UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG

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1 EXAMINATIONS : NOVEMBER 2008 SUBJECT, COURSE AND CODE: PROPERTY LAW (LAWS2PR) (PLA3PT) DURATION : 3 HOURS TOTAL MARKS : 130 External Examiner : Internal Examiner : Professor E van der Schyff Professor W Freedman STUDENTS ARE REQUESTED, IN THEIR OWN INTERESTS, TO WRITE LEGIBLY PLEASE NOTE: THIS EXAM PAPER CONSISTS OF SIX (6) PAGES PLEASE SEE THAT YOU HAVE THEM ALL This examination consists of two sections: Students must answer both sections. SECTION A ANSWER ANY TWO (2) QUESTIONS FROM THIS SECTION QUESTION 1 Answer both Question 1.1 and Question Ishmail owns a game farm in the KwaZulu-Natal midlands. He keeps the following types of animals on the farm: impala, kudu, ostrich and wildebeest. Ishmail keeps the impala and kudu for commercial and hunting purposes, the ostrich for security purposes and the wildebeest for scientific and research purposes. All of the animals are allowed to roam freely on the property. This is because the entire property is enclosed with a game fence, and the fence is well maintained. Following a particularly severe thunderstorm, a part of the fence collapsed and four kudu, three ostrich and two wildebeest wandered onto the neighbouring farm. The owner of the neighbouring farm, Bess, captured all of these animals and placed them in a secure kraal from which they could not escape. Continued /

2 Question 1.1 (Continued) PAGE 2 When Ishmail discovered that his animals were in Bess s control, he demanded that Bess return them to him. Bess, however, refused to do so. She claims that she is the owner of these animals and that she does not have to return them. Ishmail wants to know if Bess is correct. Has she acquired ownership of these animals? Advise him. 1.2 Richard is a licenced salvor. While diving off the coast of Port Shepstone he discovered the wreck of an abandoned ship. Much to Richard s delight he noticed that the wreck still had four brass propellers attached to it. Unfortunately, Richard could not salvage these propellers immediately because he did not have the necessary equipment with him. Instead of removing the propellers, therefore, he engraved his initials on each of them using a diving knife. He also carefully noted the position of the wreck on his map intending to return later. When Richard returned two days later, however, he discovered that the propellers had been cut off and removed by another salvor called Zac. Richard then approached Zac and asked Zac to hand the propellers over to him. Zac, however, refused to do so. Zac claimed that he was in fact the owner of the propellers. Richard now wants to know if Zac is correct. Has Zac acquired ownership of the propellers? Advise Richard. (15 marks)

3 PAGE 3 QUESTION 2 Answer both Question 2.1 and Question Kate is a dealer in second-hand motor vehicles in Pietermaritzburg. Four months ago she sold a car to Sandile. At the time of the sale, Kate explained to Sandile that the sale was for cash. Sandile agreed to pay cash for the car and gave Kate a currently-dated cheque for the purchase price. The cheque was drawn on a bank located in Durban. Kate deposited the cheque into her bank account on the same day. A week later the cheque was returned to Kate marked Return to Drawer: Insufficient Funds. Kate put the cheque in her desk drawer and since then she has done nothing about the matter. She now wants to know whether she can reclaim the motor car from Sandile using the rei vindicatio. Advise her. (15 marks) 2.2 Belinda is a dealer in second hand machinery. About six months ago, she purchased a woodworking machine from Arthur who manufactures furniture. The machine is very large: it occupies most of a building the size of a tennis court and has to be dismantled in order to be moved. Arthur sold the machine to Belinda because he no longer needed it. On the day of the sale, Belinda and Arthur met in the presence of the machine. They inspected the machine together and agreed on a price, which Belinda paid by means of a currently dated cheque. After Belinda handed over the cheque, Arthur gave her a key to the building so that she could gain access to the machine for the purpose of removing it. Belinda and Arthur agreed that Belinda would begin dismantling the machine within two weeks. A week after inspecting the machine, Belinda suddenly became seriously ill. She was rushed to hospital where she remained for two months. After being discharged from hospital, Belinda contacted Arthur to let him know what happened to her. Arthur then informed Belinda that when she did not arrive to collect the machine as agreed, he sold it to Dikgang, as he urgently needed the space the machine was occupying. Arthur offers to refund the purchase price to Belinda. Belinda, however, refuses to accept this. She wants the machine itself. Belinda then approaches Dikgang, who has installed the machine in his factory. Belinda asks Dikgang to hand the machine over to her. Dikgang refuses to do so. Belinda wants to now whether she can reclaim the machine from Dikgang using the rei vindicatio. Advise her

4 PAGE 4 QUESTION 3 Johann is 65 years old. In 2000 he was involved in a motor car accident. As a result of this accident he lost the use of his right arm. Because he could no longer use his right arm, Johann was retrenched from his job as a motor mechanic. After he was retrenched Johann was unable to find another job and he was forced to stop paying rent for the flat he lived in. Approximately three months after he stopped paying rent Johann was lawfully evicted from this flat. After he was evicted, Johann moved into an abandoned building in the centre of Pietermaritzburg. He has lived in this building for the past five years. Over this period the condition of the building has deteriorated dramatically and it has recently been condemned as structurally unsound by engineers from the municipality s building department. Officials from the municipal fire department have also indicated that the building is a fire hazard. After several unsuccessful attempts to trace the owner of the building, the municipality has decided to demolish the building. The municipality has, accordingly, served a notice on Johann instructing him to vacate the building by the end of the year. The municipality has also informed Johann that should he fail to vacate the building by the end of the year, they will apply for an eviction order in terms of section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ( PIE ). After receiving this notice, Johann approaches you for advice. He tells you that he does not want to move out of the building and that if he is evicted he has nowhere else to go. He also tells you that he receives one free meal a day from a nearby church and that he has a part-time job selling newspapers on the street corner next to the building. He consequently wants to know whether the municipality will be able to successfully apply for an eviction order in terms of section 6 of PIE. Advise him. (40 marks)

5 PAGE 5 SECTION B ANSWER ANY TWO (2) QUESTIONS FROM THIS SECTION QUESTION 4 The South African law of neighbours has many peculiar features which render its study both fascinating and frustrating: it consists of common law principles which are a composite mix of the rich conceptual categories of the Roman-Dutch law and the equitybased discretionary style of adjudication which is the hallmark of the English law of nuisance; it occupies an intermediate position between the law of property and the law of delict; and it represents a jurisprudence of concepts strikingly adaptable to the social realities of neighbourly existence. See D van der Merwe Neighbour Law in R Zimmerman and D Visser (eds) Southern Cross (1996) at 759. Write an essay in which you explain what is meant by the concept of a nuisance. In your essay you must also set out and disucss the test applied by the courts in order to determine whether a landowner s conduct is unlawful and thus a nuisance. QUESTION 5 Depending on whether a real right is (1) newly created without the co-operation of a predecessor in title, or (2) already in existence and merely transferred from one person to another or created without the co-operation of a predecessor in title, a distinction is made between the original and derivative acquisition of ownership. See D Kleyn and A Borraine Silberberg and Schoemann s The Law of Property 3ed (1992) at 67. Write an essay in which you set out and discuss the general requirements for the derivative method of transferring ownership. In your answer you must also discuss the distinction drawn between the causal and abstract systems of transferring ownership and indicate which system is applied in South Africa.

6 PAGE 6 QUESTION 6 Answer Question 6.1, Question 6.2 and Question Servitudes are either praedial or personal. Though they have a few features in common and are created and terminated in similar ways, there are various important differences between praedial and personal servitudes. See CG van der Merwe Servitudes in LAWSA: First Reissue Vol 24 (2000) at para 388 Write a note in which you explain what is meant by a praedial servitude and a personal servitude. In your note you must also set out and discuss the differences between praedial and personal servitudes. (12 marks) 6.2 In accordance with the maxim servitus in faciendo consistere nequit a servitude cannot impose positive obligations on the owner of the servient property. This is known as the principle of passivity. Write a note in which you explain what is meant by the principle of passivity. Refer to relevant case law. (8 marks) 6.3 Write a note in which you explain whether a negative servitude may be acquired by prescription. In your note you must explain what is meant by the concept of a positive servitude and what is meant by the concept of a negative servitude. (5 marks)