Still Property

Question 1

How is the right of mortgage EXTINGUISHED? NAME 7

Answer 1

1. Extinction of the principal debt by payment/ set off etc
2. Destruction of the mortgaged thing
3. Extinction of the mortgagor’s title in respect of the mortgaged thing eg. Where the mortgagor is the usufructuary of the mortgaged thing dies.
4. Express or tacit renunciation of the mortgage by mortgagee.
5. Merger (confusio) mortgagor becoming the owner.
6. Court order
7. Prescription

Question 2

What are the requirements for a successful interdict?

Answer 2

The interdict must have or contain :

1. Clear right
2. Actual or reasonably apprehended violation of a right
3. No other protection from any other remedy

Question 3

Which case that set out requirements for a successful interdict?

Answer 3

Setlogelo vs Sotlogelo

Question 4

What is an interdict

Answer 4

An interdict can be defined as a summary court order applied for on an urgent basis.

In an application for an interdict the applicant may apply for an order forcing someone to do something or to refrain from doing something.

It is a speedy remedy where rights have been infringed or are about to be infringed.

Question 5

Define entitlement

Answer 5

Entitlement refers to the content of a right.
The entitlement of a real right determines which act a legal subject may perform in regard to a thing. Eg sell or use the thing

Question 6

Name the criteria which are applied to determine whether a movable thing has become part of an immovable thing through building (inaedificatio)

Answer 6

1. Nature and purpose of the attached thing
2. Manner and degree of attachment
3. Intention of the person annexing it or intention of the owner of the movable thing

Question 7

Describe delivery with the short hand with reference to an exampe

Answer 7

Short hand delivery means already have physical control. Eg infoplus buys a car on installment from a bank which then ceded ownership to Westbank. This means Westbank is the owner until infoplus pays full price however the is delivered to infoplus. A representative of infoplus M agrees with a representative of S motors G that the car will be transferred to S motors place G will find a buyer sell the car at stipulated price and introduce the buyer to infoplus who will the pay commission to G. M goes away on a trip when he comes back he realizes that S motors sold car to X without introducing X to infoplus at lowprice and X sold car to Silk.

Now infoplus enters into an agreement with X to pay outstanding amount. There is no transfer taking place as X already has physical control that is delivery with a short hand

Question 8

Describe delivery with the short hand with reference to an exampe

Answer 8

Short hand delivery means already have physical control. Eg infoplus buys a car on installment from a bank which then ceded ownership to Westbank. This means Westbank is the owner until infoplus pays full price however the is delivered to infoplus. A representative of infoplus M agrees with a representative of S motors G that the car will be transferred to S motors place G will find a buyer sell the car at stipulated price and introduce the buyer to infoplus who will the pay commission to G. M goes away on a trip when he comes back he realizes that S motors sold car to X without introducing X to infoplus at lowprice and X sold car to Silk.

Now infoplus enters into an agreement with X to pay outstanding amount. There is no transfer taking place as X already has physical control that is delivery with a short hand

Question 9

name two delivery elements

Answer 9

1. Physical element (corpus)

2. Mental element (animus)

Question 10

Physical element can be fulfilled in different ways which ways

Answer 10

1. Actual delivery (traditio vera)

2. Constructive or fictitious delivery(traditio ficta)

Question 11

3 different situations for constructive or fictitious delivery

Answer 11

1. Placed in a position to exercise physical or actual control(symbolic delivery, delivery with a long hand )
2. Already in physical control by virtue of some other legal relationship (delivery with a short hand)
3. In a position where someone else exercises physically control on his or her behalf

Question 12

Acquilian action

Answer 12

Damages can be claimed from any person who through his or her unlawful conduct caused loss to an owners thing in a culpable manner
(hefer v van greuning)

Question 13

Action legis aquiliae requirements

Answer 13

1. Unlawful conduct by the defendant
2. Culpability(intent/negligence) on the part if the defendant
3. Proprietary right/ interest of the plaintiff in the thing
4. Patrimonial loss by the plaintiff
5. Casual link between the Patrimonial loss and the conduct of the defendant

Question 14

Property

Answer 14

In a broad sense the word property in the law of property refers to everything that forms part of a person’s estate. A comprehensive collection of legal rights over a thing or legal object.

Question 15

Property

Answer 15

In a broad sense the word property in the law of property refers to everything that forms part of a person’s estate. A comprehensive collection of legal rights over a thing or legal object

Question 16

Consumable vs non consumable thing

Answer 16

Consumable things that are used up or their value considerably deminished by ordinary use eg my pensil or food stuff, cigarettes etc

Non-consumable things that are preserved in spite of normal use eg car, stove, tools etc. An thing is non-consumable dispite of the fact that it is subject to wear and tear

Question 17

Possession

Answer 17

Physical control of a thing with intention of an owner (animo domini), which is always unlawful and is therefore only a real relationship, not a real right.

Question 18

Holdership

Answer 18

Physical control of a thing with the intention to derive a benefit, which may be lawful or unlawful.
When it is lawful it could give rise to a real right

Question 19

Characteristics of a thing

Answer 19

1. Independent
2. Corporeal
3. External
4. Human control
5. Useful and
6. Valuable

Question 20

Condictio furtiva requirements

Answer 20

To succeed with this action, the appicant 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 a thing with deceitful intent.
3. If action is not instituted against the thief or deceitful remover, that the defendant is the heir of the former

Question 21

Condictio furtiva

Answer 21

Condictio furtiva can be defined as an action which can be instituted by the owner or person with a lawful interest in claiming the thing or its highest value since the theft from the thief or person who removed the thing with deceitful intent (Clifford v Farinha) this action can be used as an alternative to rei vindicatio

Question 22

Factors considered for compensation for expropriation

Answer 22

1. Just and equitable
2. Market value
3. Use of the property
4. History
5. Reasons for expropriation
6. Extent of state investment

Question 23

Factors considered for compensation for expropriation

Answer 23

1. Just and equitable
2. Market value
3. Use of the property
4. History
5. Reasons for expropriation
6. Extent of state investment

Question 24

S and friends go hunting and wounds a kudu but the animal escape. S and friends quit looking and Z on his way from a part finds wounded kudu and he fetched his friends. they slaughtered the animal and took the meat to their respective homes. Z is accused of theft the state alleges that S was the owner will the state succeed in proving this? Substantial your answer with reference to case law.

Answer 24

No, the state will not succeed in proving that S is the owner. S could have only became an owner by means of appropriation.
Appropriation or occupation is the original method of acquisition of ownership.
It can be defined as unilateral taking of physical control of a thing which belongs to no one but which is within the sphere of law with the intention to becoming its owner.

The above set of facts is similar to those in R v Mafohla. S did not have the element of control for him to rely on acquisition of ownership by means of appropriation.
Physical control is essential for acquisition of ownership by means of appropriation. Where animals are wounded but physical control does not take place, appropriation doesn’t take place. Therefore if someone catches a wounded animal or discovers the carcass the latter obtains ownership.

Question 25

S and friends go hunting and wounds a kudu but the animal escape. S and friends quit looking and Z on his way from a part finds wounded kudu and he fetched his friends. they slaughtered the animal and took the meat to their respective homes. Z is accused of theft the state alleges that S was the owner will the state succeed in proving this? Substantial your answer with reference to case law.

Answer 25

No, the state will not succeed in proving that S is the owner. S could have only became an owner by means of appropriation.
Appropriation or occupation is the original method of acquisition of ownership.
It can be defined as unilateral taking of physical control of a thing which belongs to no one but which is within the sphere of law with the intention to becoming its owner.

The above set of facts is similar to those in R v Mafohla. S did not have the element of control for him to rely on acquisition of ownership by means of appropriation.
Physical control is essential for acquisition of ownership by means of appropriation. Where animals are wounded but physical control does not take place, appropriation doesn’t take place. Therefore if someone catches a wounded animal or discovers the carcass the latter obtains ownership.

Question 26

Define Rei vindicatio

Answer 26

Rei vindicatio can be defined as a real action with which an owner can claim for his/her thing from whoever is in control of it unlawfully. It may be instituted in regard to movable or immovable things. In the case of the latter the remedy takes the form of an eviction order

Question 27

Requirements for a Rei vindicatio to be successful

Answer 27

Plaintiff must provide on a balance of probabilities, that:

1. He or she is the owner
2. The thing exists and is identifiable
3. The defendant is in control

Question 28

Define spoliation remedy

Answer 28

Is a summary remedy usually issued upon urgent application aimed at restoring control of a thing to the applicant from whom it was taken by means of unlawfu self help, without investigating the merits of the original rights of the parties to control the thing.

Question 29

Requirements of spoliation remedy

Answer 29

1. The applicant (poliatus) must have enjoyed peaceful and undisturbed control of the thing.
2. The respondent (spoliator)must have desturbed the applicant’s control in an unlawful manner

Question 30

Discuss impossibility to restore control when applying the spoliation remedy substantiate with cases

Answer 30

1. Since spoliation remedy aims at immediate restoration of control to the position to which the applicant was before the spoliation took place, it goes without saying that this can not be achieved if restoration is impossible.
2. However in Frederick v stellenboch divisional council it was held that restoration may be order where it can be effected with material of similar nature to the material which had be destroyed.
3. Also in the case lerse trog CC a similar position was held where a spoliation order can be granted if the property is not entirely distroyed eg rebuilding of the wall.
4. In the case of Rikhotso the court reiterated the purpose of the spoliation remedy and argued that if material has be distroyed restoration is impossible and spoliation remedy is not applicable in this case, a delictual claim for damages will be the correct remedy.

Question 31

Physical control is in two ways name them

Answer 31

1. Direct physical control - in its literal sense as it was described in the case of nienaber v stuckey
2. Indirect physical control in a broader sense is when you not in direct control as it was described in morkels transport v molro fooda

Question 32

B one of S farm workers wants to borrow 2000 from S. He offers an antique pocket watch which he inherited from his grandpa as security. S accepts the watch. S and B signs a doc in which B agrees that S may keep the watch if B does not repay the full amount within six months.

Discuss the validity of the agreement that S may keep the watch. Refer to case law.

Answer 32

This question deals with the clause that the pledge may keep the thing if the pledgor fail to pay. In both Mapenduka v ashington and Graf v Buechel it was decided that a clause that a pledgee may keep the thing if pledgor fails to pay is invalid.

Question 33

Nature of a pledge and required to constitute a pledge.

Answer 33

The accessory nature of a pledge requires the existence of a:

1. Principal debt
2. A pledge agreement (security agreement ) and
3. Delivery