PVL3701

Portfolio F1 Special Examination Opportunity

Portfolio Date: 17 April 2023

Instructions:

The portfolio answers must be submitted by 17:00 on Monday 17 April 2023. No

late portfolios will be accepted.

• The portfolio must be submitted via email to [email protected].

• Only handwritten portfolios will be accepted. Typed portfolios will not be
accepted. Please do not exceed 10 handwritten pages.
• Make sure that you have access to a scanner so that you can scan your
portfolio answers and e-mail it to me.
• Note the mark allocation per question when you answer the questions.
• When answering the take-home exam questions, remember that an open-
book exam is a test at a higher level than the usual type of exam, where
memory is tested as much as insight. In an open-book exam, you need not
memorise any information. You are expected to prove that you can use
information, rather than merely repeat it. In brief, what is being tested is
factual knowledge, understanding and the correct application thereof, not
memory skills. For this reason, you do not earn marks by merely detailing a
list of all the information that you think might be relevant to a particular
question. This gives no indication that you know what statutory or other
provisions are applicable in a specific context. You are expected to identify
precisely what information applies, and then explain why you think so. Also,
because you have the Study Guide available when answering questions, we
do not give marks for direct quotations from the guide. You are therefore
assessed on your level of understanding of the legal principles by looking at
how well you applied the principles to the questions. PLEASE DO NOT COPY
DIRECTLY (OR WORD-FOR-WORD) FROM ANY SOURCE. USE YOUR
STUDY GUIDE AND THE PRESCRIBED CASE LAW TO ANSWER
QUESTIONS. Your answer should contain the most relevant information and
should clearly answer the question.
• The arguments that you make must be logical, well-structured and
substantiated by relevant legal principles. Use the time given wisely.
• You are required to have read and summarise the prescribed cases yourself.
When using case law to support your answer, please include complete
references to the relevant cases in your references. This means that you
must not only include the name of the case but also the exact page and
section and/or paragraph where the information can be found. The same
applies to the Study Guide. There is no need to include references in
footnotes. Please reference in the text or in brackets.
 • A number of students lose marks because they do not approach problem-
type questions correctly. When answering such questions, it is important to
first clarify for yourself the area of work where the answer must be sought.
Once you have done this, set out the relevant legal principles. Deal only with
those principles that relate to the given facts. Next, apply these principles to
the facts. This is where most of the students lose marks - they set out the law
in some detail, but then do not illustrate how it applies to the factual situation
they have been asked to solve. Finally, state your conclusion.
• Please adhere to the University’s Policy on Copyright Infringement and
Plagiarism and the Student Disciplinary Code, which are both available on
myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to
student values and plagiarism that is found at
https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-
values-and-rules.

You will be expected to complete an Academic Honesty Declaration and submit it

with your answers.

Question 1: Real and Personal Rights

(a) In terms of a contract with his father (Peter), John has a personal right (creditor’s
right/claim) to use Peter’s farm (Green Acres) for grazing purposes.

Is it possible to register this right in the deeds registry? Briefly substantiate your
answer. (4)

(b) In South African law there are two theories that can be applied to distinguish
between real and personal rights, the personalist theory and the classical theory.
Fully discuss which theory you think is the most suitable and reliable theory. (4)

Total Question 1: [8]

Question 2: Ownership

(a) John entered into a lease agreement with his father, Peter. John builds a house
made of corrugated iron for the herdsmen on Peter’s farm. He screws the
corrugated iron to a concrete foundation. Upon expiry of the contract of lease,
John wants to remove the house. Peter and John have an argument about the
removal of the corrugated iron house. Peter warns him that he cannot do that
because this would amount to theft. Peter also argues that he became the owner
of the corrugated iron house by accession.

Will Peter succeed with this argument in court? Substantiate your answer with
reference to case law. (10)

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(b) Peter purchases his farm implements in terms of a credit agreement from
Implements for You. Implements for You reserves ownership until Peter has paid
the final instalment. Peter pays a high rate of interest to Implements for You but
Thabo, Peter’s friend, undertakes to pay the full amount to Implements for You.
Peter can then repay the money to Thabo in instalments. Implements for You
transfers ownership to Peter.

(i) What form of transfer of ownership applies here? (1)

(ii) Explain the operation of the applicable form of delivery with reference to case
law. (7)

(c) Peter obtains permission to subdivide his farm and John leases one part of the
subdivided farm. Peter erects a fence on the new boundary and donates part of
his farm which John is leasing from him to John. John and Peter drink a toast at
the new gate. Peter says to John: “Son, I am glad that this piece of land is now
your property!”

Did John become the owner of the land? Substantiate your answer fully. (5)

(d) Zavier, a neighbour of Peter, has been farming a part of Peter’s farm, Gren Acres,
for several years. Zavier avers that he has become the owner of that part of
Green Acres through prescription. Peter denies this and claims that Zavier has
merely leased that part of the farm. No documentation confirming either case can
be found.

What remedy could be employed to solve this problem and what are the
requirements for that particular remedy? (4)

(e) Xander and Yola are co-owners of a farm. They built a road on the farm, which
they use to transport lemons to the market. Without Xander’s knowledge and
approval, Yola gives permission to a neighbour, Zavier, to use the road so that
he can transport his lemons to the market. Xander is unhappy about the heavy
traffic on the road and asks Yola to revoke her permission to Zavier. Xander also
asks Zavier to discontinue his activities. Neither Yola nor Zavier takes any notice
of Xander.

Discuss the remedies available to Xander. Refer to case law. (7)

Total Question 2: [34]

Question 3: Possession and Holdership

(a) John leases a portion of Peter’s farm, Green Acres, for grazing purposes. Peter
starts to plough on the section of the farm to which John is entitled in terms of

3
 the lease contract. John requests Peter to stop the ploughing on the farm. Peter
refuses.
What remedy is available to John? Discuss this remedy with reference to its
requirements and John’s chances of success. (5)

(b) The lease contract between Peter and John is invalid. John is aware of the invalid
lease agreement, but nevertheless continues as if the lease were valid. Answer
the following questions:

(i) What is the real relationship between John and the land before he became
aware of the invalidity of the contract and why is this so? (2)

(ii) What is the real relationship between John and the land after he became
aware of the invalidity of the contract and why is this so? (2)

(c) A number of dwellings were erected on Peter’s land without his consent. Peter
demolishes the dwellings without obtaining a court order. He burns some of the
materials with which certain of the dwellings had been constructed. The occupiers
of the dwellings apply for a spoliation order in respect of the dwellings that were
destructed by Peter.

What would the occupiers have to prove to succeed with this remedy? Will they
succeed in these circumstances? Refer to the relevant case law. (8)

Total Question 3: [17]

Question 4 Limited real rights

(a) Draft a set of facts that clearly illustrates your understanding of the different
limited real rights that are applicable in South African Property Law. You must
refer to at least four different limited real rights in your set of facts. (16)

(b) Peter leases a house on his farm, to Zita. Zita lives in the house with her family
and parents-in-law. Zita fails to pay rent. How can Peter ensure that the rent will
be paid? Advise him fully on what possible remedy he may use. (5)

(c) Peter purchases his farm implements from Implements for You in terms of a credit
agreement. Implements for You is not prepared to grant credit to Peter unless he
gives security that the instalment will be paid. They agree that Implements for You
will reserve ownership. Before Peter have paid the last instalment, he becomes
insolvent. Advise Implements for You as to its legal position. (3)

(d) John wants to mine for coal on Peter’s farm, Green Acres. Advise John with
reference to the procedures that he must follow in terms of the Mineral and
Petroleum Resources Development Act 28 of 2002. (5)
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Total Question 4: [29]

Question 5: Constitutional Property Law

Zavier bought three tractors in terms of a instalment sale agreement from the Land
Bank. The Land Bank therefore remained the owner of the tractors. The Commissioner
of the Inland Revenue detained, and thereby established a lien over these tractors on
Zavier’s premises in terms of section 114 of the Customs and Excise Act 91 of 1964.
This was done to obtain security for payment of predominantly outstanding customs
duty and penalties. The Commissioner has indicated that he intends selling the
tractors to satisfy the outstanding customs debts of Zavier. The Land Bank claims
substantial sums to be outstanding with regard to the tractors, both in terms of
payments which have fallen into arrears and in terms of total outstanding contracts
payments. The Land Bank institutes the rei vindicatio against the Commissioner for
return of the tractors. The Commissioner relies on section 114 of the Act, which
empowers him to detain and sell various types of property. Discuss First National Bank
of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services;
First National Bank of SA Limited t/a Wesbank v Minister of Finance (2002) (4) SA 768
(CC) in relation to the following questions:

(a) Will the Commissioner succeed in his defence? (2)

(b) What is the purpose of section 25? (2)
(c) What was the court’s view on the meaning of property in section 25? (5)
(d) When is State action “arbitrary”? (3)

In order to answer these questions, you first have to consult the judgment. Take note
of the following specific paragraphs of the judgment: Paragraphs [47]-[50], [51]-[56],
[53]-[56], [65]-[67], [100], [108], [109] and [111].

Total Question 5: [12]

Total: [100]