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PVL3701/201/1/2014

Tutorial Letter 201/1/2014



Property Law

PVL3701

Semester 1


Department of Private Law
This tutorial letter contains important information
about this module.



Bar code

2


CONTENTS
1. EXAMINATION INFORMATION
2. COMMENTARY ON ASSIGNMENT 01 FIRST SEMESTER 2014
3. COMMENTARY ON ASSIGNMENT 02 FIRST SEMESTER 2014

Dear Student
This tutorial letter contains information on the examination and commentary on Assignments
01 and 02 for the first semester.
We trust that this tutorial letter will assist you in your studies. Please contact us if you have any
queries or experience problems with this module.
Yours sincerely

DR MITZI WIESE wiesem@unisa.ac.za 012 429-8466 / 083 259 9450
MRS MICHELLE FUCHS fuchsmm@unisa.ac.za 012 429-4742
MRS ANRI HEYNS heynsa1@unisa.ac.za 012 429-8386



1. EXAMINATION INFORMATION

This is the last tutorial letter that you will receive this semester.
The examination paper will consist of two sections:
o Section 1 (20 marks out of 100 marks) of your examination paper will consist of
multiple choice questions. Examples of multiple choice questions can be found
in your assignment 02.
o The questions in Section 2 (80 marks out of 100 marks) of the examination paper
will be similar to the questions asked in your Study Guide and in assignment
01.
Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2014 (pages 7-8).
Please take note of Part II in your Study Guide that deals with writing skills, especially
page 15 and further.
Take note of the mark allocation in tutorial letter 101/3/2014 (page 9). This will be very
helpful in your preparation for the examination.
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2. COMMENTARY ON ASSIGNMENT 01



QUESTION


X plays golf at the Silverlakes golf course in Pretoria. On the 12
th
hole he accidently hits his ball
in the water. In a moment of anger X throws his golf-club in the water. He decides to complete
the round and to come back later to take the club out of the water. When he returns to the water
the club is missing. X leaves the golf course, highly upset, because the golf-club was a special
gift, which was worth almost R2 000. At the club house he sees Y showing the golf club to his
friends. He immediately recognizes it due to its unique marking. He confronts Y and claims the
golf club back. X explains to Y that he threw the club in the water, but that he never had the
intention of relinquishing ownership of it. Y however, informs X that he became owner of the
golf-club, because it clearly belonged to no-one when he removed it from the water.

Who is the owner of the golf-club? In your answer refer to the relevant original method of
acquisition of ownership on which Y can possibly base his claim. Also refer to, and briefly
discuss, the elements of this form of acquisition of ownership with reference to the facts in the
question. Introduce your answer by explaining what original acquisition of ownership is.



SUGGESTED ANSWER



Original acquisition of ownership takes place when there is no cooperation from a
predecessor in title. (1)

That means that there is no transfer of ownership. (1)

The relevant form of acquisition of ownership in this set of facts could be appropriation
(occupation occupatio). (1)

Appropriation is:

the unilateral (1/2) taking of physical control (1/2)
of a thing which does not belong to anyone (1) (res nullius),
but which is within the sphere of law (res in commercio) (1)
with the intention of becoming its owner (1).

In order to determine whether Y became the owner of the golf club, each of these elements
needs to be considered.

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Y clearly took control of the golf club when he removed it from the water, the thing (golf club) is
in the legal sphere and Y seemingly has the intention of becoming the owner of the golf club, he
cannot become the owner. (1) {One mark if students explained that these elements are
present.}

The question is: Is the golf club a thing that does not belong to anyone a res nullius?
Res nullius are things that are susceptible of ownership, but that belong to no one at a particular
stage or a thing that has been thrown away by its owner who no longer intends to be the owner
(res derelictae). (1) In light of this description of res nullius one can argue that the golf club is
not res nullius, because X clearly still had the intention of ownership of the golf club. (1)

Based on the consideration of the elements of appropriation it seems as if X is still the owner
of the golf club. (1)

(Study Guide pages 45-46 & 90-93)



3. COMMENTARY ON ASSIGNMENT 02



QUESTION 1

Indicate the wrong option.

In MacDonald Ltd v Radin & The Potchefstroom Dairies & Industries Co, Ltd (1915 AD 454)

(1) the court stated that the acquisition of ownership by way of accession was an exception
to the principle that nobody could confer a better title than he/she had;
(2) Innes CJ referred to Olivier v Haarhof (1906 TS 497) where it was decided that when it
had to be determined whether a movable thing became permanently attached to land
each case had to be decided on its own facts;
(3) the court decided that the plaintiff could not remove the machinery because such removal
would cause substantial injury to the building;
(4) Solomon JA referred to the principle in Justinians Institutes (2, 1, 29) which entailed that
if someone used material which belonged to someone else to build on his/her own land,
he/she became the owner of the building that was built on that land.

ANSWER: (3)

REMARKS:
(1) This option is correct. Innes CJ stated that this exception is true only to a limited extent.
He referred to certain specific examples (page 468 of the decision). Accession and
more specifically inaedificatio is an original method of acquisition of ownership, which
means that the co-operation of the predecessor in title is not needed to acquire
ownership. No transfer of ownership takes place.
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(2) This option is correct (page 466 of the decision).

(3) This option is wrong. The court decided that the machinery could be removed on
condition that no damage is done to the land. Innes CJs decision was based on the
intention of the person who annexed the movables (page 466 of the decision).

(4) This option is correct. Solomon JA indicated that the facts of the MacDonald case were
different from the facts on which the principle contained in Justinians Institutes was
based. (page 481 of the decision)

QUESTION 2

Indicate the correct option.

But physical prehension is not essential if the subject-matter is placed in presence of the would-be
possessor in such circumstances that he and he alone can deal with it at his pleasure. In that way the
physical element is sufficiently supplied; and if the mind of the transferee contemplates and desires so to
deal with it, the transfer of possession, - that is the delivery - is in law complete. ... When this deposit of the
subject matter in the presence and at the disposition of the new possessor takes the place of physical
prehension, the delivery is said to be made longa manu ... . It is most appropriate to transactions where
owing to the weight or bulk of the article concerned, actual delivery is difficult.

(1) This statement can be found only in Eskom v Rollomatic Engineering (Pty) Ltd (1992 (2)
SA 725 (A)).
(2) This statement can be found both in Eskom v Rollomatic Engineering (Pty) Ltd (1992 (2)
SA 725 (A)) and in Groenewald v Van der Merwe (1917 AD 233).
(3) This statement can be found only in Groenewald v Van der Merwe (1917 AD 233).
(4) This statement can be found neither in Groenewald v Van der Merwe (1917 AD 233) nor
in Eskom v Rollomatic Engineering (Pty) Ltd (1992 (2) SA 725 (A)).


ANSWER: (2)
REMARK:

The statement clearly explains the meaning of delivery with the long hand and was originally
formulated in Groenewald v Van der Merwe (239), but it was also referred to in Eskom v
Rollomatic. (page 729 of the decision; also see Study Guide page 105)


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QUESTION 3

Which option regarding the successful reliance on the actio ad exhibendum is wrong?

(1) The plaintiff must be the owner of the thing.
(2) The defendant must be the thief of the thing or an heir of the thief.
(3) Loss of control by the defendant must have been mala fide.
(4) The plaintiff can claim the market value of the thing.


ANSWER: (2)

REMARKS:

(1) This option is correct. Although proof of ownership is not indicated in the Study Guide
as one of the requirements that has to be proved for a successful reliance on the actio
ad exhibendum the definition provides that it is an action in terms of which the owner
can claim the market value of the thing from a person who destroyed or alienated the
thing with a mala fide intention. (Study Guide pages 123 & 125)

(2) This option is wrong. The defendant must be the former holder of the thing who mala
fide alienated or destroyed the thing. In the case of the condictio furtiva the defendant
is the thief of the thing or the thiefs heirs. (Study Guide pages 123 & 125)

(3) This option is correct. (Study Guide pages 123 & 125)

(4) This option is correct. (Study Guide pages 123 & 125)



QUESTION 4

Indicate the correct option.

The case of Quentys Motors (Pty) Ltd v Standard Credit Corporation Ltd (1994 (3) SA 188 (A))
is authority for the statement that

(1) the condictio furtiva is an action arising from theft;
(2) estoppel is a defence against an owners rei vindicatio;
(3) an interdict is a remedy to force a person to do something; or
(4) there is a delictual claim for damages for loss caused unlawfully through the negligence
or intention of another.

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ANSWER: (2)
REMARKS:

Quentys Motors (Pty) Ltd v Standard Credit Corporation Ltd is an important judgment which
sets out the requirements for a successful reliance on the exception (defence) of estoppel
against an owners rei vindicatio. The judgment also illustrates the difficulties with constitutum
possessorium as a form of delivery in these circumstances. The decision does not, however,
deal with the condictio furtiva (option (1) above), an interdict (option (3) above) or a delictual
claim for damages (option (4) above).
(See Study Guide pages 122-123 par 2.1.3.3)

QUESTION 5

Which statement with regard to the legal consequences and entitlements of free co-ownership
is wrong?

(1) A share in the co-ownership can be freely transferred by a co-owner.

(2) Apart from the co-ownership relationship there must be another underlying legal
relationship between the co-owners.

(3) The share of a co-owner can be burdened with a mortgage bond without the permission
of the other co-owners.

(4) The actio communi dividundo is at the disposal of each co-owner.


ANSWER: (2)

REMARKS:

In the case of free co-ownership the co-ownership is the only relationship between the co-
owners, and no other underlying legal relationship exists between the free co-owners. (Study
Guide page 176)

QUESTION 6

Indicate the correct option.

In Nino Bonino v De Lange (1906 TS 120) the court considered the validity of a clause
contained in a lease agreement in terms of which the lessor was entitled under certain
circumstances to effectively debar the lessee from access to the premises.


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(1) The court decided that a clause in a lease agreement that allowed the parties to the
agreement to take the law into their own hands is valid.
(2) The court held that in certain circumstances the parties should be allowed to be the
judge of whether a breach of the contract had taken place.
(3) Innes CJ stated that only a court of law, and not the parties to the agreement, can
decide whether a breach of contract had been committed.
(4) Innes CJ stated that the lessees application for the spoliation remedy should fail,
because the lessors actions were authorised by the lease agreement.


ANSWER: (3)

REMARKS:

(1) This option is wrong. In Nino Bonino v De Lange the court decided that a clause in a
lease entitling the lessor to take the law into his/her hands was invalid. (page 123 of
the decision)

(2) This option is wrong. In Nino Bonino v De Lange the court held that under no
circumstances the parties can be allowed to decide if there was a breach of contract,
because this would mean that the lessor acted as the judge in his/her own case. (page
123 of the decision)

(3) This option is correct. In Nino Bonino v De Lange Innes CJ stated that only a court,
and not the parties to the agreement, could determine if a breach of contract occurred.
(pages 123 and 124 of the decision)

(4) This option is wrong. In Nino Bonino v De Lange the court held that the lessee must
succeed with his application for a spoliation order seeing that his control was unlawfully
disturbed. The clause in the contract entitling the lessor to deny the lessee access to
the leased premises under certain circumstance allowed the lessor to be the judge in
his/her own case and was invalid. (page 124 of the decision)


QUESTION 7

Indicate the wrong option.

In Willoughbys Consolidated Co Ltd v Copthall Stores Ltd (1913 AD 267) the court held that

(1) an exclusive right to trade on a specific piece of land, could be granted as a personal
servitude to someone and could be registered in that persons name;
(2) a servitude could arise from a contract, but that such an agreement had to be registered
in order to vest a real right;
(3) the exclusive right to trade was for the benefit of Dawsons Stores, but could be
transferred to Copthall Stores Ltd; or
(4) in most instances where an exclusive right to trade is granted the specific measurements
of the land on which the person could trade are stipulated.
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ANSWER: (3)

REMARKS:

(1) This option is correct. Remember that a personal servitude such as this which is
registered in a specific persons name still creates a limited real right. (Willoughbys
page 282; Study Guide page 241)

(2) This option is correct. (Willoughbys page 287; Study Guide pages 228-230)

(3) This option is wrong. The court decided that the exclusive right to trade could not be
transferred to someone else. (Willoughbys page 282)

(4) This option is correct. (Willoughbys page 282)


QUESTIONS 8-9 ARE BASED ON THE FOLLOWING SET OF FACTS:

S has entered into an agreement with Q and R in terms of which they grant him the right to use
the road to Waterford that crosses their farm. This agreement is in writing, but it is not
registered. Q and R sell the farm and the new owner, who knows about the servitude, refuses to
let S use the road.

QUESTION 8

Indicate the correct option.

What type of right did S obtain?

(1) real right

(2) personal right

(3) limited real right

(4) none of the above


ANSWER: (2)

REMARKS: A servitude agreement creates a personal right (creditors right) to have the
servitude registered. A limited real right is created only on registration. (Study Guide page
230)


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QUESTION 9

Which one of the following statements regarding the doctrine of notice is wrong?

(1) Someone who acquires ownership of the servient tenement knowing that there is an
unregistered servitude agreement in respect of that land is bound to respect the servitude
agreement.
(2) Someone who acquires ownership of the servient tenement and who does not know that
there is an unregistered servitude agreement in respect of that land, is still bound to
respect the servitude agreement.
(3) Someone who acquires ownership of the servient tenement at a judicial auction is bound
to respect the servitude agreement even if that person is unaware of the unregistered
servitude agreement.
(4) Grant v Stonestreet (1968 (4) SA 1 (A)) is a good example of the application of the
doctrine of notice to an unregistered praedial servitude. The court held that Grants
conduct was mala fide.


ANSWER: (2)

REMARKS: Options 1, 3 and 4 are correct and they contain important information concerning
the doctrine of notice. Option 2 is wrong, because the doctrine of notice specifically provides
that only a person who is aware of an unregistered servitude agreement will be bound to
register such servitude. (Study Guide page 230)

QUESTION 10

Indicate the incorrect option.

In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service:
First National Bank of SA Ltd t/a Wesbank v Minister of Finance (2002 (4) SA 768 (CC)) the
court held that

(1) the purpose of section 25 had to be seen both as protecting existing property rights as
well as serving the public interest, mainly in the sphere of land reform;
(2) FNB was entitled to the protection of property rights under section 25 of the 1996
Constitution;
(3) the meaning of section 25 should be determined in each specific case; or
(4) section 25 embodied the positive protection of property and expressly guaranteed the
right to acquire, hold and dispose of property.

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ANSWER: (4)

REMARKS: Option 4 is wrong, because the Constitutional court in First National Bank of SA
Ltd t/a Wesbank v Commissioner, South African Revenue Service: First National Bank of SA
Ltd t/a Wesbank v Minister of Finance (par 48) emphasised that section 25 embodied the
negative protection of property and did not expressly guarantee the right to acquire, hold and
dispose of property. Options 1-3 contain important aspects of the decision. This is a very
important and interesting court decision. Make sure that you understand and know it well.









































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