LAW STUDENTS ZONE: 2015

Dear students,

As promised, received questions for revision. The questions are very important for exam preparations.

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Law of Property Attorneys

Question one⋆

Consider that view that the decision of the Constitutional Court in City of Johannesburg v Blue Moonlight Properties 2012 (2) SA 104 (CC) successfully balances the rights of property owners and the landless. In your answer, evaluate the judgment in light of the constitutional imperatives drawn from section 25 of the Constitution and other relevant legislation. (25)

Mthembu and Associates

Question Two⋆

Fred and his wife Kim own a piece of property in Richards Bay. The City of Umhlathuze then tells them that their property will be taken over by the City and they will not pay them a cent because they are the owners of all land in Richards Bay and Empangeni. Kim’s lawyer, Mr Ngcobo says that they are entitled to a pay-out. With what you have learnt thus far and additional reading and research, discuss the position of the law in this regard. (25)

Mabaso & Associates

Question Three

Read the case of First National Bank of SA t/a Wesbank v Commissioner, SARS 2002 (4) SA 768 (CC), and answer the following:

 What are the facts?

 What issues are addressed?

 What is the ratio?

 What is the relevance of this case to property law?

Mapholoba & associates

Question four

With reference to applicable cases, explore how South African courts have sought to define real rights in relation to personal rights. Particular attention should be paid to the subtraction from the dominium test, and whether the approach of the South African courts in this regard is convincing. (25)

Attorneys of Justice

Question Five

Is an obligation to pay money a “subtraction from the dominium” and thus capable of giving rise to a real right? Should it be? In your answer, fully discuss the decided cases on this issue.

(25)

Lawyers in Action Inc.

Question Six

Does the common law of nuisance adequately respond to present day conflicts over the use and occupation of land in South Africa? In your answer, fully discuss the common law principles dealing with nuisance, together with any decided cases on the issue. (25)

Ongoye Conveyancers

Question Seven

In June 2008, xenophobic violence broke out in a cosmopolitan suburb of Vibrant Valley in Johannesburg. Groups of angry young men would emerge at night, walking through the streets and chanting xenophobic slogans against foreigners living in the area, brandishing batons and threatening violence against the foreigners. Thus far, however, no violence has been recorded.

Nevertheless, as a result of this intimidation, many foreigners sought refuge in the nearby police station. Unable to deal with the large influx of people, however, the station commissioner appealed to the Minister of Foreigner Affairs for a more viable, permanent solution.

The Minister determined that the State owned a piece of land adjoining the wealthy suburb of Little Tuscany. Although far from Vibrant Valley, the land was situated near a taxi rank with good connections to the rest of the city, and being close to existing infrastructure meant that it would not be too difficult for the State to provide rudimentary water and electricity services.

The Minister, however, determined that the State simply had neither time nor money to build any permanent dwellings. Instead, the Minister determined a cost-effective and temporary housing plan that would house the foreigners in abandoned ship containers. Given the space constraints of the land, these were stacked high on top of one another, sometimes going up to the equivalent of 10 floors, providing a view of Vibrant Valley. Appropriately, the new area was nicknamed Vibrant Heights.

As a result, the Little Tuscany Residents Association (LTRA) formed an action group to oppose the housing plan. The residents argued that the property values had already suffered considerably as a result of the sudden encroachment of Vibrant Heights. The residents maintain further that crime has gone up in the area (although there are no statistics to support this), and that the call to prayer which rings out from one of the containers playing host to a religious congregation disturbs the quiet tranquillity of the area.

The LTRA accordingly brings an application against the Minister to court on the above grounds.

The Minister opposes the application, arguing that the State had no choice and was merely acting in the constitutionally-protected interests of the residents. In any case, the State argues that it owns the land and as such, can do what it wants with the land.

You are the judge designated to hear the matter. Decide whether the application brought by the LTRA should be upheld, and give reasons for your answer referring to relevant case law. In your answer, you should explore the concept of neighbour law in light of the South African Constitution, and whether or how the law can balance the divergent interests of property owners and communities. (25)

Tembe and Partners

Question Eight⋆

In mid-2005, the then Minister of Land affairs and Agriculture, Miss Thoko Didiza was reported in media circles as on the verge of signing South Africa's first expropriation order using a controversial restitution law (See for instance Stephan Hofstatter’s article entitled “South Africa: First Land Expropriation Order Signed” which appeared in Business Day, a South African daily on the 9th of June 2005). Expropriation for land reform has always been a political issue. Many black South Africans are puzzled at the government's reluctance to seize white-owned land.

Legally speaking, the minister is empowered by the constitution and other enabling legislation to expropriate property in terms of the law of general application against payment of “just and equitable compensation”. The need for expropriation appears to be justifiable more than ever before if due recognition is given to the fact that the pace of land reform, especially in restitution matters is being hampered by land owners and Agri South Africa, which has doggedly refused to accept government proffered purchase prices. The willing buyer –willing seller approach has not been an effective tool for land reform in South Africa.

With the foregoing observations and remarks in mind, write an essay in which you address the following legal issues:

(a) What are the basic legal requirements with which an act of expropriation has to comply in order to be legally valid? You are at liberty to refer to international jurisprudence on the subject. (10)

(b) Identify the constitutional and statutory provisions upon which the minister may base her act of expropriation of privately owned farm land and explain how she would proceed with expropriation of farms in the public interest. (15)

Second Semester Law Firm

Question Nine

Discuss the recent land reform measures outlined by the Minister for Land Reform and Rural Development, Mr Gugile Nkwinti, to the effect that white farmers must share at least 50% of their land with their workers. Give a detailed outline of the proposed plan and opine on whether or not the policy position will auger well for food security in South Africa. (25)

Dladla and partners associates

Question Ten

With reference to the legal provisions permitting South Africa to accelerate the pace of land reform, discuss whether or not you agree with critics, such as the Economic Freedom Fighters (EFF), that land reform in South Africa has largely failed and that South Africa should go radical and if need be, take a cue from its northern neighbour, Zimbabwe. (25)

Ommar and Partners

Question Eleven⋆

Distinguish between the following terms:

(ii) The law of property and the law of things; (2)

(ii) A real right and a personal right; (2)

(iii) Things in commerce and things out of commerce; (2)

(iv) Res nullius and res deperditae; (2)

(v) Principal thing and accessory thing. (2)

(b) The most common method of classifying things is the division into movables and immovables. With reference to examples, explain how and why the distinction between movable and immovable things is of practical importance. (15)

Senior Associate Law Firm

Question Twelve⋆

Your client Mr Sandile Ngcobo approaches you for legal advice.

He tells you that he wants to apply for a court order declaring that a certain condition embodied in a Deed of sale, to which he is a signatory is registrable in terms of section 3 (1) (r) of the Deeds Registries Act 47 of 1937. He points out to you that he got such preliminary legal advice from his bosom friend, Khulabelibele Mhlongo, an LLB dropout from the former UNITRA.

The condition provides that a third party will be entitled to receive from the transferee and his successors in title one third of the consideration received from the grantee of an option or rights to prospect for minerals on the property and one third of the compensation in the event of the property being expropriated or sold to an authority who is empowered to expropriate. He further informs you that he is contemplating taking legal action against the registrar of Deeds who has declined to register the condition because it is not a condition which restricts the right of ownership in property as contemplated by section 63 (1) of the Deeds Registries Act.

With reference to at least five cases and appropriate authority, critically discuss whether the conditions and their attendant rights are registrable. (25)

N and N Associate Law Firm

Question thirteen⋆

(a) Name the criteria applied in South African law to determine whether a movable thing has lost its independence and become part of an immovable thing by industrial accession. Distinguish the different approaches having regard to these criteria in the following cases:

(i) Standard-Vacuum Refining Company of South Africa (Pty) Ltd v Durban City Council 1961 (2) SA 669 (A); (5)

(ii) Theatre Investments (Pty) Ltd v Butcher Brothers 1978 (3) SA 682 (A); (5)

(iii) Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (Wp) Bpk 1996 (3) SA 273 (A). (5)

(b) X and Y’s property is seriously affected by baboons that destroy their mealies. X installs an apparatus to chase away the baboons close to the boundary with his neighbour Z. The apparatus makes loud noises at regular intervals during the day and night. Z writes to X and Y to complain about the noise during the night, but X ignores it and refuses to speak to the neighbour on the phone. X and his neighbour are not on speaking terms because Z insulted him a few years ago. Z approaches you for legal advice about the noise. Advise Z fully with reference to appropriate authority. (10)

Zulu and Associates

Question Fourteen⋆

Ishmael owns a game farm in the KwaZulu-Natal midlands. He keeps the following types of animals on the farm: impala, kudu, ostrich and wildebeest. Ishmael keeps the impala and kudu for commercial and hunting purposes, the ostrich for security purposes and the wildebeest for scientific and research purposes. All of the animals are allowed to roam freely on the property. This is because the entire property is enclosed with a game fence, and the fence is well maintained.

Following a particularly severe thunderstorm, however, a part of the fence collapsed and four kudu, three ostrich and two wildebeest wandered onto the neighbouring farm. The owner of the neighbouring farm, Bess, captured all of these animals and placed them in a secure kraal from which they could not escape.

When Ishmael discovered that his animals were in Bess’s control, he demanded that Bess return them to him. Bess, however, refused to do so. She claimed that she is the owner of these animals and that she does not have to return them. Ishmael now wants to know if Bess is correct. Has she acquired ownership of these animals? Advise him. (25)

Standsin Incorporation

Question Fifteen⋆

Zak borrows John’s motor-car for the weekend. He enjoys driving it so much that on Monday he meets John and offers to buy it from him for R50 000. John accepts the offer and Zak gives him a post-dated cheque for the full amount. The cheque becomes payable on the Friday of that week. On Wednesday Chris steals the car and sells it to Yvonne, an innocent buyer. Zak later discovers that the car is in Yvonne’s possession. Zak now wants to whether he can reclaim the car for Yvonne using the rei vindicatio. Advise him. (10)
Kate owns an oat crusher (a machine the crushes raw oats). She places an advertisement in the Farmer’s Weekly offering to sell her oat crusher. Sandile, who owns a mill, sees the advertisement and approaches Kate. After inspecting the oat crusher, he offers to buy it from her for R250 000. Kate accepts the offer and Sandile hands over a cheque for the full amount of the purchase price. After handing over the cheque, Sandile asks Kate if he can leave the oat crusher on her farm while he arranges transport. Kate, who owns a large flatbed truck, then offers to transport the oat crusher to Sandile’s mill in return for a small fee. Sandile accepts this offer and leaves the oat crusher with Kate. Sandile does not hear from Kate again, and after a month has passed he travels out to her farm to collect the oat crusher. When arrives at the farm, he is shocked to discover that Kate has left the country. He also discovers that she has sold and delivered the oat crusher to her neighbour, Dikgang. Dikgang refuses to hand the oat crusher over to Sandile. Sandile now wants to know whether he can reclaim the oat crusher from Dikgang using the rei vindicatio. Advise him. (15)

BERRY ROUX AND ASSOCIATES

Question Sixteen⋆

Section 25(2) of the Constitution of the Republic of South Africa, 1996 provides that “property may be expropriated only in terms of law of general application (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court”.

In light of the Constitutional Court’s judgment in Reflect All 1025 v MEC, Public Transport 2009 (6) SA 391 (CC), write a note in which you set out and discuss what is meant by an “expropriation”. In your answer you must explain why it is important to distinguish between deprivations and expropriations. You must also set out and discuss the criticisms that have been leveled against the manner in which the Constitutional Court has defined “expropriations”. (25)

ABOBROTHERS TRADING

Question Seventeen⋆

“Acquisitive prescription may be defined from the point of view of its requirements, possibly as follows: A person who possesses a thing openly and as if he or she were the owner, for an undisturbed period of thirty years, may become owner by prescription”. See DL Carey Miller Land Title in South Africa (2000) at 160.

Write an essay in which you explain what is meant by the requirement that a person must possess a thing in order to become the owner of that thing by prescription. In your answer you must discuss the possession requirement in terms of both the Prescription Act 18 of 1943 and the Prescription Act 68 of 1969. (25)

BOWMAN ATTORNEYS

Question Eighteen⋆

“Depending on whether a real right is: (i) newly created without the co-operation of a predecessor in title; or (ii) already in existence and merely transferred from one person to another, or (iii) created with the co-operation of a predecessor in title, a distinction is made between the original and derivative acquisition of real rights.” Badenhorst, Pienaar and Mostert The Law of Property 4ed (2003) at 78-79.

Write an essay in which you discuss the general requirements for the derivative acquisition of ownership. In your answer you must also discuss the distinction drawn between the causal and abstract systems of transferring ownership. You must also indicate which system is applied in South African property law and discuss the judgment in Legator McKenna Inc v Shea 2010 (1) SA 35 (SCA). (25)

Team 5

Question Nineteen

With reference to case law, discuss the co-owner’s right to veto in terms of South African law. (25)

Vezi & associates

Question Twenty⋆

Your client, Sipho informs you that he has been living and working on a farm in the Nseleni for a period of twenty years. In the past ten years he had buried family members on the farm with the owner’s permission. Last week, his father who also lived on the farm passed away and he approached the owner for permission to bury his father on the same piece of land as that of his relatives. The owner refused stating that he will no longer allow the creation of further graves on his property.

With reference to relevant case law and legislation, advise him of his rights of recourse in the matter. (25)

Unizulu lawyers

Question Twenty one[1]

The local Municipality wants to evict some 90 unlawful occupiers from vacant, privately owned land in its municipal area in terms of Section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The group of unlawful occupiers include more than 30 children, and members of the group had been on the land for periods between 3 and 6 years. The unlawful occupiers are only willing to move if alternative accommodation is provided to them. The Municipality wants to evict them from the land as soon as possible and it is of the view that it is not constitutionally obliged to provide them with alternative accommodation. Advise the Municipality as to the correct legal position and refer to relevant case law and legislation in your answer. (25)

Crane, poole & schimidt

Question Twenty Two⋆

Your client, Mr Lander received an expropriation notice last year. The notice stipulated that the purpose for expropriation was to build a public road. Mr Lander refused to accept compensation for his property which was based on the market value of the property. He is of the view that the state cannot proceed with the expropriation until he is fully compensated.

Advise Mr Lander as to the legal position concerning compensation for expropriation.

Refer to relevant case law and legislation in your answer. (25)

Sokhulu and partners

Question twenty three⋆

With reference to case law and legislation, discuss the factors that a court would consider in deciding whether to grant an eviction order or not. (15)
Briefly discuss the requirements that need to be proved in order for a restitution of land claim to be successful? (10)

⋆ Adapted from WITS University Property Law take home test of 2013, which University is hereby dully acknowledged as the original author.

⋆ A slightly revised version of this question was given as one of the tutorial questions in the law of property at WITS University in 2013. WITS University as the original author is hereby acknowledged. This acknowledgement applies mutatis mutandis to questions 3-7 in this series.

⋆ This question has been adapted from a University of Fort Hare final paper of June 2005.

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Other questions

Law of Property Class Revision Questions 2014 A

Say whether the following are true or false and provide your reasons:

The law of property is the same things as the law of things.
Law of property only deals with those forms of property that are currently owned.
My entitlement to payment is a real property right.
The Subtraction from the dominium test applies only to immovable property.
The following are property rights: mortgage, lien, servitudes, and lateral support from land that I own, my creditworthiness, the goodwill of my business, copyright in the book that I wrote.

Explain very briefly how the following are sources of the law of property:

Constitution;
Common law;
Statutory law;
Case law;
Customary law.

Explain the legal rules applicable to the following categories of things:

Res nullius;
Res derpeditae;
Res derelict;
Res alicuius.

Explain the main differences between bound and free co-ownership.
Assume your client is a co-owner of a piece of land with his brother. The two brothers have allocated equal portions of the land to each other for exclusive use without subdividing it. Your client does not like the fact that his brother keeps stray dogs and cats on his portion of the land. Advise if such use is reasonable for your client and what he can do if he is unhappy.
Using examples, explain how the following issues may act as limitations on ownership: taxation, creditors’ rights of third parties, limited real rights of third parties and provisions of neighbour law.
Explain in your own words the legal rules, principles and remedies caused by nuisance arising protruding roots and overhanging branches.
Explain with reference to case law how nuisance arises in the context of falling leaves, overhanging braches, party walls and fences, keeping pets and animals and interference with the natural flow of water.
Differentiate between expropriation, deprivation, forfeiture and confiscation in the context of South African property law.
Property rights may be infringed in the interest of the community. With reference to case law, explain how property rights may be infringed in the interest of the community.
Outline the legal rules that are applicable in deciding whether a sale is a cash or credit one.
Outline the main differences between delivery by the short hand and delivery by the long hand.
Why are the distinctions between the various forms of delivery important?
A, a homeless Congolese national who has been a resident of Diepsloot in the East Rand since 1994, takes over an abandoned piece of land belonging to B, a South African citizen who works in the oil fields in Iraq. After having been in occupation for 15 years, the land is inherited by B’s son, 3 year old son C, after B dies as a result of a landmine accident. Soon after the funeral, D, C’s uncle violently removes A from the land and institutes eviction proceedings against A. The court process takes about 9 months and it is eventually ruled that B was not the rightful owner.

Explain to A the legal rules applicable in his case and whether it is possible for him to eventually become the owner of the land he is occupying through prescription.
A was temporarily dispossessed for about 9 months. Explain the legal technical term for his temporary dispossession and the legal rules applicable to it.
With specific reference to the legal rules applicable to run of prescription in South African law, explain how prescription will run in this case assuming that A was never dispossessed and the court case never took place.

LAW STUDENTS ZONE

Tuesday, 20 October 2015

RE:Important

Thursday, 15 October 2015

Competition Law - test 2 marks

Tuesday, 13 October 2015

Competition Law - Scope

Monday, 12 October 2015

Insolvency

Insolvency - Scope URGENT

Law of Property - Scope

Thursday, 8 October 2015

ATT: LAW OF PROPERTY