PVL3701

GENERAL FEEDBACK MAY/JUNE 2023 EXAM

PLEASE TAKE NOTE THAT IS NOT A FULL MEMORANDUM. OUR EXPERIENCE OVER
THE LAST FEW YEARS WAS THAT STUDENTS “COPY AND PASTE” ANSWERS FROM
TUTORIAL LETTERS AND MEMORANDUMS IN THEIR EXAMINATION OR ASSIGNMENT
ANSWERS. THEREFORE, WE ONLY PROVIDE GENERAL FEEDBACK WITH THE
PURPOSE OF ASSISTING STUDENTS IN GETTING A BETTER UNDERSTANDING OF
WHERE THEY WENT WRONG.

MANY STUDENTS CONTRAVENED THE EXAM INSTRUCTIONS AND COPIED

DIRECTLY FROM THE STUDY MATERIAL OR OTHER SOURCES DESPITE THE FACT
THAT THIS WAS A CLOSED-BOOK EXAM. MANY STUDENTS ALSO SUBMITTED
EXACTLY OR ALMOST EXACTLY THE SAME ANSWERS. STUDENTS WERE
PENALISED FOR SUCH BEHAVIOUR BY NOT ALLOCATING MARKS AND THE
PROCESSES FROM THE STUDENT DISCIPLINARY OFFICE ARE STILL ONGOING. THE
USE OF ARTIFICIAL INTELLIGENCE SOFTWARE WAS ALSO PENALISED.

Question 1
Question 1.1
For purposes of this question, the concept of ownership had to be discussed. It was important
to indicate although ownership is the most complete real right it can be limited/restricted by the
law in this case neighbour law and the rights of others.
The principles relating to nuisance and specifically nuisance in the narrow sense regulate the
situation this is because Mr Nkosi’s right of personality and his entitlement to the use of his
property are infringed.
(See Study Guide p 42; 48-51)
Question 1.2
The relevant remedy that Mr Nkosi can institute is the interdict or the delictual action (claim for
damages / actio legis aquiliae.
Mr Nkosi could possibly succeed with the interdict BUT the interests of Mr Nkosi and the Van
Vuurens must be balanced. The reasonableness criterion had to be referred to (Malherbe v
Ceres Municipality. The matter is regulated in terms of neighbour law principles, or nuisance in
the narrow sense. Students could also have referred to Prinsloo v Shaw. Students had to reach
a logical conclusion.
(See Study Guide p 51; 124; 128-129; 131)
Question 1.3

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Most students did not understand that Jan’s advice is wrong the house (Mr Nkosi’s rental
property) is an immovable thing (land) and therefore the publication requirement/method for the
transfer of ownership is fulfilled by means of registration (derivative method of acquisition of
ownership) of the property into Mr Nkosi’s name NOT delivery (an immovable thing cannot be
delivered).
Marks were awarded for a discussion of the elements that must be present in order for Mr Nkosi
to acquire ownership over the property:
Students had to reach a logical conclusion.
In many instances, students argued that Jan’s advice is correct but later in the answer
mentioned that registration is required. Answers like that did not indicate a clear understanding
of this aspect of the module. We used our discretion and awarded marks for example if students
correctly discussed the other elements for transfer of ownership.
(See Study Guide p 96-99)
Question 2

Question 2.1
Karen is a lawful holder of the fridges. Ronald is a lawful holder of the small room.
(See Study Guide p 151)
Question 2.2
SA Bank holds a limited real right/limited real security right, namely a mortgage registered over
the hotel.
Many students incorrectly indicated that Karen had limited real right over the hotel. Karen owns
the hotel; therefore she has a real right (ownership) over the hotel. Also, many students
indicated that Cheap Deal Wholesale has a limited real right over the fridges. Cheap Deal
Wholesale remained the owner of the fridges until the last instalment was paid.
(See Study Guide p 223)
Question 2.3
Marianne is a bona fide possessor she has the intention of an owner on the incorrect
assumption / mistakenly thinks that she is the owner.
(See Study Guide p 150)
Question 2.4
If she stole the towel Marianne would have been a mala fide possessor a thief as the intention
of an owner but knows that she is not the owner.
(See Study Guide p 151)
Question 2.5
Ronald has a personal right against Karen in terms of the lease agreement and in terms
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of the service agreement.
Cheap Deal Wholesale has a personal right against Karen in terms of the credit
agreement. Remember Cheap Deal Wholesale remains the owner until Jane pays the
final instalment. But in terms of the credit agreement, Cheap Deal Wholesale has a
personal right against Karen to claim the instalments.
(See Study Guide p 30-32)
Question 2.6
(i) The most suitable remedy for the car is the actio ad exhibendum because Ronald destroyed
the car with mala fide intent. Also, since the car was set on fire it makes sense that she
should institute this action to claim the market value of the car at the time of destruction.

(See Study Guide p 127-128)

(ii) The Aquilian action is the most suitable remedy because the doors are damaged, and
Karen would want to claim damages.
(See Study Guide p 128-129)
(iii) The Aquilian action is also the most suitable remedy because the fridges are damaged and
Karen would want to claim damages. Even though Karen is not the owner of the fridges
yet, she has a proprietary interest in the fridges.

Marks were awarded for the correct identification of the remedies, the requirements and for a
logical conclusion in each instance.
(See Study Guide p 128-129)

Question 2.7
A valid pledge was not created and therefore a limited real right over Ronald’s phone was not
created. To create a valid pledge certain elements must be present. The “delivery” element was
problematic and therefore Karen only has a personal right (or a creditor’s right) against Ronald
to claim the R5 000 that he owes her.
(See Study Guide p 210-211)
Question 2.8
Mike’s advice regarding Ronald’s belongings is correct and Ronald could succeed in claiming
his belongings with the rei vindicatio because Ronald should be able to prove the requirements
for the rei vindicatio. But to restore control of the rented room, Ronald would have to institute
the spoliation remedy. Although he is the owner of his belongings – he is not the owner of the
rented room – but he was in peaceful undisturbed control of the rented room. Marks were
awarded for a clear understanding of the difference between these remedies, for a brief
discussion of the requirements and for a logical conclusion)

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(See Study Guide p 119-120 & 160-163)

Question 3
Question 3.1

The type of co-ownership is free co-ownership because there was no other underlying
relationship besides the co-ownership.
(See Study Guide p 136)
Question 3.2

Consent/agreement between the co-owners is required to sell the property itself.

(See Study Guide p 138)
Question 3.3

They can approach the court and may claim division by means of the actio communi dividundo.

(See Study Guide p 142)

Question 4
Question 4.1

Their argument is not valid their ownership is terminated by operation of law. Registration is,
therefore, not required. Marks were awarded for a discussion of expropriation as an original
form of acquisition of ownership.

(See Study Guide p 89; 133)

Question 4.2
Attornment as a constructive form of delivery was relevant here. Marks were awarded for the
correct identification and for a discussion and application of the elements to the set of facts.
(See Study Guide p 110-111; 96-99)
Question 5
Question 5.1

This is an example of personal servitude because it was granted in a personal capacity.

One mark was awarded for “land or praedial servitude” as well; and two marks if a student
indicated that this is land servitude granted in personal capacity.

(See Study Guide p 181; 193-194)

Question 5.2
The (limited real) rights of a servitude holder enjoy precedence over the rights of the owner,

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regarding the exercise of the servitude. Malti may perform all the acts that are necessary for
the due exercise of the servitude in a reasonable manner (civiliter modo) with the least possible
inconvenience to the owner.
(See Study Guide p 198)
Question 5.3
Ebrahim is not obliged to grant Imran the servitude. A personal servitude of right of way was
only granted to Malti in her personal capacity and not to her successors in title. A personal
servitude cannot be transferred in any way (Durban City Council v Woodhaven Ltd) and it
lapses on the holder’s death. The servitude in favour of Malti was a registered servitude and
therefore the doctrine of notice does not apply. If Imran wants to use the road, he will have to
approach Ebrahim. A servitude agreement and registration will be required. Imran could apply
to court for the servitude to be granted and should prove that the alternative road is not a
suitable road to access the nearest town (right of way of necessity).

Additional marks were awarded for a discussion of Van Rensburg v Coetzee and the
requirements for a way of necessity.

(See Study Guide p 181-183)

Question 6
Question 6
Nelly and Themba are protected by the huur gaat voor koop doctrine. Marks were awarded for
a clear understanding of the operation of the doctrine and for references to relevant case law
(See Study Guide p 253; 256-257)
Question 7
Question 7
The families are considered to be unlawful occupiers, because they do not have the permission
of the owners (Harry and Nicole) to occupy the land. Marks were awarded for a discussion of
the rei vindication, Section 26(3) of the Constitution and for a discussion of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 or PIE. Marks were also
awarded for relevant case law.
(See Study Guide p 121, 273)
Question 8
Question 8
A clear understanding of the fact that Harry and Nicole’s ownership is protected in terms of
section 25(1) (the property clause) of the Constitution of the Republic of South Africa Act, 1996

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but that ownership is not absolute and can be limited had to be illustrated.
Restrictive conditions constitute a justifiable deprivation.
Marks were awarded for a clear understanding of Section 25(1) and of the meaning of
deprivation of property. Marks were also awarded for relevant case law.
(See Study Guide p 121, 273)
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UNISA 2023