Student Number 65413822
Module PVL3701 final Exam
Qn 1
When a person alleges that his/her right to property has been infringed, it must be
determined what constitutes ‘‘property’’ for constitutional purposes.
The object of constitutional protection is wider than the traditional private-law category
of corporeal or tangible things. Not only are ownership and limited real rights granted
protection, but presumably also a number of other rights such as shares; immaterial
property rights ; traditionally neglected property rights, such as customary land rights and
so-called ‘‘new property-rights’’ for example, rights against a pension fund.
In recent judgments the Constitutional Court confirmed that the following were ‘‘property’’
for the purpose of section 25: a commercial trading licence allowing the sale of wine in a
grocery store (Shoprite
Checkers (Pty) Ltd v Member of the Executive Council for Economic Development,
Environmental Affairs and Tourism (2015 (6) SA 125 (CC)) & a personal right to recover
money paid for goods delivered in t rms of section 89(5)(c) of the National Credit Act 34
of 2005 (National Credit Regulator v Opperman (2013 (2) BCLR 170 (CC)) The wide
interpretation of the term ‘‘property’’ accords with widely accepted constitutional practice,
in terms of which ‘‘property’’ is given an extensive interpretation to include a diversity of
rights.
The Constitutional Court in First National Bank of SA Limited t/a Wesbank v
Commissioner for the South African Revenue Services and Another; First National Bank
of SA Limited t/a Wesbank v Minister of Finance (2002 (4) SA 768 (CC) par 51) examined
the content of
QN 2
Jenny and Peter are Co-Owners of the farm. Co-ownership is the situation where 2 or
more persons own the same thing at the same time in undivided shares. Co-ownership
is divided into free coownership and bound co-ownership.
Free Co-Ownership:
The co-ownership is the only relationship between the co-owners.
Bound Co-Ownership:
Exists where there is an underlying legal relationship between the co-owners
which determines the basis of their co-ownership, for example a partnership or a voluntary
association. Peter and Jenny has Bound co-ownership of the farm.
Qn.3
Section 25(1) of the Constitution, (the deprivation clause) provides that ``no one may be
deprived of property except in terms of law of general application, and no law may permit
arbitrary deprivation of property''.
The conditions of title were inserted in terms of
township establishment legislation, in other words, a law of general application. The
conditions of title are of a restrictive nature, because they provide that the area must be
used for agricultural purposes only.
Owners of these properties obtain ownership, but subject to this limitation, which can be
seen as a deprivation for the purposes of section 25 of the Constitution
Qn 4
Limited real right: Mr. and Mrs. Khumalo right of habitation determines that as long as
they live, or until they abandons their right, Jenny and Peter will not be able to evict them
or interfere with their right of habitation. Their personal servitude to live in the homestead
limits
Jenny and Peter's ownership of the farm and because it is a limited real right to the house
it is enforceable.
QN 5
The courts have formulated a test to determine whether one is dealing with a Real or
Personal right in a particular set of facts. In Ex parte Geldenhuys the court formulated
the test as follows:
One has to look not so much to the right, but to the correlative obligation. If that obligation
is a burden upon the land, a subtraction from the dominium, the corresponding right is
real and andregisterable. If it is not such an obligation, but merely an obligation binding
on some person or other, the corresponding right is a personal right, or right in personam,
and it cannot as a rule be registered.”
Court came to the conclusion that the provisions that the farm must be divided when S
reaches age of majority and that the drawing of lots will determine who gets which portion
of the farm place a burden on the land itself.
These provisions were regarded as conditions aimed at creating Real rights and could
therefore be registered. The provisions that the heir who gets the portion with the house
on it must pay an amount of money to the other heir was regarded as creating a Personal
right since it was only an obligation on a specific person to pay a sum of money and
payment of a sum of money is, as a rule, not regarded as a Real right. But both obligations
were registered as a whole.
In the facts given the provisions that A right of habitatio was reserved over the farmstead
in favour of Mr and Mrs Khumalo for as long as they lived placed a burden on the farm.
This condition created real rights and it was registered.
QN.6
Peter and Jenny’s ownership is limited by Mr and Mrs Khumalo’s right of habitation.
Mr and Mrs Khumalo’s right is a limited real right called a personal servitude. Their right
limits Peter and Jenny’s ownership until their death or if they repudiates thier right.
In the facts given Mr and Mrs Khumalo are entitle to live in the homestead since they are
still alive and since they did not repudiate their right. However since the homestead is
occupied by Peter and Jenney to reclaim it they need to apply for spoliation order
SPOLIATION ORDER:
Definition: is a summary remedy, issued on urgent application, aimed at restoring control
of property to the applicant from whom it was taken by unlawful self-help, without
investigating the merits of the applicant’s control.
The spoliation remedy is also known as the mandament van spolie, it’s a unique remedy
aimed at undoing the results of the taking of property by means of unlawful self-help. The
idea is that people should enforce and protect their property rights by legal means and
procedures and not by self-help and force. Because its aim is at restoring peace and
order, the spoliation remedy doesn’t investigate the merits of any of the parties interested
in the
property. The court is simply interested in a factual investigation, namely whether there
is in fact proof of existing control (whether lawful or not) and proof of unlawful spoliation
of that control.
Mr and Mrs Khumalo need to meet the following requirements:
1. Proof that the applicant was in peaceful and undisturbed control of the property
• Control must have existed peacefully and undisturbed for a period long enough and in
a manner stable enough, to qualify any unlawful disturbance as a breach of peace.
• The mere intention of control is insufficient. The applicant must prove that she was in a
better and stronger corporeal relationship with the property than anyone else.
2. Proof that the respondent took or destroyed that control by means of unlawful self-help
or spoliation:
There must be existing peaceful and undisturbed control, which is unlawfully spoilated by
the
respondent. Two elements:
1. The respondent must have spoilated the applicants control – this doesn’t mean the
respondent must actually take control – partial deprivation of control is also spoliation.
2. The spoliation must be unlawful – it’s an action not authorized by a proper legal
procedure and which amount to self-help.
Qn 7
Peter can’t sell his potion without Jenny’s consent because they are bound co-owners of
the farm.
Qn 8
1. Court may be approached with the actio communi dividundo to make such a division.
2. If parties do approach court, it’s usually expected of co-owners to submit a proposed
subdivision.
3. If it’s, however, impossible for the co-owners to agree on the sub division of the
property, court will order a division.
4. If thing is indivisible or if it would be uneconomical or detrimental to physically divide
property court may order that thing be sold and proceeds thereof be divided among the
co-owners in accordance with their shares
5. Or court may order that 1 co-owner compensate another co-owner in accordance with
his share after property has been valued
Qn 9
Neighbour law:
The purpose of neighbour law is the harmonization of neighbouring owner’s interests, by
weighing their rights and obligations in the exercise of their entitlements against each
other, to balance their conflicting interests.
Nuisance
The basis of neighbour law is that land must be used in such a way that another person
isn’t prejudiced.
If an owner in the exercise of his entitlements should inconvenience a neighbouring
owner, by allowing a situation where the neighbour suffers damage or is disturbed in the
use and enjoyment of his property – he acts unreasonably.
Nuisance in the narrow sense: This consists of an infringement of a neighbours use and
enjoyment of his land like noises. This infringement doesn’t necessarily result in damage,
but rather a personality infringement. In the facts provided the most fit a remedy Peter
and Jenny’s neighbours can successfully apply for is seeking for compensation since the
walls of their house, storeroom and cowshed eventually collapsed.
QN 10
Peter and Jane can institute Actio legis aquiliae and there are high chances of success
This is instituted by the Owner, Bona fide possessor or holder against a person
who has caused damage and they are claiming damages
Peter and Jane must prove the following:
• Act is unlawful
• Defendant acted intent/negligence
• Proprietary right in thing
• Patrimonial loss
• Causal connection between the patrimonial loss & conduct of Defendant.
Qn 11
Peter can be successful if they meet the following requirements for the rei vindicatio:
(i) the plaintiff must prove ownership
(ii) the thing must exist and be identifiable
(iii) the defendant must be in control of the thing.
The relevant case here is Quentys'' Motors (Pty) Ltd v Standard Corporation Ltd. The
court held that the floor plan agreement between L and S was a simulated
transaction and that the real intention was to use the cars as security for the
financing that L would have obtained from S. The intention was never to transfer
ownership to S. S never became the owner of the cars.
Xolisa however may defend the rei vindicatio here with estoppel. Xolisa needs to meet
the following requirements for estoppel
1. Representation
2. Fault
3. Detriment
4. Causal connection:.
The court in Quenty's held that S should succeed with the defence of estoppel
QN 12
The relationship is holdership- This relationship has the following attributes which are
applicable to the given scenario: always requires physical control, mental element ,
intention to derive a benefit , could be lawful or unlawful and lawful holder has a real
right.
QN 13
Peter and Jenny can institute a principal of Accession of movables to immovables
This normally takes place by human activity, where a movable becomes permanently
attached to an immovable. The owner of the immovable (principle part) becomes the
owner of the movable.
Buildings: This is an original method of getting ownership in terms of which a movable
thing (accessory thing) becomes attached to land (principle thing) in such a way that it
loses its independence and forms an entity with the land = thereby becoming part of the
landowners land.
MacDonald Ltd v Radin: laid down 3 criteria to determine whether a movable thing has
become attached to the land in such a way that it becomes a permanent part of the land:
a) The nature and purpose of the attached thing.
b) The manner and degree of attachment.
c) Intention of the annexor (the person who put it there)
QN 14
Mary’s statement is not valid at all because of the following reasons:
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
protects people who occupy land unlawfully, in other words, people who occupy land
without the permission of the landowner. The purpose of the Act is to provide for
procedures to evict unlawful occupiers (sometimes known as “squatters”), the principle
being that nobody may evict an unlawful occupier of land without the authority of a court
order. A part of the eviction process of unlawful occupiers is that certain circumstances
must be considered before an unlawful occupier may be evicted. These circumstances
include the rights and needs of the elderly, children, disabled persons and households
headed by women and, in certain cases, the availability of alternative accommodation for
the relocation of the unlawful occupier.
Peter and Jenny was obliged to apply for a court order . In Port Elizabeth Municipality v
Various Occupiers (2005 (1) SA 217 (CC)) it was held that an eviction order must be just
and equitable.
However Marry’s statement can be valid if Peter and Jenny enaged Jan and the parties
should have mutually agreed to remove the structure without court procedures.
Consequently parties with competing interests must attempt to reach an agreement
through discussions and/or mediation. If parties cannot reach an agreement the court
may, considering all relevant circumstances, grant an eviction order
QN 15
The relationship is Holdership although it is unlawful holdership
QN 16
Peter and Jenny can institute tacit hypothec of the lessor:
Created by operation of law – hypothec of the landlord over movable property of the
lessee who is in arrears with rent payments. This hypothec secures the landlords claim
for rent in arrears and is created by law as soon as the lessee is in arrears with rent
payments.
The hypothec is created automatically by operation of law and as soon as the rent is paid
the hypothec is extinguished by operation of law The landlord has to make the hypothec
effective by attaching the property in terms of the court order. Definition: it’s a real security
right created by operation of law to secure the landlords claim against the lessee for rent
in arrears – hypothec applies to movables of the lessee on the premises.
Rule: the hypothec applies to movable property belonging to the lessee and present on
the premises – but in certain circumstances it can include the property of 3rd parties set
out in Bloemfontein Municipality v Jackson
QN 17
Limited real right – mortgage (real security)
QN 18
JUDICIAL PLEDGE:
Definition: real security right, which secures a creditors claim against a debtor and is
established by obtaining a writ of execution against the debt and attaching the property.
Any creditor who has no real security to secure her claim against the debtor can get
security in the form of a judicial pledge in terms of a writ of execution.
On attachment the creditor gets a real security right similar to a pledge over
ovables/mortgage over immovables.
Ito the writ of execution and on attachment the creditor can have the property sold in
execution by the sheriff and the creditors claim then enjoys preference it must be satisfied
firstst from the proceeds of the sale.
QN 19
Jacob can institute spoliation remedy.The purpose of the spoliation remedy is to protect
the legal order in a unique way.
Also it is aimed at the prevention of self-help , which may result in a breach of the peace.
A spoliation order summarily
undoes the consequences of such self help without
reference to the unlawfulness or otherwise of the pre-existing control which is to be
restored. The courts therefore do not investigate the merits of the rights of the parties.
Relevant cases are Nino Bonino v De Lange and Yeko v Qana. (1