Exam Problem Questions and Answers – PVL 3701

Next page
Section 25(1) of the Constitution (the deprivation clause) (1) provides that “no one
may be deprived of property except in terms of a law of general application and no
law may permit arbitrary deprivation of property”. (1) The provision in the Physical
Planning Act 125 of 1991 is in terms of town planning legislation, in other words, a
law of general application. (1) The conditions are restrictive because they determine
that the law may be used for agricultural purposes only. (1) Owners of these
properties obtain ownership, subject to this restriction, which can be seen as a
deprivation in terms of section 25 of the Constitution. (1) The provision is
permissible.
This action can be used against X, the person who is in control of the thing. In this
case Q can claim the wreck from X provided that she can prove the following:
(i) ownership (1)
(ii) that the car exists and is identifiable (1)
(iii) that X is in control (1)
Q is, however, probably interested in getting more than the wreck of the car. There
are other more suitable remedies such as the actio ad exhibendum (in terms of
which the market value can be claimed) (1) or the condictio furtiva (in terms of which
the highest value since the theft can be claimed). (1)

He is a mala fide possessor. He knows that he is not the owner of the thing, but
holds thing as if he is the owner.

Real (1) and personal (1) security.

Real security, (1) since it provides a limited real right (1) to the thing. (1)

S has a personal right (creditor’s right) (1) in terms of the lease contract. S cannot,
as a servitude holder, force Q to allow him to use the road. S could apply to the court
for an order for specific performance (1) of the lease contract. The courts are,
however, reluctant to grant such an order, since it is difficult for them to enforce
compliance with the order. (1) S will probably have to be satisfied with a claim for
damages based on breach of contract. (1) S will have to prove damage. (1)

Conditions of title may be removed or modified in a variety of ways, including:

(i) by court order
(ii) in terms of certain statutes, for example, the Removal of Restrictions Act
84 of 1967
This question deals with a clause that the pledgee may keep the thing if the pledgor
fails to pay (pactum commissorium). (1) In both Mapenduka v Ashington and Graf v
Buechel (1) it was decided that a clause that a pledgee may keep (1) thing if the
pledgor fails to pay (1) is invalid. (1)

In Roman-Dutch law, the rule “lease overrides sale” (‘‘huur gaat voor koop’’) was
introduced and the lessee acquired a limited real right against a subsequent
purchaser of the land. This rule entails that a lessee is protected in certain
circumstances against a new owner of the leased premises.

No, the State will not succeed in proving that S was the owner. (1) S could only have
become the owner by means of appropriation. (1) Appropriation or occupation is an
original method (1) of acquisition of ownership. It can be defined as the unilateral (1)
taking of physical control (1) of a thing which does not belong to anyone (1) (res
nullius), but which is within the sphere of law (1) (res in commercio) with the intention
of becoming (1) its owner.
The above set of facts is similar to those in R v Mafohla. (1) The element of the
definition which causes problems for S’s reliance on acquisition of ownership by
means of appropriation is the element of control. Physical control is essential for the
acquisition (1) of ownership by means of appropriation. Where wild animals are
wounded, but actual physical control is not taken, appropriation does not take place.
(1) Therefore, if one person wounds a wild animal but another person catches it or
discovers the carcass, the latter obtains ownership. (1)
Section 25(1) of the Constitution (the deprivation clause) (1) provides that “no one
may be deprived of property except in terms of a law of general application and no
law may permit arbitrary deprivation of property”. (1) The provision in the Physical
Planning Act 125 of 1991 is in terms of town planning legislation, in other words, a
law of general application. (1) The conditions are restrictive because they determine
that the law may be used for agricultural purposes only. (1) Owners of these
properties obtain ownership, subject to this restriction, which can be seen as a
deprivation in terms of section 25 of the Constitution. (1) The provision is
permissible.

The amount of the compensation and the time and manner of payment must be just
and equitable, reflecting an equitable balance between the public interest and the
interests of those affected, having regard to all relevant circumstances, including:
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct State investment and subsidy in the acquisition and beneficial
capital improvement of the property; and
(e) the purpose of the expropriation.

This question is based on the facts of S v Brick. (1) Legal question: What is the
meaning of the term ‘‘possession’’ in the statute? (1)
Ratio decidendi: The precise meaning (1) to be assigned to the word ‘‘possession’’
occurring in a penal statute often causes considerable difficulty. The difficulty may
sometimes be lessened if the word is used in association with ‘‘custody’’. In the final
analysis, however, the decision essentially depends on the intention (1) of the
legislature as reflected in the context of the statutory enactment concerned. In terms
of the statute, the offence is committed by any person who ‘‘has in his possession’’
any indecent or obscene photographic matter. Having regard to the obvious
objective of the Act, the court held that witting physical detention, custody or control
(1) of such matter is penalised. Once it is shown that the holder was aware of the
existence of such photographic matter in his detention, custody or control, it is not
essential for a conviction under the Act that the State should prove that the holder
intended (1) to exercise control over the photographic matter in question for his own
purpose or benefit. (1)
Application of finding to the relevant facts
The accused was found guilty, (1) but the fact that he intended to turn the material
over to the police was regarded as a mitigating circumstance entitling him to a lesser
fine.

(a) The accessory thing and the principal thing should be clearly distinguishable.
(b) The combination should be difficult to separate.
(c) It should not amount to manufacture (specification – para 5 below)

Constitutum possessorium is in a certain sense the very opposite of delivery with the
short hand (traditio brevi manu). Here the transferor retains physical control over the
thing of which he/she has agreed to transfer ownership to the transferee. It is only
the intention towards the thing that undergoes a change. For example, X buys a
watch from a jeweller and leaves it with the jeweller for cleaning.

S’s wife will not be able to use the road. (1) The servitude agreement was not
registered (1) and therefore she acquired no rights from the contract. If she had been
appointed heir to all S’s rights, she could have claimed registration as heir
(cessionary) in terms of the will. (1)
In Theatre Investments (Pty) Ltd v Butcher Brothers, (1) the legal question was to
determine whether Butcher Brothers acquired ownership of the equipment through
attachment to the land. (1)
Ratio decidendi:
The court stated that a generally accepted test to be applied to determine whether a
movable, which is capable of acceding to an immovable and which has been
annexed thereto, becomes part of that immovable is to enquire whether the annexor
of such a movable did so with the intention that it should remain permanently
annexed thereto. (1) Evidence as to the annexor’s intention can be sought from
numerous sources, including the annexor’s own evidence as to his intention, (1) the
nature of the movable and of the immovable, (1) the manner of annexation (1) and
the cause for and circumstances giving rise to such annexation. (1) The ipse dixit of
the annexor as to his intention is not to be treated as conclusive evidence (1) thereof
but, should such evidence have been given, it must be weighed (1) together with the
inferences that can be derived from the other sources of evidence mentioned above
in order to determine what, in the view of the court, was in fact the annexor’s
intention. In cases where no evidence is forthcoming from the annexor, a court will
be constrained to determine the issue upon such inferences as may legitimately be
drawn from the sources (1) mentioned above.
Application of finding to relevant facts
In applying the above criteria the court came to the conclusion that, having regard to
the intended duration of the original contract, (1) as well as to the period of its
possible extension, to the fact that the building was erected for the purpose of
conducting a theatre in it and that the seats, the emergency lighting and dimmer-
board constitute equipment essential (1) to the effectuation of such a purpose, then it
is difficult to avoid the conclusion that such items of equipment when they were
attached to the building were intended to remain there indefinitely. (1)

The SECTIONAL TITLES ACT 95 OF 1986 provides for the division of buildings and
the land on which they stand into sections and common property and for the
acquisition of separate ownership of sections together with co-ownership of common
property which jointly make up a unit which is the object of the sectional title
ownership (= real right). A unit consists of a section (a defined part of a building such
as a flat, garage, office or shop in a building, office block or business complex)
together with an undivided share in the common property (the land and all
permanent structures on the land that do not form part of a section) apportioned
according to the participation quota. Ownership and co-ownership still form the basis
of sectional title ownership. To facilitate this kind of ownership certain common-law
principles had to be amended by the Sectional Titles Act. The Act further regulates
the control over certain rights connected with the separate ownership of sections and
joint ownership of the common property; the transfer of ownership of units and the
registration of sectional mortgage bonds over and real rights in units and the granting
and registration of rights in and the disposal of the common property; as well as the
creation of a body corporate to manage each sectional title scheme by way of rules.

A special notarial bond burdens specified movable things, whereas a general notarial
bond burdens all the movable things of the mortgagor in general. A special notarial
bond is a bond attested by a notary and registered over certain movable property (eg
the green John Deere tractor) of a mortgagor (debtor) in favour of a mortgagee
(creditor) as security for the repayment of the principal debt. After the registration of
the special notarial bond it grants a limited real right over the specified movable
property to the mortgagee (creditor) without the movables being delivered to the
mortgagee (creditor). This form of security is beneficial to the mortgagor (debtor)
since he/she can, unlike in the case of pledge, still use the movables while they
serve as security.
A general notarial bond burdens all the movable property (eg all a farmer’s farm
implements, tractors and livestock) of a mortgagor (debtor). This notarial bond
creates no limited real right but has certain advantages for the mortgagee (creditor)
in the case of the mortgagor’s (debtor’s) insolvency.

Sales in execution
Statutory limitations on eviction
Estoppel

To succeed with this action, the applicant must prove: (i) ownership or retention of a
lawful interest from the date of theft to the date of institution of the action (ii) theft or
removal of the thing with deceitful intent (iii) if the action is not instituted against the
thief or deceitful remover, that the defendant is the heir of the former. Tt is not
necessarily the heir of T. The condictio furtiva can only be instituted against T’s heirs
after T’s death.
The case in question is Eskom v Rollomatic Engineering (Edms) Bpk. (1)
Legal question
To determine whether ownership of the steel towers were transferred to Rollomatic
by means of delivery with the long hand (traditio longa manu). (1)
Ratio decidendi
It is not an essential requirement for delivery with the long hand that the transferee is
placed in physical control. (1) However, the thing must be pointed out to the
transferee and he/she must be placed in such circumstances that he/ she and
he/she alone can deal with it at pleasure. (1) In this way the physical element is
sufficiently fulfilled. Obviously the parties must intend to transfer and receive
ownership. (1) If both these requirements have been fulfilled, delivery is considered
complete in law. When the deposit of the subject matter in the presence and at the
disposition of the transferee takes the place of physical prehension, the delivery is
said to be made longa manu, and it constitutes one of the forms of fictitious, (1) as
distinguished from actual, delivery.
Application of finding to relevant facts The court did not find it necessary to
determine whether the towers were movable or not. (1) From the evidence it was
clear that Rollomatic never exercised control (1) either over the land (1) in question
or over the towers. (1) It therefore failed to show that one of the requirements for
delivery with the long hand had been met, namely that it must have been able to take
physical control of the towers after they had been pointed out to it. Rollomatic
therefore failed to prove (1) that it had become the owner of the steel towers and
consequently it was not entitled to an order for delivery of the towers. (1)

Since the spoliation remedy is aimed at the immediate restoration of control to the
position in which the applicant was before the spoliation took place, it goes without
saying that this cannot be achieved if restoration is no longer possible.
However, in Fredericks v Stellenbosch Divisional Council (1977 (3) SA 113 (C) 116-
118) it was held that restoration may be ordered where it can be effected with
materials of a similar nature to the materials which had been destroyed. In this case
the spoliator destroyed the materials on purpose so that restoration would become
impossible.
This approach was followed to a certain extent in Ierse Trog CC v Sulra Trading CC
(1997 (4) SA 131 (C)), where the court held that a spoliation order can be granted
where the property has not been entirely destroyed. The court here granted an order
for the rebuilding of a wall and a degree of substitution of the building materials.
However, the court in Rikhotso v Northcliff Ceramics (Pty) Ltd (1997 (1) SA 526 (W))
emphasised the inherent nature of the spoliation remedy, that is, the fact that it is
aimed at restoration of control, and refused such an order. The court argued that if
the materials had been destroyed, restoration was impossible and the spoliation
remedy was not the applicable one. In such circumstances a delictual claim for
damages is the appropriate remedy.

General notarial bonds and special notarial bonds before the enactment of the
Security by Means of Movable Property Act 57 of 1993 do not create real security
rights (1) over the relevant movable property of the mortgagor in favour of the
mortgagee. In terms of a valid and enforceable perfecting clause in the bond, the
mortgagee can vest a limited real right of pledge (1) by taking control (1) of the
movable property securing the creditor’s right. The mortgagee can get control in
terms of the perfecting clause when (i) the mortgagor agrees (1) to it, or (ii) in terms
of a court order (1) for specific performance and execution, if he/she refuses.

This Act applies to ‘‘occupiers’’, viz persons who lives on the land lawfully. (1) In
terms of the Act an ‘‘occupier’’ is a person who lives on another person’s land, and
who has permission or a right to do so. (1) An occupier’s tenure can be terminated
on any lawful ground, provided that such termination is just and equitable having
regard to certain factors. (1) Z is no longer lawfully on the land.

For a successful reliance on the rei vindicatio the plaintiff must prove, on a balance
of probabilities, that: (i) he/she is the owner (ii) the thing exists and is identifiable (iii)
the defendant is in control

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)

Z is in control of the car. Z is a bona fide unlawful holder. The 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.

To succeed with this action, the applicant must prove: (i) ownership or retention of a
lawful interest from the date of theft to the date of institution of the action (ii) theft or
removal of the thing with deceitful intent (iii) if the action is not instituted against the
thief or deceitful remover, that the defendant is the heir of the former. Z is not
necessarily the heir of T.

This is based on the facts of the Vasco Dry Cleaners v Twycross case.It has been
held in the Vasco case that constitutum possessorium is the opposite of delivery with
the short hand (traditio brevi manu). In the case of constitutum possessorium the
transferor retains physical control of the thing to be transferred. Since this form of
delivery creates the possibility of fraud, any assertion that ownership of a movable
has passed upon a mere change of mental attitude is carefully scrutinised by the
courts. (1)
It has further been held that the real object of the transaction between X and
Twycross was not a sale to Twycross which would have entitled him to become
owner of the machinery on delivery, but rather that a pledge should be created in his
favour. (1) According to the facts, he never took physical control of the machinery.
(1) The transaction (sale) between X and Twycross was found to be a simulated
transaction, because it did not reflect the true intention of the parties. (1)
Furthermore, the court held that no pledge was created since constitutum
possessorium does not constitute delivery for purposes of creating a valid pledge,
because the pledged thing remains with the pledgor. (1) The only effective method of
constituting a pledge is by an agreement and transfer of control by actual delivery of
the thing to be pledged to the pledgee. (1) X and Twycross therefore disguised their
agreement as a sale and re-sale. However, the court decided that the true substance
of the contract was one of pledge. Therefore Twycross cannot claim the machinery
back, because he is not the owner of the machinery. (1)

This servitude is less comprehensive than a servitude of use. Dwelling is a personal

servitude conferring a limited real right on the holder to occupy another’s house, with
retention of the character of the thing. The servitude holder may occupy the house
with his/her household. He/she may not alienate his/her real right nor can he/she
alienate the property. Unlike the user, he/she may let the house, but he/she does not
have the right to use the fruits of the land for his/her own daily needs.

The purpose of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 is to provide for procedures to evict unlawful occupiers
(sometimes known as ‘‘squatters’’), the principle being that nobody may evict an
unlawful occupier of land without the authority of a court order. A part of the eviction
process of unlawful occupiers is that certain circumstances must be considered
before an unlawful occupier may be evicted. These circumstances include the rights
and needs of the elderly, children, disabled persons and households headed by
women and, in certain cases, the availability of alternative accommodation for the
relocation of the unlawful occupier.

If a person claims servitude rights and such rights are disputed by the owner of the
land the owner may apply to the court for a declaratory order (1) together with a
mandatory or prohibitory interdict (1) – Willoughby’s Consolidated Co Ltd v Copthall
Stores Ltd. (1)
C is the owner (1), since it reserved ownership. (1)

Z, the neighbour, is a lawful holder (1) since she has borrowed the tractor from X and
Y. (1)

T is a thief, therefore a mala fide (unlawful) possessor. (1)

In Van Rensburg v Coetzee (1979 (4) SA 655 (A)) the underlying principle of a way
of necessity was indicated as being that it must follow the shortest route and cause
the owner of the servient tenement the least possible inconvenience. The following
guidelines were laid down by the court for a successful application for a permanent
way of necessity:
1 The particulars of claim must allege the particular necessity (eg, that the
defendant’s land is situated between the applicant’s land and the nearest public
road).
2 The nature of the way of necessity must be stated (eg, that a farmer will be able to
exercise his/her farming activities reasonably).
3 The nature of the terrain over which the way of necessity will run must be
determined (eg, that the terrain is such to accommodate the way of necessity).
4 A particular route must be determined as being the most suitable.
5 The width of the road must be stated.
6 An amount of compensation should be offered, which must be reasonable, taking
into account factors such as the advantage gained by the applicant.
Judge Spoelstra in Gien v Gien held that ownership is the most comprehensive real
right (1) a person can have with regard to a thing. In principle, a person can act upon
and deal with his thing as he/she pleases, (1) but this apparent freedom is restricted,
(1) by the law (1) and the rights of others. (1)
Here we are dealing with nuisance in the narrow sense (1) (infringement of a
personality right caused by the noise) and the remedy used here is the interdict. The
rights of the two owners should be weighed against each other. (1) Both neighbours
should act reasonably. (1) This is an objective test. (1) One party must exercise his
ownership rights in a reasonable manner and the other party must endure this
exercise in a reasonable manner. (1) The applicant must prove all the requirements
for an interdict. (1)
The court found that the applicant was severely prejudiced without real gain for the
respondent as a result of the disturbing conduct. (1) The applicant consequently
succeeded with his interdict against the respondent. (1)

Limited real right: (1) In terms of S’s limited real right, he (as the owner of Highlands)
may drive over Q and R’s farm Pulang without being disturbed (land servitude). (1)
Therefore, Q and R cannot, for example, place an obstruction in the road or prevent
S from using the road just because they are angry with him. (1)

The Constitutional Court in First National Bank of SA Limited t/a Wesbank v

Commissioner for the South African Revenue Services and Another; First National
Bank of SA Limited t/a Wesbank v Minister of Finance (2002 (7) BCLR 702 (CC)
para 51) examined the content of section 25 and specifically the meaning of
‘‘property’’ and stated that:
At this stage of our constitutional jurisprudence it is ... practically impossible to
furnish and judicially unwise to attempt – a comprehensive definition of property for
purposes of section 25 ... [it] is sufficient to hold that ownership of a corporeal
movable must – as must ownership of land – lie at the heart of our constitutional
concept of property, both as regards the nature of the right involved as the object of
the right and must therefore, in principle, enjoy the protection of section 25

Deprivation of property is ‘‘arbitrary’’ when the ‘‘law’’ that is referred to in section 25

does not provide a sufficient reason for the deprivation or limitation or if it is
procedurally unfair.

(i) restoration of land, a portion of land or any right in land

(ii) grant by the State of an appropriate right to alternative state-owned land
(iii) payment of compensation by the State
(iv) inclusion of the claimant as a beneficiary of a State support programme for
housing or the allocation and development of rural land
(v) grant of alternative relief

X and Y (1) are in control through their farm workers, who are acting as their
representatives/agents. They are lawful holders, (1) because they have the intention
to derive a benefit. (1)

Z, the neighbour, is a lawful holder (1) since she has borrowed the tractor from X and
Y. (1)
The facts of this question are based on the facts in Ikea Trading Und Design AG v
BOE Bank Ltd. (1)
Legal question
To determine whether a notarial bond is valid when the movable property over which
the bond is registered is only described and specified in an attachment to the bond.
(1)
Ratio decidendi
The Supreme Court of Appeal refers to section 1(1) of the Security by Means of
Movable Property Act 57 of 1993 (1) in terms of which movable property must be
described in the notarial bond in a manner that deems it ‘‘readily recognizable’’. (1)
The test to determine whether the movable property is ‘‘readily recognizable’’ is
whether a third party can recognise the movable property from the description in the
notarial bond (1) without the use of extrinsic evidence. (1) According to the court a
notarial bond must, as far as possible, have the same characteristics as a pledge. (1)
Physical control (1) of the pledged thing is required (delivery by way of constitutum
possessorium is not possible since physical control is required for a valid pledge (1))
and serves as publication (1) to third parties. The notarial bond, as in the case of
physical control for a pledge, serves as publication (1) of the existence of a real right
(1) to third parties. The notarial bond must therefore contain a complete description
of the object (1) of the real security right.
Application of legal principle to facts
The notarial bond that is registered in favour of L is invalid (1) as the movable
property is not ‘‘readily recognizable’’ from the notarial bond. Z’s application will
therefore succeed (1)
According to this so-called ‘‘short-handed’’ method, no transfer of physical control
takes place, since the transferee is already in control of the thing, although not as
owner. For example, the transferee may be a buyer in terms of an instalment sale
and on payment of the last instalment, he/she acquires ownership by means of
delivery with the short hand. No transfer of control is necessary. It is therefore
important that there should be a clear indication of the intention requirement (Info
Plus v Scheelke 1998 (3) SA 184 (SCA)). There should be some clear proof that the
transferee holds on a new basis as owner (see eg Marcus v Stamper and Zoutendijk
1910 AD 58)

Q and R can apply to the court for a prohibitory interdict (1) against S. They can also
institute the actio negatoria. (1) This action is available to an owner against the
holder of a servitude who exceeds (1) his servitude entitlements and also against
any other person who wrongfully claims (1) servitude entitlements.

Between the lessor and the lessee (inter partes) the mere contract offers sufficient
protection to the lessee: the lessee can enforce his/her personal right against the
lessor even if he/she is not in control of the premises and even if his/her right has not
been registered. Depending on whether we are dealing with a short or long lease,
however, control or registration is a requirement for the establishment of the lessee’s
limited real right.
A long lease is a lease for 10 years or more.
In the case of a short lease, the lessee’s real right vests when he/she obtains
control. Where the purchaser has had actual or constructive notice of the lease, the
lessee is protected, even though he/she is not in control.