prop june cases

Question 1

telkom case

Answer 1

Telkom (restoration of telephone and bandwidth)

(1) The contract between Telkom and Xsinet was a personal right, thus, it is non-servitudal in nature.
(2) One must then prove that there was an incident of possession or control of the property.
(3) Held that the use of bandwidth and telephone services does not constitute an incident of possession in the same way as water and electricity.
(4) There was no suggestion that Telkom interfered in any way with Xsinet’s physical possession of the equipment.
(5) SCA held that this was no an incident of possession case but rather a mere contractual dispute and the MVS cannot be used to claim specific performance.
(6) However, this case has led to unnecessary confusion because contractual rights can give rise to use rights that can be protected by the MVS (provided that an incident of possession can be proven).

Question 2

first rand

Answer 2

First Rand (restoration of water)

(1) The MVS is not available in the case of contractual disputes or when specific performance is available.
(2) Possession of mere personal rights is not protected by the MVS, the right of quasi-possession must be of actual use, incident of possession or control of property.
(3) Quasi-possession comes from the actual exercise of the right (relied on Bon Quelle).
(4) The MVS does no protect all rights.
(5) The court found an incident of possession because the water rights were registered and used for sugarcane.
(6) Even though there was an incident of possession, it is still a contractual right and therefore they could not use the MVS.

Question 3

ATM solutions

Answer 3

(1) It was not disputed that the ATM and its floor space were in OH’s possession and control (they controlled it and operated it - had the keys).
(2) Relied on First Rand: the MVS does not protect all quasi-possessory rights regardless of their nature.
(3) The right to have the ATM in that space is purely contractual - there was no incident of possession.
(4) Where a non-servitudal right of use is separate from possession, it is almost inevitably a contractual right.
(5) MVS was not awarded and the appeal dismissed with costs.

Question 4

possessory action requirements

Answer 4

Possession lost and circumstances for Mv S do not apply

1. need prima facie proof that the plaintiff entitled to be in possession
2. defendant responsible for removing posession / currently in control of the thing

available to anyone who can prove ius possidendi. Can recover possession including ejectment and damages if not in same state

defence: challenge facta probanda

Question 5

prohibitory interdict

Answer 5

possession disturbed or threatened with interference, available to who can prove prima facie or clear right

1. prima facie right (temp interdict) or clear right (final interdict)
2. harm committed
3. irreparable damage
4. interdict only suitable remedy

order to stop interference and prevent further interference. No claim for damages but court may substitute award of damages for final interdict if it would give sufficient protection

Question 6

delictual action

Answer 6

available to those who can prove delictual elements, damages awarded

Question 7

defenses to the mandament

Answer 7

1. challenge the facta probanda
2. allege lack of locus standi
3. allege excessive delay
4. allege restoration is impossible

Question 8

distinction between possession and quasi possession

Answer 8

possession:

1. corpus detentio
2. animus

quasi possession:
1. right to use
2. animus
servitutal in nature + incidents of possession of corporeal

Question 9

Schwedhelm

Answer 9

1. servitudes passive in nature
2. servient tenement merely endures servitude
3. erroneous registration foes not change the nature of rights
4. an agreement to maintain the pumps is personal becasue it does not subtract from the dominium
5. personal rights do not bind successors in title unless they explicitly agree to it

Question 10

Lorentz v Melle

Answer 10

1. is the right capable of being a servitude?
   - set out requirements for a praedial servitude
   - decided it was an obligation sounding in money
   - obligation attached to the person and not the land
   - no subtraction of dominium in the physical sense
   - incorrect reg does not change nature of the rights
2. intention of the parties not relevant because not a servitude

Question 11

Geldenhuys

Answer 11

• formulated sub from dom test
• not so much at right but correlative obligation

3 rights:

1. right of ownership
2. right to receive money
3. right to subdivide land at any time

right to divide land restricted because cannot do it at anytime they want, must draw lots when they come of age - subtraction from dominium
right to receive money is a personal right , registered because intimately connected and would be misleading not to
registered to give effect to will of testator , only wants money to go to children
reg does not change nature of rights- rights are merely ancillary or complimentary

Question 12

Nel

Answer 12

looked to the intention with which the rights were created to see if they were real rights
- right to receive monthly annuity personal and only binding on the son
demonstrates the courts weariness to create real rights
- in order to determine the intention one must look to the wording or indication that is binding on the parties but also the successors in title
- court did not answer whether payment of annuity was a burden on the land

Question 13

Erlax

Answer 13

(1) The two-fold test was first established in Geldenhuys but developed in this case.
(2) Set out the requirements for a praedial servitude by determining that the real right was not a praedial servitude because:
(a) No reference was made to a dominant tenement.
(b) It is of the essence, that it should be for the economic benefit of the dominant tenement.
(3) It was a personal servitude and therefore a real right.

Question 14

Nino Bonino

Answer 14

(1) The court does not consider the merits of the case but merely attempts to restore the status quo ante.
(2) The MVS is underpinned by policy consideration as it aims to prevent self-help.
(3) Violence or abuse is not a requirement.
(4) You cannot use the MVS if there is a contract (there was a contract but one of the clauses violated public policy and was therefore deemed invalid).

Question 15

Tswelopele

Answer 15

restoration must be possible in order to use the MvS
court made up new constitutional remedy
(1) Restoration must be possible for the MVS to apply.
(2) There was an outcry to develop the MVS and develop the common law but the court denied.
(3) Due to the gross violation of human rights, the MVS was not applicable, and instead a constitutional remedy was applied.
(4) The structures must be rebuilt but still capable of being dismantled.
(5) Ultimately, an element of spoliation is what has been destroyed cannot be restored.

Question 16

Wightman

Answer 16

(1) The Wightman case held that the possession of the original set of keys amounts to physical control of the premises and therefore temporary absence does not amount to abandonment.
(2) Furthermore, by giving the occupier duplicate keys it does not mean giving up possession and needs to be looked at in context.
(3) This case relied on Nino, which held that violence or fraud is not a necessary requirement to be spoliation.
(4) Ultimately, in Wightman, spoliation was complete when the builder arrived at the premises and was denied access to the property by the second respondents.

Question 17

Ivanov

Answer 17

(1) Spoliation is the wrongful deprivation of another’s right of possession.
(2) The aim of the MVS is to prevent self-help and restore the status quo ante.
(3) Importantly, the court does not consider the merits of the case. Therefore, it does not matter that the spoliator might have a stronger claim to possession than the person spoliated or that the latter has no right to possession.
(4) Ultimately, spoliation will be granted regardless of the unlawfulness of the gambling as the merits of the case are not considered for the MVS.