PVL3701/201/2/2013

Tutorial Letter 201/2/2013

Property Law

PVL3701

Semester 2

Department of Private Law

This tutorial letter contains important information
about this module.

Bar code
 CONTENTS
1. EXAMINATION INFORMATION 2
2. COMMENTARY ON ASSIGNMENT 01 SECOND SEMESTER 2013 3
3. COMMENTARY ON ASSIGNMENT 02 SECOND SEMESTER 2013 6
4. COMMENTARY ON ASSIGNMENT 03 SECOND SEMESTER 2013 11

Dear Student
This tutorial letter contains information on the examination and commentary on Assignment
01, 02 and 03 for the second 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@[Link] 012 429-8466 / 083 259 9450

MRS MICHELLE FUCHS fuchsmm@[Link] 012 429-4742

1. EXAMINATION INFORMATION

9 This is the last tutorial letter that you will receive this semester.
9 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 assignments
01 and 03.
9 Assignment 03 was a previous examination paper.
9 Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2013 (page 8-9).
9 Please take note of Part II in your Study Guide that deals with writing skills, especially
page 15 and further.
9 Take note of the mark allocation in tutorial letter 101/3/2013 (page 10-11). This will be
very helpful in your preparation for the examination.

2
 PVL3701/201

2. COMMENTARY ON ASSIGNMENT 01

QUESTION
Summarise the following case and analyse the approach to building in the judgment:

Cape Explosive Works Ltd v Denel 2001 (3) SA 569 (SCA)

Summarise the judgment under the following headings:
Facts (1 Mark)
Legal question (1 Mark)
Ratio decidendi (6 Marks)
Finding (2 Marks)
TOTAL: [10]

Suggested summary:
Facts

In 1973 Cape Explosive Works Ltd (Capex) sold and transported two pieces of land (a larger
and a smaller piece of land) in Stellenbosch to Armscor. The following clauses in the deed of
sale were relevant:

Clause 6: The land was to be used only for the manufacturing of armaments.

Clause 7(a): Should Armscor no longer use the land for the purpose of manufacturing
armaments they were to inform Capex who then had a ‘first right to
repurchase’ (right of pre-emption)the land from Armscor.

Clause 7(a)(vii): Capex’s first right of repurchase (in terms of clause 7(a)) had to be
registered in the title deed.

Although the deed of sale did not say anything about the registration of clause 6, both clauses 6
and 7(a) were registered in the title deed (T40652/74) as conditions 1 and 2. The title deed
expressly stated that conditions 1 and 2 were binding on Armscor and its successors in title.
The conditions in the title deed of the smaller piece of land were cancelled by a notarial deed.

3
The larger piece of land was subdivided and one of the subdivided portions was transferred
from Armscor to Denel. The following title deeds were relevant: certificate of consolidated title
T33717/77, deed of transfer T7586/92, certificate of consolidated title T1178/94 and certificate
of registered title T1179/94. Condition 2 (Capex’s first right of repurchase) was not registered
against any one of these title deeds.

A dispute arose between Capex and Denel: Capex alleged that both conditions 1 and 2 applied
to Denel. Denel averred that condition 2 did not apply to them. Consequently Denel sought a
declaratory order from the court stating that they were the owners of the land and that their
ownership was not subject to condition 2 (Capex’s first right of repurchase). Capex brought a
counter application for an order in terms of which the Registrar of Deeds had to rectify the title
deeds to include both conditions 1 and 2, as well as an application for an interdict prohibiting
Denel to use the land for any purpose other than manufacturing armaments or to sell the
property before it had complied with condition 2.

Denel’s application in the court a quo was successful. The court found that condition 2 was not
registrable in terms of section 63(1) of the Registration of Deeds Act 47 of 1937. Capex
appealed against this decision.

[Facts par 1-5]

(1 Mark for facts)

Legal Question:

Is the land that Denel purchased subject to condition 2 in the title deed (transfer from Capex to
Armscor)? Therefore, are both conditions 1 and 2 registrable in terms of section 63(1) of the
Registration of Deeds Act 47 of 1937? Furthermore, what is the effect of the erroneous
omission of condition 2 in the title deed of the transfer between Armscor and Denel?

(1 Mark for legal question)

Ratio decidendi:

The court a quo considered the clauses in the deed of sale and found that they did not create
real rights and were therefore not registrable. [8]

On appeal the court indicated that Capex transferred the property to Armscor subject to
conditions 1 and 2 of the title deed (T40652/74). It was Capex’s intention that both conditions be
registered against the title deed. Armscor was well aware of the conditions in the title deed and
never attempted to rectify the title deed. It was therefore clear that Capex and Armscor had the
intention that the land in question had to be transferred subject to both conditions. (1) [11]

In terms of section 3 of the Registration of Deeds Act 47 of 1937 only real rights in land were
registrable. A right qualified as a real right when it complied with the following two requirements:

(i) The person creating the right must have the intention to bind the current owner and
his/her successors in title. (1)

(ii) The right or condition must be of such a nature that the registration thereof resulted in a
“subtraction from the dominium” of the land it was registered against. (1) [12]

4
 PVL3701/201

Denel averred that condition 2 was a mere personal right (creditors right) and therefore not
registrable. Furthermore they argued that condition 1 imposed an obligation on the transferee.
They drew an analogy between the right in condition 1 and a servitude. Denel furthermore
referred to the Roman-law principle in terms of which a servitude could not impose an obligation
on the servient tenement to actively do something and argued that this principle similarly
applied to the right in condition 1. Streicher JA indicated that condition 1 was a limitation on
Armscor’s use of the land. In terms of condition 2 Armscor had to inform Capex if they no longer
used the land for the purpose of manufacturing of armaments, in which case Capex would have
the first right of repurchase. Should Capex not exercise it’s first right of repurchase the land
would no longer be subject to condition 1. According to the judge condition 2 was a mechanism
through which condition 1 could be terminated. (1) [14]

The judge further stated that conditions 1 and 2 could not function separately. (1) According to
the judge Capex had the intention to bind Armscor and it’s successors in title. (1) Conditions 1
and 2 were a ‘subtraction from the dominium” of the land because it limited the owner’s use of
the land. (1) Streicher JA came to the conclusion that conditions 1 and 2 created one right
which was a real right and therefore registrable. (1) [15]

Furthermore the judge indicated that South African law had a negative registration system. (1)
This entails that there is no guarantee that the information in the registry is correct. (1) A bona
fide third party who relies on the information in the registry do so at his/her own risk. Capex’s
real right was not extinguished through the erroneous omission of condition 2 in the title deeds
(T33717/77, T7586/92, T1178/94 and T1179/94). (1) [16]

(Maximum 6 marks)

Finding:

The appeal was upheld.

The court made an order in terms of which the title deeds (T33717/77, T7586/92, T1178/94 and
T1179/94) had to be rectified to include condition 2. (1) Denel could only use the land for
purposes of manufacturing armaments (as set out in condition 1). (1)
Capex’s real right was not extinguished through the erroneous omission of condition 2 in the
title deeds (T33717/77, T7586/92, T1178/94 and T1179/94). (1)
Denel’s ownership of the land was therefore subject to Capex’s real right. (1)
(Maximum 2 marks)
SeeCape Explosive Works Ltd v Denel 2001 (3) SA 569 (SCA)
Students must provide the answer in their own words.
TOTAL: [10]

5
 3. COMMENTARY ON ASSIGNMENT 02

Each question counts 1 (one) mark.

1. Indicate the correct option.
Which one of the following things can be regarded as a res nullius?
(1) a domesticated tiger living in his owner’s house
(2) an impala roaming in the bushes
(3) a Persian cat lying on the neighbor’s patio
(4) a springbok kept on a private game farm for hunting purposes

ANSWER:
Option 2 is correct. A res nullius is a thing which does not belong to anyone. All creatures that
are wild by nature either in their natural state or when they have reverted to their former wild
state are regarded as res nullius. Wild animals that have been tamed (option 1), domestic
animals (option 3) or wild animals regulated by the Game Theft Act 105 of 1991 (option 4), are
not res nullius. An impala roaming in the bushes is wild by nature and regarded as a res nullius.
See Study Guide pg 92

2. Indicate the correct option.

The following is an example of constructive delivery where a transferee is placed in a

position to exercises physical control over a thing:

(1) delivery with the short hand

(2) symbolic delivery
(3) attornment
(4) cession of ownership

ANSWER:
Option 2 is correct. Constructive delivery is when there is no physical or actual handing over of
the thing. The transferee is either placed in a position to excercise physical control, already in
physical control or someone else exercises physical control on his/her behalf. Examples of a
transferee placed in a position to excercise physical control over the thing are symbolic delivery,
delivery with the long hand (traditio longa manu) and bills of lading.
See Study Guide pg 132-134

6
 PVL3701/201

3. Indicate the correct option.

The aim of the actio negatoria is:

(1) to determine the rights and duties of contesting parties.

(2) to claim the stolen thing or its highest value since the theft.
(3) to claim the market value of the thing that was destroyed or alienated with mala fide
intention.
(4) to protect ownership where a servitude holder exceeds the limits of her servitude.

ANSWER:
Option 4 is correct. The actio negatoria is a property law remedy. It is a real action aimed at
protection of ownership in circumstances where third persons seek to exercise rights of a
servitude holder which they do not have or where servitude holders exceed the limits of their
servitude. The owner can institute this action against the violator and have to prove that he/she
is the owner and that there is a physical infringement of his/her entitlements of ownership.
See Study Guide pg 163 and 169

4. Indicate the correct option.

X and Y are co-owners of a farm. They built a road on the farm, which they use to
transport lime to the market. Without X's knowledge and approval Y gives permission to a
neighbour, Z, to use the road so that he can transport his lime to the market. X is unhappy
about the heavy traffic on the road and asks Y to revoke her permission to Z. X also asks
Z to discontinue his activities. Neither Y nor Z takes any notice of X. Which remedy does X
have against Y?

(1) X can claim damages from Y.

(2) X can institute the condictio furtiva against Y.
(3) X can approach the court for a declaratory order.
(4) X can institute the rei vindicatio against Y.

ANSWER:
Option 1 is correct. When a co-owner uses the thing unreasonably by using it for a purpose for
which it was not intended or to an extent which is not in accordance with his/her share, the other
co-owner can claim damages from him/her. In this example Y used the road over the farm
unreasonably by giving Z permission to use the road against X’s wishes. X will have to proof the
following to succeed with a delictual claim for damages (actio legis Aquiliae): unlawful conduct
by Y; culpability (intent / negligence) on Y’s part; he (X) has a proprietary right / interest in the
thing; he (X) has suffered patrimonial loss and that there is a causal connection between his
patrimonial loss and Y’s conduct.
See Study Guide pg 166, 170 and 183

7
5. Indicate the correct option.

S, X and Y’ son, leases a portion of their farm. When his father's farm implements are
stolen, he gives some of his (rented) equipment to his father, X, to use. Father and son
have an argument. In his anger X destroys his son's rented equipment. Which remedy is
available to S?

(1) spoliation remedy

(2) condicio furtiva
(3) enrichment action
(4) possessory action

ANSWER:
Option 4 is correct. S is in control of the rented equipment. When a person who is in control of a
thing, loses control of the thing, he/she can restore his/her control with the spoliation remedy. In
this example the equipment is destroyed and S will not be able to claim restoration of his control
with the spoliation remedy. S will however be able to claim damages resulting from the loss of
control from X with the possessory action. S can therefore claim the value of the equipment
from X, who has a weaker right to control it than what S has.
See Study Guide pg 212-213

6. Indicate the incorrect option.

A land servitude must comply with the following requirements before it will be recognised
as a limited real right to the land of another:
(1) The servitude must have a degree of permanency.
(2) The servitude must enhance the use and benefit of the dominant tenement.
(3) The servitude must impose a duty on the owner of the servient tenement to perform a
positive act.
(4) The tenements must be situated, in relation to each other, in such a way that the
effective exercise of the servitude to the benefit of the dominant tenement is possible.

ANSWER:
Option 3 is incorrect. The maxim servitus in faciendo consistere non potest applies to all
servitutes. According to this maxim a servitude (personal or land) cannot impose a duty on the
owner of the servient tenement to perform a positive act. Land servitutes must have a degree of
permanency (perpetua causa) and enhance the use and benefit of the dominant tenement
(utilitas). Furthermore the tenements must be situated, in relation to each other, in such a way
that the effective exercise of the servitude to the benefit of the dominant tenement is possible
(proximity).
See Study Guide pg 237-238

8
 PVL3701/201

7. Indicate the correct option.

X lends R5 000 to Y and X secures payment of the loan by registering a notarial bond over
Y’s car. Y owes Z R8 000 as a result of a collision that occurred between Y and Z. Y
becomes insolvent before repaying X and before paying Z. In this scenario, who has a
preferent claim against Y’s insolvent estate?
(1) X, because he has a limited real right over Y’s car.
(2) X, because the smaller amount must be paid first.
(3) Z, because he has a personal right against Y’s insolvent estate.
(4) Z, because the larger amount must be paid first.

ANSWER:
Option 1 is correct. X has a notarial bond over Y’s car. A notarial bond is a form of a
conventional or express mortgage. The notarial bond in this case is a special notarial bond as it
is registered over a specified movable thing. In terms of section 1 of the Security by Means of
Movable Property Act 57 of 1993 the specified movable thing under a special notarial bond are
deemed to have been pledged and delivered. The Act creates a fictitious (non-possessory)
pledge. The Act therefore creates a real security right in the form of a pledge and X (the notarial
bond holder) is consequently a secured creditor.
Z only has a personal right (creditor‘s right) against Y’s insolvent estate. He is an unsecured
creditor. Therefore X’s secured claim (real security right) will enjoy preference over Y’s
unsecured claim.
See Study Guide pg 269-272

8. Indicate the correct option.

In Mapenduka v Ashington 1919 AD 33 the court held that:

(1) the clause in the pledge agreement stipulating that the pledgee may keep the calve
of the cow as interest on the amount owing by the pledgor is invalid.
(2) the clause in the pledge agreement stipulating that the pledgee may sell the 6 oxen,
1 cow and 1 horse (the pledged animals) without a court order is invalid.
(3) the clause in the pledge agreement stipulating that the pledgee may keep the 6 oxen,
1 cow and 1 horse if the pledgor fails to pay his debt is invalid.
(4) the clause in the pledge agreement stipulating that the pledgor may not pay his debt
is invalid.

ANSWER:
Option 3 is correct. The parties in Mapenduka v Ashington (1919 AD 33) agreed in writing that
the pledgee may keep the 6 oxen, 1 cow and 1 horse (the pledged animals) if the pledgor fails
to pay his debt. The court held that this clause was invalid.
See Study Guide pg 264 -265 and Mapenduka v Ashington 1919 AD 33

9
9. Indicate the incorrect option.
A mortgage is terminated:
(1) by destruction of the mortgaged thing.
(2) by extinction of the principal debt.
(3) by the death of the mortgagor or mortgagee.
(4) when a mortgagee becomes owner of the mortgaged thing.

ANSWER:
Option 3 is incorrect. The death of the mortgagor or mortgagee does not terminate a mortgage.
In the case of the death of the mortgagor the mortgagee will have a claim against the
mortgagor’s deceased estate. In the case of the death of the mortgagee his/her deceased
estate will have a claim against the mortgagor. In both instances the principal debt needs to be
paid in order for the mortgage to be terminated.
See Study Guide pg 278

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:

(1) that 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) that section 25 embodied the positive protection of property and expressly
guaranteed the right to acquire, hold and dispose of property.
(3) with reference to Van der Walt, that the meaning of section 25 should be determined
in each specific case.
(4) that FNB was entitled to the property rights under section 25 of the 1996 Constitution.

ANSWER:
Option 2 is incorrect. In par 48 of this decision the court states that section 25 embodies a
negative protection of property. Section 25 does not guarantee the right to acquire, hold or
dispose of property.
See Study Guide pg 315-317 and 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) par 48

TOTAL: [10]

10
 PVL3701/201

4. COMMENTARY ON ASSIGNMENT 03

QUESTION 1

Define:

(a) ownership (7)

ANSWER:
Ownership is the most comprehensive (1) real right (1) a person can have with regard to a thing
(1). In principle, a person can act upon and with his thing as he/she pleases.(1) This apparent
freedom is restricted (1) however, by the law (1) and the rights of others. (1)
See Study Guide pg 66

(b) expropriation as a form of acquisition of ownership (5)

ANSWER:
Expropriation can be defined as an original method (1) of acquiring ownership in terms of which
the state (1) acquires ownership (1) of a movable (½) or immovable (½) thing without the
consent of the owner (1) against payment of compensation. (1)
(Maximum 5 marks)
See Study Guide pg 118

(c) possession (in its broad sense) (3)

ANSWER:
Possession in the broad sense can be described as a real relationship between a legal subject
and a thing, (1) characterised by two elements:
(i) a physical element (corpus) (1)
(ii) a mental element (animus) (1)
See Study Guide pg 187, 192 and 197

11
(d) co-ownership (5)

ANSWER:
Co-ownership can be defined as the situation where two or more persons (1) own the same
thing (1) at the same time (1) in undivided shares. (1) Two forms of co-ownership can be
distinguished, namely free co-ownership (½) and bound co-ownership. (½)
See Study Guide pg 176-177 [20]

QUESTION 2

Name:

(a) the sources of the current law of things in order of priority (6)

ANSWER:
(i) the Constitution of the Republic of South Africa, 1996 (1)
(ii) statutory law (1)
(iii) case law (1)
(iv) common law (Roman-Dutch law) (1)/indigenous (customary) law (1)
(1 mark per source – one additional mark if order is correct.)
See Study Guide pg 37-38

(b) the requirements for the application of the actio ad exhibendum (3)

ANSWER:
(i) Alienation or destruction (1) of the thing,
(ii) mala fide intention (1) (with knowledge) of the person who alienated or destroyed the
thing, and
(iii) loss (1) incurred by the owner of the thing .
See Study Guide pg 165-166 and 170

(c) three ways in which a servitude is terminated (3)

ANSWER:
Any three from the following list:
(i) upon the expiry of the period (1) for which it was established, or the fulfillment of a
resolutive condition and, specifically in the case of a personal servitude, by the death of
the holder or, where the holder is a legal person, after 100 years, if no time period was
fixed
(ii) by agreement (1)
(iii) by prescription (1)
12
 PVL3701/201

(iv) by expropriation (1)

(v) by renunciation (abandonment) (1)
(vi) by merger (1)
(vii) by the impossibility of exercising the right as a consequence of a permanent change in
the condition of the dominant or servient tenement (eg, in the case of a servitude to draw
water, where the well has completely dried up) (1)
(Maximum 3 marks)
See Study Guide pg 246

(d) four persons in whose favour prescription is suspended (4)

NOT FOR EXAMINATION PURPOSES

ANSWER:
(i) minors (1)
(ii) insane persons (1)
(iii) married women with retention of the husband's marital power (1) although the marital
power was completely abolished in section 29 of the General Law Fourth Amendment
Act 132 of 1993, this should not be interpreted to the detriment of women against whom
prescription was running during the period when they were still subject to the marital
power of their husbands) (1)
(iv) persons absent from the country because of war, or those who are employed by the state
(1)
(v) fideicommissaries (1) - in the case where a fiduciarius has alienated fideicommissary
goods without the power to alienate, until such time as the fideicommissary goods are
distributed.
(Maximum 4 marks)
See Study Guide pg 122-123

(e) the requirements for the condictio furtiva (4)

ANSWER:
(i) ownership (1) or retention of a lawful interest (1) from the date of theft to the date of
institution of the action
(ii) theft (½) or removal of the thing with deceitful intent (½)
(iii) if the action is not instituted against the thief or deceitful remover, that the defendant is
the heir of the former (1)
Study Guide pg 164 and 169
[20]

13
 QUESTION 3

Distinguish between:

(a) land/praedial and personal servitudes (8)

ANSWER:
1) Land servitudes are created in favour of a piece of land, (1) while personal servitudes
benefit someone in his/her personal capacity. (1)
2) Land servitudes last indefinitely, (1) in principle, while personal servitudes can be granted
only for a specific period, (1) or for the holder's lifetime, or, if not granted for a specific
period, in the case of legal persons for 100 years (Willoughby's Consolidated Co Ltd v
Copthall Stores Ltd 1913 AD 267 282).
3) Land servitudes can be established over immovable (1) things only; personal servitudes
may be established over movables (eg, over money or a flock of sheep or a herd of
cattle) and immovables (1) (land).
4) Land servitudes are alienated together with the land. (1) Personal servitudes are
inseparably attached to the holder's person and are in no way transferable. (1)
See Study Guide pg 235

(b) lawful and unlawful holders (2)

ANSWER:
A lawful holder can be defined as a person who physically controls the thing with the owner's
permission or on another legal basis, (1) in order to derive some benefit from it.
An unlawful holder can be defined as a person who does not regard or conduct him/herself as
the owner, and who recognises and respects the owner's ownership to the thing, but who
physically controls it for the sake of the benefit he/she derives from it, without the owner's
permission or other legal ground for his/her control. (1)
See Study Guide pg 194-195 and 197

(c) original and derivative methods of acquisition of ownership (6)

ANSWER:
Original methods of acquiring ownership are used when there is no co-operation from a
predecessor in title (1); in other words, where there is no transfer of ownership. (1) This form of
acquisition is not limited to things belonging to no-one (res nullius): (1) in cases of accession,
prescription and expropriation the thing is actually owned by another.
Derivative methods of acquiring ownership occur with the co-operation of a predecessor in title.
(1) The right which the transferee obtains is derived from the former owner. This implies that the
predecessor in title should himself/herself have been the owner (1) and entitled to transfer
ownership. This principle is expressed in the maxim: no-one can transfer more rights to another
person than he has himself (nemo plus iuris in alium transferre potest quam ipse haberet). (1)
Furthermore, the right is transferred to the new owner with the advantages and the
disadvantages attached to that right. (1)
14
 PVL3701/201

(Maximum 6 marks)
See Study Guide pg 90

(d) real and personal rights under the following headings:

(Half marks will be awarded)
(i) object
(ii) absoluteness
(iii) preference
(iv) publicity (4)

ANSWER:
(i) Object
The object of a real right is a corporeal thing (½); whereas the object of a personal right is
performance. (½)
(ii) Absoluteness
Real rights are absolute in principle: (½) the holder of the right can vindicate his/her thing
(subject to certain exceptions) from whomever is in control of the thing; while personal rights are
relative in principle: (½) the holder can enforce his/her right only against the person who is
obliged to perform in terms of an obligation (contract or delict).
(iii) Preference
In the case of insolvency, a real right enjoys preference over other rights. (½) Moreover, the
maxim, first in time is stronger in law (prior in tempore est potior in jure) is applied in the case of
two or more competing real rights. Apart from a few exceptions, this principle does not apply to
personal rights. (½)
(iv) Publicity
The establishment of real rights requires some form of publicity. (½) The reason for this lies in
the nature of real rights. Since these rights have to be respected by the world at large, it is
imperative that there should be some form of publicity informing outsiders of the existence,
transfer or extinction of the real right. The establishment of personal rights does not require
publicity. (½)
See Study Guide pg 58-59
[20]

15
 QUESTION 4

(a) T steals Q's car. T takes the car to Highway Motors, which undertakes to:
(i) install a new crank shaft
(ii) install a device to improve petrol consumption
(iii) replace the upholstery with leather upholstery
In terms of their agreement, T would pay R 600-00, R 200-00 and R 300-00 to Highway Motors
for the above services respectively. On passing the garage, Q sees her car and institutes the rei
vindicatio against Z, the owner of Highway Motors. Z, who was bona fide all the time, and who
was under the impression that T was the owner of the car, relies upon his lien and alleges that
he is entitled to keep the car until the full R1 100-00 has been paid for his services.
Discuss Z's legal position. (15)

ANSWER:
See Study Guide pg 20-22 for the complete answer.

(b) S decides to develop a part of his farm Highlands as a residential township, but his
attorney informs him that it is not possible. It appears that a regional development plan in
terms of a physical planning scheme provides that the area is to be utilised for agricultural
purposes only.
S approaches you for legal advice. Fully advise S on his legal position. (5)

ANSWER:
Although S has the most comprehensive real right to Highlands and, in principle, he can do as
he pleases, (1) his ownership is nevertheless restricted. (1) We are dealing here with a limitation
on ownership in terms of the law (1) and, more specifically, in terms of a statutory measure. (1)
Therefore, S will not be able to develop a township on Highlands. (1)

See Study Guide pg 73-75

[20]

QUESTION 5

(a) Employees from the local authority, without notice and without proper authority, start to
break up the dam on S's farm and dig trenches across his land. This is all part of an
extensive sewerage system which also crosses S's farm. While working on the farm, they
use some of the farm implements which S bought from the cooperative on credit, with
reservation of ownership. Their use of these implements renders them useless. Discuss
the remedy available to S with reference to the requirements for that remedy and to case
law. (10)

16
 PVL3701/201

ANSWER:
S can rely on the Aquilian action. (1) The Aquilian action is a delictual remedy (1) (originating
from an obligation created in terms of a delict) by means of which the owner of a thing (1) may
claim damages (1) from someone who has culpably and unlawfully damaged it. (1) In principle,
it is clearly the owner of the thing whose estate is impaired by damage to the thing (which forms
part of the estate) who can claim. The owner is therefore, in principle, the only one who may
use the delictual remedy. (1) However, there are cases in which another person may suffer
patrimonial loss as a result of damage to a thing of which he/she is not the owner. (1) The
question then arises whether such a person should also be protected by the delictual remedy.
This question becomes relevant in cases in which a non-owner has an interest in the particular
thing, to the extent that damage to the thing will impair his/her estate as well. Someone who
buys a car on credit with reservation of ownership, for example, and who is therefore a lawful
holder, may have paid a large part of the price when the car is damaged by a third person. The
owner-seller may decide not to sue for damages, since the car has almost been paid for in full.
The buyer's predicament is that, although he/she is not the owner, he/she is prejudiced directly
by the damage to the car. In a case such as this it may be necessary to put the delictual remedy
at the buyer's disposal, in spite of the fact that he/she is not the owner, since his/her estate is
directly affected by the damage. (1)
In principle (bearing in mind the requirements for the delictual remedy), one may only claim
damages on the basis of the Aquilian action for unlawful infringement of a patrimonial interest,
that is, if the plaintiff has a lawful claim to the thing or to its control. This implies that the delictual
action is available only to those who can prove a lawful patrimonial interest in the thing. (1)
On the basis of this argument, but with consideration for the fact that modern law recognises
that other persons besides the owner may have a patrimonial interest in the thing or in control of
the thing, the delictual remedy has been conferred on the following non-owners (Case law: Smit
v Saipem 1974 (4) SA 918 (A); Refrigerated Transport Edms (Bpk) v Mainline Carriers (1) 1983
(3) SA 121 (A)): (1)
(i) bona fide possessors (1)
(ii) lawful holders (1) (eg, buyers in terms of a deed of sale where the risk has passed to the
buyer, but ownership has not been passed (Smit v Saipem 1974 (4) SA 919 (A))
(Marks were also awarded for the requirements of the Aquilian action.)
(Maximum 10 marks.)
See Study Guide pg 214-216

17
(b) D, E, F and G work on Pulang, a farm belonging to Q and R. D and E live on the farm and
have the right to use a portion of the farm for cropping or grazing purposes in exchange for
the work they perform for Q and R. F and G work on the farm, are paid a monthly wage
and reside there. Because of continual crop failures Q and R are forced to reduce their
farming activities. As a result they must evict some of the workers on the farm.
Indicate which statutes the parties could possibly invoke in support of their claims and
briefly explain why these statutes could be applicable. (10)

ANSWER:
See Study Guide pg 324-325 for the complete answer.
[20]
TOTAL MARKS: [100]

UNISA
/hs

18
 PVL3701/201/2/2016

Tutorial Letter 201/1/2016

Property Law

PVL3701

Semester 1

Department of Private Law

This tutorial letter contains important information about this
module.

Bar code
 CONTENTS
1. EXAMINATION INFORMATION
2. COMMENTARY ON ASSIGNMENT 01 FIRST SEMESTER 2016
3. COMMENTARY ON ASSIGNMENT 02 FIRST SEMESTER 2016

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

MRS ANRI HEYNS heynsa2@[Link] 012 429-8386

PROF INA KNOBEL knobeim@[Link] 012 429-8491 / 084 965 1742
MR L NTSOANE ntsoals@[Link] 012 429-4467

1 EXAMINATION INFORMATION

 This is the last tutorial letter that you will receive this semester.
 The examination paper consists of two sections.
o Section 1 (40 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 compulsory assignment 02.
o The questions in Section 2 (60 marks out of 100 marks) of the examination
paper will be similar to the activities in your Study Guide.
 Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2016 (p 7-8).
 Please take note of Part II in your Study Guide that deals with writing skills, especially p
16 and further.
 Take note of the mark allocation in tutorial letter 101/3/2016 (p 9). This will be very
helpful in your preparation for the examination.

2
 PVL3701/201

2 COMMENTARY ON ASSIGNMENT 01

For purposes of Property Law it is important to distinguish between movable and immovable
things. One of the reasons why this is important is because the formalities and requirements for
the transfer of ownership of movable and immovable things are different (see Study unit 5
paragraphs 1-5).
In view of this answer the following questions:
(i) Name six other reasons why it is important to distinguish between movable and
immovable things. (6)

Answer:
(a) Several statutes distinguish between movable and immovable things. (1)
(b) Private international law distinguishes between movable and immovable things. (1)
(c) The right to alienate or encumber the estate of a minor is affected because the
permission of the High Court is required for the alienation or encumbrance of a minor’s
immovable assets worth more than R100 000. (1)
(d) In the execution of a judgment debt and in the case of insolvency the debtor’s movable
assets are sold before the immovables to ensure payment of the judgment debt. (1)
(e) In criminal law theft can be committed only in respect of movables, while arson can only
be committed in relation to immovables. (1)
(f) Real security is effected by means of pledge in the case of movables and by means of
mortgage in the case of immovable things. (1)
(Study guide p 48 par [Link]. Please take note that it is very important to make sure that you
understand these differences. The difference relating to the formalities and requirements for the
transfer of ownership plays a central role in Property law. It is also crucial to understand the
difference concerning real security. When answering questions in the examination always make
sure whether the question is concerned with a movable or immovable thing.)

(ii) What is the most important difference between original acquisition of ownership and
derivative methods of acquisition of ownership (see Study Unit 4 paragraph 1)? (1)

3
Answer:
Original methods of acquiring ownership occurs when there is no cooperation from a
predecessor in title, while derivative methods of acquiring ownership occur with the cooperation
of a predecessor in title. (1)
(Study guide p 90 par 1. Make sure that you understand and are able to distinguish between
these two forms of acquisition of ownership.)

(iii) What are the key elements in all forms of derivative methods of acquisition of ownership?(7)

Answer:
(a) The thing must be in the legal sphere or in commerce (res in commercio). (1)

(b) The parties should be capable to pass and acquire ownership. (1)
(c) The transferor must be the owner or be authorised by the owner. (1)
(d) The parties should have the intention to pass and receive ownership. (1)
(e) There should be a legal ground (iusta causa) for the transfer of ownership. (1)
(f) Cash or credit is required. (1)
(g) A method of transfer is required. (1)
(Study guide p 128-131)

Refer to the following two examples in your answers to questions (iv) and (v).

1 Q wants to buy a soccer ball from from Z for R250.

2 S wants to buy a farm from X and Y for R3000 000.

(iv) What are the basic formalities and requirements for the transfer of movables? (3)

Answer:
Ownership of movable things is transferred by means of delivery. (1) Delivery consists of a
physical element (½) (corpus) and a mental element (½) (animus). Example 1 (1) concerns the
transfer of ownership over a soccer ball, which is a movable thing. Q will become the owner of
the soccer ball if Z (the transferor) gives the ball from his hand into the hand of Q (the
transferee) with the intention of transferring ownership. (1)

4
 PVL3701/201

(Study guide p 131 par 4 and 4.1. Take note that it is possible to physically hand a soccer ball
over. Ownership of the soccer ball is transferred by way of actual delivery (traditio vera). Actual
delivery, however, is not always possible and therefore other forms of delivery exist. See par 4.2
for the constructive or fictitious forms of delivery.)

(v) What are the basic formalities and requirements for the transfer of immovables? (3)

Answer:
The transfer of ownership of immovable things (land) takes place by way of registration. (1)
Land is transferred by a deed of transfer. (1) Example 2 (1) concerns the sale of a farm, an
immovable thing. The farm will have to be registered in S’s name before S will become the
owner thereof. (1)
(Study guide p 148-149 par 5.1)

5
 3 COMMENTARY ON ASSIGNMENT 02

Each question counts 1 (one) mark.

Question 1
Indicate the incorrect option.
Original acquisition of ownership can take place by means of
(1) accession.
(2) appropriation.
(3) registration.
(4) expropriation.

Answer: 3

Feedback: Accession, appropriation and expropriation are forms of original acquisition

of ownership. These methods do not require cooperation from the person who was the
owner of the thing before the new owner (predecessor in title). However, registration, is a
derivative method of acquisition of ownership, which means that ownership is acquired
with the cooperation of the former owner. The transfer of ownership of immovable things
(land) takes place by registration.

Study guide p 90-113 ; 148

Question 2

Indicate the correct option.

Handing over the keys to a car or a warehouse is the best known example of:
(1) symbolic delivery in which instance a thing is handed over symbolically by pointing it out
to the transferee.

(2) symbolic delivery in which instance a thing is handed over symbolically by delivering a
token or symbol of the thing to the transferee.

(3) delivery with the long hand (traditio longa manu) in which instance a thing is delivered by
pointing it out to the transferee and placing the transferee in the position to take control of
the thing to the exclusion of others.

(4) delivery with the long hand (traditio longa manu) in which instance a thing is handed over
symbolically by delivering a token or symbol of the thing to the transferee.
6
 PVL3701/201

Answer: 2

Feedback: Symbolic delivery and delivery with the long hand (traditio longa manu) are
methods of constructive or fictitious delivery where the transferee is placed in the position to
exercise physical control over the transferred thing. These methods of delivery take place
where the thing cannot be handed over physically due to its size or nature.

Option 3 correctly describes delivery with the long hand, but is not applicable to the instance
where a car or the contents of a warehouse are transferred. For the transferee to be able to
exercise physical control over the car or the contents of a warehouse, it requires the key. This
key is delivered as a symbol of the car or contents of the warehouse that is being delivered.

Study guide p 132-134

Question 3

Indicate the incorrect option.

The following are the requirements for the successful reliance on the condictio furtiva:
(1) ownership or retention of a lawful interest from the date of theft to the date of institution of
action
(2) patrimonial loss by the owner of the stolen thing
(3) theft or removal of the thing with deceitful intent
(4) if the action is not instituted against the thief or deceitful remover, that the defendant is
the heir of the former

Answer: 2

Feedback: To rely successfully on the condictio furtiva, an applicant must prove options 1, 3
and 4. The action is instituted to claim the stolen thing or the highest value of the thing since
the theft thereof. Patrimonial loss of the owner is not claimed with this action. To claim
patrimonial loss, the Aquilian action (delictual claim for damages) should be instituted.

It should also be noted that not only the owner, but also any person with a lawful interest in the
stolen thing, can institute the action.

Study guide p 163-164; 213

7
Question 4
Indicate the incorrect option.

If co-owners cannot reach agreement on the subdivision of property:

(1) division may be claimed by means of the actio communi dividundo.

(2) the applicant doesn’t have to prove that he/she attempted division by means of an
agreement.
(3) the applicant has to prove that he/she has already tried to obtain division by means of an
agreement.
(4) the court has a wide discretion with regard to the division.

Answer: 2

Feedback: If co-owners cannot reach agreement on the subdivision of the property, any co-
owner may claim division by means of the actio communi dividundo. The applicant must show
that he/she has already tried to obtain division by means of an agreement with other co-
owners. A court can only be approached if this attempt has failed. The court has a wide
discretion with regard to the division.

Study guide p 183

Question 5
Indicate the correct option.
A purchaser who has purchased a car on credit but who has not yet paid all the instalments can
be defined as a:
(1) possessor
(2) mala fide unlawful holder
(3) bona fide unlawful holder
(4) lawful holder

Answer: 4

Feedback: A lawful holder is a person who physically controls the thing with the owner’s
permission or on another legal basis, in order to derive some benefit from it. This person
exercises control over the thing while recognising and respecting the owner’s ownership. An
example of a lawful holder is a person who buys something on credit, but who have not yet
paid all the instalments.

Possession in option 1 refers to a real relationship between a legal subject and a thing
characterised by a physical and a mental element. Possession in this sense is always unlawful.
8
 PVL3701/201

Option 1 is therefore wrong because the purchaser bought the car under a credit agreement.

A mala fide unlawful holder in option 2 refers to a person who knows that he /she does not
have the owner’s consent to control the thing, but he/she still exercises physical control over
the thing unlawfully in order to derive a benefit from it but not with the intention of an owner.
This option is wrong because a purchaser under a credit agreement controls the thing lawfully
with the intention to derive some benefit from it.

A bona fide unlawful holder in option 3 refers to a person who physically controls the thing
unlawfully, but he/she is unaware of the fact, since he/she is under the incorrect impression
that he/she has the necessary permission or a legal ground to control the thing. This option is
wrong because a purchaser under a credit agreement controls the thing lawfully.

Study guide p 187, 192-195

Question 6

Indicate the correct option.

An owner, bona fide possessor and mala fide possessor each has a
(1) real relationship with the thing it physically controls with the intention of an owner.

(2) real relationship with the thing with the intention to become an owner.

(3) lawful real relationship with the thing it physically controls which affords it a real right over
the thing.

(4) lawful real relationship with the thing it physically controls with the intention of deriving a
benefit from the thing.

Answer: 1

Feedback: Ownership and possession (bona fide or mala fide) are real relationships. An owner
has a real right to his/her own thing, this is lawful real relationship. A possessor controls the
thing with the intention of an owner. Option 4 refers to a lawful holder. A lawful holder has a
lawful real relationship with the thing it physically controls with the intention of deriving a benefit
from the thing.

Study guide p 193-197

Question 7

9
Indicate the incorrect option.

A personal servitude:

(1) confers entitlements with regard to a movable or an immovable thing.

(2) is a limited real right

(3) is a personal right (creditor’s right)

(4) confers entitlements to a person in his/her personal capacity.

Answer: 3

Feedback: All servitudes are limited real rights. A personal servitude is defined as a limited
real right granting the servitude holder specific entitlements of use and enjoyment with
regard to the movable or immovable thing of another in his/her personal capacity for a
specific period of time or for his/her lifetime or, in the case of a legal person, for a maximum
period of 100 years. Please note that a personal servitude is not a personal right! Option 3
is therefore incorrect.

Study guide p 241-242

Question 8
Indicate the correct option with regards to servitudes:

(1) The maxim that no one can establish a servitude over his/her own thing (nulli res sua
servit) applies to both land and personal servitudes.

(2) Both land and personal servitudes can only be established over immovable property
(land).

(3) Personal servitudes are created in favour of a piece of land of a specific person.

(4) Land servitudes are limited real rights and personal servitudes are personal rights.

Answer: 1

Feedback: Both servitudes are limited real rights. As mentioned in Question 7 – a personal
servitude is not a personal right.

Land servitudes can only be established over movables while personal servitudes can be
established over both movables and immovables.
A personal servitude confers entitlements to a person in his personal capacity.

Study guide p 234-235

Question 9
10
 PVL3701/201

Indicate the incorrect option.

X leases a house on his farm to Z. Z lives in the house with his family. All the furniture in the
house belongs to Z, apart from the television and radio which he bought on credit from ABC
Furnishers. Z fails to pay rent.
(1) X has a tacit hypothec over the movable things brought onto the premises by Z since the
rent is owing.
(2) X has a tacit hypothec over all the movable things on the property, including the
television and radio, provided that he knew ABC Furnishers is the owner thereof.
(3) X will only vest a limited real right if the movable things brought onto the premises are
attached while they are still there or while they are in the process of being removed but
have not yet reached their new destination.
(4) X has a tacit hypothec over all the movable things on the property, including the
television and radio, provided that ABC Furnishers is aware of the fact that the television
and radio is on X’s premises.

Answer: 2

Feedback: X has a tacit hypothec over all the movables which are brought onto the premises
by the tenant Z. Anything belonging to third parties, such as ABC Furnishers, which is brought
onto the rented premises by Z, is also subject to the landlord’s tacit hypothec on the condition
that ABC Furnishers knew where their property was and intended Z to make use of it on the
leased premises for an indefinite period of time. ABC Furnishers can avoid this by notifying X
(landlord) that Z has their property on the premises and that they do not wish this property to be
subject to the landlord’s tacit hypothec. If ABC Furnishers informed X that it is the owner of the
television and radio and that it did not want their property to be subject to X’s tacit hypothec, X
would not have a tacit hypothec over the television and the radio.

Study guide p 284-286

11
Question 10
Indicate the correct option.
S is the owner of a farm. The municipality needs to build a national road through a part of S’s
farm and wants to buy that piece of land from S. S refuses to sell that part of his farm to the
municipality.
(1) Ownership is the most comprehensive real right a person can have over his/her own
thing and in principle an owner may do with the thing as he/she pleases. Consequently S
is entitled to refuse to sell that piece of land to the municipality.
(2) In terms of First National Bank of SA Limited t/a Wesbank v Commissioner for the South
African Revenue Services; First National Bank of SA Ltd t/a Wesbank v Minister of
Finance (2002) (7) BCLR 702 (CC)) ‘property’ in section 25 must be interpreted in the
narrow sense. A piece of agricultural land that hasn’t been subdivided cannot qualify as
‘property’ and may not be deprived or expropriated.
(3) The municipality may, in terms of section 25(1) of the 1996 Constitution, expropriate that
piece of land and pay S reasonable compensation. The amount, time and manner of
payment of compensation must be determined by the parties or should be decided by a
court.
(4) Because the national road is in the public interest the municipality may, in terms of
section 25(1) of the 1996 Constitution, deprive S of that piece of land without paying him
any compensation.

Please note that option (3) should have referred to section 25(2). In view of this all students
were given a mark for this question.

Answer: 3

Feedback: With regards to option 1: It is true that ownership is the most comprehensive real
right that a person can have towards his or her thing, but in terms of s 25(1) of the Constitution
an owner can be deprived of its property if the requirements set out in s 25(1) are met.
Option 2 is incorrect because “property” is given a wide or extensive interpretation for purposes
of the Constitution.
Option 4 is incorrect because section 25(1) deals with deprivation which does not concern the
“taking away” of property, but merely the limitation, regulation or restriction of property. The
municipality will have to expropriate the piece of land in terms of section 25(2) of the
Constitution in order to build the national road. S will be compensated in terms of section 25(3)
of the Constitution.
Study guide p 315-318

©
UNISA
2016

12
 lOMoARcPSD|4402399

PVL3701 - Tut 201 - S1 - 2017

Law of Property (University of South Africa)

StuDocu is not sponsored or endorsed by any college or university

Downloaded by Linda Zungu (zungulinda50@[Link])
 lOMoARcPSD|4402399

PVL3701/201/1/2017

Tutorial Letter 201/1/2017

Property Law

PVL3701

Semester 1

Department of Private Law

This tutorial letter contains important information about this
module.

Bar code

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

CONTENTS

1. EXAMINATION INFORMATION
2. COMMENTARY ON ASSIGNMENT 01 FIRST SEMESTER 2017
3. COMMENTARY ON ASSIGNMENT 02 FIRST SEMESTER 2017
4. CORRECTIONS – NEW STUDY GUIDE
5. FREQUENTLY ASKED QUESTIONS

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

PROF INA KNOBEL knobeim@[Link] 012 429-8491 / 084 965 1742

DR BOITUMELO MMUSINYANE mmusibo@[Link] 012 429-8496
DR MITZI WIESE wiesem@[Link] 012 429-8466 / 083 259 9450
MR L NTSOANE ntsoals@[Link] 012 429-4467

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

PVL3701/201

1 EXAMINATION INFORMATION

 This is the last tutorial letter that you will receive this semester.

 The examination paper consists of two sections:

o Section 1 (40 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 compulsory assignment 02.

o The questions in Section 2 (60 marks out of 100 marks) of the examination
paper will be similar to the activities in your Study Guide.

 Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2017 (p 7) namely:

o Ex parte Geldenhuys 1926 OPD 155

o MacDonald Ltd v Radin NO and the Potchefstroom Dairies and Industries Co Ltd

o Info Plus v Scheelke 1998 (3) SA 184 (SCA)1915 AD 454

o Nino Bonino v De Lange 1906 TS 120

o Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA)

o Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267

o Grant v Stonestreet 1968 (4) SA 1 (A)

o Mapenduka v Ashington 1919 AD 33

o 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) (also reported at [2002] 7 BCLR 702 (CC))

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

Please remember that all other cases to which we refer in the Study Guide should be studied to
the extent that they are discussed in the Study Guide.

 Take note of the mark allocation in Tutorial letter 101/3/2017 (p 9) inserted below for
ease of reference. This will be very helpful in your preparation for the examination.

Part 1 (study units 1-2): Introduction, things as legal objects and real rights and personal
rights (10%)

Part 2 (study units 3-7): Ownership: definition of, limitations on, original acquisition of,
derivative acquisition of, protection of, termination of and co-
ownership (40%)

Part 3 (study units 8-9): Possession and holdership: nature of, protection of and
termination of (15%)

Part 4 (study units 10-12): Limited real rights: introduction, servitudes, restrictive
conditions, pledge, security by means of claims, mortgage,
tacit mortgages, mineral rights, water rights and tenant’s
rights (25%)

Part 5 (study units 13-15): Constitutional property law, land reform and additional forms
of statutory land use (10%)

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

PVL3701/201

2 COMMENTARY ON ASSIGNMENT 01

Before you answer the questions of this assignment, work through Study Units 1-9 very
carefully.

In Study Unit 1 we introduce you to three real relationships, namely:

 ownership

 possession and

 holdership

The definition, limitation, acquisition, protection and termination of ownership are dealt with in
Study Units 3-6. Study Unit 7 deals with co-ownership. The nature, protection and termination of
possession and holdership are discussed in Study Units 8 and 9.

QUESTION 1

(a) Define ownership. (4)

ANSWER

Ownership can be defined as the most comprehensive real right (1) that a person can have with
regards to his/her thing. (1) In principle, a person can act upon and with his/her thing as he/she
pleases. (1) This apparent freedom is restricted, however by the law and the rights of others. (1)

(Study Guide p 42)

(b) Give one practical example of how ownership can be limited. (1)

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

ANSWER

Ownership can be limited in the following ways:

[A] By law

These limitations can be subdivided into:

(i) Statutory limitations (legislation), for example:

- limitations in terms of the Constitution – section 25 and 26;

- limitations on the use of movable things:
- firearms (Firearms Control Act 60 of 2000)
- motor vehicles (the National Road Traffic Act 93 of 1996 – for example exceeding the
prescribed speed limit)
- drugs (the Drugs and Drugs Trafficking Act 140 of 1992);
- limitations on immovable things: land (the Subdivision of Agricultural Land Act 70 of 1970 and
Spatial Planning and land Use Management Act 16 of 2013)

(ii) Limitations imposed in terms of neighbour law principles ownership is limited by the rights
of their neighbours, for example:

- nuisance;
- lateral and surface support;
- encroachments;
- surface water;
- party walls and fences and
- elimination of dangers.

[B] By the rights of other legal subjects

These limitations can be subdivided into:

(i) Limitations imposed by the limited real rights of third parties. For example a right of
habitation (personal servitude = limited real right) or land/real servitude (limited real right) or a
mortgage (limited real security right)

(ii) Limitations imposed by the personal rights (creditor’s rights) of third parties. For
example X and Y entered into a contract in terms of which S can graze 100 head of cattle on
their farm. Their ownership is, therefore, limited by a personal right created by an agreement; or

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

PVL3701/201

any other contract that creates personal rights, such as lease agreement or an agreement to
buy something – such as a car.

(Study Guide p 48-59)

(c) What is the difference between original acquisition of ownership and derivative
acquisition of ownership? (1)

ANSWER

Original methods of acquiring ownership are used when there is no cooperation from a
predecessor in title (this refers to the person who was owner of the thing before the new owner);
in other words, where there is no transfer of ownership. (½)

Derivative methods of acquiring ownership occur with the cooperation of a predecessor in title.
The right which the transferee obtains is derived from the former owner. (½) This implies that
the predecessor in title should himself/herself have been the owner and have been entitled to
transfer ownership. This principle is expressed in the maxim: no-one can transfer more rights to
another person than he has himself (nemo plus iuris in alium transferre potest quam ipse
haberet). Furthermore, the right is transferred to the new owner with the advantages and
disadvantages attached to that right.

(Study Guide p 63)

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

QUESTION 2

Read the examples below:

X drives a red Toyota Corolla which he borrowed from his best friend.

T drives a blue Toyota Corolla which he stole from a car dealer.

Y drives a silver Toyota Corolla which he inherited from his father.

Which one of the three persons is:

(a) an owner;

(b) a possessor;

(c) a holder.

In your answers to a, b and c briefly discuss the nature of the relationships that X, T and Y have
towards the respective cars. (6)

ANSWER

(a) Y is an owner. (1) Ownership is a lawful real relationship – a real right (1)

(b) T is a possessor (1) because T physically controls the car with the intention of an
owner but does not comply with the requirements for establishing ownership. A
possessor has a mere real relationship with the thing (no real right). Possession is
always unlawful (bona fide or mala fide) (1)

(c) X is a holder (1) because X physically controls the red Corolla with the intention of
deriving a benefit from it. Holdership can be lawful or unlawful (bona fide or mala
fide). A lawful holder may have a real right (for example a pledgee), but an unlawful
holder has a mere real relationship with the thing. (1)

(Study Guide p 12-13)

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

PVL3701/201

QUESTION 3

In Study Unit 6 we define the rei vindicatio as a real action with which an owner can claim
his/her thing from whoever is in control of it unlawfully. In Study Unit 9 we define the spoliation
remedy as a summary remedy issued upon urgent application aimed at restoring control of a
thing to the applicant from whom it was taken by means of unlawful self-help, without
investigating the merits of the original rights of the parties to control the thing.

In view of this, read Nino Bonino v De Lange (1906 TS 120) which concerned the spoliation
remedy, and answer the following questions about the decision. Refer to the relevant page(s)
of the case where you found the answers to questions (a)-(d) in all four of your answers.

(a) What was the legal question that had to be answered according to Innes CJ? (2)

ANSWER

The question was whether the respondent (landlord) had the authority (right) to prevent the
appellant (lessee) from having access to the billiard room (1)

Reference - page 122 of the decision. (1)

(b) To which clear fundamental principle did Innes CJ refer? (5)

ANSWER

Innes CJ referred to the fundamental principle that no person is allowed to take the law into
his/her own hands. (1) Furthermore no person is allowed to dispossess another person of
possession of property – movable or immovable. (1) If this happens the dispossessed person’s
(spoliatus) control (possession) will be restored summarily (1) without investigating the merits of
the case. (1)

Reference - page 122 of the decision. (1)

(c) Is the following statement true or false? Give a reason for your answer with reference to
Innes CJ’s judgment.

“To succeed with the spoliation remedy spoliation should have taken place violently.” (2)

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

ANSWER

The statement is false. Innes CJ stated that an act of spoliation need not necessarily consist of
acts of violence. (1)

Reference - page 122 of the decision. (1)

(d) What were Smith J’s views on clause 18 of the lease agreement which seemingly
permitted the landlord to prevent the lessee from having access to the billiard room? (4)

ANSWER

Smith J stated that the clause could not affect the rights of the parties. (1) The agreement was
against public policy and void/unenforceable. (1) He furthermore held that the clause would
allow the respondent to be the judge in his own case. (1)

Reference - page 125 of the decision. (1)

10

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

PVL3701/201

3 COMMENTARY ON ASSIGNMENT 02

QUESTION 1

Indicate the correct option.

In Ex Parte Geldenhuys (1926 OPD 155) the court formulated a test to determine the distinction
between:

(1) ownership and personal rights

(2) real rights and personal rights

(3) real rights and limited real rights

(4) personal rights and personal servitudes

Answer: 2

Commentary: In Ex parte Geldenhuys (1926 OPD 155) the court formulated the subtraction
from the dominium test to determine the distinction between real rights and personal rights.

(Study Guide p 36-37)

QUESTION 2

Indicate the wrong option.

Which one of the following statements based on the decision in MacDonald Ltd v Radin & The
Potchefstroom Dairies & Industries Co, Ltd (1915 AD 454) is wrong?

(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;

11

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

(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 Justinian’s 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

Commentary: MacDonald Ltd v Radin dealt with the three criteria applied by the courts to
determine whether a movable thing is attached to an immovable thing in such a fashion that it
subsequently becomes part of the immovable thing. These criteria are (i) the nature of the
attached thing; (ii) the manner and degree of attachment and (iii) the intention of the annexor or
of the owner of the movable thing. In this decision the court held that the machinery could be
removed.

(Study Guide p 76-77; MacDonald Ltd v Radin 466 472)

QUESTION 3

Indicate the wrong option.

Which one of the following statements based on the decision in Vasco Dry Cleaners v Twycross
(1979 (1) SA 603 (A)) is wrong?

(1) In the case of constitutum possessorium a transferor retains physical control of the thing
to be transferred.

(2) Constitutum possessorium does constitute delivery for purposes of creating a valid
pledge.

(3) Constitutum possessorium creates the possibility of fraud.

(4) The real object underlying the transaction between Air Capricorn and Twycross was not a
sale agreement but a pledge agreement.
12

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

PVL3701/201

Answer: 2

Commentary: Constitutum possessorium is a constructive or fictitious form of delivery where

the transferor retains physical control over the thing which he/she has agreed to transfer
ownership to the transferee. In Vasco Dry Cleaners v Twycross (1979 (1) SA 603 (A)) the court
held that no pledge was created since constitutum possessorium does not constitute delivery for
purposes of creating a valid pledge.

(Study Guide p 107)

QUESTION 4

Which option is the odd one out?

(1) symbolic delivery

(2) delivery with the short hand

(3) constitutum possessorium

(4) appropriation

Answer: 4

Commentary: Symbolic delivery, delivery with the short hand and constitutum possessorium
are all forms of delivery. Appropriation is one of the original methods of acquiring ownership
which consists of the unilateral taking of physical control of a thing which does not belong to
anyone (res nullius), but which is within the sphere of law with the intention of becoming its
owner.

(Study Guide p 64, 100, 105 and 106)

13

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

QUESTION 5

Indicate the correct option.

The case of Quenty’s 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 owner’s 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.

Answer: 2

Commentary: In Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd (1994 (3) SA 188
(A)) the court held that estoppel can successfully be raised as a defence against the owner’s rei
vindicatio. Estoppel is defined as a defence which can be raised against an owner’s rei
vindicatio where the owner of a certain thing, through his/her conduct, culpably leads third
parties to believe that someone else is the owner of the thing or is authorised to alienate the
said thing, and the third party, relying on this representation, obtains control of a thing and in
doing so acts to his/her detriment.

(Study Guide p 121-123)

QUESTION 6

Indicate the correct option.

X buys a tractor from Z in terms of a credit agreement. Z reserves ownership of the tractor until
the last instalment has been paid. Before X pays the last instalment he becomes insolvent.

(1) Z’s retention of ownership is a limited real right of security against X’s insolvent estate.

(2) Z can only rely on the credit agreement and therefore has a mere personal right against
X’s insolvent estate.

(3) Z has a right of retention over the tractor until payment of the last instalment.
14

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

PVL3701/201

(4) Z’s ownership changes to a limited real right of security, namely a tacit hypothec, against
X’s insolvent estate.

Answer: 4

Commentary: Ownership is the most complete real right a person can have with regard to his
or her own thing, whereas a limited real right is a real right over another person’s thing. Z
reserves ownership over the tractor until the last instalment is paid. If X becomes insolvent
before the last instalment has been paid to Z, Z’s ownership is converted into a real security
right (tacit hypothec of credit grantor). This real security right grants Z a preferent claim against
X’s insolvent estate. Retention of ownership, as such, is not a real security right.

(Study Guide p 177 and 234)

QUESTION 7

Indicate the wrong statement pertaining to the Aquilian action.

(1) To succeed with the action the plaintiff must prove a causal connection between the
damage and the act of the defendant.

(2) The action can be instituted against any person who intentionally or negligently caused
damage to a thing in an unlawful manner.

(3) Damages can be claimed with this action.

(4) This action is available only to the owner of a damaged thing.

Answer: 4

Commentary: The Aquilian action is available not only to the owner of the damaged thing, but
also available to bona fide possessors and holders. In order to succeed with an Aquilian action,
the following must be proved:

- unlawful conduct by the defendant

- culpability (intent/negligence on the part of the defendant

15

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

- proprietary right/interest of the plaintiff in the thing

- patrimonial loss by the plaintiff and
- a causal connection between the patrimonial loss and the conduct of the defendant.

(Study Guide p 128-139 and 168-169)

QUESTION 8

Indicate the wrong option.

(1) Both express and tacit real security rights are accessory in nature.

(2) An express real security right may secure present and/or future debts.

(3) When the debt is discharged, the creditor must terminate the real security right.

(4) A principal debt is required for the vesting and existence of express and tacit real security
rights.

Answer: 3

Commentary: All real security rights are accessory in nature and therefor a security right
cannot exist if there is no principal debt. An express real security right may secure present and
or future debts. Once the principal debt is discharged, the security right is extinguished by
operation of law (ipso iure).

(Study Guide p 204-207)

QUESTION 9

Indicate the wrong option.

In Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd (1913 AD 267) Innes J held that:

(1) the agreement in terms of which the trading rights was granted was worded clearly;

(2) a right to trade upon the property of another seems to be capable of being granted and
registered as a personal servitude;

16

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

PVL3701/201

(3) usufructus, usus and habitatio are personal servitudes; or

(4) the rights that are conferred in terms of a personal servitude is inseparably attached to
the beneficiary.

Answer: 1

Commentary: In Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd (1913 AD 267) Innes
J stated that the agreement was vague and that general terms were used (page 282 of the
decision). Option 2 is correct (page 281 of the decision). Option 3 is also correct (page 281 of
the decision). Usufructus, usus and habitatio are discussed on pages 194-197 of the Study
Guide. Option 4 is correct and Innes J furthermore stated that a personal servitude can neither
be transmitted to the holder’s heirs nor can it be alienated. The personal servitude lapses when
the holder dies (page 282 of the decision; Study Guide p 193).

QUESTION 10

Indicate the wrong 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.

Answer: 4

17

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

Commentary: In par 48 of this decision the court stated that section 25 embodied a negative
protection of property. Section 25 does not guarantee the right to acquire, hold and dispose of
the property.

(Study Guide 262; 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) par 48)

18

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

PVL3701/201

4 CORRECTIONS – NEW STUDY GUIDE

We updated the Study Guide for this module during 2016. We want to bring the following to your
attention:

1 On page 5 of Tutorial letter 101 it is stated that the Study Guide is divided into four parts.
We changed the format of the Study Guide. The Study Guide is now only divided into
three parts.

2 The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ... “

3 In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example a person who controls
a car which he/she borrowed from a friend (such as X in Question 2 of Assignment 1) is a
lawful holder, but does not have a real right over the car. A pledgee, however, is a good
example of a person who is a lawful holder, but also has a limited real security right over
the pledged thing (see Study Guide page 215 par 2.4.1).

4 The answer to Question 4 on page 240 the Study Guide has been taken out of the Study
Guide. The suggested answer is the following:

For a successful reliance on his lien, Z must prove that he was in control (1) of the car
and that he incurred expenses (1) in regard to the car. Z complies with both of these
requirements; the only problem is the fact that he incurred these expenses in terms of his
agreement with T. However, Z can rely on his lien even against the owner with whom he
had no agreement (1) since enrichment liens (1) are limited real rights (1) which are
based on the principle of unjust enrichment. (1)

Two types of enrichment liens are distinguished, namely salvage and improvement liens.
When someone incurs expenses that are necessary for the preservation of a thing (such

19

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

as the installation of the driveshaft), (1) we are dealing with a salvage lien (1) and Z is
entitled to retain the car until he is compensated for the amount by which the owner (Q)
was enriched or he himself impoverished, whichever is the lesser. (1) It may therefore be
less than R2600-00, (1) but normally it is the amount of the owner’s enrichment.

When someone incurs expenses which are not necessary for the preservation of the
thing, but which increase the market value (such as the device which improves petrol
consumption), (1) we are dealing with an improvement lien (1) and Z is entitled to retain
the car until he is compensated for the amount by which the market value (1) of the car
has been increased.

For the luxurious improvements which are prompted by a mere whim or caprice of a
person (such as the replacement of the seat covers with leather seat covers), Z cannot
claim compensation from Q and is therefore not entitled to a lien either. (1)

Therefore, Z is only entitled to retain the car until Q has compensated him for an amount
of more or less R2600-00 for the crankshaft, together with the amount by which the
market value of the car was increased by the installation of the device to improve petrol
consumption. (1)

20

Downloaded by Linda Zungu (zungulinda50@[Link])

 lOMoARcPSD|4402399

PVL3701/201

5 FREQUENTLY ASKED QUESTIONS

The following questions are some of the questions that students who are registered for this
module often ask us.

We briefly answer these questions below.

 Is there a prescribed textbook for this module?

No, there is not, see paragraph 4.1 of tutorial letter 101/3/2017.

 Will there be discussion classes for this module?

No, at this stage discussion classes are not offered for this module. However, you are always
welcome to contact us with a question concerning the contents of the module.

 I am having trouble in obtaining the prescribed cases from the library or to download
the cases.

You have to take this up with the library. See paragraph 4.3 of tutorial letter 101/3/2017 on how
to download the cases electronically.

 Are there any hints (tips) for the examination?

No, unfortunately not. The best advice that we can give you is to spend enough time on your
studies. It is also a good idea to keep the table which we included in this tutorial letter with you
while you study.

 Where can I obtain previous examination papers?

There are previous examination papers on myUnisa.

©
UNISA
2017

21

Downloaded by Linda Zungu (zungulinda50@[Link])

 PVL3701/201/2/2017

Tutorial Letter 201/2/2017

Property Law

PVL3701

Semester 2

Department of Private Law

This tutorial letter contains important information about this
module.

Bar code
 CONTENTS

1. EXAMINATION INFORMATION
2. COMMENTARY ON ASSIGNMENT 01 SECOND SEMESTER 2017
3. COMMENTARY ON ASSIGNMENT 02 SECOND SEMESTER 2017
4. CORRECTIONS – NEW STUDY GUIDE
5. FREQUENTLY ASKED QUESTIONS

Dear Student

This tutorial letter contains information on the examination and commentary on Assignments
01 and 02 for the second 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

PROF INA KNOBEL knobeim@[Link] 012 429-8491 / 084 965 1742

DR BOITUMELO MMUSINYANE mmusibo@[Link] 012 429-8496
DR MITZI WIESE wiesem@[Link] 012 429-8466 / 083 259 9450
MR L NTSOANE ntsoals@[Link] 012 429-4467

2
 PVL3701/201

1 EXAMINATION INFORMATION

 This is the last tutorial letter that you will receive this semester.

 The examination paper consists of two sections:

o Section 1 (40 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 compulsory assignment 02.

o The questions in Section 2 (60 marks out of 100 marks) of the examination
paper will be similar to the activities in your Study Guide.

 Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2017 (p 7) namely:

o Ex parte Geldenhuys 1926 OPD 155

o MacDonald Ltd v Radin NO and the Potchefstroom Dairies and Industries Co Ltd
1915 AD 454

o Info Plus v Scheelke 1998 (3) SA 184 (SCA)

o Nino Bonino v De Lange 1906 TS 120

o Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA)

o Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267

o Grant v Stonestreet 1968 (4) SA 1 (A)

o Mapenduka v Ashington 1919 AD 33

o 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) (also reported at [2002] 7 BCLR 702 (CC))

3
Please remember that all other cases to which we refer in the Study Guide should be studied to
the extent that they are discussed in the Study Guide.

 Take note of the mark allocation in Tutorial letter 101/3/2017 (p 9) inserted below for
ease of reference. This will be very helpful in your preparation for the examination.

Part 1 (study units 1-2): Introduction, things as legal objects and real rights and personal
rights (10%)

Part 2 (study units 3-7): Ownership: definition of, limitations on, original acquisition of,
derivative acquisition of, protection of, termination of and co-
ownership (40%)

Part 3 (study units 8-9): Possession and holdership: nature of, protection of and
termination of (15%)

Part 4 (study units 10-12): Limited real rights: introduction, servitudes, restrictive
conditions, pledge, security by means of claims, mortgage,
tacit mortgages, mineral rights, water rights and tenant’s
rights (25%)

Part 5 (study units 13-15): Constitutional property law, land reform and additional forms
of statutory land use (10%)

4
 PVL3701/201

2 COMMENTARY ON ASSIGNMENT 01

Before you answer the questions of this assignment, work through Study Units 1-9 very
carefully.

In Study Unit 1 we introduce you to three real relationships, namely:

 ownership

 possession and

 holdership

The definition, limitation, acquisition, protection and termination of ownership are dealt with in
Study Units 3-6. Study Unit 7 deals with co-ownership. The nature, protection and termination of
possession and holdership are discussed in Study Units 8 and 9.

QUESTION 1

Distinguish between ownership, possession and holdership. Do not only refer to the three
definitions of these concepts and do not refer to examples in your answer. (6)

ANSWER

(a) Ownership is always a lawful real relationship (1) – a real right. (1)

(b) Possession is the physical control of a thing with the intention of an owner. The
person who exercises control is not recognised as the owner of the thing, because
he/she does not comply with the requirements for establishing ownership. (1)
Possession when distinguished from ownership and holdership is always unlawful
and therefore only a real relationship and not a real right. (1)

(c) Holdership is the physical control of a thing with the intention to derive a benefit from
the thing. (1) It can be lawful or unlawful and when it is lawful, it could give rise to a
real right. (1)

5
One important difference between the three concepts is that ownership is always lawful,
possession is always unlawful and holdership can be lawful or unlawful. Another difference is
that ownership is always a real right, possession will never give rise to a real right, and
holdership may sometimes give rise to a real right.

(Study Guide p 12-13 and 144-153)

Please make sure that you understand these concepts.

QUESTION 2

Give one example of an original method of acquisition of ownership and one example of a
derivative method of acquisition of ownership. (2)

ANSWER

Examples of original methods of acquisition of ownership are:

 Appropriation (occupatio)
 Accession
o Immovables to immovables – invisible accretion; visible accretion; islands arising in a
river; dry riverbed
o Movables to immovable – sowing and planting; building
o Movables to movables – painting; weaving; writing
 Mixing of solids/mingling of fluids
 Manufacturing
 Acquisition of fruits
 Treasure trove
 Expropriation
 Prescription
(1 mark for any correct example)
Examples of derivative methods of acquisition of ownership are:

 Delivery (movables)
1 Actual delivery (traditio vera)

2 Constructive or fictitious delivery (traditio ficta)

o Transferee is placed in position to exercise physical control
 Symbolic delivery (clavium traditio)
 Delivery with long hand (traditio longa manu)
 Bills of lading
o Transferee is already in physical control by virtue of some other legal relationship
 Delivery with short hand (traditio brevi manu)

6
 PVL3701/201

o Someone else exercises physical control on behalf of transferee

 Constitutum possessorium
 Attornment
 Registration (land)
(1 mark for any correct example)
(Study Guide p 63 and 95)

QUESTION 3

In Study Unit 6 we define the rei vindicatio as a real action with which an owner can claim
his/her thing from whoever is in control of it unlawfully. In Study Unit 9 we define the spoliation
remedy as a summary remedy issued upon urgent application aimed at restoring control of a
thing to the applicant from whom it was taken by means of unlawful self-help, without
investigating the merits of the original rights of the parties to control the thing.

(a) Briefly discuss four restrictions on the application of the rei vindicatio with reference to
one example of each. (8)

ANSWER
1 Sales in execution: The real owner of goods cannot recover his/her property from a bona
fide purchaser after the sale and delivery of the thing to the buyer at a judicial sale in
execution of a judgment. (1) The same applies in the case of an insolvency sale.

For example: A sheriff sells and delivers John’s movable things to Ann at a judicial sale in
execution of a judgment. Amongst these things are a Samsung flat screen television,
which John bought on credit at Game. At the time of the sale in execution, John has not
yet paid all the instalments and therefore Game is still the owner. However, because the
television was sold at a sale in execution, Game will not be able to claim the television
from Ann with the rei vindicatio. (1)

Please note: In this example, Game’s retention of ownership is a form of security, but it
does not constitute a limited real right of security. If John is declared insolvent, Game’s
ownership changes to a limited real security right. Section 84 of the Insolvency Act 24 of
1936 confers a tacit hypothec on the credit grantor (Game in this example) over goods
delivered to a credit receiver (hire-purchaser – John in this example) in the event of the
latter’s insolvency. The effect of this section is that the credit grantor loses his/her
ownership on insolvency and acquires a tacit hypothec against the insolvent estate. The
credit grantor therefore becomes a secured preferent creditor of the insolvent estate.
(Please see p 234 of the Study Guide.)

7
 2 Statutory limitations on eviction: Section 26(3) of the Constitution protects defendants in
eviction proceedings and provides that no one may be evicted without a court order.
Certain circumstances have to be taken into consideration before the court can grant an
eviction order. Defendants can rely on the protection afforded to certain classes of
persons in terms of a statute. For example labour tenants are protected in terms of the
Land Reform (Labour Tenants) Act 3 of 1996; occupiers/farm workers are protected in
terms the Extension of Security of Tenure Act 62 of 1997 (ESTA) and unlawful occupiers
are protected in terms of the Prevention of Illegal Eviction and Unlawful Occupation of
Land Act 19 of 1998 (PIE). (1)

Example: Ndlovu v Ngcobo; Bekker v Jika (2003 (1) SA 113 (SCA)) is an example of a
decision concerning unlawful occupiers in terms of PIE and Molusi v Voges (2016 (3) SA
370 (CC)) is an example of a decision concerning occupiers in terms of ESTA. Jaftha v
Schoeman; Van Rooyen v Stoltz (2005 (1) SA 113 (SCA)) was concerned with the
application of section 26(3) of the Constitution. Other general examples relating to the
abovementioned statutes or section 26(3) also deserve a mark. (1)

3 Estoppel is an important exception to the rei vindicatio. It is a defence which can be

raised against an owner’s rei vindicatio where the owner of a certain thing, through
his/her conduct, culpably leads third parties to believe that someone else is the owner of
the thing or is authorised to alienate the said thing, and the third party, relying on this
representation, obtains control of a thing and in doing so acts to his/her detriment. (1)

Examples of cases where estoppel was relevant are Oakland Nominees (Pty) Ltd v
Gelria Mining & Investment Co (Pty) Ltd (1976 (1) SA 441 (A)); Quenty’s Motors (Pty) Ltd
v Standard Credit Corporation Ltd (1994 (3) SA 188 (A)); Konstanz Properties (Pty) Ltd v
Wm Spilhaus en Kie (Wp) Bpk (1996 (3) SA 273 (A)); NBS Bank Ltd v Cape Produce Co
(Pty) Ltd (2002 (1) SA 396 (SCA)) and ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC
(2003 (1) SA 401 (SCA)). A general example where the operation of estoppel is correctly
illustrated also deserve a mark. (1)

4 Money that was stolen cannot be vindicated (1) from a person who acquired the money
in good faith and for valuable consideration. (1) For example, Tom owes Tebogo R1000.
He steals R1000 in cash from Sam. He uses the stolen money to repay Tebogo. Sam will
not be able to claim the stolen money from Tebogo with the rei vindicatio. Another
example would be if Tom uses the stolen money to buy a watch from Tebogo. In this
example, Sam will also not be able to claim the stolen money from Tebogo with the rei
vindicatio. (No mark was awarded for an example here, because the explanation of this
limitation is very brief in the Study Guide.)

(Study Guide p 121-122)

(b) Read Telkom v Xsinet (Pty) Ltd (2003 (5) SA 309 (SCA)) and answer the following
questions about the decision. Make sure that you understand the facts. Refer to the
relevant paragraphs of the case where you found the answers to questions (i)-(iii)
in all three your answers.

8
 PVL3701/201

(i) What did Jones AJA state with regards to the purpose of the spoliation remedy in
general? (3)

ANSWER

Jones AJA stated that the spoliation remedy originally only protected the physical possession
(control) (1) of movable or immovable property. But the law developed to protect rights. Rights
cannot be possessed (controlled) and therefore it was said that the holder of a right has “quasi-
possession” of the right when he/she exercised such a right. (1) Reference: Telkom SA Ltd v
Xsinet (Pty) Ltd par 9. (1)

(ii) Is the following statement true or false? Give reasons for your answer with
reference to Jones AJA’s judgment. (3)

“Xsinet’s use of the telephones, lines, modems or electrical impulses, clearly gave it
‘possession’ of the connection of its corporeal property.”

ANSWER

This statement is false. (1) Jones AJA pointed out that there was no evidence that Xsinet was
ever in possession of any of the mechanisms by which its equipment was connected to the
internet. The judge held that it was “both artificial and illogical” to conclude that Xsinet’s use of
the telephones, lines, modems or electrical impulses, gave it possession (control) of the
connection of its corporeal property. (1) Reference: Telkom SA Ltd v Xsinet (Pty) Ltd par 12
and 13. (1)

9
 (iii) In view of Jones AJA’s judgment, can it be said that the purpose of the spoliation
remedy is to enforce a contract? Motivate your answer. (3)

ANSWER

No, the purpose of the spoliation remedy is not to enforce a contract. (1) Jones AJA held that
the purpose of the spoliation remedy is not to compel specific performance of a contractual
right (personal right) (1) in order to resolve a contractual dispute. Reference: Telkom SA Ltd v
Xsinet (Pty) Ltd par 14. (1)

3 COMMENTARY ON ASSIGNMENT 02

QUESTION 1

Indicate the correct option.

The following is an example of vindication as an entitlement of ownership:

(1) X can register a bond over his property.

(2) X can burn his book.

(3) X can claim his motor from a third party.

(4) X can donate his bike to a third party.

Answer: 3
Commentary: In principle, a person (owner) can act upon his/her thing as he/she pleases
(subject to limitations by the law or rights of others). The capacities conferred on the legal
subject by virtue of this right are called “entitlements”. The owner of a car can claim his/her car
from whoever is in control of it unlawfully (without the owner’s permission or consent) using the
rei vindicatio as an entitlement of ownership. Therefore X can claim his motor from a third party

10
 PVL3701/201

using the rei vindicatio. Option 1 is an example of the entitlement that an owner has to burden
his/her property. Option 2 is an example of the entitlement to destroy ones property and option
4 is an example of the entitlement to alienate your property.

(Study Guide p 45-46 & 119)

11
QUESTION 2

Indicate the wrong option.

The requirements for acquisition of ownership through appropriation (occupatio) are:

(1) The physical control over the acquired thing must be lawful.

(2) A thing that belongs to no one (res nullius) can be acquired.

(3) The acquirer must have the intention to become the owner of the thing.

(4) An acquired thing should be within the sphere of law (res in commercio).

Answer: 1

Commentary: Appropriation is defined as the unilateral taking of physical control of a thing

which does not belong to anyone (res nullius), but which is within the sphere of law (res in
commercio) with the intention of becoming its owner. Physical control of the thing is essential for
the acquisition of ownership by means of appropriation. It is, however, not a requirement for the
acquisition of ownership through appropriation that the physical control over the acquired thing
must be lawful. Physical control of the thing can be lawful or unlawful.

(Study Guide p 64-65)

QUESTION 3

Indicate the wrong option.

The following are requirements for delivery with the long hand (traditio longa manu):

(1) The parties must have the intention to transfer and receive ownership.

(2) The thing must be pointed out by the owner to the acquirer in the presence of the thing.

(3) The acquirer should be put in a position to exercise actual control, to the exclusion of
other persons, over the thing after it has been pointed out.

(4) The acquirer must take actual physical control of the thing as soon as possible after it
has been pointed out to him.

12
 PVL3701/201

Answer: 4

Commentary: Delivery with the long hand (traditio longa manu) takes place where physical
transfer of control of a thing is not possible because of its size or weight. In this case the thing
to be transferred is pointed out to the transferee in the presence of the thing. The transferee is
placed in a position enabling him/her to exercise physical control. It is not sufficient to point out
the thing. The transferee must be placed in a position to take physical control of the thing to the
exclusion of others at any time. It is not a requirement that the transferee must take actual
physical control of the thing as soon as possible after it has been pointed out to him. In
Groenewald v Van der Merwe (1917 AD 233 239) the court held that the requirement of
physical control has been sufficiently complied with if the thing is pointed out in the presence of
the transferee in such circumstances that he and he alone can deal with it at his pleasure.

(Study Guide p 102)

QUESTION 4

Indicate the wrong statement.

The following are legal consequences and entitlements of free co-ownership:

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

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

(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

Commentary: In free co-ownership the co-ownership is the only relationship between the co-
owners. A form of co-ownership where there is another underlying legal relationship between
the co-owners apart from the co-ownership relationship is referred to as “bound co-ownership”.

13
A free co-owner may alienate, mortgage, burden, rent or leave his/her heirs the undivided share
in the ownership, without the cooperation of the other free co-owner. The actio communi
dividundo can be applied for by any co-owner, when the co-owners disagree about the physical
or corporeal division of the thing.

(Study Guide p 136-142)

QUESTION 5

Indicate the wrong option.

The following persons are bona fide possessors:

(1) A person who concludes a contract of sale with a non-owner and who after delivery uses
the thing, assuming that he/she has become its owner.

(2) A person who accidentally picks up another’s pen, believing it to be his/her own, and who
then uses it in that belief.

(3) A “lessee” who unknowingly concludes an invalid lease contract for a flat and then moves
into the flat.

(4) A person who encroaches on his/her neighbour’s land, unaware that he/she is doing so.

Answer: 3

Commentary: A bona fide possessor can be defined as a person who is not recognised as the
owner of the thing, because he/she does not comply with the requirements for establishing
ownership, but who has the intention of an owner, on the incorrect assumption that he/she is in
fact the owner. The person is unaware that he or she does not meet all the requirements for
ownership. Options 1, 2 and 4 are examples of bona fide possessors. A “lessee” who
unknowingly concludes an invalid lease contract for a flat and then moves into the flat (Option 3)
is a bona fide unlawful holder. A bona fide unlawful holder can be defined as a person who
physically controls the thing unlawfully, but he/she is unaware of the fact, since he/she is under
the incorrect impression that he/she has the necessary permission or legal ground to control it.
A bona fide unlawful holder does not have the intention of an owner, but believes that he/she
uses the thing with the consent of the owner thereof. Such a person wants to derive a benefit

14
 PVL3701/201

from the thing – in this instance the benefit of leasing the flat and staying there.

(Study Guide p 149-151)

QUESTION 6

Indicate the correct option.

A person who does not regard or conduct him/herself as the owner of a thing and who
recognises and respects the owner’s ownership to the thing, but who physically controls it
without the owner’s permission or other legal ground for his control for the sake of the benefit
he/she derives from it, is …

(1) an unlawful holder.

(2) a mala fide possessor.
(3) a lawful holder.
(4) a bona fide possessor.

Answer: 1

Commentary: An unlawful holder is a person who does not regard or conduct him/herself as
the owner of a thing and who recognises and respects the owner’s ownership to the thing, but
who physically controls it without the owner’s permission or other legal ground for his control for
the sake of the benefit he/she derives from it. A lawful holder can be defined as a person who
physically controls the thing with the owner’s permission or on another legal basis, in order to
derive some benefit from it. A mala fide possessor is a person who is aware of the fact that
he/she is not legally recognised as the owner of a thing, since he/she does not conform to the
requirements of ownership, but who nevertheless has the intention of an owner. A bona fide
possessor can be defined as a person who is not recognised as the owner of the thing, because
he/she does not comply with the requirements for establishing ownership, but who has the
intention of an owner, on the incorrect assumption that he/she is in fact the owner.

It is a good idea to make use of the examples that we refer to in the Study Guide when you
study this part of the module and distinguish the different categories of persons.

15
(Study Guide 150-151)

QUESTION 7

Indicate the correct option.

During the apartheid regime, S occupied land which he inherited from his grandfather. S could
not obtain transfer of the land as he was a black person and the land was situated in a white
area. Z, a neighbour, started farming on that land. S applied for an interdict prohibiting Z from
setting foot on the land.

(1) S is an occupier and not the registered owner of the land; consequently he will not
succeed with an interdict.

(2) S does not have ownership of the land; consequently he does not have a clear right over
the land and will not succeed with the interdict.

(3) S will succeed with the interdict because the remedy is available for the protection of
ownership, other limited real rights and lawful real relationships such as lawful occupation
(holdership).

(4) S will only succeed with the interdict if he can prove that he was in peaceful and
undisturbed control of the land and that Z disturbed his control in an unlawful manner.

Answer: 3

Commentary: An interdict is a summary court order applied for on an urgent basis to force a
person to do something or to refrain from doing something. This remedy is available for the
protection of not only ownership but also other limited real rights and lawful real relationships
such as lawful holdership/occupation. In view of this Options 1 and 2 are wrong, because the
interdict is not only available to owners. Option 4 is wrong because it refers to the requirements
for a successful reliance on the spoliation remedy.

(Study Guide p 123-124 & 161-162)

QUESTION 8

Indicate the wrong option.

A personal servitude …

(1) is not transferable.

16
 PVL3701/201

(2) is terminated by the death of the holder thereof.

(3) is a personal right.

(4) can vest over movable or immovable property.

Answer: 3

Commentary: A personal servitude is a limited real right NOT a personal right. Therefore,
Option 3 is wrong. Remember that land servitudes are also limited real rights. A personal
servitude is not transferable. It is inseparably attached to the person of the holder of the
servitude. Therefore, Option 1 is correct. A personal servitude is terminated by the death of the
holder thereof and therefore Option 2 is correct. In the case of a legal person, the servitude
lasts for 100 years if no period has been stipulated. A personal servitude may be created over
movable and immovable property and therefore Option 4 is correct.

(Study Guide p 192-193 & 188)

17
QUESTION 9

Indicate the wrong option.

Conditions of title are …

(1) limited real rights.

(2) inserted into title deeds of property.

(3) personal rights created in terms of legislation.

(4) created in terms of legislation or as a result of a contract.

Answer: 3

Commentary: Conditions of title are limited real rights inserted into title deeds of property either
in terms of legislation or as a result of a contract.

(Study Guide p 201)

QUESTION 10

Indicate the correct option.

The perfection clause in a general notarial bond …

(1) creates a real security right over the movable property of the mortgagor in favour of the
mortgagee.

(2) allows the mortgagee to sell the movable property of the mortgagor without a court order
should the mortgagor default.

(3) creates a limited real right of pledge over the movable property of the mortgagor in favour
of the mortgagee on attachment.

(4) allows the mortgagee to take control of the movable property when the mortgagor agrees
or in terms of a court order for specific performance.

It has come to our attention that most students have difficulty understanding the legal
principles governing notarial bonds. Consequently we decided to disregard this question for
purposes of this assignment. Instead, we give you a brief summary of notarial bonds and hope

18
 PVL3701/201

that it will assist you to understand the legal operation of notarial bonds.

Remember that notarial bonds vest over movable property only, and not over immovable
property.

A special notarial bond is regulated by the Security by Means of Movable Property Act 57 of
1993 (SMMPA). The following provisions of the act are important for purposes of your studies:

 A special notarial bond vests over corporeal movable property only.

o Corporeal property can be described as things that are observable by means of
senses, eg a car.
 A special notarial bond cannot vest over incorporeal movable property.
o Incorporeal property cannot be observed by the senses, for examplean
employee’s right against his employer to pay him/her his/her salary. (See the
discussion on “corporeality” in your Study Guide p 18.)
 The movable corporeal property must be described in the special notarial bond (the
physical document that is registered in the Deeds Office) in a manner that makes it easy
for any person who consults the bond to know exactly which property is bonded.
o For example: GREEN NISSAN SENTRA SL 4 Door Sedan/Automatic
Transmission Model B6AP VIN 1N4A B6AP 6CC000000 Registration number
DM65JPGP.
 A real security right (limited real right of security) vests over the security object (for
example Green Nissan) on registration of the special notarial bond.
o The special notarial bondholder (mortgagee) does not have to be in control of the
security object for the right to vest – the registration of a special notarial bond
with the specific description of the security object replaces delivery as form of
publicity for movable property. (See the discussion on “Legal acts involved in
creation of real security rights” in the Study Guide on p 205-206.)
 If the mortgagor becomes insolvent the special notarial bondholder has a preferent real
security right against the mortgagor’s insolvent estate.
o “Preferent” means, in principle, that the special notarial bondholder’s real security
right must be satisfied (debt paid) first, before the claims of other creditors of the
mortgagor’s insolvent estate. (For example, the green Nissan must be sold in
execution and the proceeds must be used to pay the mortgagor’s outstanding
debt to the notarial bondholder.)

A general notarial bond is governed by the common law and not regulated by the SMMPA.
The legal operation of a general notarial bond is different from the legal operation of a special
notarial bond.

19
  A general notarial bond vests over all movable property (corporeal and incorporeal) of
the mortgagor.
 The movable property is not described in the notarial bond (the physical bond document
that is registered in the Deeds Office). Instead, (in most instances) a “perfecting clause”
is inserted in the general notarial bond.
o A perfecting clause is a clause in the general notarial bond in terms of which the
mortgagor agrees that the general notarial bondholder may take control of his/her
(mortgagor) movable property should he/she default.
 A real security right does not vest over the movable property of the mortgagor on
registration of the general notarial bond.
 Some “action” is needed to “activate” the vesting of the real security right. This “action”
is called “perfecting”.
o Perfecting refers to the legal action the notarial bondholder must take to
“activate” his/her real security right. The perfecting clause in a general notarial
bond allows the bondholder to take control of the movable property (corporeal
and incorporeal) of the mortgagor. The bondholder’s “action” of taking control of
the mortgagor’s movable property is called “attachment”.
o A general notarial bondholder can get control over (attach) the mortgagor’s
movable property in one of two ways:
 The mortgagor may willingly hand over his/her movable property to the bondholder.
 If the mortgagor refuses, the bondholder may apply for a court order ordering the
mortgagor to comply with his/her obligation in terms of the perfecting clause (order for
specific performance).
 Only once the general notarial bond has been “perfected” the bondholder acquires a
preferent real security right against the mortgagor.
o The bondholder’s right is the same as a pledgee’s right of pledge.

Special notarial bond General notarial bond

Governed by SMMPA common law

Legal nature of only corporeal movable corporeal and incorporeal

security object property movable property

Real security right registration of special attachment of movable

vests on notarial bond property

(Study Guide p 218-221)

20
 PVL3701/201

4 CORRECTIONS – NEW STUDY GUIDE

We updated the Study Guide for this module during 2016. We want to bring the following to your
attention:

1 On page 5 of Tutorial letter 101 it is stated that the Study Guide is divided into four parts.
We changed the format of the Study Guide. The Study Guide is now only divided into
three parts.

2 The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ... “

3 In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example a person who controls
a car which he/she borrowed from a friend (such as X in Question 2 of Assignment 1
semester 1) is a lawful holder, but does not have a real right over the car. A pledgee,
however, is a good example of a person who is a lawful holder, but also has a limited real
security right over the pledged thing (see Study Guide page 215 par 2.4.1).

4 The answer to Question 4 on page 240 the Study Guide has been taken out of the Study
Guide. The suggested answer is the following:

For a successful reliance on his lien, Z must prove that he was in control (1) of the car
and that he incurred expenses (1) in regard to the car. Z complies with both of these
requirements; the only problem is the fact that he incurred these expenses in terms of his
agreement with T. However, Z can rely on his lien even against the owner with whom he
had no agreement (1) since enrichment liens (1) are limited real rights (1) which are
based on the principle of unjust enrichment. (1)

Two types of enrichment liens are distinguished, namely salvage and improvement liens.
When someone incurs expenses that are necessary for the preservation of a thing (such
as the installation of the driveshaft), (1) we are dealing with a salvage lien (1) and Z is
entitled to retain the car until he is compensated for the amount by which the owner (Q)

21
 was enriched or he himself impoverished, whichever is the lesser. (1) It may therefore be
less than R2600-00, (1) but normally it is the amount of the owner’s enrichment.

When someone incurs expenses which are not necessary for the preservation of the
thing, but which increase the market value (such as the device which improves petrol
consumption), (1) we are dealing with an improvement lien (1) and Z is entitled to retain
the car until he is compensated for the amount by which the market value (1) of the car
has been increased.

For the luxurious improvements which are prompted by a mere whim or caprice of a
person (such as the replacement of the seat covers with leather seat covers), Z cannot
claim compensation from Q and is therefore not entitled to a lien either. (1)

Therefore, Z is only entitled to retain the car until Q has compensated him for an amount
of more or less R2600-00 for the crankshaft, together with the amount by which the
market value of the car was increased by the installation of the device to improve petrol
consumption. (1)

22
 PVL3701/201

5 FREQUENTLY ASKED QUESTIONS

The following questions are some of the questions that students who are registered for this
module often ask us.

We briefly answer these questions below.

 Is there a prescribed textbook for this module?

No, there is not, see paragraph 4.1 of tutorial letter 101/3/2017.

 Will there be discussion classes for this module?

No, at this stage discussion classes are not offered for this module. However, you are always
welcome to contact us with a question concerning the contents of the module.

 I am having trouble in obtaining the prescribed cases from the library or to download
the cases.

You have to take this up with the library. See paragraph 4.3 of tutorial letter 101/3/2017 on how
to download the cases electronically.

 Are there any hints (tips) for the examination?

No, unfortunately not. The best advice that we can give you is to spend enough time on your
studies. It is also a good idea to keep the “mark allocation table” which we included in this
tutorial letter with you while you study.

 Where can I obtain previous examination papers?

There are previous examination papers on myUnisa.

©
UNISA
2017

23
 PVL3701/201/2/2018

Tutorial Letter 201/2/2018

Property Law

PVL3701

Semester 2

Department of Private Law

This tutorial letter contains important information about this
module.

Bar code

Open Rubric
 CONTENTS

1. EXAMINATION INFORMATION
2. COMMENTARY ON ASSIGNMENT 01 SECOND SEMESTER 2018
3. COMMENTARY ON ASSIGNMENT 02 SECOND SEMESTER 2018
4. CORRECTIONS – NEW STUDY GUIDE

Dear Student

This tutorial letter contains information on the examination and commentary on Assignments
01 and 02 for the second 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

MR LEFA NTSOANE ntsoals@[Link] 012 429-4467

PROF MITZI WIESE wiesem@[Link] 012 429-8466 / 083 259 9450

2
 PVL3701/201/2/2018

1 EXAMINATION INFORMATION

✓ This is the last tutorial letter that you will receive this semester.

✓ The examination paper consists of two sections:

o Section 1 (40 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 compulsory assignment 02.

o The questions in Section 2 (60 marks out of 100 marks) of the examination
paper will be similar to the activities in your Study Guide.

✓ Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2018 (p 7) namely:

o Ex parte Geldenhuys 1926 OPD 155

o MacDonald Ltd v Radin NO and the Potchefstroom Dairies and Industries Co Ltd
o Info Plus v Scheelke 1998 (3) SA 184 (SCA)1915 AD 454
o Nino Bonino v De Lange 1906 TS 120
o Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA)
o Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267
o Grant v Stonestreet 1968 (4) SA 1 (A)
o Mapenduka v Ashington 1919 AD 33
o 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) (also reported at [2002] 7 BCLR 702 (CC))

3
Please remember that all other cases to which we refer in the Study Guide should be studied to
the extent that they are discussed in the Study Guide.

✓ Take note of the mark allocation in Tutorial letter 101/3/2018 (p 9) inserted below for
ease of reference. This will be very helpful in your preparation for the examination.

Part 1 (study units 1-2): Introduction, things as legal objects and real rights and personal
rights (10%)

Part 2 (study units 3-7): Ownership: definition of, limitations on, original acquisition of,
derivative acquisition of, protection of, termination of and co-
ownership (40%)

Part 3 (study units 8-9): Possession and holdership: nature of, protection of and
termination of (15%)

Part 4 (study units 10-12): Limited real rights: introduction, servitudes, restrictive
conditions, pledge, security by means of claims, mortgage,
tacit mortgages, mineral rights, water rights and tenant’s
rights (25%)

Part 5 (study units 13-15): Constitutional property law, land reform and additional forms
of statutory land use (10%)

4
 PVL3701/201/2/2018

2 COMMENTARY ON ASSIGNMENT 01
UNIQUE ASSIGNMENT NUMBER: 786835

Before you answer the questions of this assignment, work through Study Units 1-9 very
carefully.
In Study Unit 1 we introduce you to three real relationships, namely:
• ownership
• possession
• holdership

The definition, limitation, acquisition, protection and termination of ownership are dealt with in
Study Units 3-6. Study unit 7 deals with co-ownership. The nature, protection and termination of
possession and holdership are discussed in Study Units 8 and 9.

QUESTION 1

John drives a red BMW X3 which he borrowed from his mother for the day. Tammy inherited a
silver BMW M6 from her grandmother. Tom drives a blue BMW Z4 which he stole in a parking
lot at the Waterfront in Cape Town.

Which one of the three persons is:

(a) an owner;
(b) a possessor;
(c) a holder.

In your answers to a, b and c briefly discuss the nature of the relationships that John, Tammy
and Tom have towards the respective cars. (6)

5
ANSWER

General: The question specifically refers to the nature of the relationship between the John,
Tammy and Tom and the respective cars. The nature of the legal relationship
between a legal subject and a thing (legal object) is a real relationship.

(a) Tammy (1) is the owner of the BMW M6 that she inherited from her grandmother.

The relationship between Tammy and the car is that Tammy has a real right (1) to the
car.

Ownership is, in principle, the most comprehensive real right a person can have to a
thing.

[See Study Guide pg 12-13 and 48]

(b) Tom (1) is the possessor of the stolen blue BMW Z4 that he stole.

The relationship between Tom and the car is an unlawful (½) real (½) relationship.

A possessor is someone who is in physical control of a thing with the intention of an

owner. It is always an unlawful real relationship between the possessor and the thing
because there is no legal ground (eg lease agreement) for the possessor’s control of the
thing.

Please note that the possessor is in control of the thing with the intention of an owner.
He/she does not control the thing with the intention to become the owner.

[See Study Guide pg 12-13 and 144]

(c) John (1) is the lawful holder of the BMW X3 which he borrowed from his mother.

The relationship between Johan and the car is a lawful (½) real (½) relationship.

A holder is in physical control of a thing with the intention to derive a benefit and does not
regard himself/herself as the owner of the thing.

Holdership may be lawful or unlawful. A lawful holder controls the thing with the owner’s
6
 PVL3701/201/2/2018

permission or on another legal ground (eg lease agreement). A lawful holder may have
a real right to the thing, for example a pledgee or a usufructuary. Lawful holdership does
not always grants a real right to the holder. In this question (John borrows his mom’s
car) John does not have a real right, but there is a mere lawful real relationship between
John and the car.

An unlawful holder has no legal ground (eg lease agreement) to be in control of the thing.
He/she has a mere real relationship to the thing.

[See Study Guide p 12-13 and 151-153]

REAL RELATIONSHIPS

Ownership Possession Holdership

Intention of owner Intention of owner Intention to derive benefit
Always lawful Always unlawful
Lawful Unlawful
Real right Mere real relationship
Real right (eg Mere real
pledge) or real relationship
Bona fide Mala fide relationship Bona Mala
(lessee) fide fide

QUESTION 2

Why is expropriation an original method of acquisition of ownership and delivery with the long
hand a derivative method of acquisition of ownership? (2)

ANSWER

An original method of acquiring ownership takes place where there is no cooperation (½) from
the predecessor in title (previous owner). This means that there is no transfer (½) of ownership.
Expropriation is defined as an original method of acquiring ownership in terms of which the state

7
acquires ownership of a movable or immovable thing without the consent (½) of the owner
against payment of compensation. The owner did not transfer (½) ownership to the state.
[Maximum 1 mark]

Derivative method of acquiring ownership takes place with the cooperation (½) of the
predecessor in title (previous owner) and ownership is transferred (½) from the transferor
(previous owner) to the transferee (new owner). Delivery with the long hand takes place when
the transferor points out the thing to be transferred to the transferee in the presence of the thing.
Ownership of the thing is transferred (½) with the co-operation (½) of the transferor to the
transferee. [Maximum 1 mark]

[See Study Guide pg 61, 89 and 99]

SUMMARY

Original method of acquisition of Derivative method of acquisition of

ownership ownership
No previous owner (predecessor in title) or Previous owner (predecessor in title) co-
No co-operation of previous owner operates to transfer ownership to new owner
(predecessor in title)
No transfer of ownership Ownership is transferred from the previous
owner to the new owner

QUESTION 3

In Study Unit 6 we define the rei vindicatio as a real action with which an owner can claim
his/her thing from whoever is in control of it unlawfully. In Study Unit 9 we define the spoliation
remedy as a summary remedy issued upon urgent application aimed at restoring control of a
thing to the applicant from whom it was taken by means of unlawful self-help, without
investigating the merits of the original rights of the parties to control the thing.

Answer the following questions in view of this.

8
 PVL3701/201/2/2018

(a) What is the difference between the rei vindicatio and the spoliation remedy? Do not
mention the requirements for a successful reliance on these remedies in your answer. (2)

ANSWER

The rei vindicatio is a remedy available to an owner with which he/she can claim back his/her
thing from anyone in unlawful control of the thing.

Any person who was in peaceful and undisturbed control of a thing, whose control was
disturbed in an unlawful manner may institute the spoliation remedy to restore his/her control of
the thing.

Two marks for any of the following differences:

Rei vindicatio Spoliation remedy

Who? Who can claim? Against whom? Who can claim? Against whom?
(parties) owner any person in any person who was in person who
unlawful control undisturbed and peaceful disturbed the
of the thing control, whose control was spoliatus’ control
disturbed unlawfully (spoliator)
(spoliatus)
What? thing restore control
(claim)
Why? vindication (to claim back your prevent self-help and protect legal order
(aim) thing) is an entitlement of
ownership
How? court order relying on ownership urgent summary court order not considering
and the entitlements of ownership merits of spoliatus’ right to control

[See Study Guide pg 119 and 162]

9
(b) Trevor leases a flat in Johannesburg. Due to his busy schedule he forgets to pay his rent
for two months. One morning while Trevor is at work, his landlord (lessor/owner of the
flat), Peter, unlocks the flat using a spare key. He takes Trevor’s personal belongings and
changes the locks of the flat. Trevor is furious, but Peter informs Trevor that the lease
agreement that Trevor signed contains a clause, which allows Peter to open the flat, take
Trevor’s personal belongings and change the locks if Trevor falls behind with his rent.

Trevor asks your advice on a possible remedy that he can institute to restore the control
that he had over his personal belongings and the flat. Advise Trevor in this regard. In
your answer refer to a suitable court decision (one of the prescribed cases listed in this
tutorial letter – p 7) and discuss Trevor’s chances of success. In your answer also briefly
discuss the validity of the clause in the lease agreement on which Peter relies. Refer to
the relevant pages of the decision which you consulted in your answer. Use your own
words as far as possible. Do not rewrite (“copy and paste”) summaries that you found on
the internet or in other sources – you will be penalised. Include the “Student academic
integrity declaration form” and a Bibliography in your assignment (10)

ANSWER ACCORDING TO MARKING RUBRIC

Description Mark
Introduction of answer – identify the remedy and the court decision correctly 2
ANSWER:
Remedy
Trevor can institute a spoliation remedy (1) against Peter to restore the control that
he had over the flat.
Case
Nino Bonino v De Lange (1) (1906 TS 120) deals with the spoliation remedy.
Discussion (advice) with reference to the case and relevant study material – reaching 4
a logical conclusion based on these legal texts

10
 PVL3701/201/2/2018

ANSWER:
Requirements
Trevor will have to prove that he had peaceful (½) and undisturbed (½) control (1) of
the flat and that Peter unlawfully (½) disturbed (½) his control.

Application
It is clear from the given set of facts that Trevor was in undisturbed and peaceful
control of the flat and that Peter disturbed his (Trevor’s) control. The question is
whether the clause in the lease agreement allowed Pieter to change the locks? (1) If
the clause is valid Peter disturbed Trevor’s control in a lawful manner and Trevor will
not succeed with the spoliation remedy. If the clause is invalid, Peter disturbed
Trevor’s control in an unlawful manner and Trevor will succeed with the spoliation
remedy.

With regard to the validity of the clause in the lease agreement on which Peter relies,
the court in Nino Bonino v De Lange held that the clause in the lease agreement
authorises Peter to take the law into his own hands. (1) (pg 122 of the decision) An
agreement purporting to allow a party to a contract to commit acts of spoliation is
against public policy and therefore void. (1) (pg 123 of the decision)

In Nino Bonino v De Lange the court held that the applicant could rely on the
spoliation remedy. The spoliation remedy is granted as a matter of legal policy, based
on the principle that no one is allowed to take the law into his/her own hands or to act
as a judge in his/her own case (pg 125 of the decision). The fact that the applicant’s
own control of the property was unlawful is of no concern since the court does not
investigate the merits (1) of the parties’ right to control the thing.

Trevor will therefore succeed (1) with the spoliation remedy.

11
 [Maximum 4 marks]
References to the relevant pages of the case which you consulted 2
Use your own words as far as possible. Do not rewrite (“copy and paste”) summaries 1
that you found on the internet or in other sources – you will be penalised.
Include the “Student academic integrity declaration form” and a Bibliography in 1
assignment
Total 10

[See Nino Bonino v De Lange (1906 TS 120) and Study Guide pg 161-165]

3. COMMENTARY ON ASSIGNMENT 2
UNIQUE ASSIGNMENT NUMBER: 682449

ANSWER THE QUESTIONS BY CHOOSING OPTION (1), (2), (3) OR (4) AND BY
INDICATING YOUR CHOICES ELECTRONICALLY ON myUNISA OR ON THE MARK-
READING SHEET.

Each question counts 1 (one) mark.

QUESTION 1

Which one of the following statements, about valid defences against the rei vindicatio, is
incorrect?

(1) An owner of land who wants to evict persons residing on his/her land unlawfully, may
only do so if he/she obtains a court order for their eviction.
(2) An owner who leads third parties to believe that someone else is the owner of his/her
thing, cannot reclaim his/her thing from a third party who relied on this misrepresentation
and in doing so acted to his/her (third party) detriment.

12
 PVL3701/201/2/2018

(3) An owner, whose things were sold by mistake at a judicial sale in execution of a
judgment, may reclaim his/her things from any bona fide purchaser who bought the
things and took delivery thereof.
(4) An owner of money cannot reclaim his/her money from a third party if his/her (owner)
money was stolen by a thief and given to the good faith third party for valuable
consideration.

ANSWER: 3

COMMENTARY: Where a sheriff or a messenger of the court sells a judgment debtor’s assets
in public at a judicial sale in execution of a judgment, the true owner (if his/her goods are sold
by mistake as belonging to the judgment debtor, for example, where the judgment debtor has
bought the goods on credit and has not yet acquired ownership of them) cannot recover his/her
property from a bona fide purchaser after the sale and delivery of the thing to the buyer.

[See Study Guide pg 121]

READ THE FOLLOWING SET OF FACTS AND THEN ANSWER QUESTIONS 2-3

Vincent, a law graduate who completed his articles, wants to attend a course on conveyancing
to help him prepare for the Law Society conveyancing examination. The cost of the course is
R4300. Vincent does not have enough money and wants to borrow money from his uncle
James. James insists on some form of security for the repayment of the R4300. Vincent gives
James his gold watch, which he inherited from his father, as security for repayment of the debt.
In order to attend the course, Vincent must travel from his hometown, Middelburg, to Pretoria
and will have to arrange accommodation for a week. These expenses, for the travel and
accommodation, amounts to R4000. His friend, David, lends him R4000 and say he can repay
him when he has enough money.

13
QUESTION 2

Indicate the wrong option.

(1) James has a real security right to the watch.

(2) James has a right of retention to the watch.
(3) James has a right of pledge to the watch.
(4) James has a limited real right to the watch

ANSWER: 2

COMMENTARY: All four options deal with real security rights. Real security rights are limited
real rights over another person’s thing (iura in re aliena). Real security rights secure
performance by a credit grantor that the debtor will perform his/her obligations toward the
security holder (creditor = holder of a real security right). See Diagram 12 on page 177 in the
Study Guide for an overview of the different limited real rights.

The incorrect option is (2) since James did not acquire a right of retention, he acquired a right of
pledge. A right of retention (lien) can, in general, be defined as a limited real right to secure the
claim of a person who has spent money or done work on another person’s thing. It entitles the
lienholder to keep the thing until he/she has been paid. It is clear from the set of facts that
James did not spend money or done work on the watch. James is in control of the watch as a
pledgee. A pledge is defined as a limited real right over the pledgor’s thing, delivered to the
pledgee as security for the repayment of the principal debt which the pledgor or a third person
owes to the pledgee.

[See Study Guide p 204-205, 210-211 and 236]

QUESTION 3

Indicate the correct option.

(1) David has a right of pledge against Vincent.

(2) David has a real security right against Vincent.
14
 PVL3701/201/2/2018

(3) David has a secured personal/creditor’s right against Vincent.

(4) David has an unsecured personal/creditor’s right against Vincent.

ANSWER: 4

COMMENTARY: David has an unsecured personal/creditor’s right against Vincent. This

unsecured personal/creditor’s right arose from the agreement between Vincent and David and
is not enforceable against other/third parties. A real security right vests only if the parties agree
to create a real right (real agreement) and there is some form of publication (delivery or
registration).

[See Study Guide p 30]

READ THE FOLLOWING SET OF FACTS AND THEN ANSWER QUESTIONS 4-7.

Asha and Kagiso are neighbours living in Nzuri Gardens, a sectional title complex. Kagiso is the
owner of his unit and Asha rents the unit next to Kagiso. Asha’s brother, Phila, is unemployed
and temporarily lives with Asha. One night, while Kagiso is on a business trip overseas, Phila
takes Kagiso’s car, without his permission, to go to a party. On his way back from the party
Phila bumps the car into a pillar, causing a small dent in the bumper. The next morning Phila
takes the car to Posh Panel Beaters to have the dent repaired. Two days later Phila finds a job
in another town and moves out of Asha’s unit. When Kagiso returns home, he finds a note that
Phila left informing him that his car is at Posh Panel Beaters. Kagiso goes to Posh Panel
Beaters and claims his car back. Posh Panel Beaters refuses to give Kagiso his car before he
pays for the repairs. Kagiso refuses to pay, because he did not instruct Posh Panel Beaters to
repair his car.

QUESTION 4

Indicate the correct option.

(1) Asha is a bona fide unlawful possessor.

15
(2) Asha is a bona fide unlawful holder.
(3) Asha is a bona fide lawful holder.
(4) Asha is a bona fide lawful possessor.

ANSWER: 3

COMMENTARY: This question deals with the legal relationship between Asha and the flat.
Asha is the lawful holder of the flat. A lawful holder can be defined as a person who physically
controls the thing with the owner’s permission or on another legal basis, in order to derive some
benefit from it. The holder does not regard himself/herself as the owner; nor does he/she
pretends to be the owner.

[See Study Guide p 151]

QUESTION 5

Indicate the incorrect option.

(1) Kagiso is a co-owner (joint ownership) of the common property in Nzuri Gardens.
(2) Kagiso is the individual owner (separate ownership) of his section in Nzuri Gardens.
(3) Kagiso is the individual owner (separate ownership) of his unit in Nzuri Gardens.
(4) Kagiso’s is a co-owner (joint ownership) of the common property and the individual owner
(separate ownership) of his section in Nzuri Gardens.

ANSWER: 3

COMMENTARY: In terms of the Sectional Titles Act 95 of 1986 a unit consist of a section (eg
the flat) and the common property (eg road and gardens) in the sectional title scheme. Kagiso is
a co-owner of the common property together with all other owners in the sectional title scheme.
He is the individual owner of his section (flat). It is therefore incorrect to state that he is the
individual owner of his unit, because his ownership of his unit in Nzuri Gardens consists of
individual ownership of his section and co-ownership of the common property in the sectional
title scheme.

16
 PVL3701/201/2/2018

[See Study Guide pg 278]

QUESTION 6

Indicate the correct option.

Kagiso’s car is an example of …

(1) a composite thing

(2) an auxiliary thing
(3) an accessory thing
(4) an incorporeal thing

ANSWER: 1

COMMENTARY: Kagiso’s car is an example of a composite thing. A composite thing is made

up of constituent parts or even of independent things that have been joined together to form a
new entity. The constituent parts lose their individuality and the composite thing is regarded as
one thing for purpose of the law of property.
An auxiliary thing have an independent existence apart from the composite thing. However, it
forfeits its independent existence without being physically joined to the principal thing. It is
economically dependent on the principal thing. A key is a good example of an auxiliary thing,
since it loses it’s independent character in that its economic value in terms of its purpose and
use depends on the unity between the principal thing and the key.
An accessory thing can have a separate existence apart from the composite thing, but has
forfeited its independent existence in that it has been physically joined to the principal thing (eg
a brick cemented into a wall).
An incorporeal thing is not a physical thing and cannot, like corporeal things, be perceptive by
means of the senses. A creditor’s claim in terms of an agreement is an example of an
incorporeal thing.

17
[See Study Guide pg 22-23]

QUESTION 7

Indicate the correct option.

(1) Kagiso can successfully institute the rei vindicatio against Posh Panel Beaters because
he can proof that he is the owner of the car, that the car still exists and is identifiable and
that the car is in control of Posh Panel Beaters.
(2) Because Kagiso had no agreement with Posh Panel Beaters to repair his car they cannot
retain the car until they receive payment from him.
(3) Posh Panel Beaters has an enrichment lien and may retain the car until Kagiso pays the
necessary and useful expenses incurred in repairing the dent.
(4) The expenses incurred for the repair of the car were useful and not essential and Posh
Panel Beaters can only rely on an enrichment lien for essential expenses incurred and
not for useful expenses.

ANSWER: 3

COMMENTARY: An enrichment lien serves as security for the lienholder’s outstanding claim for
useful and/or essential expenses incurred by him/her. An enrichment lien is a valid defence
against the rei vindicatio. Someone who incurred useful and/or essential expenses (not
luxurious expenses) in respect of another person’s property can retain the thing until the thing
until he/she is compensated for useful and/or essential expenses incurred. Thus Posh Panel
Beaters is entitled to retain the car until Kagiso compensates it for the useful expenses incurred.

[See Study Guide p 236-237]

QUESTION 8

Indicate the correct option.

A personal servitude …

18
 PVL3701/201/2/2018

(1) is transferable.
(2) is terminated by the death of the holder thereof.
(3) is a personal right.
(4) can only vest over immovable property.

ANSWER: 2

COMMENTARY: A personal servitude is attached to the person in his/her personal capacity

and is therefore not transferable. A personal servitude can be granted only for a specific period
of time or for the holder’s lifetime (in the case of a legal person for a period of 100 years). It is
therefore correct to state that a personal servitude is terminated by the death of the holder
thereof.
Please note that all servitudes are limited real rights. Thus a personal servitude is NOT a
personal right. Personal servitudes can vest over movable (flock of sheep) and/or immovable
(farm) property.

[See Study Guide p 187]

QUESTION 9

Indicate the wrong option.

In terms of the National Water Act 36 of 1998 …

(1) a distinction is drawn between public water and private water.

(2) the state is the trustee of the nation’s water resources.
(3) the state must ensure that water is protected, used, developed, conserved, managed and
controlled for the benefit of all people.
(4) the state is empowered to regulate the use, flow and control of all water in South Africa.

ANSWER: 1

19
COMMENTARY: The National Water Act 54 of 1956 retained the common law distinction
between public water and private water. The National Water Act 36 of 1998 repealed the 1956
Act. The 1998 Act no longer recognises the distinction between public water and private water.

[See Study Guide p 249-250]

QUESTION 10

Indicate the correct option.

Sandra is the owner of a farm. The municipality needs to build a national road through a part of
Sandra’s farm and wants to buy that piece of land from her. Sandra refuses to sell that part of
the farm to the municipality.

(1) Ownership is the most comprehensive real right a person can have over his/her own
thing and in principle an owner may do with the thing as he/she pleases. Consequently,
Sandra is entitled to refuse to sell that piece of land to the municipality.

(2) In terms of First National Bank of SA Limited t/a Wesbank v Commissioner for the South
African Revenue Services; First National Bank of SA Ltd t/a Wesbank v Minister of
Finance ((2002) (7) BCLR 702 (CC)) ‘property’ in section 25 must be interpreted in the
narrow sense. A piece of agricultural land that has not been subdivided can therefore not
qualify as ‘property’ and may not be deprived or expropriated.

(3) The municipality may, in terms of section 25(2) of the 1996 Constitution, expropriate that
piece of land and pay Sandra reasonable compensation. The amount, time and manner
of payment of compensation must be determined by the parties or should be decided by
a court.

(4) Because the national road is in the public interest the municipality may, in terms of
section 25(1) of the 1996 Constitution, deprive Sandra of that piece of land without
paying her compensation.

20
 PVL3701/201/2/2018

ANSWER: 3

COMMENTARY: Although ownership is the most comprehensive real right a person can have
over his/her own thing, it is not an unlimited right. In principle an owner may do with his/her
thing as he/she pleases, however, this right can be limited in terms of the law and the rights of
others.

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)) it was
held that ‘property’ in section 25 of the 1996 Constitution must be interpreted in the broad
sense.

In terms of section 25 of the 1996 Constitution compensation is always payable for

expropriation.

[See 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)
and Study Guide p 261-263]

4 CORRECTIONS – NEW STUDY GUIDE

We updated the Study Guide for this module during 2016. We want to bring the following to your
attention:

1 On page 5 of Tutorial letter 101 it is stated that the Study Guide is divided into four parts.
We changed the format of the Study Guide. The Study Guide is now only divided into
three parts.

21
2 The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ... “

3 In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example a person who controls
a car which he/she borrowed from a friend (such as X in Question 2 of Assignment 1
semester 1) is a lawful holder, but does not have a real right over the car. A pledgee,
however, is a good example of a person who is a lawful holder, but also has a limited real
security right over the pledged thing (see Study Guide page 215 par 2.4.1).

4 The answer to Question 4 on page 240 the Study Guide has been taken out of the Study
Guide. The suggested answer is the following:

For a successful reliance on his lien, Z must prove that he was in control (1) of the car
and that he incurred expenses (1) in regard to the car. Z complies with both of these
requirements; the only problem is the fact that he incurred these expenses in terms of his
agreement with T. However, Z can rely on his lien even against the owner with whom he
had no agreement (1) since enrichment liens (1) are limited real rights (1) which are
based on the principle of unjust enrichment. (1)

Two types of enrichment liens are distinguished, namely salvage and improvement liens.
When someone incurs expenses that are necessary for the preservation of a thing (such
as the installation of the driveshaft), (1) we are dealing with a salvage lien (1) and Z is
entitled to retain the car until he is compensated for the amount by which the owner (Q)
was enriched or he himself impoverished, whichever is the lesser. (1) It may therefore be
less than R2600-00, (1) but normally it is the amount of the owner’s enrichment.

When someone incurs expenses which are not necessary for the preservation of the
thing, but which increase the market value (such as the device which improves petrol
consumption), (1) we are dealing with an improvement lien (1) and Z is entitled to retain

22
 PVL3701/201/2/2018

the car until he is compensated for the amount by which the market value (1) of the car
has been increased.

For the luxurious improvements which are prompted by a mere whim or caprice of a
person (such as the replacement of the seat covers with leather seat covers), Z cannot
claim compensation from Q and is therefore not entitled to a lien either. (1)

Therefore, Z is only entitled to retain the car until Q has compensated him for an amount
of more or less R2600-00 for the crankshaft, together with the amount by which the
market value of the car was increased by the installation of the device to improve petrol
consumption. (1)

©
UNISA

2018

23
 PVL3701/201/1/2018

Tutorial Letter 201/1/2018

Property Law

PVL3701

Semester 1

Department of Private Law

This tutorial letter contains important information about this
module.

Bar code
 CONTENTS

1. EXAMINATION INFORMATION
2. COMMENTARY ON ASSIGNMENT 01 FIRST SEMESTER 2018
3. COMMENTARY ON ASSIGNMENT 02 FIRST SEMESTER 2018
4. CORRECTIONS – NEW STUDY GUIDE
5. FREQUENTLY ASKED QUESTIONS

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

PROF MITZI WIESE wiesem@[Link] 012 429-8466 / 083 259 9450

DR BOITUMELO MMUSINYANE mmusibo@[Link] 012 429-8496
MR LEFA NTSOANE ntsoals@[Link] 012 429-4467

2
 PVL3701/201

1 EXAMINATION INFORMATION

 This is the last tutorial letter that you will receive this semester.

 The examination paper consists of two sections:

o Section 1 (40 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 compulsory assignment 02.

o The questions in Section 2 (60 marks out of 100 marks) of the examination
paper will be similar to the activities in your Study Guide.

 Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2018 (p 7) namely:

o Ex parte Geldenhuys 1926 OPD 155

o MacDonald Ltd v Radin NO and the Potchefstroom Dairies and Industries Co Ltd

o Info Plus v Scheelke 1998 (3) SA 184 (SCA)1915 AD 454

o Nino Bonino v De Lange 1906 TS 120

o Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA)

o Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267

o Grant v Stonestreet 1968 (4) SA 1 (A)

o Mapenduka v Ashington 1919 AD 33

o 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) (also reported at [2002] 7 BCLR 702 (CC))

3
Please remember that all other cases to which we refer in the Study Guide should be studied to
the extent that they are discussed in the Study Guide.

 Take note of the mark allocation in Tutorial letter 101/3/2018 (p 9) inserted below for
ease of reference. This will be very helpful in your preparation for the examination.

Part 1 (study units 1-2): Introduction, things as legal objects and real rights and personal
rights (10%)

Part 2 (study units 3-7): Ownership: definition of, limitations on, original acquisition of,
derivative acquisition of, protection of, termination of and co-
ownership (40%)

Part 3 (study units 8-9): Possession and holdership: nature of, protection of and
termination of (15%)

Part 4 (study units 10-12): Limited real rights: introduction, servitudes, restrictive
conditions, pledge, security by means of claims, mortgage,
tacit mortgages, mineral rights, water rights and tenant’s
rights (25%)

Part 5 (study units 13-15): Constitutional property law, land reform and additional forms
of statutory land use (10%)

4
 PVL3701/201

2 COMMENTARY ON ASSIGNMENT 01

UNIQUE ASSIGNMENT NUMBER: 800785

Before you answer the questions of this assignment, work through Study Units 1-9 very
carefully.

In Study Unit 1 we introduce you to three real relationships, namely:

 ownership

 possession and

 holdership

The definition, limitation, acquisition, protection and termination of ownership are dealt with in
Study Units 3-6. Study Unit 7 deals with co-ownership. The nature, protection and termination of
possession and holdership are discussed in Study Units 8 and 9.

QUESTION 1

(a) Can it be said that ownership is an “unrestricted right”? Substantiate your answer. (3)

ANSWER

No, ownership is not unrestricted. (1) [A mark is awarded for this answer only if it is
substantiated correctly.]

Ownership can be defined as the most comprehensive real right that a person can have with
regards to his/her thing. In principle, a person can act upon and with his/her thing as he/she
pleases. This apparent freedom is restricted, however by the law (1) and the rights of others
(1).

Ownership can be limited in the following ways:

5
[Answer may be substantiate by way of an examples of limitations. One mark for explaining
limitations imposed by law, and one mark for explaining limitations imposed by rights of other
persons.]

[A] By law

These limitations can be subdivided into:

(i) Statutory limitations (legislation), for example:

- Limitations in terms of the Constitution

- section 25 and 26;

- Limitations on the use of movable things

- firearms (the Firearms Control Act 60 of 2000)
- motor vehicles (the National Road Traffic Act 93 of)
- drugs (the Drugs and Drugs Trafficking Act 140 of 1992);

- Limitations on immovable things

- land (the Subdivision of Agricultural Land Act 70 of 1970 and Spatial Planning and land
Use Management Act 16 of 2013)

(ii) Limitations imposed in terms of neighbour law principles - ownership is limited by the
rights of their neighbours, for example:

- nuisance;
- lateral and surface support;
- encroachments;
- surface water;
- party walls and fences and
- elimination of dangers.

[B] By the rights of other legal subjects

These limitations can be subdivided into:

(i) Limitations imposed by the limited real rights of third parties. For example a right of
habitation (personal servitude = limited real right) or land/real servitude (limited real right) or
a mortgage (limited real security right)

6
 PVL3701/201

(ii) Limitations imposed by the personal rights (creditor’s rights) of third parties. For
example X and Y entered into a contract in terms of which S can graze 100 head of cattle
on their farm. Their ownership is, therefore, limited by a personal right created by an
agreement; or any other contract that creates personal rights, such as lease agreement or
an agreement to buy something – such as a car.

(Study Guide p 42; 48-59)

(b) What does the entitlement “to burden” ones property entail? Give one practical example
of this entitlement. (2)

ANSWER

An owner is entitled to burden his thing by granting other people limited real rights (½) to the
thing. Such limited real rights will limit or burden the ownership in that some of the entitlements
are frozen (½) for as long the limited real right exists.

Example: An owner may pledge his/her movable thing, register a mortgage bond over his/her
immovable property or grant a servitude right over his/her property in favour of another person
or another piece of land. [1 mark for a correct example]

(Study Guide p 46)

(c) Briefly discuss the meaning of original acquisition of ownership and derivative acquisition
of ownership. Do not mention examples in your answer. (4)

ANSWER

Original methods of acquiring ownership are used when there is no cooperation (½) from a
predecessor in title (½) (the person who was owner of the thing before the new owner); in other
words, where there is no transfer (1) of ownership.

Derivative methods of acquiring ownership occur with (½) the cooperation of a predecessor in
title (the person who was owner of the thing before the new owner) (½). The right which the
transferee obtains is derived from the former owner. (½) This implies that the predecessor in
title should himself/herself have been the owner and have been entitled to transfer (1)
ownership.

[Maximum 4 marks]
(Study Guide p 63)

7
QUESTION 2

In Study Unit 6 we define the rei vindicatio as a real action with which an owner can claim
his/her thing from whoever is in control of it unlawfully. In Study Unit 9 we define the spoliation
remedy as a summary remedy issued upon urgent application aimed at restoring control of a
thing to the appellant from whom it was taken by means of unlawful self-help, without
investigating the merits of the original rights of the parties to control the thing.

In view of this, read Nino Bonino v De Lange (1906 TS 120) which concerned the spoliation
remedy.

Summarise the Innes CJ’s judgment under the following headings:

 Facts

Nino Bonino (appellant) leased a billiard room from De Lange (respondent). In terms of the
lease agreement the appellant was not allowed to serve alcohol on the premises or to stay open
after twelve at night. The respondent and appellant inserted a term in the agreement entitling
the respondent to take control of the premises if the appellant contravenes any of the terms of
the lease. The appellant served alcohol on the premises to his friends and held rowdy parties
that went on until sunrise. The neighbours complained to the respondent who then removed the
locks from the building and fitted new locks. He loceds all entrances to the premises and
effectively debared the appellant from using or entering the premises. The appellant applied for
a spoliation order.
(1 mark for summary of facts)

 Legal question

The question was whether the respondent (lessor) had the authority (right) to prevent the
appellant (lessee) from having access to the billiard room. (Page 122 of the decision.)

(1 mark for legal question)

 Ratio decidendi

Innes CJ referred to the fundamental principle that no person was allowed to take the law into
his/her own hands. (1) Furthermore no person was allowed to dispossess another person of
possession of property – movable or immovable. (1) If this happened the dispossessed person’s
(spoliatus) control (possession) would be restored summarily (1) without investigating the merits
of the case. (1) (Page 122 of the decision)

8
 PVL3701/201

Smith J stated that the clause could not affect the rights of the parties. (1) The agreement was
against public policy and void/unenforceable. (1) He furthermore held that the clause would
allow the respondent to be the judge in his own case. (1) (Page 125 of the decision.)

(Maximum 4 marks)

 Judgment

The appeal was upheld. The clause in the lease agreement was invalid (1) because it would
allow the respondent (lessor) to be the judge in his own case and that was against public policy.
The respondent (lessor) did not have the authority (right) to prevent the appellant (lessee) from
having access to the billiard room (Pages 123 and 124 of decision)

(1 mark for judgment)

Marking Rubric

Description Mark

Facts

Give a brief summary of the most relevant facts of the case. 1

Legal question

What is the legal question that the case dealt with? 1

Ratio decidendi

Briefly discuss the court’s reasons for its decision (ratio decidendi). 4

Judgment

Give a brief summary of the outcome of the decision. 1

Refer to the relevant pages of the case which you consulted in each part of your
summary. 2

Use of your own words as far as possible. Do not rewrite (“copy and paste”)
summaries that you found on the internet or in other sources – you will be 1
penalised.

Include “Student academic integrity declaration form” and a Bibliography in

9
assignment 1

Total 11

3 COMMENTARY ON ASSIGNMENT 02

UNIQUE ASSIGNMENT NUMBER: 809480

QUESTION 1
The following paragraph is quoted from the Pretoria News of the 3rd of August 2017:

A BARKING dog is a “nuisance” to neighbours and therefore punishable. This is in

accordance with a new city by-law, which will become law once it has been been
[sic] promulgated - published in the Provincial Gazette - by city manager Moeketsi
Mosola.

“If an environmental health practitioner is of the opinion that a dog is creating a

disturbance or a nuisance, he or she may order the owner of the dog to remove
the dog from the place,” the by-law states.

Indicate the incorrect statement in view of the abovementioned quote.

(1) A barking dog which causes personal infringement to a neighbour’s right of use and
enjoyment of his/her own property is an example of nuisance in the narrow sense.
(2) Nuisance is a branch of neighbour law which is regarded as a limitation on ownership (of
the dog) imposed by law.
(3) A barking dog which causes personal infringement to a neighbour’s right of use and
enjoyment of his/her own property is an example of nuisance in the broad sense.

10
 PVL3701/201

(4) Once the by-law is enacted it (the by-law) will constitute a limitation on ownership (of the
dog) imposed by law.

Answer: 3
Commentary: Nuisance in the broad sense results in damage to property, not infringement of a
person’s right of personality or entitlement of use. Nuisance in the narrow sense occurs where a
neighbour’s right of personality or entitlement to use is infringed, as indicated in option (1), by
the dog’s barking.

(Study Guide p 51)

QUESTION 2
Angela walks down Modiri Molema Street in Mahikeng when she sees a small shiny thing on
the sidewalk next to a municipal dustbin. She decides to investigate and finds a gold necklace
with a broken clip. She picks up the necklace and puts it in her handbag. On her way home, she
sees you and tells you about her good fortune finding the gold necklace. How would you, as a
law student, respond?

Indicate the most suitable statement.

(1) Angela will become owner of the gold necklace through appropriation if she can prove
that the previous owner lost the gold necklace.
(2) Angela cannot become the owner of the gold necklace because transfer of ownership of
valuable movable things must take place by means of physical delivery of the thing from
the transferor to the transferee.
(3) Angela became owner of the gold necklace by means of treasure trove when she took
physical control of it.
(4) Angela became owner of the gold necklace through appropriation if she can prove that
the previous owner abandoned his/her ownership by throwing it in the municipal dustbin.

11
Answer: 4
Commentary: Appropriation or occupation (occupatio) is defined as the unilateral taking of
physical control of a thing which does not belong to anyone (res nullius), but which is within the
sphere of law (res in commercio) with the intention of becoming its owner. Option (1) is
therefore incorrect because a lost thing remains the property of the owner and is not susceptible
of acquisition of ownership by means of appropriation.

(Study Guide p 64)

QUESTION 3
Indicate the correct answer.

The sources of the current law of things, in order of priority, are …

(1) the Constitution of the Republic of South Africa, 1996; case law; statute law; common law
and indigenous law (same level).
(2) the Constitution of the Republic of South Africa, 1996; case law; common law;
indigenous law and statute law.
(3) the Constitution of the Republic of South Africa, 1996; indigenous law; statute law; case
law and common law.
(4) the Constitution of the Republic of South Africa, 1996; statute law; case law; common law
and indigenous law (same level).

Answer: 4
Commentary: Note that common law and indigenous law are at the same level in regard to the
order of priority of sources.

(Study Guide p 16)

READ THE FOLLOWING SET OF FACTS AND THEN ANSWER QUESTIONS 4-5.

A new chief executive officer was appointed at Marula Mine in Limpopo. Three managers at
Marula Mine were not satisfied with the appointment. They set fire to one of the mine’s busses.
Although the fire brigade tried to put out the fire, the bus was damaged beyond repair.

12
 PVL3701/201

QUESTION 4
Which remedy does Marula Mine have against the three managers to recover the damages?

(1) rei vindicatio

(2) actio ad exhibendum
(3) condictio furtiva
(4) actio negatoria

Answer: 2
Commentary:
Option (1): The rei vindicatio is a real action that an owner can use to claim his/her thing from
whoever is in control of it unlawfully. The rei vindicatio is, therefore, not a suitable remedy to
claim damages.
Option (2): The actio ad exhibendum can be defined as an action in terms of which the owner
can claim the market value of the thing from a person who destroyed the thing or alienated the
thing with a mala fide intention. The three managers destroyed the bus with a mala fide intention
and thus the mine will most probably succeed with the actio ad exhibendum.
Option (3): The condictio furtive can only be instituted against the thief or, after his/her death,
the thief’s heirs. This is an action which can be instituted by the owner or a person with a lawful
interest in claiming the thing or its highest value since the theft from the thief or person who
removed the thing with deceitful intent. The three managers neither stole, nor removed the bus,
therefore, the mine cannot claim any damages with the condictio furtiva.
Option (4): The actio negatoria is a real action aimed at the protection of ownership in
circumstances where third persons seek to exercise rights of a servitude holder which they do
not have or when servitude holders exceed the limits of their servitudes. Thus it is clear that the
mine cannot claim damages with this action.

(Study Guide p 127-128)

QUESTION 5
There was a mistake in question 5 and consequently all students who submitted
assignment 02 will receive 1 mark for question 5 regardless of their answer.

13
QUESTION 6
Ben is the owner of a big erf in Durban. He subdivides the erf and Nina buys the subdivided erf
behind Ben’s erf. Her erf has no access to the street and Ben gives Nina permission to use the
road over his erf to get access to the street. After two years Ben and Nina has a disagreement
about Nina’s dogs and Ben refuses to let Nina use the road.

You are Nina’s attorney. How will you advise her? Indicate the most suitable option.

(1) Nina obtained a mere personal right in terms of the agreement between herself and Ben
and cannot insist on using the road.
(2) Nina obtained a personal servitude over the front erf and may exercise her right of
servitude regardless of Ben’s permission.
(3) Ben merely gave Nina permission and he may revoke it at any time. Nina can, however,
apply to court for a permanent way of necessity.
(4) Nina can apply to court for an order of specific performance that Ben must allow her to
use the road.

Answer: 3
Commentary: In order to vest a servitude there must be a servitude agreement and
registration. The servitude agreement creates a personal right. After registration or delivery, a
limited real right vests. In the facts above Nina neither obtained a personal right in terms of a
servitude agreement, nor a limited real right (servitude). The permission Ben gave Nina to use
the road over his erf does not give Nina a right against Ben and he can revoke his permission at
any time. However, because Nina has no access to the public road, she can apply to court for a
permanent way of necessity.

(Study Guide p 182-184)

QUESTION 7
Indicate the wrong option.

In Telkom Ltd v Xsinet (Pty) Ltd (2003 (5) SA 309 (SCA))

(1) the Supreme Court of Appeal held that specific performance of a contractual right had
never been allowed under the spoliation remedy.
14
 PVL3701/201

(2) Jones AJA stated that Xsinet’s use of the telephones, lines, modems or electrical
impulses, clearly gave it “possession” of the connection of its corporeal property.

(3) it was indicated that the spoliation remedy originally only protected the physical
possession of movable or immovable property, but later on a need arose to also protect
certain rights.

(4) Jones AJA indicated that an objection against the idea of “quasi-possession” of a right
was that it caused confusion between contractual remedies and remedies which were
designed to protect real rights.

Answer: 2
Commentary: Jones AJA stated that it is both artificial and illogical to conclude on the facts
before the court that Xsinet’s use of the telephones, lines, modem or electrical impulses gave it
“possession” of the connection of its corporeal property to Telkom’s system.

(Telkom Ltd v Xsinet (Pty) Ltd (2003 (5) SA 309 (SCA) para 14)

QUESTION 8

Indicate the correct option.

Sam has entered into a servitude agreement with Charles in terms of which Charles grants Sam
the right to use the road to Sam’s farm that crosses Charles’s farm. This agreement is in writing,
but is not registered. Charles sells the farm. The new owner knows about the servitude
agreement but refuses to allow Sam to use the road.

In terms of Grant v Stonestreet (1968 (4) SA 1 (A)), S’s legal position is the following:

(1) In terms of the doctrine of notice, Sam obtained a limited real right to use the road and
the new owner must respect this real right.

15
(2) Sam has no legal remedy and the new owner does not have to allow Sam to use the
road, because the servitude agreement was not registered.

(3) A buyer (new owner) who has knowledge of the existence of the servitude agreement is
bound to register the servitude in terms of the doctrine of notice.

(4) As Charles’s successor in title, the new owner must adhere to the servitude agreement
and allow Sam to use the road.
Answer: 3
Commentary: A servitude agreement does not grant a limited real right to the owner of the
dominant tenement. The servitude must be registered before it grants a limited real right to the
owner of the dominant tenement. However, a buyer (new owner) of the servient tenement, who
has knowledge of the existence of the servitude agreement, is bound to register the servitude in
terms of the doctrine of notice

(Study Guide p 183)

QUESTION 9

Indicate the correct option.

Jacob wants to mine for coal on Peter’s farm. Which one of the following statements is in line
with the provisions of the Mineral and Petroleum Resources Development Act 28 of 2002?

(1) As the owner of the farm Peter may grant prospecting and mineral rights to Jacob to
mine for coal on his farm.

(2) Peter and Jacob must register the prospecting and mineral rights granted to Jacob by
Peter in the deeds office.

(3) The state is the owner of all minerals and may grant Jacob prospecting and mineral
rights with regards to the coal on Peter’s land.

(4) The prospecting and mining rights granted to Jacob by the state are limited real rights but
registration in the deeds office is not required.

16
 PVL3701/201

Answer: 4
Commentary: Prospecting and mining rights may be granted only by the state. The state is,
however, not the owner of all minerals. Minerals are the common heritage of all the people of
South Africa and the state is the custodian (not owner) thereof. Prospecting and mining rights
are limited real rights in respect of the mineral and petroleum and the land to which the right
relates, yet they may only be transferred with the written consent of the Minister of Mineral
Resources. The MRPDA abolished the requirement of registration of prospecting and mining
rights in the Deeds Registry.

(Study Guide p 245)

QUESTION 10
Indicate the wrong option with regards to deprivation and expropriation of property in terms
of Section 25 of the Constitution.

(1) Deprivation can be seen as “regulation”, “limitation” and “restriction” of property. It is

any interference with the use and enjoyment of private property.

(2) Expropriation should be compensated taking into account the factors contained in
Section 25(3) of the Constitution.

(3) Deprivation is a type of expropriation and involves the actual taking away of private
property by the state. Compensation is payable for deprivation.

(4) A valid expropriation should take place in terms of a law of general application.

Answer: 3
Commentary: Deprivation does not necessarily refer to the actual taking away of private
property by the state. Furthermore, no compensation is usually payable for deprivations.
Synonyms for the word “deprivation” are “regulation”, “limitation” and “restriction”. In a sense
any interference with the use and enjoyment of private property involves some deprivation with
regard to the person who has a right to or in the property concerned. Expropriation is a
subspecies of deprivation.

17
(Study Guide p 262)

4 CORRECTIONS – NEW STUDY GUIDE

1 On page 5 of Tutorial letter 101 it is stated that the Study Guide is divided into four parts.
We changed the format of the Study Guide. The Study Guide is now only divided into
three parts.

2 The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ... “

3 In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example a person who controls
a car which he/she borrowed from a friend (such as X in Question 2 of Assignment 1) is a
lawful holder, but does not have a real right over the car. A pledgee, however, is a good
example of a person who is a lawful holder, but also has a limited real security right over
the pledged thing (see Study Guide page 215 par 2.4.1).

4 The answer to Question 4 on page 240 of the Study Guide has been taken out of the
Study Guide. The suggested answer is the following:

For a successful reliance on his lien, Z must prove that he was in control (1) of the car
and that he incurred expenses (1) in regard to the car. Z complies with both of these
requirements; the only problem is the fact that he incurred these expenses in terms of his
agreement with T. However, Z can rely on his lien even against the owner with whom he
had no agreement (1) since enrichment liens (1) are limited real rights (1) which are
based on the principle of unjust enrichment. (1)

Two types of enrichment liens are distinguished, namely salvage and improvement liens.
When someone incurs expenses that are necessary for the preservation of a thing (such
as the installation of the driveshaft), (1) we are dealing with a salvage lien (1) and Z is
entitled to retain the car until he is compensated for the amount by which the owner (Q)
was enriched or he himself impoverished, whichever is the lesser. (1) It may therefore be
less than R2600-00, (1) but normally it is the amount of the owner’s enrichment.
18
 PVL3701/201

When someone incurs expenses which are not necessary for the preservation of the
thing, but which increase the market value (such as the device which improves petrol
consumption), (1) we are dealing with an improvement lien (1) and Z is entitled to retain
the car until he is compensated for the amount by which the market value (1) of the car
has been increased.

For the luxurious improvements which are prompted by a mere whim or caprice of a
person (such as the replacement of the seat covers with leather seat covers), Z cannot
claim compensation from Q and is therefore not entitled to a lien either. (1)

Therefore, Z is only entitled to retain the car until Q has compensated him for an amount
of more or less R2600-00 for the crankshaft, together with the amount by which the
market value of the car was increased by the installation of the device to improve petrol
consumption. (1)

5 FREQUENTLY ASKED QUESTIONS

The following questions are some of the questions that students who are registered for this
module often ask us.

We briefly answer these questions below.

 Is there a prescribed textbook for this module?

No, there is not, see paragraph 4.1 of tutorial letter 101/3/2018.

 Will there be discussion classes for this module?

No, at this stage discussion classes are not offered for this module. However, you are always
welcome to contact us with a question concerning the contents of the module.

19
 I am having trouble in obtaining the prescribed cases from the library or to download
the cases.

You have to take this up with the library. See paragraph 4.3 of tutorial letter 101/3/2018 on how
to download the cases electronically.

 Are there any hints (tips) for the examination?

No, unfortunately not. The best advice that we can give you is to spend enough time on your
studies. It is also a good idea to keep the table which we included in this tutorial letter with you
while you study.

 Where can I obtain previous examination papers?

There are previous examination papers on myUnisa.

©
UNISA
2018

20
 PVL3701/201/2/2019

Tutorial Letter 201/2/2019

Property Law

PVL3701

Semester 2

Department of Private Law

This tutorial letter contains important information about this
module.

Bar code
 TABLE OF CONTENTS

1 EXAMINATION INFORMATION

2 COMMENTARY ON ASSIGNMENT 01 [UNIQUE NUMBER 754823]

3 COMMENTARY ON ASSIGNMENT 02 [UNIQUE NUMBER 78519]

4 CORRECTIONS – NEW STUDY GUIDE

5 FREQUENTLY ASKED QUESTIONS

2
 PVL3701/201/2/2019

Dear Student

This tutorial letter contains information on the examination and commentary on Assignments
01 and 02 for the second 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.

Please take note that Adv Lefa Ntsoane has been appointed as the Chair of the Department of
Private Law and will not be involved with this module during 2019.

Yours sincerely

PROF INA KNOBEL knobeim@[Link] 012 429-8491

PROF MITZI WIESE wiesem@[Link] 012 429-8466

3
1 EXAMINATION INFORMATION
✓ This is the last tutorial letter that you will receive this semester.
✓ The examination paper consists of two sections:

o Section 1 (40 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 compulsory assignment 02.

o The questions in Section 2 (60 marks out of 100 marks) of the examination
paper will be similar to the activities in your Study Guide.

✓ Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2019 (p 7-8) namely:

o Ex parte Geldenhuys 1926 OPD 155

o MacDonald Ltd v Radin NO and the Potchefstroom Dairies and Industries Co Ltd
1915 AD 454
o Info Plus v Scheelke 1998 (3) SA 184 (SCA)
o Nino Bonino v De Lange 1906 TS 120
o Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA)
o Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267
o Grant v Stonestreet 1968 (4) SA 1 (A)
o Mapenduka v Ashington 1919 AD 33
o 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) (also reported at [2002] 7 BCLR 702 (CC))

Please remember that all other cases to which we refer in the Study Guide should be studied to
the extent that they are discussed in the Study Guide.

✓ Take note of the mark allocation in Tutorial letter 101/3/2019 (p 9) inserted below for
ease of reference. This will be very helpful in your preparation for the examination.
Part 1 (study units 1-2): Introduction, things as legal objects and real rights and personal
rights (10%)
Part 2 (study units 3-7): Ownership: definition of, limitations on, original acquisition of,
derivative acquisition of, protection of, termination of and co-
ownership (40%)
Part 3 (study units 8-9): Possession and holdership: nature of, protection of and
termination of (15%)
Part 4 (study units 10-12): Limited real rights: introduction, servitudes, restrictive
conditions, pledge, security by means of claims, mortgage,
tacit mortgages, mineral rights, water rights and tenant’s
rights (25%)
Part 5 (study units 13-15): Constitutional property law, land reform and additional forms
of statutory land use (10%)

4
 PVL3701/201/2/2019

2 COMMENTARY ON ASSIGNMENT 01 [UNIQUE NUMBER 754823]

QUESTION 1

Indicate whether the following statements are true or false and fully motivate your
answer:

(a) Lawful possession can give rise to real rights. (3)

False. (1) Possession as distinguished from ownership and holdership is always unlawful (1)
and is a real relationship. (1) A possessor has physical control of a thing with the intention of an
owner but does not comply with the requirements for establishing ownership – it is a real
relationship – not a real right. An example of a (mala fide) possessor is a thief – a thief can
never have a real right over a stolen thing.

(Study Guide p 12-13; 150 & 153)

(b) The purpose of the spoliation order is to return property to the rightful owner. (3)

False. (1) The purpose of the spoliation remedy (order) is to protect the legal order and to
prevent self-help. (1) If spoliation took place, the purpose of the remedy is to undo the
consequences of the self-help (spoliation). (1) The remedy is aimed at the restoration of
control (1) to a despoiled person. (1) The applicant must prove that he/she was in peaceful
and undisturbed control (1) and the control was disturbed unlawfully. The purpose of the rei
vindicatio (1) is to return the property to the rightful owner.

[Maximum 3 marks]

(Study Guide p 162 & 119)

5
QUESTION 2

Explain the difference between a bona fide possessor and a bona fide unlawful holder by giving
a detailed example of each. Use your own words and own example. (4)

Bona fide possessor – Pete steals Sarah’s car and sells it to Zinzi who is not aware of the fact
that Pete stole the car. (1 mark for a suitable example) Zinzi’s relationship with the car is
unlawful because even though she has the intention of an owner, she did not acquire
ownership (½ mark for explaining that/why Zinzi’s control is unlawful). Zinzi’s intention is bona
fide because she is unaware that Peter was not the owner and that ownership was not
transferred to her (½ mark for explaining why Zinzi’s intention is bona fide).

Bona fide unlawful holder – Carol rented a car from Avis. The rental agreement expired at the
end of February but Carol thought that the lease agreement only expires at the end of March.
(1 mark for a suitable example) During March Carol is an unlawful holder because she is in
unlawful control of the car with the intention to derive a benefit (½ mark for explaining that/why
Carol’s control is unlawful) but her intention is bona fide because she didn’t know that there is
no legal ground (lease agreement) for her control (½ mark for explaining why Carol’s intention
is bona fide).

(Study Guide p 150-151 & 153)

QUESTION 3

In Study Unit 6 we define the rei vindicatio as a real action with which an owner can claim
his/her thing from whoever is in control of it unlawfully. In Study Unit 9 we define the spoliation
remedy as a summary remedy issued upon urgent application aimed at restoring control of a
thing to the applicant from whom it was taken by means of unlawful self-help, without
investigating the merits of the original rights of the parties to control the thing.
Read the following set of facts:

In a reported case the appellant leased a billiard room from the respondent. In terms of the
lease agreement the appellant was not allowed to serve alcohol on the premises or to stay open
after twelve at night. The respondent and appellant inserted a term in the agreement entitling
the respondent to take control of the premises if the appellant contravenes any of the terms of
the lease. The appellant served alcohol on the premises to his friends and held rowdy parties
that went on until sunrise. The neighbours complained to the respondent who then removed the
locks from the building and fitted new locks. He locked all entrances to the premises and
effectively debarred the appellant from using or entering the premises.

(a) This set of facts is based on one of the prescribed cases for this module. What is the
name of the case?

Nino Bonino v De Lange 1906 TS 120 (1)

(Study Guide p 161; Nino Bonino v De Lange 1906 TS 120 121-122)

6
 PVL3701/201/2/2019

(b) Summarise the Innes CJ’s judgment under the following headings:

• Legal question

The question was whether the respondent (lessor) had the authority (right) to prevent
the appellant (lessee) from having access to the billiard room.

(1 mark for legal question)

(Nino Bonino v De Lange 1906 TS 120 122)

• Ratio decidendi

Innes CJ referred to the fundamental principle that no person was allowed to take the
law into his/her own hands. (1) Furthermore no person was allowed to dispossess
another person of possession of property – movable or immovable. (1) If this happened
the dispossessed person’s (spoliatus) control (possession) would be restored summarily
(1) without investigating the merits of the case. (1) (Nino Bonino v De Lange 1906 TS
120 122)

Smith J stated that the clause could not affect the rights of the parties. (1) The
agreement was against public policy and void/unenforceable. (1) He furthermore held
that the clause would allow the respondent to be the judge in his own case. (1) (Nino
Bonino v De Lange 1906 TS 120 125)

(Maximum 4 marks)

• Judgment

The appeal was upheld. The clause in the lease agreement was invalid (1) because it
would allow the respondent (lessor) to be the judge in his own case and that was
against public policy. The respondent (lessor) did not have the authority (right) to
prevent the appellant (lessee) from having access to the billiard room (Nino Bonino v
De Lange 1906 TS 120 123-124)

(1 mark for judgment)

Description Mark

Legal question
What is the legal question that the case dealt with? 1

Ratio decidendi
Briefly discuss the court’s reasons for its decision (ratio decidendi). 4

Judgment
Give a brief summary of the outcome of the decision. 1

Refer to the relevant paragraphs of the case which you consulted in each
part of your summary. 2

7
 Use of your own words as far as possible. Do not rewrite (“copy and
paste”) summaries that you found on the internet or in other sources – you 1
will be penalised.

Include “Student academic integrity declaration form” (½) and a

1
Bibliography (½) in assignment

Total 10

3 COMMENTARY ON ASSIGNMENT 02 [UNIQUE NUMBER: 788519)

QUESTION 1

Indicate the incorrect option.

The following are requirements for the constitution of a valid pledge:

(1) registration in the deeds office

(2) a principal debt

(3) delivery
(4) a pledge agreement

Answer: 1
General: Pledge is defined as a limited real right over the pledgor’s thing, delivered to the
pledgee as security for repayment of the principal debt which the pledgor or a third party owes
to the pledgee.
Option 1: This requirement is incorrect. A pledge is a limited real right. A pledge is constituted
by way of delivery of the thing to the pledgee. Prior to the delivery of the thing the pledgee has
a personal (creditor’s) right.
Options 2 and 4: These requirements are correct. Due to the accessory nature of pledge a
principal debt is required. To constitute a valid pledge, a principal debt, a pledge agreement
and delivery are required.

(Study Guide p 210 - 211)

QUESTION 2
Indicate the correct option.
The National Water Act 36 of 1998 provides that:
(1) an upper owner must allow a lower owner the use of a reasonable share of water
that arose on his/her (upper owner) land.
(2) the state is the owner of all water in the country.
(3) there is no distinction between public water and private water.
(4) all persons who want to use water must have a license.

8
 PVL3701/201/2/2019

Answer: 3
Option1: It is not a statutory requirement but rather a common law duty that an upper owner
must allow a lower owner the use of a reasonable share of water that arose on his/her
(upper owner) land.
Option 2: The state is not the owner but the trustee of all water within the Republic and must
ensure that water is protected, used, developed, conserved, managed and controlled in a
sustainable manner.
Option 3: Unlike its predecessor, the Water Act 54 of 1956, the National Water Act 36 of 1998
draws no distinction between public and private water.
Option 4: No licence is required if the authority that is responsible for the issuing of a license
dispensed with the requirement to provide a license. It is also not required for reasonable
domestic use, domestic gardening, animal watering, firefighting and recreational use.

(Study Guide p 53 & 250-251)

QUESTION 3
Indicate the incorrect option.
In terms of the Restitution of Land Rights Act 22 of 1994 one of the following restitution
orders can be made after a claim has been considered:
(1) grant by the state of an appropriate right in alternative state-owned land
(2) payment of compensation by the current owner of the land
(3) restoration of land, a portion of land or any right in land
(4) grant of alternative relief

Answer: 2
Options 1, 3 and 4 are some of the restitution orders that the Land Claims Court can make.
Option 2: The current owner whose land is the subject of a restitution claim is not required to
pay compensation. The payment of compensation to the applicants must be made by the
State.

(Study Guide p 275)

QUESTION 4
Indicate the correct option.
Which of the following persons is a lawful holder?

(1) an owner

(2) a controller who bona fide bought the thing from a person who was not the owner of
the thing
(3) a pledgee
(4) a lessee who refuses to vacate the leased premises after the lease has expired,
because he bona fide (but incorrectly) believes that the lease period was extended

9
Answer: 3
General: A lawful holder is defined as a person who physically controls a thing with the owner’s
permission or on another legal basis with the intention to derive a benefit.
Option 1: Ownership is the most complete real right that a person can have with regards to
his/her thing – it is not a mere real relationship such as possession and holdership, which are
distinguished from ownership. Therefore, an owner cannot be classified as a lawful holder.
Option 2: The controller in this regard is a bona fide possessor because he/she is in physical
control of the thing with the intention of an owner. A person who concludes a contract of sale
with a non-owner and who after delivery uses the thing assuming that he/she became the
owner is a bona fide possessor. Such a person controls the thing unlawfully because he/she is
not the owner. The control is however bona fide because the person is unaware that he/she
does not meet the requirements for the acquisition of ownership.
Option 3: A pledgee is a lawful holder because a pledgee controls the pledged thing with the
permission of the owner (pledgor) and with the intention to derive a benefit from it. A pledgee
does not regard himself/herself as the owner. The ownership of the pledgor (owner) is
respected.
Option 4: The lessee in this regard is a bona fide unlawful holder because he/she is in
occupation and is also deriving benefits from occupying the premises even though he/she
incorrectly believed that the lease period was extended. During the lease period a lessee is a
lawful holder, but the control of the lessee in this instance became unlawful after the lease
expired.

(Study Guide p 150-151)

QUESTIONS 5-6 ARE BASED ON THE FOLLOWING SET OF FACTS:

Dihya has entered into an agreement with Quinton in terms of which he grants Dihya the right
to use the road to Waterford that crosses his farm. This agreement is in writing, but it is not
registered. Quinton sells the farm and the new owner, who knows about the servitude
agreement, refuses to let Dihya use the road.

QUESTION 5
Indicate the correct option.

What type of right did Dihya obtain?

(1) real right

(2) personal right
(3) limited real right
(4) none of the above

Answer: 2
Option 1: Dihya has not obtained a real right because registration has not taken place yet.
Option 2: Because the servitude agreement was not registered only a personal right to have
the servitude registered was created. Because the new owner knew about Dihya’s
unregistered servitude agreement the new owner, in terms of the doctrine of notice, is bound to
respect the agreement and to have the servitude registered.
Option 3: Dihya’s right in respect of the servitude is not yet a limited real right. Upon
registration of the servitude Dihya’s right will be a limited real right.
Option 4: Option 2 is correct. (Study Guide p 183)
10
 PVL3701/201/2/2019

QUESTION 6
Which of the following options are true with regard to the doctrine of notice?
(a) 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.
(b) Someone who acquires ownership of the servient tenement and who does not know
that there is an unregistered servitude agreement for a praedial servitude in respect of
that land, is bound to respect the servitude agreement because a praedial/land servitude
is attached to the land (servient tenement).
(c) Someone who acquires ownership of the servient tenement at a judicial auction is
only bound to respect an unregistered servitude agreement if he/she was aware of
the unregistered servitude agreement in respect of the land at the time of the auction.

Indicate the correct option.

(1) (a), (b) and (c)

(2) (a) and (c)

(3) (b) and (c)

(4) (a) only

Answer: 4
Someone who acquires ownership of the servient tenement who knew that there is an
unregistered servitude agreement in respect of that land is bound to respect the servitude
agreement. Therefore statement (a) is correct.
Statement (b) is incorrect because the doctrine of notice is not fulfilled because at the time of
acquiring the servient tenement, the person was not aware of the unregistered servitude
agreement.
Statement (c) is incorrect because a person who acquires land at a judicial auction has to
respect an unregistered servitude agreement even if such a person does not know about the
existence of the servitude agreement.
Option (4) is correct because only statement (a) is correct.

(Study Guide p 183)

11
QUESTION 7
Indicate the correct option.
Solly is the owner of a farm. The municipality needs to build a national road through a part of
Solly’s farm and wants to buy that piece of land from him. Solly refuses to sell that part of
his farm to the municipality.
(1) Ownership is the most comprehensive real right a person can have over his/her
own thing and in principle an owner may do with the thing as he/she pleases.
Consequently, Solly is entitled to refuse to sell that piece of land to the municipality.
(2) In terms of First National Bank of SA Limited t/a Wesbank v Commissioner for the
South African Revenue Services; First National Bank of SA Ltd t/a Wesbank v
Minister of Finance (2002) (7) BCLR 702 (CC)) ‘property’ in section 25 must be
interpreted in the narrow sense. A piece of agricultural land that hasn’t been
subdivided cannot qualify as ‘property’ and may not be deprived or expropriated.
(3) The municipality may, in terms of section 25(1) of the 1996 Constitution, expropriate
that piece of land and pay Solly reasonable compensation. The amount, time and
manner of payment of compensation must be determined by the parties or should be
decided by a court.
(4) Because the national road is in the public interest the municipality may, in terms
of section 25(1) of the 1996 Constitution, deprive Solly of that piece of land without
paying him any compensation.

Answer: 3
Option 1: The statement is incorrect. Ownership can be limited in this instance in terms of the
law – Section 25 of the Constitution.
Option 2: The statement is incorrect. The Court in FNB held that “property” for purposes of
section 25 of the Constitution should be interpreted wide. The Constitution Court held that it
was practically impossible to furnish and unwise to attempt a comprehensive definition of
property for the purposes of section 25 but that it was sufficient to hold that ownership of
corporeal movables must, as must ownership of land, lie in the heart of our constitutional
concept of property. The piece of land should qualify as “property” for purposes of section 25 of
the Constitution.
Option 3: The statement is correct. The municipality may, in terms of section 25(2) of the
Constitution, expropriate the piece of Solly’s land. The intended use of the piece of land, to
build a road, is in the public interest and/or for a public purpose. The amount, time and manner
of payment of compensation must be determined by the parties or should be decided by a
court. This will constitute a valid expropriation in terms of section 25(1).
Option 4: The statement is incorrect. In terms of section 25(2) compensation is payable in
respect of expropriation. In February 2018, the National Assembly adopted a motion that
Parliament's Constitutional Review Committee should investigate mechanisms through which
land could be expropriated without compensation. The amendment process is ongoing but
Section 25 has not been amended yet.

(Study Guide p 49 & 260-263. 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) (7) BCLR 702 (CC) par 51)

12
 PVL3701/201/2/2019

QUESTION 8
Indicate the correct answer.
The following is an example of manufacturing (specificatio):
(1) Vincent pours his oil into Alfred’s half empty oil flask.

(2) Vincent takes Alfred’s grapes and makes wine from it.

(3) Vincent weaves his valuable gold threat into Alfred’s cloth.
(4) Vincent catches and slaughters a stray chicken which he then cooks and eats.

Answer: 2
General: Manufacturing (specificatio) is defined as an original method of acquiring ownership
in terms of which ownership is acquired by the unauthorised production of a completely new
thing, using a thing belonging to another.
Option 1: This option is incorrect because mixing of similar fluids (oils of Alfred and Vincent) is
called mingling (confusio).
Option 2: The statement is correct. Making wine from Alfred’s grapes comply with the definition
of manufacturing (specificatio) because it is impossible for the grapes to revert to their original
form.
Option 3: The statement is incorrect. Vincent’s weaving of his gold threat into Alfred’s cloth is
known as accession (accessio). The gold threat in this instance is considered an accessory to
the principal thing (cloth) and the accessory loses its independence and become part of the
principal thing.
Option 4: The statement is incorrect. A stray chicken in this regard is a thing that does not
belong to anyone (res nullius) and ownership thereof is acquired by way of appropriation.
Therefore, Vincent acquired ownership thereof by way of appropriation.

(Study Guide p 64, 84-86)

QUESTION 9

Which one of the following statements with regards to the interdict is incorrect?
(1) In order to succeed with the application for an interdict no other effective remedy
should be available.
(2) Only owners can apply for an interdict.

(3) The interdict is a speedy remedy.

(4) The requirements for an interdict were set out in Setlogelo v Setlogelo (1914 AD
221 227).

Answer: 2
General: An interdict can be defined as a summary court order applied for on an urgent basis
to force a person to do something or refrain from doing something.
Options (1), (3) and (4) are correct. The interdict is not only available to owners, for purposes
of the protection of ownership but also for the protection of any person with a clear right over a
thing, for example a servitude holder.

(Study Guide p 124)

13
QUESTION 10
Indicate the incorrect 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) in which court decision 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 Justinian’s 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
Option 1 is correct see p 468 of the MacDonald decision.
Option 2 is correct see p 466 of the MacDonald decision.
Option 3 is incorrect. MacDonald Ltd v Radin dealt with the three criteria applied by the courts
to determine whether a movable thing is attached to an immovable thing in such a fashion that
it subsequently becomes part of the immovable thing. These criteria are (i) the nature of the
attached thing; (ii) the manner and degree of attachment and (iii) the intention of the annexor
or of the owner of the movable thing. In this decision the court held that the machinery could be
removed.
Option 4 is correct – see p 481 of the MacDonald decision.

(Study Guide p 76-77; MacDonald Ltd v Radin 1915 AD 454)

4 CORRECTIONS – STUDY GUIDE

1 On page 5 of Tutorial letter 101 it is stated that the Study Guide is divided into four parts.
We changed the format of the Study Guide. The Study Guide is now only divided into
three parts.

2 The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ...”

3 In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example, a person who
controls a car which he/she borrowed from a friend is a lawful holder, but does not have a
real right over the car. A pledgee, however, is a good example of a person who is a
lawful holder, but also has a limited real security right over the pledged thing (see Study
Guide page 215 par 2.4.1).

14
 PVL3701/201/2/2019

4 The answer to Question 4 on page 240 of the Study Guide has been taken out of the
Study Guide. The suggested answer is the following:

For a successful reliance on his lien, Z must prove that he was in control (1) of the car
and that he incurred expenses (1) in regard to the car. Z complies with both of these
requirements; the only problem is the fact that he incurred these expenses in terms of his
agreement with T. However, Z can rely on his lien even against the owner with whom he
had no agreement (1) since enrichment liens (1) are limited real rights (1) which are
based on the principle of unjust enrichment. (1)

Two types of enrichment liens are distinguished, namely salvage and improvement liens.
When someone incurs expenses that are necessary for the preservation of a thing (such
as the installation of the driveshaft), (1) we are dealing with a salvage lien (1) and Z is
entitled to retain the car until he is compensated for the amount by which the owner (Q)
was enriched or he himself impoverished, whichever is the lesser. (1) It may therefore be
less than R2600-00, (1) but normally it is the amount of the owner’s enrichment.

When someone incurs expenses which are not necessary for the preservation of the
thing, but which increase the market value (such as the device which improves petrol
consumption), (1) we are dealing with an improvement lien (1) and Z is entitled to retain
the car until he is compensated for the amount by which the market value (1) of the car
has been increased.

For the luxurious improvements which are prompted by a mere whim or caprice of a
person (such as the replacement of the seat covers with leather seat covers), Z cannot
claim compensation from Q and is therefore not entitled to a lien either. (1)

Therefore, Z is only entitled to retain the car until Q has compensated him for an amount
of more or less R2600-00 for the crankshaft, together with the amount by which the
market value of the car was increased by the installation of the device to improve petrol
consumption. (1)

5 FREQUENTLY ASKED QUESTIONS

The following questions are some of the questions that students who are registered for this
module often ask us.

We briefly answer these questions below.

• Is there a prescribed textbook for this module?
No, there is not, see paragraph 4.1 of tutorial letter 101/3/2019.

• Will there be discussion classes for this module?

No, at this stage discussion classes are not offered for this module. However, you are always
welcome to contact us with a question concerning the contents of the module.

15
• I am having trouble in obtaining the prescribed cases from the library or to download
the cases.
You have to take this up with the library. See paragraph 4.3 of tutorial letter 101/3/2019 on how
to download the cases electronically.

• Are there any hints (tips) for the examination?

No, unfortunately not. The best advice that we can give you is to spend enough time on your
studies. It is also a good idea to keep the table which we included in this tutorial letter with you
while you study.

• Where can I obtain previous examination papers?

There are previous examination papers on myUnisa.

UNISA
2019

16
 PVL3701/201/1/2019

Tutorial Letter 201/1/2019

Property Law

PVL3701

Semester 1

Department of Private Law

This tutorial letter contains important information about this
module.

Bar code
 TABLE OF CONTENTS

1 EXAMINATION INFORMATION…………………………………………………………………3

2 COMMENTARY ON ASSIGNMENT 01 [UNIQUE NUMBER 687062]………………………4

3 COMMENTARY ON ASSIGNMENT 02 [UNIQUE NUMBER 708716]………………………9

4 CORRECTIONS – NEW STUDY GUIDE………………………………………………………19

5 FREQUENTLY ASKED QUESTIONS………………………………………………………….20

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.

Please take note that Adv Lefa Ntsoane has been appointed as the Chair of the Department of
Private Law and will not be involved with this module during 2019.

Yours sincerely

PROF INA KNOBEL knobeim@[Link] 012 429-8491 / 084 9651 742

PROF MITZI WIESE wiesem@[Link] 012 429-8466 / 083 259 9450

2
 PVL3701/201

1 EXAMINATION INFORMATION
✓ This is the last tutorial letter that you will receive this semester.

✓ The examination paper consists of two sections:

o Section 1 (40 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 compulsory assignment 02.

o The questions in Section 2 (60 marks out of 100 marks) of the examination
paper will be similar to the activities in your Study Guide.

✓ Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2019 (p 7) namely:

o Ex parte Geldenhuys 1926 OPD 155

o MacDonald Ltd v Radin NO and the Potchefstroom Dairies and Industries Co Ltd
1915 AD 454
o Info Plus v Scheelke 1998 (3) SA 184 (SCA)
o Nino Bonino v De Lange 1906 TS 120
o Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA)
o Willoughby’s Consolidated Co Ltd v Copthall Stores Ltd 1913 AD 267
o Grant v Stonestreet 1968 (4) SA 1 (A)
o Mapenduka v Ashington 1919 AD 33
o 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) (also reported at [2002] 7 BCLR 702 (CC))

Please remember that all other cases to which we refer in the Study Guide should be studied to
the extent that they are discussed in the Study Guide.

✓ Take note of the mark allocation in Tutorial letter 101/3/2019 (p 9) inserted below for
ease of reference. This will be very helpful in your preparation for the examination.

3
 Part 1 (study units 1-2): Introduction, things as legal objects and real rights and personal
rights (10%)

Part 2 (study units 3-7): Ownership: definition of, limitations on, original acquisition of,
derivative acquisition of, protection of, termination of and co-
ownership (40%)

Part 3 (study units 8-9): Possession and holdership: nature of, protection of and
termination of (15%)

Part 4 (study units 10-12): Limited real rights: introduction, servitudes, restrictive
conditions, pledge, security by means of claims, mortgage,
tacit mortgages, mineral rights, water rights and tenant’s
rights (25%)

Part 5 (study units 13-15): Constitutional property law, land reform and additional forms
of statutory land use (10%)

2 COMMENTARY ON ASSIGNMENT 01 [UNIQUE NUMBER 687062]

Before you answer the questions of this assignment, work through Study Units 1-9 very
carefully.

In Study Unit 1 we introduce you to three real relationships, namely:

• ownership
• possession and
• holdership

The definition, limitation, acquisition, protection and termination of ownership are dealt with in
Study Units 3-6. Study Unit 7 deals with co-ownership. The nature, protection and termination of
possession and holdership are discussed in Study Units 8 and 9.

4
 PVL3701/201

Indicate whether the following statements are true or false and fully motivate your
answer:

(a) Ownership is a personal real right. (2)

False. (1)

Ownership is the most comprehensive/complete real right (1) that a person can have with
regards to his/her thing. Many students get confused with the different types of rights and the
incorrect term “personal real right” is often used in examination answers. Please make sure that
you understand the difference between real rights and personal rights. A “personal real right”
does not exist.

[No marks for “true” regardless of the motivation.]

[Study Guide p 41]

(b) The spoliation remedy can only be instituted by a lessee/tenant against the
lessor/landlord. (4)

False. (1)

Any person who enjoyed peaceful (½) and undisturbed (½) control (1) of a thing and whose
control has been disturbed unlawfully (1), can institute the spoliation remedy against the
person who disturbed his/her control in an unlawful manner.

[No marks for “true” regardless of the motivation.]

[Study Guide p 162]

QUESTION 2

Explain the difference between a mala fide possessor and a mala fide unlawful holder by giving
a detailed example of each. Use your own words and own example. (4)

5
 Mala fide possessor Mala fide unlawful holder
X [a thief] steals Y’s car. (½) (½) mark for a X rents a car from Avis from Monday
suitable example to Friday. X wants to use the car for
the weekend and does not return
the car on Friday, but only on
Sunday afternoon. (½)
X controls the car unlawfully (½) mark for On Saturday and Sunday X is an
because he has the intention explaining why X’s unlawful holder because he is in
of an owner (animus domini), control is unlawful unlawful control of the car with the
(½) but ownership was not intention to derive a benefit. (½)
transferred to him.

X is a mala fide possessor 1 mark (2 x (½) for X is a mala fide unlawful holder
because he knows (½) that explaining why X’s because he knows (½) there is no
ownership was not transferred intention is mala legal ground (½) (rental agreement)
to him. (½) X’s intention is fide for his control of the car from
mala fide. Saturday to Sunday afternoon. X’s
intention is mala fide.
Study Guide p 150-151 Study Guide p 151-152

QUESTION 3

In Study Unit 6 we define the rei vindicatio as a real action with which an owner can claim
his/her thing from whoever is in control of it unlawfully. In Study Unit 9 we define the spoliation
remedy as a summary remedy issued upon urgent application aimed at restoring control of a
thing to the applicant from whom it was taken by means of unlawful self-help, without
investigating the merits of the original rights of the parties to control the thing.

Read the following set of facts:

In a reported case the respondent was an internet service provider who used the appellant’s
telephone and bandwith system. A dispute about due payment arose between the parties and
consequently the appellant disconnected the telephone and bandwith systems.
(a) This set of facts is based on one of the prescribed cases for this module. What is the
name of the case? (1)

Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA) (1)

6
 PVL3701/201

(b) Summarise the judgment under the following headings:

• Legal question

[Xsinet successfully applied for a spoliation order in the High Court. The High Court held that
the spoliation order is available for the unilateral termination of a service agreement for services
(such as telephone lines and bandwith) provided by the service provider (Telkom). Telkom
appealed to the Supreme Court of Appeal.]

The SCA had to decide if the extended application of the spoliation remedy in the case of quasi-
possession is applicable. (1)

• Ratio decidendi

Jones AJA stated that the spoliation remedy originally only protected the physical possession
(control) (1) of corporeal movable or immovable property. However, the law developed to also
protect ‘rights’ (incorporeal property). Rights cannot be possessed (controlled) and therefore it
was said that the holder of a right has “quasi-possession” of the right when he/she exercised
such a right. (1) [par 9]

According to Jones AJA there was no evidence that Xsinet was ever in possession of any of the
mechanisms by which its equipment was connected to the internet. The court held that it was
“both artificial and illogical” to conclude that Xsinet’s use of the telephones, lines, modems or
electrical impulses, gave it possession (control) of the connection of its corporeal property.
Furthermore, the court held that continuous use of the internet connection did not constitute
quasi-possession. (1) [par 12 and 13]

It was also found that Xsinet sought an order to compel specific performance of a contractual
right (1). The court held that the aim of the spoliation order is to restore control and not to
compel specific performance of a contractual right (personal right) (1) to resolve a contractual
dispute. [par 14]

[Maximum 3 marks]

7
 • Judgment

The court held that Xsinet’s use of the services at its premises was not an “incident of
possession” and that Telkom did not interfere with Xsinet’s possession of any of the
mechanisms (modems and telephones) that connected it (Xsinet) to the internet. (1)

The Supreme Court of Appeal overturned the High Court decision. (1)

[Maximum 1 mark]

Marking Rubric

Description Mark

Case name 1

Legal question

What is the legal question that the case dealt with? 1

Ratio decidendi

Briefly discuss the court’s reasons for its decision (ratio decidendi). 3

Judgment

Give a brief summary of the outcome of the decision. 1

Refer to the relevant pages/paragraphs of the case which you consulted in each
part of your summary. 2

Use of your own words as far as possible. Do not rewrite (“copy and paste”)
summaries that you found on the internet or in other sources – you will be 1
penalised.

Include “Student academic integrity declaration form” and a Bibliography in

assignment 1

Total 10

8
 PVL3701/201

3 COMMENTARY ON ASSIGNMENT 02 [UNIQUE NUMBER: 708716]

QUESTION 1

Indicate the correct option.

John donates a part of his farm which his son, Sam, leases from him to Sam. They obtain
permission to subdivide the farm and Sam erects a fence on the new boundary. Sam
fetches John and together they drink a toast at the new gate. John says to Sam: “Son, I am
glad that this piece of land is now your property!”
What type of right does Sam have with regard to the land?

(1) real right

(2) personal right

(3) limited real right

(4) none of the above

Answer: 2
Commentary:
Option 1: Sam will only acquire ownership (real right) once the property is subdivided and
transferred from John to him and registered in his (Sam’s) name.
Option 2: Sam has a personal right against John to have the piece of land that John donated to
him subdivided and registered into his name.
Option 3: A limited real right is a real right over another person’s thing. Examples of limited real
rights are servitudes, restrictive conditions and real security rights. Sam did not acquire a limited
real right over John’s land.

(Study Guide p 115)

9
QUESTION 2
Indicate the correct option.

Nehanda is the owner of a farm and has a lucerne field on the only piece of fertile land with
plenty of water. This lucerne field borders her neighbour’s farm. Her neighbour planted a row of
pine trees along the boundary between the two farms. The trees have grown big and the
branches hang over the lucerne field. The pine trees cast a lot of shade and the pine needles
fall onto the lucerne, killing large parts of it.

Which remedy does Nehanda have against the neighbour? Indicate the most suitable option.

(1) rei vindicatio

(2) actio ad exhibendum

(3) declaratory order

(4) interdict

Answer: 4
Commentary:
Option 1: The rei vindicatio a real action with which the owner can claim his/her thing from
whoever is in control of it unlawfully. This remedy is not applicable in this case.
Option 2: The actio ad exhibendum 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 mala fide
intention. This remedy is not applicable in this case.
Option 3: A declaratory order is applicable where there is a dispute as to the legal position of
contesting parties. The court then determines the rights and duties of the contesting parties.
Nehanda can apply to the court for a declaratory order but it would not solve her problem. The
interdict (option 4) is the most suitable remedy.
Option 4: Nehanda can institute an interdict against the neighbour. An interdict is a summary
court order applied for on an urgent basis. It is a speedy remedy where rights have been
infringed or are about to be infringed. In an application for an interdict the applicant may apply
for an order forcing a person to do something or to refrain from doing something. In this
scenario, Nehanda will request an interdict to force the neighbour to cut and remove the
overhanging branches. Nehanda will have to proof that (i) she has a clear right, (ii) that there is

10
 PVL3701/201

an actual or reasonably apprehended violation of a right, and (iii) that there is no similar
protection by any other ordinary remedy.

See Study Guide p 131 for a summary of the remedies.

(Study Guide p 123-124)

QUESTION 3
Indicate the incorrect answer.

Amina transferred an exclusive right to trade on a certain piece of land to Muhammad.

Muhammad transferred this right to his son, Arjun. The right was not registered in favour of
Muhammad. Amina sold her farm to Peter. Peter argues that Arjun is not entitled to trade on
that piece of land, but Arjun insists that he acquired that right from his father, Muhammad.

(1) Peter and Arjun can approach the court for a declaratory order.
(2) Arjun can enforce the personal right which his father transferred to him against Peter who
must register the servitude in favour of Arjun.
(3) Muhammad had a personal right against Amina which he could transfer to his son.
(4) Arjun cannot enforce the personal right which his father transferred to him against Peter
and has no right to trade on that piece of land.

Answer: 2
Commentary:
Option 1: If a person (Arjun) claims servitude rights (exclusive right of trade) and such rights are
disputed by the owner of the land (Peter) the owner may apply to the court for a declaratory
order. The court will determine the rights and duties of the contesting parties (Arjun and Peter).
Option 2: As cessionary (see comment at option 3 below) Arjun could have enforced his
personal right against Amina. Arjun could, however, not enforce his personal right to trade
against a third party, Peter. Personal rights are not enforceable against third parties, only real
rights are enforceable against third parties.
Option 3: The exclusive right to trade is a personal right. Muhammad had a personal right to
trade exclusively on the land which he could transfer to his son, Arjun, by means of cession.
Arjun becomes the cessionary and step into the shoes of Muhammed.

11
Option 4: See comment at option 2 above.

(Study Guide p 125 and 200)

QUESTION 4
Indicate the correct option.

In Ex parte Geldenhuys (1926 OPD 155) the court formulated the following test:

One has to look not so much to the right, but also to the correlative obligation. If that
obligation is a burden on the land, a subtraction from the dominium, the
corresponding right is real and registrable; 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 a right in personam, and it cannot as a rule be registered.

In terms of this test, which of the following are not registrable?

(1) A usufruct on a farm.

(2) A long term lease of a car.

(3) A condition in a will that a farm must be sub-divided when one of the co-owners
reaches the age of majority.
(4) A condition in a will that a farm must be sub-divided by means of the drawing of lots.

Answer: 2
Commentary:
General: In Ex parte Geldenhuys (1926 OPD 155) the court came to the conclusion that the
provisions that the farm must be divided when S reaches the 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 (in that the time and manner of the division restrict the ordinary rights of co-owners to
divide the common property when and in a manner on which they agree).
These provisions were regarded as conditions aimed at creating real rights and could therefore
be registered.
Option 1: A usufruct on land (farm) clearly creates a burden on the land itself and is registrable.
Option 2: A long term lease of a car places no burden on land and is not registrable.
Option 3 and 4: Both conditions place a burden on land (farm) and is registrable.

12
 PVL3701/201

(Study Guide p 36 and Ex parte Geldenhuys 1926 OPD 155)

QUESTION 5
Indicate the correct option.
In which case did the court formulate the following criteria in order to establish whether a
movable has become permanently attached to an immovable: the nature and the purpose of
the attached thing, the manner and degree of attachment and the intention of the person
annexing it?

(1) Standard-Vacuum Refining Co v Durban City Council 1961 (2) SA 669 (A)

(2) Konstanz Properties (Pty) Ltd v WM Spilhaus en Kie (Wp) Bpk 1996 (3) SA 273 (A)

(3) MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd 1915
AD 454

(4) Van Wezel v Van Wezel’s Trustees 1924 AD 409

Answer: 3
Commentary: MacDonald Ltd v Radin and the Potchefstroom Dairies and Industries Co Ltd
1915 AD 454 dealt with the question whether a movable has become permanently attached
to an immovable. The court laid down the three criteria to determine whether a movable thing
has become permanently attached to an immovable thing by means of accession in such a
fashion that it subsequently becomes part of the immovable thing.

See Study Guide p 76-79 for a discussion of the cases listed in options 1, 2 and 4.

(Study Guide p 182-184 and MacDonald Ltd v Radin and the Potchefstroom Dairies and
Industries Co Ltd 1915 AD 454)

13
QUESTION 6

Indicate the correct option.

Which forms of constructive or fictitious delivery can take place in instances where the
transferee is in a position where someone else exercises physical control of the thing on his/her
behalf?

(1) symbolic delivery, delivery with the short hand (traditio brevi manu)

(2) constitutum possessorium, delivery with the short hand (traditio brevi manu)

(3) attornment, constitutum possessorium

(4) attornment, delivery with the long hand (traditio longa manu)

Answer: 3
Commentary:
General: With constructive or fictitious delivery there is not a physical or actual handing-over of
the thing.

Attornment and constitutum possessorium are forms of constructive or fictitious delivery where
the transferee is in a position where someone else exercises physical control of the thing on
his/her behalf. Attornment is a derivative method of transferring ownership where the transferor,
the transferee and a third party agree that the third party will control the thing on behalf of the
transferee as owner. Constitutum possessorium is a form of constructive or fictional delivery
where the transferor retains physical control over the thing of which he/she has agreed to
transfer ownership to the transferee.

The transferee is placed in a position to exercise physical control in the case of symbolic
delivery and delivery with the long hand.

In the case of delivery with the short hand, the transferee is already in physical control of the
thing by virtue of some other legal relationship.

(Study Guide p 100-111)

14
 PVL3701/201

QUESTION 7
Indicate the correct option.
In Info Plus v Scheelke (1998 (3) SA 184 (SCA)) the court:
(1) applied the principles of traditio brevi manu on the situation and held that Info Plus
did not become owner of the Mercedes when the second respondent paid the purchase
price to Wesbank
(2) applied the principles of traditio brevi manu on the situation and held that Info Plus
became owner of the Mercedes when the second respondent paid the purchase price
to Wesbank

(3) held that the principles of traditio brevi manu are not applicable where a hire-
purchase buyer is no longer in control of the object at the time of extinction of the debt
(4) held that estoppel could succeed against Info Plus

Answer: 2
Commentary: In Info Plus v Scheelke (1998 (3) SA 184 (SCA)) the court applied the principles
of traditio brevi manu on the situation and held that Info Plus became owner of the Mercedes
when the second respondent paid the purchase price to Wesbank. Delivery with the short
hand takes place when there is no transfer of physical control because the transferee is
already in control. In the Info Plus case, a third party (not the buyer in terms of the instalment
sale agreement) paid the final instalment. The court held that the buyer became owner by
means of delivery with the short hand on payment of the last instalment regardless who paid
the last instalment.

Study Guide p 105 and Info Plus v Scheelke 1998 (3) SA 184 (SCA)

QUESTION 8

Indicate the correct option.

Mary and Benjamin are co-owners of a farm. They built a road on the farm, which they use to
transport lime to the market. Without Mary's knowledge and approval Benjamin gives

15
permission to a neighbour, Tuma, to use the road so that he can transport his lime to the
market. Mary is unhappy about the heavy traffic on the road and asks Benjamin to revoke his
permission to Tuma. Mary also asks Tuma to discontinue his activities. Neither Benjamin nor
Tuma takes any notice of Mary.

Which remedy does Mary have against Benjamin?

(1) actio legis aquiliae

(2) condictio furtiva

(3) actio negatoria

(4) rei vindicatio

Answer: 1
Commentary:
Option 1: Benjamin, Mary’s co-owner, uses the thing (road over the farm) unreasonably for a
purpose for which it was not intended. Mary can claim damages from Benjamin with the actio
legis aquiliae.
Option 2: The condictio furtiva is a personal action against a thief (or his/her heirs) in terms of
which the applicant can claim the stolen thing or its highest value since the theft. This action is
not applicable in this case.
Option 3: The actio negatoria is a real action aimed at protection of ownership in circumstances
where third persons seek to exercise rights of a servitude holder which they do not have or
where the servitude holder exceeds the limits of their servitudes. This action is not applicable in
this case. Please note that the question specifically asks what remedy Mary has against her co-
owner, Benjamin and not against the third person, Tuma. With regards to Tuma, Mary might
argue that he acts as if he is a servitude holder and exercises rights which he, Tuma, doesn’t
have and institute the actio negatoria against Tuma.
Option 4: The rei vindicatio is a real action with which the owner can claim his/her thing from
whoever is in control of it unlawfully. This action is not applicable in this case.

See Study Guide p 131 for a summary of the remedies.

(Study Guide p 141)

16
 PVL3701/201

QUESTION 9

Indicate the correct option.

Jimmy entered into an agreement with Sally in terms of which he grants Sally the right to use
the road to Sally’s farm that crosses his farm. This agreement is in writing, but is not registered.
Jimmy sells the farm to a new owner, who knows about the servitude agreement, but refuses to
allow Sally to use the road.

In terms of Grant v Stonestreet (1968 (4) SA 1 (A)), Sally’s legal position is the following:

(1) In terms of the doctrine of notice, Sally obtained a limited real right to use the road and
the new owner must respect this real right.

(2) Sally has no legal remedy and the new owner does not have to allow Sally to use the
road, because the servitude agreement was not registered.

(3) A buyer (new owner) who has knowledge of the existence of the servitude agreement is
bound to register the servitude in terms of the doctrine of notice.

(4) As Jimmy’s successor in title, the new owner must adhere to the servitude agreement
and allow Sally to use the road.

Answer: 3
Commentary:
Option 1: Sally did not obtain a limited real right. A limited real right of servitude is acquired only
on registration of the servitude.
Option 2: Sally does have a legal remedy. In Grant v Stonestreet the court held that a buyer
who has knowledge of the existence of the servitude agreement may be obliged to register the
servitude in terms of the doctrine of knowledge.
Option 3: As stated above (option 2) Sally can insist that the new owner register the servitude if
she can proof that he had knowledge of the existence of the servitude agreement.
Option 4: Although the new owner is obliged to register the servitude, the obligation does not
arise from the fact that the new owner is the previous owner’s (Jimmy’s) successor in title. The
obligation arises from the doctrine of notice. The basis of this doctrine is that in attempting to

17
repudiate the servitude the buyer, under these circumstances, is acting mala fide. The law
refuses to countenance such attempted repudiation, since this type of action by the buyer
amounts to fraud.

(Study Guide p 183 and 187)

QUESTION 10
Indicate the incorrect option.

In Nino Bonino v De Lange (1906 TS 120):

(1) It was stated that nobody was permitted to dispossess another forcibly or wrongfully
of the possession of property, movable or immovable.
(2) The court referred to the principle which provided that no person was allowed to take
the law into his/her own hands.
(3) The lessee succeeded with the spoliation remedy.

(4) The court indicated that the merits of the dispute should be considered during the
application for the spoliation remedy.

Answer: 4
Commentary: The spoliation order is a summary remedy, usually issued upon urgent
application aimed at restoring control of a thing to the applicant from whom it was taken by
means of unlawful self-help, without investigating the merits of the original rights of the parties to
control the thing.

(Study Guide p 162 and Nino Bonino v De Lange 1906 TS 120)

18
 PVL3701/201

4 CORRECTIONS – NEW STUDY GUIDE

1 On page 5 of Tutorial letter 101 it is stated that the Study Guide is divided into four parts.
We changed the format of the Study Guide. The Study Guide is now only divided into
three parts.

2 The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ... “

3 In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example a person who controls
a car which he/she borrowed from a friend (such as X in Question 2 of Assignment 1) is a
lawful holder, but does not have a real right over the car. A pledgee, however, is a good
example of a person who is a lawful holder, but also has a limited real security right over
the pledged thing (see Study Guide page 215 par 2.4.1).

4 The answer to Question 4 on page 240 of the Study Guide has been taken out of the
Study Guide. The suggested answer is the following:

For a successful reliance on his lien, Z must prove that he was in control (1) of the car
and that he incurred expenses (1) in regard to the car. Z complies with both of these
requirements; the only problem is the fact that he incurred these expenses in terms of his
agreement with T. However, Z can rely on his lien even against the owner with whom he
had no agreement (1) since enrichment liens (1) are limited real rights (1) which are
based on the principle of unjust enrichment. (1)

Two types of enrichment liens are distinguished, namely salvage and improvement liens.
When someone incurs expenses that are necessary for the preservation of a thing (such
as the installation of the driveshaft), (1) we are dealing with a salvage lien (1) and Z is
entitled to retain the car until he is compensated for the amount by which the owner (Q)
was enriched or he himself impoverished, whichever is the lesser. (1) It may therefore be
less than R2600-00, (1) but normally it is the amount of the owner’s enrichment.

19
 When someone incurs expenses which are not necessary for the preservation of the
thing, but which increase the market value (such as the device which improves petrol
consumption), (1) we are dealing with an improvement lien (1) and Z is entitled to retain
the car until he is compensated for the amount by which the market value (1) of the car
has been increased.

For the luxurious improvements which are prompted by a mere whim or caprice of a
person (such as the replacement of the seat covers with leather seat covers), Z cannot
claim compensation from Q and is therefore not entitled to a lien either. (1)

Therefore, Z is only entitled to retain the car until Q has compensated him for an amount
of more or less R2600-00 for the crankshaft, together with the amount by which the
market value of the car was increased by the installation of the device to improve petrol
consumption. (1)

5 FREQUENTLY ASKED QUESTIONS

The following questions are some of the questions that students who are registered for this
module often ask us.

We briefly answer these questions below.

• Is there a prescribed textbook for this module?

No, there is not, see paragraph 4.1 of tutorial letter 101/3/2019.

• Will there be discussion classes for this module?

No, at this stage discussion classes are not offered for this module. However, you are always
welcome to contact us with a question concerning the contents of the module.

• I am having trouble in obtaining the prescribed cases from the library or to download
the cases.

20
 PVL3701/201

You have to take this up with the library. See paragraph 4.3 of tutorial letter 101/3/2019 on how
to download the cases electronically.

• Are there any hints (tips) for the examination?

No, unfortunately not. The best advice that we can give you is to spend enough time on your
studies. It is also a good idea to keep the table which we included in this tutorial letter with you
while you study.

• Where can I obtain previous examination papers?

There are previous examination papers on myUnisa.

UNISA
2019

21
 PVL3701/201/2/2020

Tutorial Letter 201/2/2020

Property Law

PVL3701

Semester 2

Department of Private Law

This tutorial letter contains important information about this
module.

Bar code
 TABLE OF CONTENTS

1 EXAMINATION INFORMATION

2 COMMENTARY ON ASSIGNMENT 01 [UNIQUE NUMBER 697745]

3 COMMENTARY ON ASSIGNMENT 02 [UNIQUE NUMBER 676049]

4 CORRECTIONS – STUDY GUIDE

5 FREQUENTLY ASKED QUESTIONS

Dear Student

This tutorial letter contains information on the examination and commentary on assignments 01
and 02 for the second 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

PROF INA KNOBEL knobeim@[Link] 012 429-8491

MR LEKOBA KUTU kutulm1@[Link] 012 429-6580

2
 PVL3701/201

1 EXAMINATION INFORMATION

The module was initially scheduled for a venue-based examination. Due to the COVID-19
pandemic, the examination will now be conducted online as follows:

 The examination will consist of Multiple-choice questions.

 The examination question paper will consist of 50 Multiple-choice questions, which counts
2 marks each. The total of the exam question paper is 100 marks.

 The questions will be similar to the questions in assignment 2.

 The mark allocation provided on page 9 of tutorial letter 101/3/2020 is still applicable to
this examination question paper.

 The examination will be managed on the myUnisa platform.

 The examination is a closed book examination. While the examination is in progress, you
are not allowed to consult another person or any source in order to assist you to answer
any of the questions contained in this question paper. While the examination is in
progress, you may not assist another student in answering any of the questions contained
in this question paper.

 Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2020 (page 7) namely:

o Hendricks v Hendricks (20519/14) [2015] ZASCA 165 (25 November 2015)

o City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents
Association (025/2011) [2011] ZASCA 227
o 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) (also reported at [2002] 7 BCLR 702 (CC))

Please remember that all other cases to which we refer in the Study Guide should be studied to
the extent that they are discussed in the Study Guide.

 Take note of the mark allocation in Tutorial letter 101/3/2020 (page 9) inserted below for
ease of reference. This will be very helpful in your preparation for the examination.

Part 1 (study units 1-2): Introduction, things as legal objects and real rights and personal
rights (10%)

Part 2 (study units 3-7): Ownership: definition of, limitations on, original acquisition of,
derivative acquisition of, protection of, termination of and co-
ownership (40%)

Part 3 (study units 8-9): Possession and holdership: nature of, protection of and

3
 termination of (15%)

Part 4 (study units 10-12): Limited real rights: introduction, servitudes, restrictive
conditions, pledge, security by means of claims, mortgage,
tacit mortgages, mineral rights, water rights and tenant’s
rights (25%)

Part 5 (study units 13-15): Constitutional property law, land reform and additional forms
of statutory land use (10%)

2 COMMENTARY ON ASSIGNMENT 01 [UNIQUE NUMBER 697745]

ASSIGNMENT 01: Semester 2

UNIQUE ASSIGNMENT NUMBER: 697745
REMEMBER:
· This is a written assignment.
· Your mark out of 20, will count 50% towards your semester mark.
· Your answer (excluding a cover sheet and your name, student number and assignment
details) should not exceed two typed A4 pages or three neatly handwritten A4 pages. You
will be penalised if you exceed the prescribed length.

Before you answer the questions of this assignment, read through Study Units 1-9 very carefully.

In Study Unit 1 we introduce you to three real relationships, namely:

 ownership
 possession and
 holdership

The definition, limitation, acquisition, protection and termination of ownership are dealt with in
Study Units 3-6. Study Unit 7 deals with co-ownership. The nature, protection and termination of
possession and holdership are discussed in Study Units 8 and 9.

QUESTION 1

(a) Can it be said that ownership is an “unrestricted right”? Motivate your answer. (3)

Remark

Do not merely quote the definition of ownership. You must interpret the definition of ownership to
answer the question. Marks will be awarded for your motivation. No mark will be awarded for
“yes” or “no”.

SUGGESTED ANSWER:

4
 PVL3701/201

 Ownership is regarded as the most comprehensive/complete real right over a thing. An

owner can, in principle, do with his/her thing as he/she pleases. (1)

 However, ownership is restricted or limited, (1)

 by the law (eg statutory limitations and neighbour law principles) (1) and

 by rights of other people (eg limited real rights or personal rights). (1)

[Maximum 3 marks]

[Study Guide page 48]

(b) Describe your understanding of the entitlements of ownership with reference to a practical
example. (2)

SUGGESTED ANSWER:

 The holder of a real right (in this question the real right is ownership) is entitled by the legal
order to perform certain “acts” (1) in connection with the thing. These “acts” are referred to
as the “entitlements” of ownership.

 Or it can be referred to as the “content” (1) of ownership.

 For example: As the owner of a car I have the entitlement to claim my car from another
person who is in unlawful control of my car with the rei vindicatio (vindicate) or as the
owner of my house I have the entitlement to register a mortgage bond over the house
(burden). (Other entitlements include the entitlement to use and enjoy; enjoy the fruits;
control; consume or destroy; alienate. 1 mark for any correct example referring to these
entitlements.)

[Maximum 2 marks]

[Study Guide page 45]

(c) Briefly distinguish between original acquisition of ownership and derivative acquisition of
ownership. (4)

Remark

Use your own words to explain the difference between original and derivative acquisition of
ownership. Do not mention examples in your answer.

SUGGESTED ANSWER:

 Original acquisition of ownership is where there is no co-operation (1) from the

5
 predecessor in title or there is no predecessor in title (res nullius) (1). There is no transfer
(1) of ownership. [Maximum 2 for description of original acquisition]

 Derivative acquisition of ownership is when there is co-operation (1) from the predecessor
in title and ownership is transferred (1) from the transferor (predecessor in title) to the
transferee (new owner). The transferee’s ownership is derived (1) from the transferor’s
ownership. [Maximum 2 for description of derivative acquisition]

[Maximum 4 marks for the question]

[Study Guide page 63]

QUESTION 2

In Study Unit 9 we define the spoliation remedy as a summary remedy issued upon urgent
application aimed at restoring control of a thing to the applicant from whom it was taken by
means of unlawful self-help, without investigating the merits of the original rights of the parties to
control the thing.

In view of this, read City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents
Association ((025/2011) [2011] ZASCA 227) (one of the prescribed cases for this module
available in the electronic reserves on the Library website (see par 4.3 above)) which dealt with
the spoliation remedy.

Please note that this case also dealt with the right to housing (section 26 of the Constitution of
the Republic of South Africa, 1996) and eviction proceedings in terms of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). However, this assignment is
only concerned with aspects relating to the spoliation remedy.

You must use your own words. One mark will be deducted for each answer copied word for word
from the Study Guide, the case or other sources. Please refer to the relevant paragraphs of the
case that you use in your answers.

In City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents Association

((025/2011) [2011] ZASCA 227) the City of Tshwane Municipality (“the City”) appealed against a
decision from the North Gauteng High Court.

(a) Briefly explain the facts of the case that led to the urgent spoliation application of the
respondents to the North Gauteng High Court. (1)

SUGGESTED ANSWER:

A number of single male hostel dwellers (mostly former migrant mine labourers) lived in a
building (Block J Mamelodi West hostel complex) owned by the City of Tshwane Municipality
(the “Municipality”). The building was badly dilapidated and, in accordance with the Integrated
Residential Development Programme, the Municipality began with an extensive hostel
redevelopment plan. The City held information sessions and negotiated with the hostel dwellers
since 2004. In November 2009 the roof structures and roof covering of Block J were removed by

6
 PVL3701/201

City officials and private contractors. The hostel dwellers were still living in the building when the
roof structures and roof covering were removed and they lodged an urgent spoliation application
in the North Gauteng High Court.

[Maximum 1 mark for the facts; a ½ mark could also be allocated]

[City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents Association

((025/2011) [2011] ZASCA 227 para 4]

(b) What did the respondents have to prove to succeed with the spoliation application? (3)

SUGGESTED ANSWER:

The respondents had to prove that

 they were in peaceful (½) and undisturbed (½) possession (control) (1) and

 that their possession (control) was disturbed (½) in an unlawful (½) manner.

[City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents Association

((025/2011) [2011] ZASCA 227 para 6 & 7]

(c) What was the City’s (appellant) main defence against this remedy? (1)

SUGGESTED ANSWER:

The City argued that the hostel dwellers consented to the removal of the roof structures and roof
covering. (1)

[City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents Association

((025/2011) [2011] ZASCA 227 para 6]

(d) Fully explain why the City’s main defence against the spoliation application failed. (2)

SUGGESTED ANSWER:

The court held that the spoliation application was not concerned with the merits (1) of the case.
It was therefore, irrelevant whether the hostel dwellers consented (1) to the removal of the roof
structures and roof covering. It was also held that, even if the consent of the hostel dwellers
should be considered, the City did not provide any evidence (1) of the alleged consent or
agreement.

[Maximum 2 marks]

7
 [City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents Association
((025/2011) [2011] ZASCA 227 para 7 & 8]

(e) If the City destroyed all the roof structures and the roof coverings after it were removed,
would the spoliation application of the hostel dwellers succeed? Motivate your answer. (3)

Remark

Consult Study Unit 9 in the Study Guide. Marks will be awarded for your motivation. No mark will
not be awarded for “yes” or “no”.

SUGGESTED ANSWER:

One of the valid defences that may be raised against the spoliation remedy is that it is
impossible to restore control (1). If the roof structures and the roof coverings were destroyed
control thereof could not be restored.

In Fredericks v Stellenbosch Divisional Council (½) (1977 (3) SA 113 (C) 116-118) it was held
that restoration could be ordered if it is possible to replace the destroyed materials with similar
materials. (1) However, in Rikhotso v Northcliff Ceramics (Pty) Ltd (½) (1997 (1) SA 526 (W)) it
was held that the purpose of the spoliation order is to restore control and that it is not possible to
replace the destroyed material with similar material. (1) If the materials had been destroyed, the
applicant should institute a delictual claim for damages. (1)

[Maximum 3 marks]

[Study Guide page 165]

(f) With reference to the purpose and requirements of the spoliation order (as discussed in
Study Unit 9), do you agree with the court’s finding in City of Tshwane Metropolitan
Municipality v The Mamelodi Hostel Residents Association ((025/2011) [2011] ZASCA
227)? Briefly motivate your answer. (1)

Remark

The mark will be awarded for your motivation. No mark will be awarded for “yes” or “no”.

SUGGESTED ANSWER:

A mark was awarded for any relevant, logical and motivated answer. For example if a student
indicates that he/she agrees with the court’s finding because the hostel dwellers complied with
the requirements for a successful reliance on the spoliation remedy or because the purpose of
the spoliation remedy is to restore control etc. [Study Guide page 162]

Total: [20]

8
 PVL3701/201

3 COMMENTARY ON ASSIGNMENT 02 [unique number 676049]

ASSIGNMENT 02: Semester 2

UNIQUE ASSIGNMENT NUMBER: 676049

REMEMBER:

 Answer this assignment electronically on myUnisa or on the mark-reading sheet.

 No assignment cover must be sent with the mark-reading sheet.
 Your mark out of 10, will count 50% towards your semester mark.

ANSWER THE QUESTIONS BY CHOOSING OPTION (1), (2), (3) OR (4) AND BY INDICATING
YOUR CHOICES ELECTRONICALLY ON myUNISA OR ON THE MARK-READING SHEET.
Each question counts 1 (one) mark.

1 Under which of the following categories of things can a motorcycle be classified?

Indicate the incorrect option.

(1) Composite things.

(2) Movable things.
(3) Consumable things.
(4) Negotiable things.

Option (3): INCORRECT, a motorcycle is a non-consumable thing, because it is preserved even

though it is used. Although it is subject to normal wear and tear it can still be classified as a non-
consumable. The value of a consumable thing diminishes considerably by ordinary use.
Examples of consumables are pencils and food.
Option (1): Correct, a motorcycle is a composite thing. A composite thing is made up of
constituent parts, or even of independent things that have been joined together to form a new
entity.
Option (2): Correct, a motorcycle is a movable thing, because it can be moved from one place to
another without being damaged or without losing its identity.
Option (4): Correct, a motorcycle is a negotiable thing and can further be classified as either a
res nullius, if it does not belong to anyone or a res alicuius if it belongs to an owner.
(Study Guide pages 21-25)

9
2 Samira bought a car in terms of an instalment sale agreement from Hoot Car Traders
and is in control of the car. She will pay off the last instalment at the end of January
2021. Which of the following statements is correct?

(1) Samira is the owner of the car.

(2) Samira is the lawful holder of the car.
(3) Samira has a real right over the car.
(4) Samira has a limited real right over the car.

Option (2): CORRECT, Samira can be classified as lawful holder because she physically
controls the car with the permission of the owner (Hoot Car Traders) in order to derive some
benefit from it. Samira does not consider herself as the owner of the car. She respects the
ownership of Hoot Car Traders and will become owner of the car after she paid the last
instalment.
Option (1): Incorrect, Samira is not the owner of the car yet, she will become the owner of the
car after she paid the last instalment. No transfer of physical control will take place, because
Samira is already in physical control of the car, although she is not the owner yet. Once she
paid the last instalment she will become the owner of the car by means of delivery with the
short hand.
Option (3): Incorrect, Samira will only acquire a real right – ownership – after she paid the last
instalment.
Option (4): Incorrect, Samira does not have a limited real right over the car. She has a
personal right against Hoot Car Traders to use the car while she is paying the intalments.
(Study Guide pages 31 and 151)

3 Which one of the following real relationships is always lawful?

(1) bona fide possession

(2) ownership
(3) holdership
(4) mala fide possession

Option (2): CORRECT, the real relationship of an owner to his/her thing is ownership, which is
a lawful real relationship.
Option (1): Incorrect, bona fide possession is the real relationship of a person who is not
recognised as the owner of a thing, because he/she does not comply with the requirements for
establishing ownership, but who has the intention of an owner, on the incorrect assumption
that he/she is in fact the owner. The relationship of a person who accidently takes someone
else’s cell phone thinking that it belongs to him/her can be described as bona fide possession.
Although such a person controls the cell phone bona fide on the incorrect assumption, the
relationship cannot be lawful.
Option (3): Incorrect, holdership is a relationship between a person who controls a thing with
the intention to derive a benefit from the thing, with the permission or other valid legal ground
to control the thing. Holdership can, however, be unlawful under certain circumstances. For
example if a person unknowingly concludes an invalid lease contract. Such a person (“lessee”)

10
 PVL3701/201

can be described as a bona fide unlawful holder.

Option (4): Incorrect, the relationship of a thief who controls a stolen thing can be described as
mala fide possession. Such a relationship cannot be lawful, because a thief is aware of the fact
that he/she is not recognised as the owner of the thing, but controls the thing with the intention
of an owner.
(Study Guide pages 150-151)

4 Indicate the correct option with regard to nuisance in the narrow sense.

(1) Nuisance in the narrow sense results in damage to property.

(2) An example of nuisance in the narrow sense is when an owner dumps slate on his/her
farm near a river, which slate washes down the river as a result of heavy rain onto the
neighbouring farm, causing damage to the latter farm.
(3) Regal v African Superslate 1963 (1) SA 102 (A) dealt with nuisance in the narrow
sense.
(4) Nuisance in the narrow sense occurs where a neighbour’s right of personality or
entitlement of use is infringed.

Option 4: CORRECT, nuisance in the narrow sense does not necessarily result in damage to
property, but a neighbour’s right of personality or entitlement of use is infringed.
Option (1): Incorrect, nuisance in the broad sense results in damage to property.
Option (2): Incorrect, this example is an example of nuisance in the broad sense and is based
on the facts of Regal v African Superslate 1963 (1) SA 102 (A).
Option (3): Incorrect, Regal v African Superslate 1963 (1) SA 102 (A) dealt with nuisance in the
broad sense.
(Study Guide pages 50-51)

5 The following is an example of alienation as an entitlement of ownership:

(1) X can register a bond over his property.

(2) X can burn his book.
(3) X can claim his car from Y.
(4) X can donate his bike to Y.

Option (4): CORRECT, a person is entitled to donate his/her thing. Ownership passes from the
donor (X) to the donee (Y).
Option (1): Incorrect, to register a bond over property is an example of the entitlement to burden
a thing by granting a limited real right (mortgage) over the thing.
Option (2): Incorrect, this is not an example of the entitlement to alienate property, but an
example of the entitlement to destroy property.
Option (3): Incorrect, this is not an example of the entitlement to alienate property, but an
example of the entitlement of an owner of a thing to vindicate or claim his/her thing from anyone

11
who is unlawfully in control of the thing.
(Study Guide pages 45-46)

6 Mike has a right of way (registered servitude), over Lebo’s farm. Mike has a dairy farm
and uses the road over Lebo’s farm to transport his milk to different shops in the area.
One day Mike and Lebo have a difference of opinion, after which Lebo locks the gate
that gives Mike access to the road. Does Mike have any remedies?

(1) No, as owner of the farm Lebo may do with it as she pleases, and she may prevent
Mike from using the road over her farm.
(2) Yes, Mike can institute the actio negatoria against Lebo to open the gate
(3) Yes, Mike’s personal servitude grants him a personal right against Lebo to use the
road.
(4) Yes, Mike can institute a mandatory interdict against Lebo to open the gate.

Option (4): CORRECT, Mike as the servitude holder may institute an interdict against Lebo. The
interdict is a speedy remedy that is used when rights have been infringed or are about to be
infringed. The remedy is not only available to owners, to protect ownership, but also to protect
limited real rights such as Mike’s servitude.
Option (1): Incorrect, an owner (Lebo) may in principle do as she pleases with her property, but
ownership may be limited by the law and the rights of others. In this situation her ownership is
limited by Mike’s limited real right (a land servitude).
Option (2): Incorrect, the actio negatoria is a remedy that is available to the owner (Lebo)
against the holder of a servitude (Mike) who exceeds his/her servitude entitlements or against a
person who wrongfully claims servitude entitlements.
Option (3): Incorrect, a personal servitude is not a personal right, but a limited real right. It is
personal in nature because it is attached to the holder of the servitude and cannot be
transferred to another person.
(Study Guide pages 42, 123-124, 192-193, 199)

7 Which forms of constructive or fictitious delivery can take place in instances where
the transferee is in a position where someone else exercises physical control of the
thing on his/her behalf?

(1) symbolic delivery, delivery with the short hand (traditio brevi manu)
(2) constitutum possessorium, delivery with the short hand (traditio brevi manu)
(3) attornment, constitutum possessorium
(4) attornment, delivery with the long hand (traditio longa manu)

Option (3): CORRECT, in the case of attornment a third party, not the transferee, is in control of
the thing over which ownership is transferred. In the case of constitutum possessorium the
person who transfers ownership (transferor) retains physical control over the thing that is
transferred. The transferee is not in physical control.
Options (1), (2) and (4): Incorrect, in the case of symbolic delivery a symbol of the thing is
delivered to the transferee, because the thing over which ownership is transferred cannot be
12
 PVL3701/201

handed over physically. In the case of delivery with the short hand no transfer of physical
control takes place, because the transferee is already in physical control of the thing. Delivery
with the long hand occurs when physical transfer of the thing is impossible because of the size
and weight of the thing. The thing that is transferred is pointed out to the transferee in the
presence of the thing.
(Study Guide pages 100, 102, 105-107, 109-110)

8 Newtown Extension 1 is a residential area. A condition of title is inserted against the

title deeds of each house in Newtown Extension 1. The condition of title provides that
only a single residential dwelling may be erected on each stand. The condition of title
in each title deed constitutes …

(1) an invalid expropriation in terms of section 25(1) of the Constitution.

(2) a valid expropriation in terms of section 25(1) of the Constitution.
(3) an invalid deprivation in terms of section 25(1) of the Constitution.
(4) a valid deprivation in terms of section 25(1) of the Constitution.

Option (4): CORRECT, section 25(1) of the Constitution provides for the deprivation (regulation
or limitation) of property in terms of a law of general application. Deprivation of property may not
take place arbitrarily. The condition of title is an example of a valid deprivation.
Option (1) and option (2): Incorrect, the condition of title is not an example of an expropriation of
property and section 25(1) of the Constitution deals with deprivation of property, not with
expropriation of property which is dealt with in section 25(2) and 25(3) of the Constitution.
Option (3): Incorrect, the condition of title is a valid deprivation of property.
(Study Guide page 262)

9 Prisha lends R5000 to Myra and she (Prisha) secures payment of the loan by
registering a special notarial bond over Myra’s car. Myra owes Arnav R8000 as a
result of a collision that occurred between Myra and Arnav. Myra becomes insolvent
before repaying Prisha and before paying Arnav. In this scenario, who has a
preferent claim against Myra’s insolvent estate?

(1) Prisha, because she has a limited real right over Myra’s car.
(2) Prisha, because the smaller amount must be paid first.
(3) Arnav, because he has a personal right against Myra’s insolvent estate.
(4) Arnav, because the larger amount must be paid first.

Option (1): CORRECT, a special notarial bond (in terms of the Security by Means of Movable
Property Act 57 of 1993) is a bond over specifically described movable property such as Myra’s
car. A limited real right (real security right) is created. The notarial bondholder (Prisha) is a
secured creditor in terms of section 83 of the Insolvency Act 24 of 1936 and her claim will enjoy
preference.
13
Option (2), (3) and (4): Incorrect, Prisha’s claim enjoys preference because the Security by
Means of Movable Property Act 57 of 1993 creates a real security right in the form of pledge.
This right enjoys preference over Arnav’s personal right. The size of the amount does not
influence preference upon insolvency.
(Study Guide pages 218-220)

10 A ‘section’ in terms of the Sectional Titles Act 95 of 1996 can be described as …

(1) the object of the sectional title ownership (real right).

(2) a unit together with an undivided share in the common property.
(3) the land and all permanent structures on the land.
(4) a defined part of a building such as a flat or an office in an office block.

Option (4): CORRECT, a sectional title owner acquires ownership over his/her section which is
a defined part of a building such as a flat or an office in an office block, and co-ownership in the
common property.
Option (1): Incorrect, the object of sectional title ownership is a unit. It comprises of the
acquisition of separate ownership of sections and co-ownership of common property.
Option (2): Incorrect, a unit consists of a section and an undivided share in the common
property.
Option (3): Incorrect, this is the description of common property which does not form part of the
section.
(Study Guide page 278)

4 CORRECTIONS – STUDY GUIDE

(i) The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ...”

(ii) On page 43 there is a reference to the Physical Planning Act 125 of 1991 and the
Development Facilitation Act 67 of 1995. Please note that both these acts were repealed
by the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). See pages
268-270 in the Study Guide for a discussion on SPLUMA.

(iii) On page 199 there is a list of the remedies available to a servitude holder. Please note
that the second remedy, actio negatoria, is a remedy available to an owner against the
servitude holder.

(iv) In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example a person who controls
a car which he/she borrowed from a friend is a lawful holder, but does not have a real right
over the car. A pledgee, however, is a good example of a person who is a lawful holder,
but also has a limited real security right over the pledged thing (see Study Guide page 215
par 2.4.1).

14
 PVL3701/201

(v) The answer to Question 4 on page 240 of the Study Guide has been taken out of the
Study Guide. The suggested answer is the following:

For a successful reliance on his lien, Z must prove that he was in control (1) of the car and
that he incurred expenses (1) in regard to the car. Z complies with both of these
requirements; the only problem is the fact that he incurred these expenses in terms of his
agreement with T. However, Z can rely on his lien even against the owner with whom he
had no agreement (1) since enrichment liens (1) are limited real rights (1) which are based
on the principle of unjust enrichment. (1)

Two types of enrichment liens are distinguished, namely salvage and improvement liens.
When someone incurs expenses that are necessary for the preservation of a thing (such
as the installation of the driveshaft), (1) we are dealing with a salvage lien (1) and Z is
entitled to retain the car until he is compensated for the amount by which the owner (Q)
was enriched or he himself impoverished, whichever is the lesser. (1) It may therefore be
less than R2600-00, (1) but normally it is the amount of the owner’s enrichment.

When someone incurs expenses which are not necessary for the preservation of the thing,
but which increase the market value (such as the device which improves petrol
consumption), (1) we are dealing with an improvement lien (1) and Z is entitled to retain
the car until he is compensated for the amount by which the market value (1) of the car
has been increased.

For the luxurious improvements which are prompted by a mere whim or caprice of a
person (such as the replacement of the seat covers with leather seat covers), Z cannot
claim compensation from Q and is therefore not entitled to a lien either. (1)

Therefore, Z is only entitled to retain the car until Q has compensated him for an amount of
more or less R2600-00 for the crankshaft, together with the amount by which the market
value of the car was increased by the installation of the device to improve petrol
consumption. (1)

5 FREQUENTLY ASKED QUESTIONS

The following questions are some of the questions that students who are registered for this
module often ask us.

We briefly answer these questions below.

 Is there a prescribed textbook for this module?

No, there is not, see paragraph 4.1 of tutorial letter 101/3/2020.

 Will there be discussion classes for this module?

15
No, at this stage discussion classes are not offered for this module. However, you are always
welcome to contact us with a question concerning the contents of the module.

 I am having trouble in obtaining the prescribed cases from the library or to download
the cases.

You have to take this up with the library. See paragraph 4.3 of tutorial letter 101/3/2020 on how to
download the cases electronically.

 Are there any hints (tips) for the examination?

No, unfortunately not. The best advice that we can give you is to spend enough time on your
studies. It is also a good idea to keep the table which we included in this tutorial letter with you
while you study.

 Where can I obtain previous examination papers?

There are previous examination papers on myUnisa.

©
UNISA 2020

16
 PVL3701/201/1/2020

Tutorial Letter 201/1/2020

Property Law

PVL3701

Semester 1

Department of Private Law

This tutorial letter contains important information about this
module.

Bar code
 TABLE OF CONTENTS

1 EXAMINATION INFORMATION

2 COMMENTARY ON ASSIGNMENT 01 [UNIQUE NUMBER 886058]

3 COMMENTARY ON ASSIGNMENT 02 [UNIQUE NUMBER 887302]

4 CORRECTIONS – STUDY GUIDE

5 FREQUENTLY ASKED QUESTIONS

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

PROF INA KNOBEL knobeim@[Link] 012 429-8491

MR LEKOBA KUTU kutulm1@[Link] 012 429-6580
PROF MITZI WIESE wiesem@[Link] 012 429-8466 / 083 259 9450
(WhatsApp messages only)

2
 PVL3701/201

1 EXAMINATION INFORMATION

The module was initially scheduled for a venue-based examination. Due to the COVID-19
pandemic, the examination will now be conducted online as follows:

 The examination will consist of Multiple-choice questions based on an examination

question paper.

 The examination question paper will consist of 50 Multiple-choice questions, which

counts 2 marks each. The total of the exam question paper is 100 marks.

 The questions will be similar to the questions in assignment 2.

 The mark allocation provided on page 9 of tutorial letter 101/3/2020 is still applicable to
this examination question paper.

 The examination will be managed on the myUnisa platform.

 The duration of the examination will be 2 hours.

 The date of the examination will be 15/06/2020 starting at 15H00 until 17H00.

 The examination is a closed book examination. While the examination is in progress, you
are not allowed to consult another person or any source in order to assist you to answer
any of the questions contained in this question paper. While the examination is in
progress, you may not assist another student in answering any of the questions
contained in this question paper.

 Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2019 (p 7) namely:

o Hendricks v Hendricks (20519/14) [2015] ZASCA 165 (25 November 2015)

o City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents
Association (025/2011) [2011] ZASCA 227
o 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) (also reported at [2002] 7 BCLR 702 (CC))

Please remember that all other cases to which we refer in the Study Guide should be studied to
the extent that they are discussed in the Study Guide.

 Take note of the mark allocation in Tutorial letter 101/3/2019 (p 9) inserted below for
ease of reference. This will be very helpful in your preparation for the examination.

Part 1 (study units 1-2): Introduction, things as legal objects and real rights and personal
rights (10%)

Part 2 (study units 3-7): Ownership: definition of, limitations on, original acquisition of,
3
 derivative acquisition of, protection of, termination of and co-
ownership (40%)

Part 3 (study units 8-9): Possession and holdership: nature of, protection of and
termination of (15%)

Part 4 (study units 10-12): Limited real rights: introduction, servitudes, restrictive
conditions, pledge, security by means of claims, mortgage,
tacit mortgages, mineral rights, water rights and tenant’s
rights (25%)

Part 5 (study units 13-15): Constitutional property law, land reform and additional forms
of statutory land use (10%)

2 COMMENTARY ON ASSIGNMENT 01 [UNIQUE NUMBER 886058]

ASSIGNMENT 01: Semester 1

CLOSING DATE: 30 MARCH 2020 (extended to 24 April 2020)
UNIQUE ASSIGNMENT NUMBER: 886058
REMEMBER:
· This is a written assignment.
· Your mark out of 20, will count 50% towards your semester mark.
· Your answer (excluding a cover sheet and your name, student number and assignment
details) should not exceed two typed A4 pages or three neatly handwritten A4 pages. You
will be penalised if you exceed the prescribed length.

Before you answer the questions of this assignment, read through Study Units 1-9 very carefully.

In Study Unit 1 we introduce you to three real relationships, namely:

 ownership

 possession and

 holdership

The definition, limitation, acquisition, protection and termination of ownership are dealt with in
Study Units 3-6. Study Unit 7 deals with co-ownership. The nature, protection and termination of
possession and holdership are discussed in Study Units 8 and 9.

4
 PVL3701/201

QUESTION 1
Indicate whether the following statements are true or false and fully motivate your
answers:

(a) Ownership is the most comprehensive real right over a thing and therefore an unlimited
right. (3)

False, (1) ownership is limited by law (1) and by the rights of others (1).
(Study Guide p 49)

(b) The rei vindicatio is a real action which can be instituted by an owner to claim back his or
her thing from whoever is in control of it unlawfully. The remedy may be instituted with
regard to movable and immovable property. In the case of immovable property the remedy
takes on the form of an eviction order. No defences may be raised against the application of
the rei vindicatio. (3)

False, (1) there are a number of defences and restrictions that may be raised against the rei
vindication. (1) For example:

 The applicant is not the owner of the thing (½)

 The thing no longer exists and/or cannot be identified (½)
 The defendant is not in control of the thing (½)
 Sales in execution (½)
 Statutory limitations on eviction (½)
 Estoppel (½)
 Money (½)
(Maximum 1 mark for any two suitable examples)
(Study Guide p 121)

QUESTION 2

Explain the difference between a lawful holder and a mala fide possessor. Provide an example
of each. Study Unit 8 pages 143-153 of your Study Guide will assist you. Use your own words
and own examples. (4)

A lawful holder can be defined as a person who physically controls a thing with the owner’s
permission/consent or on another legal basis, (1) with the intention to derive some benefit
from it. (½) The holder does not regard himself/herself as the owner (½) nor does he/she
pretend to be the owner: He/she exercises control while recognising and respecting the
owner’s ownership for example tenants, borrowers, purchasers on credit who have not yet
paid all the instalments or pledgees. (½ mark for a suitable example)

5
 A mala fide possessor is a person who knows or is aware of the fact that he/she is not
recognised as the owner of a thing because he/she does not comply with the requirements of
ownership, (1) but exercises physical control over it with the intention of an owner (½) for
example a thief, a person who moves into a house without the permission of the owner and
lives there as if he/she is the owner of the house, a person who builds a structure on a piece
of land without the permission of the owner of the land and lives there as if he/she is the
owner of that piece of land. (½ mark for a suitable example)
(Maximum 4 marks)
(Study Guide p 150-151)

QUESTION 3

In Study Unit 10 we introduce you to the concept of limited real rights. A limited real right is a
right which a person can have over another person’s thing. A servitude is a limited real right that
limits ownership. Have a look at the definition of a servitude on page 181 of the Study Guide;
the definition of a land servitude on page 188 of the Study Guide and the definition of a personal
servitude on page 192 of the Study Guide.

Make sure that you understand that land servitudes as well as personal servitudes are limited
real rights. Personal servitudes are not personal rights. Have a look at the differences and
common characteristics between land servitudes and personal servitudes on pages 187 and
188 of the Study Guide.

On pages 194-197 specific personal servitudes are discussed. One of these is dwelling or
habitatio (a right of habitation). Against this background, read Hendricks v Hendricks (20519/14)
[2015] ZASCA 165 (25 November 2015) (one of the prescribed cases for this module available
in the electronic resources on the Library website (see par 4.3 above)) which dealt with a right
of habitation and eviction in terms of the Prevention of Illegal Eviction from and unlawful
occupation of Land Act 19 of 1998 (PIE). For purposes of this assignment please focus on the
Supreme Court of Appeal’s finding with regard to the personal servitude (right of habitation) and
answer the following questions:

You must use your own words. One mark will be deducted for each answer copied word for
word from the Study Guide, the case or other sources. Please refer to the relevant paragraphs
of the case that you use in your answers.

(a) Briefly set out the facts that led to the appeal and application for eviction to the Supreme
Court of Appeal. (2)

During 1990 the appellant, Ms Annie Hendricks (an elderly woman), sold her property to her
son, Mr Graham Hendricks (the second respondent). A lifelong right of habitation over the
property was registered in favour of the appellant. The appellant lived in the property and after
registration of the transfer the second respondent took occupation thereof with the appellant.
The second respondent married the first respondent (Ms Margaret Hendricks) in community of
property on 24 November 1990 where after the appellant and the first and second respondents
lived in the property. The relationship between the appellant and the first respondent
deteriorated and by 2009 the appellant left the property for a while due to the unbearable
6
 PVL3701/201

conditions. She stayed with her daughter and later with her other son. A family violence
interdict against the first respondent was obtained and the appellant wanted to move back, but
negotiations in this regard failed. The respondents divorced in 2010. The second respondent
left the property and the first respondent stayed in the property with her daughter from a
previous relationship, her granddaughter and the three children born of the marriage between
her and the second respondent.

The appellant applied for an eviction order in the Somerset West Magistrates’ Court in terms of
the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act,
19 of 1998, (PIE) against her former daughter-in-law, the first respondent, Ms Margaret
Hendricks, and her son, the second respondent, Mr Graham Hendricks. The application was
unsuccessful in the magistrates’ court because it was held that the respondents, as owners of
the property, were not unlawful occupiers for purposes of PIE and could therefore not be
evicted. The appellant appealed to the Western Cape Division of the High Court (Zondi J and
Samela J) but the appeal was dismissed. The SCA granted the appellant leave to appeal and
the appeal succeeded in the SCA.
(Maximum 2 marks for an accurate summary of the facts)
(Hendricks case par 1-4)

(b) How did Majiedt JA describe a right of habitation? (4)

Majiedt JA described a right of habitation (habitatio) as follows:

 The right of habitation is a servitude which is a limited real right. (1)
 It confers on the holder, the right to dwell in the house of another, (1) without detriment to
the substance of the property. (1)
 The right can historically be traced back to Roman law when the original objective was to
provide accommodation to indigent foreigners. (1)
 In that context it was regarded as a factual, rather than a juridical, institution. But Justinian
accepted it as a sui generis legal concept and he classified it as a personal servitude. This
was generally accepted by Roman-Dutch authorities (1)
 Our courts have long recognised a right of habitation as a personal servitude which is a
limited real right. (1)
(Maximum 4 marks)
(Hendricks par 6)

(c) The court a quo held that the holder of the right of habitation could not evict the owner of
the property. Discuss the response of the Supreme Court of Appeal on this. (4)

The Supreme Court of Appeal held that:

 Ownership is the most comprehensive real right and that all other real rights are derived
from it. (1)
 But limited real rights are absolute in the sense that they are enforceable against any and
all. A limited real right detracts from the owner’s dominium (ownership). (1)

7
  Therefore, the owner of the property, the first respondent, cannot exercise full dominium
over it, inasmuch as she cannot occupy the property, unless the appellant as the holder of
the right to habitation has consented thereto. (1)
 Without such consent, the first respondent’s occupation of the property was unlawful. She
was therefore, on the facts of this case, an “unlawful occupier” within the meaning of
section 1 of PIE.
 By virtue of registration of the right habitation the appellant derived her legal authority as the
‘person in charge’ in terms of s 1 of PIE and therefore she alone could legally grant permission
to a person (even the registered owner) to reside in the property.
(Maximum 4 marks)
(Hendricks case par 7)
Total: [20]
3 COMMENTARY ON ASSIGNMENT 02 [unique number 887302]

ASSIGNMENT 02: Semester 1

CLOSING DATE: 30 APRIL 2020 (Extended to 8 May 2020)
UNIQUE ASSIGNMENT NUMBER: 887302

REMEMBER:

 Answer this assignment electronically on myUnisa or on the mark-reading sheet.

 No assignment cover must be sent with the mark-reading sheet.
 Your mark out of 10, will count 50% towards your semester mark.

ANSWER THE QUESTIONS BY CHOOSING OPTION (1), (2), (3) OR (4) AND BY
INDICATING YOUR CHOICES ELECTRONICALLY ON myUNISA OR ON THE MARK-
READING SHEET.
Each question counts 1 (one) mark.

1 Which one of the following things is a composite thing?

(1) A painting.
(2) A wild animal.
(3) A bicycle.
(4) A roll of denim material.

Option (3): CORRECT, a bicycle is a composite thing. A composite thing is made up of

constituent parts, or even of independent things that have been joined together to form a new
entity.

8
 PVL3701/201

Option (1): Incorrect, a painting is an indivisible thing.

Option (2): Incorrect, a wild animal is a res nullius.
Option (4): Incorrect, a roll of denim material is a divisible thing.
(Study Guide p 22)

2 John donates a part of his farm to his son, Lucas. They obtain permission to subdivide
the farm and Lucas erects a fence on the new boundary. Lucas fetches John and
together they drink a toast at the new gate. John says to Lucas: “Son, I am glad that
this piece of land is now your property!”

What type of right does Lucas have with regard to the land?

(1) real right

(2) personal right
(3) limited real right
(4) none of the above

Option (2): CORRECT, Lucas has a personal right against John to have the piece of land that
John donated to him subdivided, transferred and registered into his name.
Option 1: Incorrect, Lucas will only acquire ownership (real right) once the property is
subdivided and transferred from John to him and registered in Lucas’s name.
Option 3: Incorrect, a limited real right is a real right over another person’s thing. Examples of
limited real rights are servitudes, restrictive conditions and real security rights. Lucas did not
acquire a limited real right over John’s land.
Option 4: Incorrect – option 2 is the correct option.
(Study Guide p 115)

3 The relationship of a person who steals a book and uses it as if it belongs to her can be
described as …

(1) mala fide possession

(2) ownership
(3) holdership
(4) bona fide possession

Option (1): CORRECT, mala fide possession is a relationship whereby a mala fide possessor
is aware of the fact that he/she is not legally recognised as the owner of a thing, since he/she
does not conform with the requirements for ownership. The mala fide possessor nevertheless
has the intention of an owner. The relationship of a thief who steals a book and uses it as if it
belongs to her knowing that she does not comply with the requirements for ownership but has
the intention of an owner is mala fide possession.

9
 Option (2): Incorrect, ownership is the most comprehensive real right that a person can have
with regard to his/her thing.
Option (3): Incorrect, holdership is a relationship between a person who controls a thing with
the intention to derive a benefit from the thing, with the permission or other valid legal ground
to control the thing.
Option (4): Incorrect, a thief cannot be bona fide possessor. A bona fide possessor is a person
who is not recognised as the owner of the thing, because he/she does not comply with the
requirements for establishing ownership, but who has the intention of an owner, on the
incorrect assumption that he/she is in fact the owner. A thief knows that he/she is not the
owner.
(Study Guide p 150-153)

4 In Ex parte Geldenhuys (1926 OPD 155) the court formulated the following test:

One has to look not so much to the right, but also to the correlative obligation. If that
obligation is a burden on the land, a subtraction from the dominium, the corresponding
right is real and registrable; 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 a right in
personam, and it cannot as a rule be registered.

In terms of this test, which one of the following is not registrable?

(1) A usufruct of a farm.

(2) A long-term lease of a car.
(3) A condition in a will that a farm must be sub-divided when one of the co-owners
reaches the age of majority.
(4) A condition in a will that a farm must be sub-divided by means of the drawing of lots.

Option 2: INCORRECT, because the subtraction from the dominium test is applied to determine
whether a right is a real right which is registrable in the deeds office in terms of section 63(1) of
the Deeds Registries Act 47 of 1937. In applying the subtraction from the dominum test answers
(1), (3) and (4) are correct because they impose an obligation on land. A long term lease over a
car, a movable thing, cannot be registered in the deeds office.
(Study Guide p 36-37)

5 A limited real right over a debtor’s movable thing, which is delivered to the creditor as
security for the repayment of a principle debt which the debtor owes the creditor is a …

(1) notarial bond

(2) special mortgage
(3) lien
(4) pledge

10
 PVL3701/201

Option (4): CORRECT, a pledge is a limited real right over the pledgor’s (debtor’s) thing,
delivered to the pledgee (creditor) as security for repayment of the principal debt which the
pledgor or a third person owes to the pledgee.
Option (1): Incorrect, a notarial bond is a bond registered over the movable property of the
mortgagor. Property subject to a notarial bond is not being delivered to the notarial bond holder.
Option (2): Incorrect, a special mortgage can be established only with regard to an immovable
thing, not over a movable thing
Option (3): Incorrect, a lien is a limited real right to secure the claim of a person who has spent
money or done work on another person’s thing. The lienholder is already in control of the thing.
(Study Guide p 210; 217; 221 and 236)

6 Kimu and Myra live next to each other in a rural area. Both plant wheat which they yield,
store in bags and grind into flour as the need arises. Without Myra’s consent or knowledge,
Kimu accidently takes one of Myra’s bags of wheat, grinds it and bakes 5 loaves of bread.
This an example of …

(1) accession (accessio).

(2) appropriation (occupatio).
(3) mixing (commixtio)
(4) manufacturing (specificatio)

Option (4): CORRECT, manufacturing (specificatio) can be defined as an original method of

acquiring ownership in terms of which ownership is acquired by the unauthorised production of
a completely new thing, using a thing belonging to another. Kimu therefore becomes owner of
the bread even though Myra’s wheat has been used accidently. Myra will have a claim (based
on unjustified enrichment) against Kimu to compensate her for the value of the bag of wheat.
Option (1): Incorrect, accession (accessio) of movables to movables can be defined as an
original method of acquiring ownership in terms of which an accessory movable becomes
attached to a principal movable in such a way that a single entity is formed and the ownership of
the principal thing extends over the accessory thing which has lost its independence. This is not
an example of accession.
Option (2): Incorrect, appropriation (occupatio) is defined as the unilateral taking of physical
control of a thing which does not belong to anyone (res nullius), but which is within the sphere of
law (res in commercio) with the intention of becoming its owner. Appropriation is not applicable
in this set of facts.
Option (3): Incorrect, mixing (commixtio) can be defined as an original method of acquiring
ownership in terms of which movable things belonging to different persons are mixed together
without the consent of the owners and in such a way that the movables cannot be separated.
(Study Guide p 64; 84-86)

11
7 An action (remedy) in terms of which an owner can claim the market value of a thing
from a person who destroyed or alienated his/her (owner’s) thing with mala fide
intention is the:

(1) rei vindicatio

(2) condictio furtiva
(3) actio ad exhibendum
(4) spoliation remedy

Option (3): CORRECT, the actio ad exhibendum can be defined as an action in terms of which
an owner can claim the market value of the thing from a person who destroyed or alienated the
thing with a mala fide intention.
Option (1): Incorrect, the rei vindicatio can be defined as a real action with which an owner can
claim his/her thing from whoever is in control of it unlawfully.
Option (2): Incorrect, the condictio furtiva can be defined as an action which can be instituted by
the owner or a person with a lawful interest in claiming a stolen thing or its highest value since
the theft from the thief or person who removed the thing with deceitful intent.
Option (4): Incorrect, the spoliation remedy is a summary remedy, usually issued upon urgent
application aimed at restoring control of a thing to the applicant from whom it was taken by
means of unlawful self-help, without investigating the merits of the original rights of the parties
to control the thing.
(Study Guide p 119; 126-128 and 162)

8 Jimmy enters into an agreement with Sally in terms of which he grants her the right to use
the road over his farm to her farm. This agreement is in writing but is not registered. Jimmy
sells his farm to a new owner, who knows about the servitude agreement, but refuses to
allow Sally to use the road.

In terms of Grant v Stonestreet (1968 (4) SA 1 (A)), Sally’s legal position is the following:

(1) In terms of the doctrine of notice, Sally obtained a limited real right to use the road and the
new owner must respect this real right.

(2) Sally has no legal remedy and the new owner does not have to allow Sally to use the road,
because the servitude agreement was not registered.

(3) A buyer (new owner) who has knowledge of the existence of a servitude agreement is
bound to register the servitude in terms of the doctrine of notice.

(4) As Jimmy’s successor in title, the new owner must adhere to the servitude agreement and
allow Sally to use the road.

Option (3): CORRECT, in terms of the doctrine of notice a person who acquires ownership of a
servient tenement knowing that there is an unregistered servitude agreement in respect of that
land must respect the servitude agreement. Therefore the new owner must allow Sally to use
the road and must register the servitude.

12
 PVL3701/201

Option (1): Incorrect, because Sally will only obtain a limited real right after registration of the
servitude agreement.
Option (2): Incorrect, because as mentioned above Sally can rely on the doctrine of notice.
Option (4): Incorrect, the reason why the new owner should adhere to the servitude agreement
is because of the knowledge that the new owner had of the servitude agreement, not because
the new owner is Jimmy’s successor in title. If the new owner had no knowledge of the
unregistered servitude agreement he would not have had to register the servitude agreement.
He would still have been Jimmy’s successor in title.
(Study Guide p 183 and 187)

9 A kustingbrief can be defined as special mortgage over …

(1) an immovable thing securing a principal debt incurred in respect of the purchase price
of that thing, registered simultaneously with the deed of transfer of that thing.
(2) an immovable thing to secure a future debt.
(3) an immovable thing to secure a debt owed to individual participants in an investment
company.
(4) specific movable property to secure a debt owed to the bondholder.

Option (1): CORRECT – definition of a kustingbrief.

Option (2): Incorrect, because it refers to the description of a covering bond which is used to
secure a future debt over an immovable thing.
Option (3): Incorrect, a participation bond is described in this option. A participation bond can be
used to secure a debt over an immovable thing by an individual participant in an investment
company.
Option (4): Incorrect, this option refers to movable property. A kustingbrief can only be
registered over immovable property. A special notarial bond can be registered to secure a debt
owed to the bondholder over specific movable property.
(Study Guide p 222-223)

10 Adam steals Daniel’s car. While driving the car, Adam is involved in an accident. Adam
instructs PB Panel Beaters to repair the car. After the repairs have been completed it
comes to Daniel’s attention that his car is at PB Panel Beaters and he claims his car
from PB Panel Beaters with the rei vindicatio. What defence does PB Panel Beaters
have against Daniel’s action to reclaim his car?

(1) PB Panel Beaters has no defence because an owner can claim his/her thing from any
person who is in control of his/her thing without his/her consent.
(2) PB Panel Beaters may raise the defence of estoppel against Daniel’s rei vindicatio.
(3) PB Panel Beaters must deliver the car to Daniel and only has a contractual claim
against Adam.

13
(4) PB Panel Beaters can rely on an enrichment lien and retain the car until they are
compensated for the enrichment amount.

Option (4): CORRECT, PB Panel Beaters can rely on an enrichment lien against Daniel’s claim.
An enrichment lien is a limited real right to secure a claim of a person who has spent money or
done work on another person’s thing, PB Panel Beaters is entitled to keep the car until they
have been paid for the work that has been done.
Option (1): Incorrect, because although an owner can claim his/her thing from a person who is
in control of it, certain defences may be raised against the application of the rei vindicatio.
Option (2): Incorrect, because estoppel will only be relevant if Daniel created a
misrepresentation that someone else is the owner of the car and had authority to alienate the
car. The owner should have done this intentionally or negligently to the detriment of the person
who raises estoppel and there should be a causal connection between the reliance on the
representation and the determent caused. Estoppel is clearly not relevant here.
Option (3): Incorrect, as mentioned above PB Panel Beaters obtained a lien, a limited real right
not a contractual right (claim/personal right).
(Study Guide p 122; 237-238)

4 CORRECTIONS – STUDY GUIDE

(i) The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ...”

(ii) On page 43 there is a reference to the Physical Planning Act 125 of 1991 and the
Development Facilitation Act 67 of 1995. Please note that both these acts were repealed
by the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). See
pages 268-270 in the Study Guide for a discussion on SPLUMA.

(iii) On page 199 there is a list of the remedies available to a servitude holder. Please note
that the second remedy, actio negatoria, is a remedy available to an owner against the
servitude holder.

(iv) In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example a person who controls
a car which he/she borrowed from a friend is a lawful holder, but does not have a real
right over the car. A pledgee, however, is a good example of a person who is a lawful
holder, but also has a limited real security right over the pledged thing (see Study Guide
page 215 par 2.4.1).

(v) The answer to Question 4 on page 240 of the Study Guide has been taken out of the
Study Guide. The suggested answer is the following:

For a successful reliance on his lien, Z must prove that he was in control (1) of the car
and that he incurred expenses (1) in regard to the car. Z complies with both of these
requirements; the only problem is the fact that he incurred these expenses in terms of his
agreement with T. However, Z can rely on his lien even against the owner with whom he

14
 PVL3701/201

had no agreement (1) since enrichment liens (1) are limited real rights (1) which are
based on the principle of unjust enrichment. (1)

Two types of enrichment liens are distinguished, namely salvage and improvement liens.
When someone incurs expenses that are necessary for the preservation of a thing (such
as the installation of the driveshaft), (1) we are dealing with a salvage lien (1) and Z is
entitled to retain the car until he is compensated for the amount by which the owner (Q)
was enriched or he himself impoverished, whichever is the lesser. (1) It may therefore be
less than R2600-00, (1) but normally it is the amount of the owner’s enrichment.

When someone incurs expenses which are not necessary for the preservation of the
thing, but which increase the market value (such as the device which improves petrol
consumption), (1) we are dealing with an improvement lien (1) and Z is entitled to retain
the car until he is compensated for the amount by which the market value (1) of the car
has been increased.

For the luxurious improvements which are prompted by a mere whim or caprice of a
person (such as the replacement of the seat covers with leather seat covers), Z cannot
claim compensation from Q and is therefore not entitled to a lien either. (1)

Therefore, Z is only entitled to retain the car until Q has compensated him for an amount
of more or less R2600-00 for the crankshaft, together with the amount by which the
market value of the car was increased by the installation of the device to improve petrol
consumption. (1)

5 FREQUENTLY ASKED QUESTIONS

The following questions are some of the questions that students who are registered for this
module often ask us.

We briefly answer these questions below.

 Is there a prescribed textbook for this module?

No, there is not, see paragraph 4.1 of tutorial letter 101/3/2020.

 Will there be discussion classes for this module?

No, at this stage discussion classes are not offered for this module. However, you are always
welcome to contact us with a question concerning the contents of the module.

 I am having trouble in obtaining the prescribed cases from the library or to download
the cases.

15
You have to take this up with the library. See paragraph 4.3 of tutorial letter 101/3/20209 on
how to download the cases electronically.

 Are there any hints (tips) for the examination?

No, unfortunately not. The best advice that we can give you is to spend enough time on your
studies. It is also a good idea to keep the table which we included in this tutorial letter with you
while you study.

 Where can I obtain previous examination papers?

There are previous examination papers on myUnisa.

©
UNISA 2020

16
 PVL3701/201/3/2021

Tutorial Letter 201/3/2021

Property Law

PVL3701

Department of Private Law

This tutorial letter contains important information about this
module.

Bar code
 TABLE OF CONTENTS

1 EXAMINATION INFORMATION

2 COMMENTARY ON ASSIGNMENT 01

3 COMMENTARY ON ASSIGNMENT 02

4 CORRECTIONS – STUDY GUIDE

5 FREQUENTLY ASKED QUESTIONS

Dear Student

This tutorial letter contains information on the examination and commentary on assignments 01
and 02.

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 LEIGH-ANN KIEWITZ kiewil@[Link]

PROF INA KNOBEL knobeim@[Link]
MR LEKOBA KUTU kutulm1@[Link]

2
 PVL3701/201

1 EXAMINATION INFORMATION

The examination will be conducted online and will consist of Multiple-choice questions. More
information will be posted on the myUnisa module site closer to the examination.

✓ The questions will be similar to the questions in assignment 2.

✓ The mark allocation provided on page 8-9 of tutorial letter 101/3/2021 is still applicable to
this examination question paper.

✓ The examination will be managed on the myUnisa platform.

✓ The examination is a closed book examination. While the examination is in progress, you
are not allowed to consult another person or any source in order to assist you to answer
any of the questions contained in this question paper. While the examination is in
progress, you may not assist another student in answering any of the questions contained
in this question paper.

✓ Make sure that you study ALL the work in the Study Guide, as well as the cases listed in
tutorial letter 101/3/2021 (page 6-7) namely:

o Hendricks v Hendricks 2016 (1) SA 511 SCA

o City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents
Association (025/2011) [2011] ZASCA 227
o 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) (also reported at [2002] 7 BCLR 702 (CC))

Please remember that all other cases to which we refer in the Study Guide should be studied to
the extent that they are discussed in the Study Guide.

✓ Take note of the mark allocation in Tutorial letter 101/3/2021 (page 8-9) inserted below for
ease of reference. This will be very helpful in your preparation for the examination.

Part 1 (study units 1-2): Introduction, things as legal objects and real rights and personal
rights (10%)

Part 2 (study units 3-7): Ownership: definition of, limitations on, original acquisition of,
derivative acquisition of, protection of, termination of and co-
ownership (40%)

Part 3 (study units 8-9): Possession and holdership: nature of, protection of and
termination of (15%)

Part 4 (study units 10-12): Limited real rights: introduction, servitudes, restrictive
conditions, pledge, security by means of claims, mortgage,
tacit mortgages, mineral rights, water rights and tenant’s

3
 rights (25%)

Part 5 (study units 13-15): Constitutional property law, land reform and additional forms
of statutory land use (10%)

2 COMMENTARY ON ASSIGNMENT 01

ASSIGNMENT 01
REMEMBER:
· This is a written assignment.
· Your mark out of 20, will count 50% towards your semester mark.
· Your answer (excluding a cover sheet and your name, student number and assignment
details) should not exceed two typed A4 pages or three neatly handwritten A4 pages. You
will be penalised if you exceed the prescribed length.

In Hendricks v Hendricks (2016 (1) SA 511 (SCA)) Majiedt JA held as follows:

The right to habitation as a servitude is a limited real right which confers on the holder the right to dwell
in the house of another, without detriment to the substance of the property … It is well established that
ownership is the most comprehensive real right and that all other real rights are derived from it. But
limited real rights are absolute in the sense that they are enforceable against any and all. A limited real
right detracts from the owner’s dominium (par [6] and [7]).

Before you answer the questions of this assignment, read Study Units 1-10 very carefully. Also
read the case of Hendricks v Hendricks (2016 (1) SA 511 (SCA)).

While reading the Study Units and the Hendricks decision, focus on the nature of the different
rights that are dealt with in this module, namely personal rights, real rights and limited real rights
(Study Unit 2). Keep in mind that ownership is the most complete real right that a person can
have with regard to his or her own thing, but the law and the rights of others can limit this right
(Study Unit 3). Real rights such as ownership and limited real rights, such as servitudes, should
be registered in the Deeds registry, while personal rights are usually not registered. Ownership
can be acquired in different ways, either through original means or through derivative means
(Study Units 4 and 5). Certain remedies exist to protect the rights and interests of persons (Study
Unit 6).

After you read Hendricks v Hendricks (2016 (1) SA 511 (SCA)), you will see that different rights
were relevant in that case. Against this background, answer the following questions:

Make use of your Study Guide and the Hendricks decision to answer the questions. Do not
search the internet to find the answers.

4
 PVL3701/201

QUESTION 1

What is the difference between a personal right and a real right? (3)

SUGGESTED ANSWER:

Personal right: A right that a creditor has against a debtor in terms of an obligation. Also known
as a claim/creditor’s right (1)

A real right: A lawful real relationship between a legal subject and a thing which confers direct
control over the thing on the legal subject, (1) as well as the relationship between legal subjects
and all other legal subjects who must respect this relationship. (1)

Marks were also awarded for:

• The holder of a real right has a direct claim over a thing (1) while the holder of a
personal right may claim performance (1) from a specific person

• Real rights are absolute (1) in principle and personal rights are relative (1) in principle

[Study Guide pages 14 and 30, 34 & 35]

Question 2

What is the main difference between ownership and limited real rights? (2)

Answer:

Ownership is a real right over one’s own thing. (1) A limited real right is a real right over another
person’s thing. (1)
[Study Guide page 39]

Question 3

What type of right did Ms Annie Hendricks have in Hendricks v Hendricks (2016 (1) SA 511
(SCA)). Substantiate your answer. Also refer to the specific paragraph in the Hendricks decision
where her right was described. (2)

SUGGESTED ANSWER:

Answer:

She had a right of habitation, which is a personal servitude – a limited real right. A personal

5
 servitude is personal in nature, because it grants the servitude holder certain entitlement in
his/her personal capacity. (1) See par [3], [5], [6], [7], [10] of Hendricks. (1)

Question 4

What type of right did Ms Margaret Hendricks and Mr Graham Hendricks have before they got
divorced? Refer to the specific paragraph in the decision where their right was described. (2)

SUGGESTED ANSWER:

They were co-owners of the property because they were married in community of property and
therefore had ownership. (1) They therefore had a real right over the property. (1). See par [3],
[7], [10] of Hendricks. (1)
(Maximum 2 marks)

[Kindly take note that the question contained a typing error. It read: “Refer to the specific
paragraph in the decision where her right was described”. It should have read: “Refer to the
specific paragraph in the decision where their right was described”.

Question 5

Different tests may be employed to determine whether one is dealing with a real or a personal
right in a particular situation. In the quotation above, it is stated that: “A limited real right detracts
from the owner’s dominium”.

5.1 Briefly describe the subtraction from the dominium test. Try to make use of your own words.

(2)

SUGGESTED ANSWER:

The test provides that in order to determine whether a specific right is a real right or a personal
right, 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 [ownership], the corresponding right
is real and registrable; (1) 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. (1)
[Study Guide page 36]

5.2 Why did Majiedt JA (in the Hendricks case) state that a limited real right “detracts from the
owners’s dominium”? (2)

6
 PVL3701/201

SUGGESTED ANSWER:

The limited real right in Hendricks was a personal servitude. The owners, (Ms Margaret
Hendricks and Mr Graham Hendricks) could not evict Ms Annie Hendricks (1) or interfere with
her right of habitation. (1) It is a limited real right that is enforceable against a new owner as well.
(1)
See Hendricks par [7] and [10] and [Study Guide page 59]
(Maximum 2 marks)

5.3 Is the following statement true or false? Motivate your answer. (2)

Personal rights can limit ownership.

SUGGESTED ANSWER:

True, (1) ownership can be limited by the rights of others, (1) including personal rights. See
Hendricks par [7] and [10] and [Study Guide page 58-59]

Total: [15]

7
3 COMMENTARY ON ASSIGNMENT 02

ASSIGNMENT 02

1. Which one of the following real relationships is always lawful?

[1] mala fide possession
[2] ownership
[3] holdership
[4] bona fide possession
Option (2): CORRECT, Ownership confers upon the owner the most complete or
comprehensive right in or control over a thing.

Option (1) is incorrect because possession (irrespective of whether it is in bad or good faith) is
always unlawful. A mala fide possessor is a person who is aware of the fact that he/she is not
legally recognised as owner of a thing, but who nonetheless has the intention of an owner.

Option (3) is incorrect because holdership can be lawful or unlawful. A lawful holder can be
defined as a person who physically controls the thing with the owner’s permission or on another
legal basis, in order to derive some benefit from it. The holder does not regard himself/herself
as the owner; nor does he/she pretend to be the owner: He/she exercises control while
recognising and respecting the owner’s ownership. An unlawful holder can be defined as a
person who does not regard himself as the owner, and who recognises and respects the
owner’s ownership to the thing, but who physically controls it for the sake of the benefit he/she
derives from it.

Option (4) is incorrect even if possession is in good faith, because possession will always be
unlawful.

Always remember that possession (in a narrow sense) is only unlawful when it is distinguished
from holdership. For example, if I am in possession (control) of my own cell phone my
possession (control) is lawful. But the position is different when a thief is in possession of a
stolen cell phone. Such possession can never be lawful. Although it is more accurate to say that
the owner controls his/her cell phone it is not wrong to say that the owner possesses his/her cell
phone.
(Study unit 6, page 118 and unit 8 page 143-171.)

2. Andile has been leasing a flat since January 2020. After two months the owner of the flat,
Sandile, asks her whether she wants to buy the flat. She agrees but is not sure how she will
8
 PVL3701/201

become the owner of the flat. Her friend, Mary (a law student), explains the position to
Andile. Which of the following statements is incorrect?

[1] Ownership over the flat will be transferred from Sandile to Andile through registration in
the deeds registry.

[2] Ownership over the flat will be transferred through delivery with the short hand because
Andile is already in control of the flat.

[3] During February 2020 Andile had a personal right against Sandile to live in the flat.

[4] Once Andile is the owner of the flat she obtains a real right over the flat. This real right
can be limited by the law and the rights of others.

Option (2): INCORRECT because only movables can be delivered with the short hand.
Furthermore, delivery with the short hand takes place when the transferee is already in
physical control of the thing, but without the necessary intention to be owner.

Option (1) is correct because derivative methods of acquiring ownership occurs with the co-
operation of a predecessor in title, namely with Sandile. Furthermore, transfer of ownership
will only take place where there is a valid agreement together with a form of conveyance,
namely the registration of immovables.

Option (3) is correct because at the time in February 2020, Andile had a personal right against
Sandile to live in the flat as a result of the contractual agreement they had. Sandile was still
the owner of the flat.

Option (4) is correct. Registration of a right to own a flat in the Deeds Registry results in a real
right being established. Ownership is not absolute and can be limited by the law and the rights
of others.
(Study unit 5: page 95-116)

3. Which one of the following constitutes an example of original acquisition of ownership?

[1] The state expropriates Pete’s farm that he inherited from his father.

[2] The state buys 100 bags of potatoes from Pete to distribute among a group of homeless
people. A representative comes to collect the potatoes after Pete pointed it out.

[3] Pete sells a tractor to the nearby cooperative, the agreed purchase price is paid into
Pete’s account and Pete hands the keys of the tractor to the representative of the
cooperative.

[4] Pete sells his farm to his neighbour, Vihaan.

Option (1): CORRECT because expropriation is an example of original acquisition of

ownership.
9
 Option (2) is an example of traditio longa manu (delivery with the long hand) which is a
form of derivative acquisition of ownership.

Option (3) is an example of clavium traditio which is a form of derivative acquisition of

ownership.

Option (4) is an example of derivative acquisition of ownership because to obtain

ownership of the farm, the title to the farm should be registered in Vihaan’s name in the
Deeds Registry.

(Study unit 4 page 89, study unit 5 page 95-116.)

4. Buhle is the owner of a farm. She has a lucerne field on the only suitable piece of fertile land
where there is enough water. This lucerne field borders her neighbour’s farm. Her neighbour
planted a row of pine trees along the boundary between the two farms. The trees have
grown big and the branches hang over the lucerne field. The trees cast a lot of shade and
the pine needles fall onto the lucerne, killing large parts of it.

Which remedy does Buhle have against the neighbour? Indicate the most suitable option.
[1] interdict
[2] declaratory order
[3] actio ad exhibendum
[4] rei vindicatio
Option (1) CORRECT, An interdict is the appropriate remedy because it is issued upon urgent
application, by which is person is order to either do something, stop doing something or refrain
from doing something to prevent the infringement of an owner’s property rights.

Option (2) is incorrect because a declaratory order is a court order in which a court sets out the
rights and obligations of the parties to a dispute before the actual infringement occurs.

Option (3) is incorrect because the actio ad exhibendum is instituted by an owner against the
controller of a thing who fraudulently lost physical control of the thing.

Option (4) is incorrect because the rei vindicatio is an action where the owner can recover an
existing and identifiable thing from any person who is exercising unlawful physical control over
it.
(Study unit 6, page 117-131)

5. Marthinus owns a farm in the Northern Cape. Due to the draught Marthinus does not have
enough feed for his sheep. His neighbour, Lwazi, has no livestock and agrees that
Marthinus’ sheep can graze on his land. Two months later Marthinus decides to sell his
sheep. Lwazi offers to buy the sheep from Marthinus and pays the purchase price. Lwazi
will acquire ownership of the sheep by means of …
10
 PVL3701/201

[1] symbolic delivery.

[2] delivery with the short hand.

[3] constitutum possessorium.

[4] delivery with the long hand.

Option (2) is CORRECT because delivery with the short hand occurs when the transferee is
already in physical control of thing (in this case the sheep), but without the necessary intention
to be owner, so that (constructive) delivery takes place when the intention of both parties
change to such an extent that the transferee in future exercises physical control with the
intention to be owner.

Option (1) is incorrect. Symbolic delivery is also known as clavium traditio. This occurs where
things which cannot be physically handed over, owing to their nature or size are handed over
symbolically in the sense that a token or “symbol” of the thing is delivered. This is intended to
indicate that the transfer of physical control has taken place.

Option (3) is incorrect because in the case of constitutum possessorium, ownership is

transferred without the thing being actually delivered to the transferee. The thing remains in the
physical control of the previous owner, who exercises the physical control for or on behalf of the
new owner or for another valid legal cause.

Option (4) is incorrect delivery with the long hand is used when actual delivery is impossible due
to the size or nature of the thing. The thing cannot be physically delivered, instead the thing is
pointed out literally and the transferee is placed in a position enabling him/her to exercise
physical control.
(Study unit 5, page 95-116)

6. Marthinus decides to sell a windmill that he does not need anymore. His neighbour, Mirai, is
interested. They meet at the gate of Marthinus’ farm. He is in a hurry to go to town and
points to the windmill. Mirai knows that the windmill is in a good working condition and does
not ask Marthinus if she can inspect it. She has known him for years and trusts him. They
agree on the purchase price and Mirai immediately transfers the agreed amount into
Marthinus’ account. Marthinus agrees that he will leave his gate open so that she can come
and remove the windmill the next day. On her arrival the next morning, the gate is locked
and Marthinus is nowhere to be seen. The next day she drives to the gate again and finds a
sign at the gate indicating that Marthinus’ farm has been sold. To her surprise, the new
owner, Sam, arrives. She asks him about the windmill and he informs her that he bought the
windmill separately and paid for it. Which one of the following statements is correct?

[1] Mirai did not become owner of the windmill because the requirements for delivery with
the long hand were not met.

[2] Mirai became owner of the windmill because she paid the purchase price into
Marthinus’s account.
11
 [3] Mirai can institute the rei vindicatio against Sam who must hand over the windmill to her.

[4] Mirai became owner of the windmill by means of delivery with the long hand.

Option (1): CORRECT because the requirements for traditio longa manu is as follows: The
parties must have the intention to resort to this form of delivery, the property must be pointed
out clearly by the transferor to the transferee, the transferee must be able to exercise some
physical control over the property with the intention to be owner, the thing must be clearly
identified and exclusive access is not required. In this case Mirai was not able to exercise some
physical control over the property with the intention to be the owner. Therefore, she did not
become the owner.

Option (2) is incorrect because payment of the purchase price is not sufficient to transfer
ownership of a movable thing.

Option (3) is incorrect because Mirai is not the owner of the windmill. The rei vindicatio is only
available to an owner of a thing to recover the thing from any person who is exercising unlawful
physical control of it.

Option (4) is incorrect because Mirai did not comply with the requirements for delivery with the
long hand.
(Study unit 5, page 95-116)

7. A new chief executive officer was appointed at a gold mine. Three managers at the mine
were not satisfied with the appointment. They set fire to one of the mine’s busses. Although
the fire brigade tried to put out the fire, the bus was damaged beyond repair. Which remedy
does the mine have against the three managers to recover the damages?

[1] actio negatoria

[2] rei vindicatio

[3] actio ad exhibendum

[4] condictio furtive

Option (3): CORRECT because this action will enable the mining company to claim the value of
the bus.

Option (1) is incorrect because the actio negatoria is aimed at protecting the exercise of an
owner’s entitlements arising from his ownership of movable or immovable property.

Option (2) is incorrect because the rei vindicatio is an action where the owner can recover
an existing and identifiable thing from any person who is exercising unlawful physical
control over it. This remedy is not applicable because the bus is damaged in control of the
owner (the mine) and does not need to be recovered.

12
 PVL3701/201

Option (4) is incorrect because the condictio furtiva is instituted by an owner or lawful
controller of a thing against a thief or a thief’s heirs and is an action with which the thing or
the highest value of the thing since the theft can be claimed.

(Study unit 6, page 117-131)

8. Atile steals Nirav’s car. The next day Atile is involved in an accident. The front windshield is
broken and there is a dent in the front panel. Atile takes the car to Super Panel Beaters
(SPB) and instructs them to replace the front window, repair the dent and install front
parking sensors. A few days later Nirav passes SPB and sees his car. He claims his car
from SPB. Which one of the following statements is correct?

[1] If Nirav can prove all the requirements of the rei vindicatio, SPB must return the car to
him and claim damages from Atile.

[2] SPB has an enrichment lien against Nirav for necessary and useful expenses incurred.

[3] SPB may retain control of the car if it can prove that it acted in good faith and was
unaware of the fact that it was a stolen car.

[4] SPB may retain control of the car until Nirav pays the full amount for all the work done.

Option (2): CORRECT, because in the case of enrichment liens, the principal debt is based on
unjustified enrichment, without consent of the owner (Nirav), based on necessary and useful
expenses. The lien holder, namely SPB may retain the thing until they have been compensated
for the amount by which the owner was enriched, or they were impoverished, whichever is the
lesser.

Option (1) is incorrect because SPB can raise the enrichment lien as a defence against the rei
vindicatio. SPB spent money/labour on Nirav’s property which gave rise to unjustified
enrichment through operation of law.

Option (3) is incorrect. SPB can retain control of the motor vehicle in terms of the enrichment
lien. However, the motor vehicle should be returned to the owner when the principal debt is
settled. Although the lien holder may possess the property, they cannot use it.

Option (4) is incorrect. It is important to keep in mind here that Atile contracted with SPB about
the improvement of Nirav’s (the owner) car. Since one could argue that the parking sensors are
luxurious expenses SPB would only have been able to claim compensation for such expenses
based on a debtor-creditor lien and a contract would have had to be concluded between Nirav
and SPB which would have entitled SPB to retain control of the car in terms of a debtor-creditor
lien. Take note that a debtor-creditor lien is regarded as a personal right, while an enrichment
lien is regarded as a limited real right.

13
(Study unit 11, page 235-240)

9. Sfiso entered into an agreement with Cobus. The agreement provides that Cobus grants
Sfiso the right to use the road over his (Cobus) farm to reach her (Sfiso) farm. This
agreement is in writing but is not registered. Cobus sells the farm to Jerry, who knows about
the servitude agreement, but refuses to allow Sfiso to use the road.

In terms of Grant v Stonestreet (1968 (4) SA 1 (A)), Sfiso’s legal position is the following:

[1] As Cobus’ successor in title, Jerry must adhere to the servitude agreement and allow
Sfiso to use the road.

[2] Because Jerry had knowledge of the existence of the servitude agreement, he is bound
to register the servitude in terms of the doctrine of notice.

[3] In terms of the doctrine of notice, Sfiso obtained a limited real right to use the road and
Jerry must respect this real right.

[4] Sfiso has no legal remedy and Jerry does not have to allow her to use the road,
because the servitude agreement was not registered.

Option (2): CORRECT, In terms of the doctrine of notice, 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 existence of the servitude agreement. In terms of this doctrine,
a new owner who has knowledge of the servitude agreement is bound to register the servitude.

Option (1) is incorrect because the servitude has not yet been registered. A servitude
agreement only creates a personal right to have the servitude registered.

Option (3) is incorrect because a servitude agreement creates a personal right to have the
servitude registered. The limited real right is created only on registration.

Option (4) is incorrect because Sfiso could demand registration of the servitude based on the
doctrine of notice.
(Study unit 10, page 175-199)

10. Mahikeng Extension 16 is a residential area. A condition of title is inserted against the title
deeds of each erf in the area. The condition of title provides that only one dwelling per erf
may be erected within the area. The condition of title in each title deed constitutes …

[1] an invalid deprivation in terms of section 25(1) of the Constitution.

[2] a valid expropriation in terms of section 25(1) of the Constitution.

[3] an invalid expropriation in terms of section 25(1) of the Constitution.

[4] a valid deprivation in terms of section 25(1) of the Constitution.

Option (4): CORRECT because a deprivation is the exercise of a state’s “policing power”, that

14
 PVL3701/201

is, its ability to regulate the use of private property by restricting an owner’s exercise of his/her
entitlements as owner. As long as the deprivation is in terms of a law of general application and
does not amount to arbitrary deprivation of property, the deprivation is valid.

Option (1) is incorrect because the deprivation is valid.

Options (2) and (3) is incorrect because expropriation did not occur. Expropriation of property
involves the actual taking away or acquisition, by the state, of private property.
(Study unit 13, page 259-266)

4 CORRECTIONS – STUDY GUIDE

(i) The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ...”

(ii) On page 43 there is a reference to the Physical Planning Act 125 of 1991 and the
Development Facilitation Act 67 of 1995. Please note that both these acts were repealed
by the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). See pages
268-270 in the Study Guide for a discussion on SPLUMA.

(iii) On page 199 there is a list of the remedies available to a servitude holder. Please note
that the second remedy, actio negatoria, is a remedy available to an owner against the
servitude holder.

(iv) In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example, a person who controls
a car which he/she borrowed from a friend is a lawful holder, but does not have a real right
over the car. A pledgee, however, is a good example of a person who is a lawful holder,
but also has a limited real security right over the pledged thing (see Study Guide page 215
par 2.4.1).

(v) The answer to Question 4 on page 240 of the Study Guide has been taken out of the
Study Guide. The suggested answer is the following:

For a successful reliance on his lien, Z must prove that he was in control (1) of the car and
that he incurred expenses (1) in regard to the car. Z complies with both of these
requirements; the only problem is the fact that he incurred these expenses in terms of his
agreement with T. However, Z can rely on his lien even against the owner with whom he
had no agreement (1) since enrichment liens (1) are limited real rights (1) which are based
on the principle of unjust enrichment. (1)

Two types of enrichment liens are distinguished, namely salvage and improvement liens.
When someone incurs expenses that are necessary for the preservation of a thing (such
as the installation of the driveshaft), (1) we are dealing with a salvage lien (1) and Z is

15
 entitled to retain the car until he is compensated for the amount by which the owner (Q)
was enriched or he himself impoverished, whichever is the lesser. (1) It may therefore be
less than R2600-00, (1) but normally it is the amount of the owner’s enrichment.

When someone incurs expenses which are not necessary for the preservation of the thing,
but which increase the market value (such as the device which improves petrol
consumption), (1) we are dealing with an improvement lien (1) and Z is entitled to retain
the car until he is compensated for the amount by which the market value (1) of the car
has been increased.

For the luxurious improvements which are prompted by a mere whim or caprice of a
person (such as the replacement of the seat covers with leather seat covers), Z cannot
claim compensation from Q and is therefore not entitled to a lien either. (1)

Therefore, Z is only entitled to retain the car until Q has compensated him for an amount of
more or less R2600-00 for the crankshaft, together with the amount by which the market
value of the car was increased by the installation of the device to improve petrol
consumption. (1)

5 FREQUENTLY ASKED QUESTIONS

The following questions are some of the questions that students who are registered for this
module often ask us.

We briefly answer these questions below.

• Is there a prescribed textbook for this module?

No, there is not, see paragraph 4.1 of tutorial letter 101/3/2021.

• Will there be discussion classes for this module?

No, at this stage discussion classes are not offered for this module. However, you are always
welcome to contact us with a question concerning the contents of the module.

• I am having trouble in obtaining the prescribed cases from the library or to download
the cases.

You have to take this up with the library. See paragraph 4.3 of tutorial letter 101/3/2021 on how to
download the cases electronically.

• Are there any hints (tips) for the examination?

No, unfortunately not. The best advice that we can give you is to spend enough time on your
studies. It is also a good idea to keep the table which we included in this tutorial letter with you
while you study.

16
 PVL3701/201

• Where can I obtain previous examination papers?

There are previous examination papers on myUnisa.

©
UNISA 2021

17