1. QUESTION
Name four significant differences between land (praedial) servitudes and
personal servitudes (4)
1) Land servitudes are created in favour of a piece of land, while personal
servitudes benefit someone in his/her personal capacity.
2) Land servitudes last indefinitely, in principal, while personal servitudes can
be granted only for a specific period, 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 things only; personal
servitude may be established over movables (eg, over money or a flock of
sheep or a herd of cattle) and immovable (land).
4) Land servitudes are alienated together with the land. Personal servitudes
are inseparably attached to the holder’s person and are in no way
transferable.
2. QUESTION
Name the requirements for the successful reliance on the condictio furtiva
To succeed with this action, the applicant must prove:
1) Ownership or retention of a lawful interest from the date of theft to
the date of institution of the action
2) Theft or removal of the thing with deceitful intent
3) If the action is not instituted against the thief or deceitful remover, that
the defendant is the heir of the former.
,3. QUESTION
Name three ways in which claims (personal rights) can be used as security
1) A pledge of claims
2) A fiduciary security cession
3) A notarial bond of claims
4. QUESTION
Name the requirements for a successful reliance on the rei vindicatio (3)
1) The claimant must prove ownership of the property.
2) The property must exist and be identifiable.
3) The defendant must be in possession of the property.
5. QUESTION
Name two restrictions (defences) on the application of the rei vindication (2)
1) The claimant is unable to prove ownership of the property.
2) The property no longer exists or is not identifiable.
3) The defendant is no longer in possession of the property.
4) The defendant can argue that he/she has a right with regard to the
property and that the owner should therefore be precluded from claiming
the property back.
,6. QUESTION
Name the requirements for a successful reliance on the spoliation remedy
(mandament van spolie) (3)
1) The applicant (spoliatus: the person whose control has been disturbed)
must have enjoyed peaceful and undisturbed control of the thing.
2) The respondent (spoliator: the person who disturbed the control of the
spoliatus must have disturbed the applicant’s control in an unlawful
manner.
7. QUESTION
Name two valid defenses that may be raised against the spoliation remedy
(mandament van spolie) (2)
1) The applicant did not have peaceful and undisturbed control at the time of
spoliation.
2) The respondent did not disturb the applicant’s control.
3) The disturbance was not unlawful.
4) The applicant waited too long in making his/her application.
5) It is impossible to restore control.
8. QUESTION
Name two reasons why it is important to distinguish between movable and
immovable things. (2)
1) It affects the formalities and requirements for the transfer of ownership.
Transfer of ownership of movables is effected by delivery, and of
immovable by registration in the deeds registry.
, 2) Several statutes distinguish between moral and immovable things: for
example, the Deeds Registries Act 47 of 1937 and the Alienation of Land
Act 68 of 1981.
3) Private International Law distinguishes between movable and immovable
things in that the law of the owner’s domicile (lex loci domicilii) applies in
the case of movables, whereas the law of the immovable thing’s location
governs immovables (lex loci rei sitae).
4) The right to alienate or encumber the estate of the minor is affected as
follows: Permission of the High Court is required for the alienation or
encumbrance of a minor’s immovable assets worth more than R 100 000.
5) In the execution of a judgment debt and in the case of insolvency, the
debtor’s movable assets are sold before immovables, to secure payment of
the judgment debt.
6) In criminal law theft can be committed only in respect of movables, while
arson can only be committed in relation to immovables.
7) Real security is effected by means of a pledge in the case of movables and
by means of a mortgage in the case of immovable things.
9. QUESTION
Name three remedies that are available to a lawful holder to protect his/her
lawful interest in the thing under his/her control. (3)
1) Property law remedies
2) Delictual remedies
3) Enrichment remedies
Name four significant differences between land (praedial) servitudes and
personal servitudes (4)
1) Land servitudes are created in favour of a piece of land, while personal
servitudes benefit someone in his/her personal capacity.
2) Land servitudes last indefinitely, in principal, while personal servitudes can
be granted only for a specific period, 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 things only; personal
servitude may be established over movables (eg, over money or a flock of
sheep or a herd of cattle) and immovable (land).
4) Land servitudes are alienated together with the land. Personal servitudes
are inseparably attached to the holder’s person and are in no way
transferable.
2. QUESTION
Name the requirements for the successful reliance on the condictio furtiva
To succeed with this action, the applicant must prove:
1) Ownership or retention of a lawful interest from the date of theft to
the date of institution of the action
2) Theft or removal of the thing with deceitful intent
3) If the action is not instituted against the thief or deceitful remover, that
the defendant is the heir of the former.
,3. QUESTION
Name three ways in which claims (personal rights) can be used as security
1) A pledge of claims
2) A fiduciary security cession
3) A notarial bond of claims
4. QUESTION
Name the requirements for a successful reliance on the rei vindicatio (3)
1) The claimant must prove ownership of the property.
2) The property must exist and be identifiable.
3) The defendant must be in possession of the property.
5. QUESTION
Name two restrictions (defences) on the application of the rei vindication (2)
1) The claimant is unable to prove ownership of the property.
2) The property no longer exists or is not identifiable.
3) The defendant is no longer in possession of the property.
4) The defendant can argue that he/she has a right with regard to the
property and that the owner should therefore be precluded from claiming
the property back.
,6. QUESTION
Name the requirements for a successful reliance on the spoliation remedy
(mandament van spolie) (3)
1) The applicant (spoliatus: the person whose control has been disturbed)
must have enjoyed peaceful and undisturbed control of the thing.
2) The respondent (spoliator: the person who disturbed the control of the
spoliatus must have disturbed the applicant’s control in an unlawful
manner.
7. QUESTION
Name two valid defenses that may be raised against the spoliation remedy
(mandament van spolie) (2)
1) The applicant did not have peaceful and undisturbed control at the time of
spoliation.
2) The respondent did not disturb the applicant’s control.
3) The disturbance was not unlawful.
4) The applicant waited too long in making his/her application.
5) It is impossible to restore control.
8. QUESTION
Name two reasons why it is important to distinguish between movable and
immovable things. (2)
1) It affects the formalities and requirements for the transfer of ownership.
Transfer of ownership of movables is effected by delivery, and of
immovable by registration in the deeds registry.
, 2) Several statutes distinguish between moral and immovable things: for
example, the Deeds Registries Act 47 of 1937 and the Alienation of Land
Act 68 of 1981.
3) Private International Law distinguishes between movable and immovable
things in that the law of the owner’s domicile (lex loci domicilii) applies in
the case of movables, whereas the law of the immovable thing’s location
governs immovables (lex loci rei sitae).
4) The right to alienate or encumber the estate of the minor is affected as
follows: Permission of the High Court is required for the alienation or
encumbrance of a minor’s immovable assets worth more than R 100 000.
5) In the execution of a judgment debt and in the case of insolvency, the
debtor’s movable assets are sold before immovables, to secure payment of
the judgment debt.
6) In criminal law theft can be committed only in respect of movables, while
arson can only be committed in relation to immovables.
7) Real security is effected by means of a pledge in the case of movables and
by means of a mortgage in the case of immovable things.
9. QUESTION
Name three remedies that are available to a lawful holder to protect his/her
lawful interest in the thing under his/her control. (3)
1) Property law remedies
2) Delictual remedies
3) Enrichment remedies
