to the Ordinance in question, but in the case of im- 

 movable property generally, the conveyance thereof is with few exceptions 

 governed in this Colony by the Common law. To effect a valid transfer 

 Maasdorp points out that the following essentials are required (Institutes 

 11.62.) : — That the thing transferred be capable of being owned, that the 

 transferor be the owner of the thing, or have authority to dispose of the 

 ownership, together with an intention to transfer the ownership to the 

 transferee, that the transferee accept the transfer, that there be justn 

 causa or legal consideration for the transfer, and tinally, that the delivery 

 or transfer be made according to law. It is the last requirement which 

 concerns this paper. To proceed again to South African law reports in 

 the absence of anything bearing on the point in the local reports we find 

 in Harris v. Buiasinne's Trustee (2 Menzies, 105) it laid down that : "By 

 the law of Holland the dominium or jus in re of immovable property can 

 only be conveyed by transfer made coram lege Ion and this species of 

 transfer is as essential to divest the seller of and invest the buyer with the 

 dominium or jus in re of immovable property as actual traditio.i is to 

 convey the dominium of movables, and the delivery of actual possession of 

 immovable property has no force or legal effect whatever in transferring 

 its dominium. This rule of the law of Holland was not a mere fiscal 

 regulation. It was with the rest of the law of Holland introduced into 



