Exam (elaborations)
PVL3701 EXAM PACK 2023
- Course
- Pvl3701
- Institution
- University Of South Africa
PVL3701 EXAM PACK 2023
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PVL3701EXAM
PACK
2023
, lOMoARcPSD|4402399
MCQ
1. Indicate the correct option.
Which one of the following things can be regarded as a res nullius?
(1) a domesticated tiger living in his owner‟s house
(2) an impala roaming in the bushes
(3) a Persian cat lying on the neighbor‟s patio
(4) a springbok kept on a private game farm for hunting purposes
ANSWER:
Option 2 is correct. A res nullius is a thing which does not belong to anyone. All creatures that are
wild by nature either in their natural state or when they have reverted to their former wild state are
regarded as res nullius. Wild animals that have been tamed (option 1), domestic animals (option 3) or
wild animals regulated by the Game Theft Act 105 of 1991 (option 4), are not res nullius. An impala
roaming in the bushes is wild by nature and regarded as a res nullius.
See Study Guide pg 92
2. Indicate the correct option.
The following is an example of constructive delivery where a transferee is placed in position to
exercises physical control over a thing:
(1) delivery with the short hand
(2) symbolic delivery
(3) attornment
(4) cession of ownership
ANSWER:
Option 2 is correct. Constructive delivery is when there is no physical or actual handing over of the
thing. The transferee is either placed in a position to excercise physical control, already in physical
control or someone else exercises physical control on his/her behalf. Examples of a transferee placed
in a position to excercise physical control over the thing are symbolic delivery, delivery with the long
hand (traditio longa manu) and bills of lading.
See Study Guide pg 132-134
3. Indicate the correct option.
The aim of the actio negatoria is:
(1) to determine the rights and duties of contesting parties.
(2) to claim the stolen thing or its highest value since the theft.
(3) to claim the market value of the thing that was destroyed or alienated with mala fide intention.
(4) to protect ownership where a servitude holder exceeds the limits of her servitude.
ANSWER:
Option 4 is correct. The actio negatoria is a property law remedy. It is a real action aimed at
protection of ownership in circumstances where third persons seek to exercise rights of a servitude
holder which they do not have or where servitude holders exceed the limits of their servitude. The
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owner can institute this action against the violator and have to prove that he/she is the owner and that
there is a physical infringement of his/her entitlements of ownership.
See Study Guide pg 163 and 169
4. Indicate the correct option.
X and Y are co-owners of a farm. They built a road on the farm, which they use to transport lime to
the market. Without X's knowledge and approval Y gives permission to a neighbour, Z, to use the
road so that he can transport his lime to the market. X is unhappy about the heavy traffic on the road
and asks Y to revoke her permission to Z. X also asks Z to discontinue his activities. Neither Y nor Z
takes any notice of X. Which remedy does X have against Y?
(1) X can claim damages from Y.
(2) X can institute the condictio furtiva against Y.
(3) X can approach the court for a declaratory order.
(4) X can institute the rei vindicatio against Y.
Answer:
option 1
5. Indicate the correct option.
S, X and Y‟ son, leases a portion of their farm. When his father's farm implements are stolen, he gives
some of his (rented) equipment to his father, X, to use. Father and son have an argument. In his
anger X destroys his son's rented equipment. Which remedy is available to S?
(1) spoliation remedy
(2) condicio furtiva
(3) enrichment action
(4) possessory action
ANSWER:
Option 4 is correct. S is in control of the rented equipment. When a person who is in control of a thing,
loses control of the thing, he/she can restore his/her control with the spoliation remedy. In this
example the equipment is destroyed and S will not be able to claim restoration of his control with the
spoliation remedy. S will however be able to claim damages resulting from the loss of control from X
with the possessory action. S can therefore claim the value of the equipment from X, who has a
weaker right to control it than what S has.
See Study Guide pg 212-213
6. Indicate the incorrect option.
A land servitude must comply with the following requirements before it will be recognised as a limited
real right to the land of another:
(1) The servitude must have a degree of permanency.
(2) The servitude must enhance the use and benefit of the dominant tenement.
(3) The servitude must impose a duty on the owner of the servient tenement to perform a positive act.
(4) The tenements must be situated, in relation to each other, in such a way that the
effective exercise of the servitude to the benefit of the dominant tenement is possible.
ANSWER:
Option 3 is incorrect. The maxim servitus in faciendo consistere non potest applies to all servitutes.
According to this maxim a servitude (personal or land) cannot impose a duty on the owner of the
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servient tenement to perform a positive act. Land servitutes must have a degree of permanency
(perpetua causa) and enhance the use and benefit of the dominant tenement (utilitas). Furthermore
the tenements must be situated, in relation to each other, in such a way that the effective exercise of
the servitude to the benefit of the dominant tenement is possible (proximity).
See Study Guide pg 237-238
7. Indicate the correct option.
X lends R5 000 to Y and X secures payment of the loan by registering a notarial bond over Y‟s car. Y
owes Z R8 000 as a result of a collision that occurred between Y and Z. Y becomes insolvent before
repaying X and before paying Z. In this scenario, who has a preferent claim against Y‟s insolvent
estate?
(1) X, because he has a limited real right over Y‟s car.
(2) X, because the smaller amount must be paid first.
(3) Z, because he has a personal right against Y‟s insolvent estate.
(4) Z, because the larger amount must be paid first.
ANSWER:
Option 1 is correct. X has a notarial bond over Y‟s car. A notarial bond is a form of a conventional or
express mortgage. The notarial bond in this case is a special notarial bond as it is registered over a
specified movable thing. In terms of section 1 of the Security by Means of Movable Property Act 57 of
1993 the specified movable thing under a special notarial bond are deemed to have been pledged
and delivered. The Act creates a fictitious (non-possessory) pledge. The Act therefore creates a real
security right in the form of a pledge and X (the notarial bond holder) is consequently a secured
creditor.
Z only has a personal right (creditor„s right) against Y‟s insolvent estate. He is an unsecured creditor.
Therefore X‟s secured claim (real security right) will enjoy preference over Y‟s unsecured claim.
See Study Guide pg 269-272
8. Indicate the correct option.
In Mapenduka v Ashington 1919 AD 33 the court held that:
(1) the clause in the pledge agreement stipulating that the pledgee may keep the calve of the cow as
interest on the amount owing by the pledgor is invalid.
(2) the clause in the pledge agreement stipulating that the pledgee may sell the 6 oxen,
1 cow and 1 horse (the pledged animals) without a court order is invalid.
(3) the clause in the pledge agreement stipulating that the pledgee may keep the 6 oxen,
1 cow and 1 horse if the pledgor fails to pay his debt is invalid.
(4) the clause in the pledge agreement stipulating that the pledgor may not pay his debt is invalid.
ANSWER:
Option 3 is correct. The parties in Mapenduka v Ashington (1919 AD 33) agreed in writing that the
pledgee may keep the 6 oxen, 1 cow and 1 horse (the pledged animals) if the pledgor fails to pay his
debt. The court held that this clause was invalid.
See Study Guide pg 264 -265 and Mapenduka v Ashington 1919 AD 33
WE PROVIDE SOLUTIONS TO ALL UNISA QUALIFICATIONS
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