Exam Problem Questions and Answers – PVL 3701

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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 factsThe 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.