Tutorial Letter 201/2/2013
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
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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
8
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
PVL3701/201
9
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
10
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
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
PVL3701/201
7
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
8
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
PVL3701/201
9
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
10
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
