PVL3701/201/1/2024
Tutorial Letter 201/1/2024
Property Law
PVL3701
Department of Private Law
This tutorial letter contains important information about this
module.
Open Rubric
TABLE OF CONTENTS
1 EXAMINATION INFORMATION
2 COMMENTARY ON ASSIGNMENT 1
3 CORRECTIONS – STUDY GUIDE
Dear Student
This tutorial letter contains information on the examination and commentary on assignment 1.
We trust that this tutorial letter will assist you in your studies.
Yours sincerely
PROF INA KNOBEL
[email protected]MR LEKOBA KUTU
[email protected]2
PVL3701/201
1 EXAMINATION INFORMATION
✓ The examination will be conducted online and will be an open-book examination. The
examination paper will not include any multiple-choice questions.
✓ Remember that an open-book exam is an assessment 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 and your prescribed cases available when answering questions, we do not
give marks for direct quotations from the Study Guide. You are therefore assessed on your
own level of understanding and interpretation of the relevant legal principles by looking at
how well you applied the most relevant material to answer 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. Do not make use of any
internet sources or artificial intelligence software such as ChatGPT.
✓ Your answers 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 the name of the case and the exact page
section and/or paragraph where the information can be found. The same applies to the
Study Guide. Include references in brackets following your answer. Do not include
footnotes – we will not allocate marks for references in footnote. Marks will only be
allocated for correct references in brackets.
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✓ You will be required to answer problem-type questions (see for example Question 2 on
page 108 of the Study Guide). Some questions will be similar to the questions in
Assignment 1. When answering a problem-type question always try to identify the problem
area clearly in an introductory sentence; apply the applicable law to the set of facts and
provide the appropriate advice. Reading questions is always important. Always make sure
that you structure your answer logically – and most importantly that you answer the
question instead of just providing information that does not necessarily lead to a logical
answer/conclusion. Also, remember to read all the exam instructions and to adhere to
them.
✓ Although this is an open-book exam, we advise you not to copy and paste from any
source, whether it is prescribed or not. Rather type your own answer, based on your own
understanding and interpretation of the most relevant material.
✓ ALL the questions must be answered.
✓ While the examination is in progress, you are not allowed to consult another person or any
other source than your prescribed study material in order to assist you in answering any of
the questions contained in the question paper. While the examination is in progress, you
may not assist another student in answering any of the questions. You may also not make
use of another person’s answers or sources that are not prescribed for this module. We
are aware that model answers are distributed amongst students and in some instances
against payment. This type of behaviour contravenes Unisa's policies on plagiarism and
the Student Disciplinary Code.
✓ 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 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. Contravention of any policy may result in the student
being subjected to disciplinary processes.
✓ Please note that the Invigilator App and Turnitin will be utilised during the examination.
One of the features of the Invigilator App is that it compares the submitted answers of
students. No two students’ answers should look exactly the same. In addition, Turnitin will
be utilised. Turnitin will assist us in determining whether students copied directly from
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sources, or from each other, or whether certain paraphrasing tools or artificial intelligence
software were used.
✓ More information about the examination will be posted on the PVL3701 myUnisa module
site in due course. And if there are any changes to the information set out above it will be
posted on the myUnisa module site as well.
✓ The following examination instructions or similar examination instructions will apply during
the examination:
Answer ALL the questions and fully substantiate with reference to your Study Guide, case law
and legislation where applicable.
• Strictly adhere to the indication regarding the number of lines that each answer
should consist of. You will be penalised if you do not adhere to this.
• Please do not include the questions in your submitted answers. Number answers
correctly and chronologically.
• Although this is an open-book examination, while the examination is in progress, you are
not allowed to consult another person. You may consult the prescribed material for this
module. This includes the Study Guide and the prescribed cases mentioned in the
101/3/2024 tutorial letter which are available in the e-reserves of the library.
• You must tick the Honesty Declaration before you start this examination. Make sure you
understand what academic dishonesty entails and are aware of Unisa’s policies in this
regard. By ticking the declaration you that you have read and that you are adhering to (i)
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.
By ticking the declaration, you also declare that you understand the implications of not
adhering to the abovementioned policies. Do not include any other Honesty Declaration in
your submitted answers.
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• Your answers must be typed in Arial 12 pt font and must be submitted online in PDF
format. No other type of submission of your examination answers will be accepted. Neither
scanned typed answer files nor handwritten scripts will be accepted. E-mailed submissions
will not be accepted for marking. In line with the examination rules a 0% mark will be
allocated for answers that are not typed or scanned. A 0% mark will also be allocated if
your answers are not typed in Arial 12 pt font. If you do not adhere to these requirements
Turnitin cannot generate a similarity report. Without a Turnitin report we cannot mark your
submission.
• Please note that the Invigilator App will apply during the examination. You must use the
Invigilator App for this examination. If you experience any technical challenges with the
app send a WhatsApp message to the technical helpdesk on 073 505 8273. Do not
contact the lecturers.
• Please also take note that your answers will be submitted to Turnitin.
Make sure that you study ALL the work in the Study Guide, as well as the cases listed in tutorial
letter 101/3/2024 namely:
o Bisschoff v Welbeplan Boerdery (Pty) Ltd (2021 (5) SA 54 (SCA))
o Hendricks v Hendricks 2016 (1) SA 511 SCA
o City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents
Association (025/2011) [2011] ZASCA 227
o First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue
Service: First National Bank of SA Ltd t/a Wesbank v Minister of Finance (2002 (4)
SA 768 (CC) (also reported at [2002] 7 BCLR 702 (CC))
Please remember that all other cases to which we refer in the Study Guide should be studied to
the extent that they are discussed in the Study Guide.
✓ Take note of the examination mark allocation in Tutorial letter 101/3/2024 inserted below
for ease of reference.
Part 1 (study units 1-2): Introduction, things as legal objects and real rights and personal
rights (10%)
Part 2 (study units 3-7): Ownership: definition of, limitations on, original acquisition of,
derivative acquisition of, protection of, termination of and co-
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ownership (35%)
Part 3 (study units 8-9): Possession and holdership: nature of, protection of and
termination of (15%)
Part 4 (study units 10-12): Limited real rights: introduction, servitudes, restrictive
conditions, pledge, security by means of claims, mortgage,
tacit mortgages, mineral rights, water rights and tenant’s
rights (30%)
Part 5 (study units 13-15): Constitutional property law, land reform and additional forms
of statutory land use (10%)
2 COMMENTARY ON ASSIGNMENT 1
IMPORTANT NOTICE:
We noticed that some of you did not accept the Turnitin end user agreement (“EULA”) when you
submitted your assignment 1 for purposes of Turnitin on the myUnisa platform. These
assignments were not marked since the instructions specifically stated that the agreement must
be accepted and that the assignments of students who did not accept the agreement would not
be marked. Please note that should you not accept the EULA agreement when submitting your
examination answers, you will also be penalised and will receive a mark of 0%.
With reference to plagiarism, we have noticed numerous violations of ethical conduct. Many of
you submitted the same answers or copied directly from the Study Guide or other sources. It is
alarming to see that so many of you do not take heed of the warnings that we have issued. Kindly
note that plagiarism (not submitting your own work) is a serious offense. In this assessment,
some students have been awarded 0% for submitting plagiarised answers or the plagiarised
parts were not marked. This notice serves as a final warning. Should you commit an act of
academic misconduct in the upcoming examination, you will be flagged for a disciplinary hearing
and will be at risk being expelled from this University.
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Handwritten or scanned submissions were also not marked. This was also indicated in the
instructions. Do not submit handwritten or scanned answers in the examination.
INSTRUCTIONS AND QUESTIONS:
ASSIGNMENT 1
• This is a written assignment.
• Your mark out of 10, will count 60% towards your semester mark.
• Adhere to the length limitation for each question.
• Your assignment should only consist of one page. You do not need to include a cove
page, only your name and student number on the top of the page is sufficient.
• Your bibliography should only include the Study Guide.
• Do not include the assignment questions in your submission.
• Only make use of your prescribed sources for this module to answer this assignment (see
Tutorial Letter 101 pages 9-11). A mark of 0% will be awarded for any answer that
contains references to sources that are not prescribed for this module.
• This is an individual Assignment. If you discussed it as a group, your answers must not be
identical.
• Accept the honesty declaration for this assignment. Do not include an academic
dishonesty declaration in your assignment.
• Do not copy and paste from any source, rather type your own answer in full. In other
words, do not copy directly (or word-for-word) from any source.
• Write in your own words and base your answers on your own interpretation of the relevant
study material. Your answers should contain the most relevant information and should
clearly answer the question.
• Do not base your answers on other sources such as internet sources or artificial
intelligence software (for example ChatGPT or other paraphrasing tools). A mark of 0%
will be awarded for any suspicious answer.
• In line with the Students’ Disciplinary Code a mark of 0% may be awarded for any
contravention of the policies regarding academic dishonesty or the student disciplinary
code, alternatively, a student may be subjected to disciplinary proceedings.
• Please also take note that your answers must be submitted to Turnitin. You must accept
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the Turnitin agreement (EULA). If you do not accept the agreement your answers will
not be marked and a mark of 0% will be awarded.
• Since Turnitin is utilised for this assignment, only typed answers may be submitted. Your
answers must be submitted online in PDF format. No other type of submission of your
examination answers will be accepted. E-mailed submissions will not be accepted for
marking. Scanned answers will also not be accepted.
Please also take note that:
• we cannot grant extension for this assignment.
• you must be sure that you submit the correct document.
• we cannot replace assignments after the closing date.
• if you submitted the wrong document, for example the assignment of another
module, you will be awarded a mark of 0%.
Before you answer the questions of this assignment, read (i) 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. Make sure that you comply with all the policies and with all the assignment
instructions. As mentioned, DO NOT INCLUDE AN ACADEMIC DISHONESTY DECLARATION.
Also read the 101/3/2024 tutorial letter for this module.
Now read Study Units 1-4 of the Study Guide very carefully.
While reading the Study Units, focus on the nature of the different rights that are dealt with in this
module, namely personal rights, real rights, and limited real rights (Study Unit 2). Keep in mind
that ownership is the most complete real right that a person can have regarding his or her own
thing, but the law and the rights of others can limit this right (Study Unit 2). Ownership confers a
real right on an owner. In the case of a movable thing, ownership is transferred by means of
delivery. In the case of immovable property, ownership is transferred by means of registration in
the Deeds Office. Also, limited real rights over an immovable thing are registrable in the Deeds
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Office. However, personal rights are not registrable. Ownership can be acquired in different ways,
either through original means or through derivative means (Study Units 3 and 4).
Against this background consider the following set of facts:
In June 2023, John bought a house in Sandton. At the time, he decided to install a solar system
due to the unreliable electricity provision in South Africa. He bought 20 solar panels, 4 batteries
and an inverter on credit from the “Sun Company”. The Sun Company installed the system in July
2023. The agreement between John and the Sun Company provided that John would only
become the owner of the solar panels, the batteries and the inverter after all the instalments were
paid. It further provided that the Sun Company could remove the entire system, should John, fall
into arrears with payment of the instalments.
John decided to move to Cape Town and, before all the instalments of the solar system were
paid, he sold the house to Lindiwe. After registration of the property in Lindiwe’s name and after
Lindiwe moved in, the technicians of the Sun Company arrived at Lindiwe’s house to remove the
solar system. Lindiwe refused to allow them access to his house, but they explained to her that
John stopped paying the instalments of the solar system and that they were therefore allowed to
remove the system. Lindiwe asks her son, Nkosinathi, who is a third-year LLB student at Unisa,
for advice. Nkosinathi explained that the solar system belongs to Lindiwe because it became part
of the land by means of inaedificatio (accession by building). Nkosinathi further explained that the
South African courts apply different criteria to determine whether a movable thing became
permanently attached to land namely, the nature and purpose of the attached thing; the manner
and degree of attachment; and the intention of the person annexing the movable or the intention
of the owner of the movable. He added that these criteria have been applied in different ways by
the South African courts.
Against this background answer the following questions:
Question 1
Why is inaedificatio classified as a form of original acquisition of ownership? Fully substantiate
your answer with reference to the specific page(s) of your Study Guide that you consulted to
answer this question. Do not insert footnotes – simply refer to the relevant page(s) that you
consulted in brackets after your answer. Your answer should not exceed 6 lines. (3)
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Not yet Partially
Evaluation criteria Achieved
achieved achieved
The reason why inaedificatio is an original form of
acquisition of ownership is clearly explained using own 0 1 2
words.
Correct reference to the relevant page number(s) of
the Study Guide in brackets. The answer does not 0 1/2 1
exceed 6 lines
Commentary:
Building (inaedificatio) does not involve the cooperation of the owner of the movable thing that is
attached to the land. The fact that the cooperation of the owner of the movable thing is not
required is the reason why inaedificatio is classified as an original form of acquisition of
ownership. No transfer of ownership takes place, although the owner of the movable thing loses
his/her ownership over the movable thing. Marks were awarded for a general description of the
term “inaedificatio” (building). A mark was awarded for any reference to pages 63; 68 or 75 in the
Study Guide. References must have been included. If the answer was much longer than 6 lines a
maximum of 2½ marks were awarded. If no references were included, a maximum of 2½ marks
were awarded. Some students discussed the criteria to determine whether a movable became
part of land by means of inaedficatio which was not relevant for this question. Please read
questions carefully.
(Study Guide pages 63, 68, 75
Question 2
Fully advise Lindiwe about the correctness of Nkosinathi’s advice. In your answer do not repeat
the criteria, rather focus on the interpretation of the third criterion (the subjective intention
criterion) by the Supreme Court of Appeal in Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie
(Wp) Bpk (1996 (3) SA 283 (A)). Take note that Konstanz Properties (Pty) Ltd is one of the cases
that you only need to study to the extent that it is discussed in the Study Guide. Therefore, you
must refer to the Konstanz Property (Pty) Ltd case as discussed in the Study Guide.
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In your answer, evaluate the correctness of the approach of the Supreme Court of Appeal in
Konstanz Properties (Pty) Ltd considering that inaedificatio is classified as an original method of
acquisition of ownership. Substantiate your answer with reference to the specific page number(s)
in the Study Guide that you consulted to answer this question. Do not insert footnotes – simply
refer to the relevant page(s) that you consulted in brackets after your answer. Your answer
should not exceed 15 lines. (7)
Not yet Partially
Evaluation criteria Achieved
achieved achieved
A clear understanding of Lindiwe’s legal position and
the validity of Nkosinathi’s argument is illustrated using 0 3 4
own words.
Evaluation of correctness of the approach of the
Supreme Court of Appeal in Konstanz Properties (Pty)
0 1 2
Ltd considering that inaedificatio is classified as an
original method of acquisition of ownership.
Correct reference to the relevant page number(s) of
the Study Guide in brackets. The answer does not 0 0,5 1
exceed 15 lines.
Commentary:
Legal position:
• Nkosinathi’s advice must be evaluated in view of the three criteria. (1)
• In the Konstanz decision the third criterion was considered as the decisive factor and the
court held that the subjective intention of the owner of the movable thing (the Sun Company
in the set of facts) was the deciding factor in the determination of whether the movables
became part of the land. (2)
• In this set of facts, the Sun Company’s subjective intention (owner of the solar system in
terms of the instalment sale agreement) will be decisive if the approach that was followed in
the Konstanz case is applied. In view of this the Sun Company would probably not lose
ownership because their intention, namely, to remain owner until the last instalment was
paid would prevail. (1)
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Evaluation:
• This outcome seems odd considering that inaedificatio is an original mode of acquisition of
ownership which entails that the cooperation of the person who loses ownership
(predecessor in title) is irrelevant, yet in terms of the Konstanz decision the “intention” of the
predecessor in title (in the set of facts the “Sun Company”) determines whether permanent
attachment has taken place. (2)
Reference and length of answer:
A mark was awarded for a reference to pages 77 or 78 of the Study Guide. References must
have been included and the answer should not have exceeded 15 lines. Many students
discussed all the criteria or just mentioned the criteria. Once again, please read questions
carefully before you answer them.
(Study Guide pages 77 and 78)
3 CORRECTIONS – STUDY GUIDE
(i) The remark on page 21 of the Study Guide should read: “This answer can be adapted to
answer question 1(a) in section 4 above ...”
(ii) The statement on page 24 on the Study Guide that “Movable things are things that can be
moved from one place to another without being damaged or losing their identity, for
example a choir, a car, a shirt and money”. Instead of “choir”, it should read “chair”.
(iii) On page 43 there is a reference to the Physical Planning Act 125 of 1991 and the
Development Facilitation Act 67 of 1995. Please note that both these acts were repealed
by the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). See pages
268-270 in the Study Guide for a discussion on SPLUMA.
(iv) On page 199 there is a list of the remedies available to a servitude holder. Please note
that the second remedy, actio negatoria, is a remedy available to an owner against the
servitude holder.
(v) In diagram 10 on page 153 it is stated that “a lawful holder has a real right”. Please note
that a lawful holder does not always have a real right. For example, a person who controls
a car which he/she borrowed from a friend is a lawful holder but does not have a real right
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over the car. A pledgee, however, is a good example of a person who is a lawful holder,
but also has a limited real security right over the pledged thing (see Study Guide page 215
para 2.4.1). Also, in diagram 10 under mala fide unlawful holder, it was incorrectly
captured as “controls the thing knowing he/she doesn’t unlawfully and is aware of that.” It
must read “controls the thing knowing he/she does so unlawfully and is aware of that.”
(vi) The suggested answer to Question 4 on page 240 of the Study Guide is the following:
For a successful reliance on his lien, Z must prove that he was in control (1) of the car and that
he incurred expenses (1) in regard to the car. Z complies with both of these requirements; the
only problem is the fact that he incurred these expenses in terms of his agreement with T.
However, Z can rely on his lien even against the owner with whom he had no agreement (1)
since enrichment liens (1) are limited real rights (1) which are based on the principle of unjust
enrichment. (1)
Two types of enrichment liens are distinguished, namely salvage and improvement liens. When
someone incurs expenses that are necessary for the preservation of a thing (such as the
installation of the driveshaft), (1) we are dealing with a salvage lien (1) and Z is entitled to retain
the car until he is compensated for the amount by which the owner (Q) was enriched or he
himself impoverished, whichever is the lesser. (1) It may therefore be less than R2600-00, (1) but
normally it is the amount of the owner’s enrichment.
When someone incurs expenses which are not necessary for the preservation of the thing, but
which increase the market value (such as the device which improves petrol consumption), (1) we
are dealing with an improvement lien (1) and Z is entitled to retain the car until he is
compensated for the amount by which the market value (1) of the car has been increased.
For the luxurious improvements which are prompted by a mere whim or caprice of a person (such
as the replacement of the seat covers with leather seat covers), Z cannot claim compensation
from Q and is therefore not entitled to a lien either. (1)
Therefore, Z is only entitled to retain the car until Q has compensated him for an amount of more
or less R2600-00 for the crankshaft, together with the amount by which the market value of the
car was increased by the installation of the device to improve petrol consumption. (1)
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(vii) On page 263 under subheading (iii) compensation is paid, the current Bill is the
Expropriation Bill of 2020. The Bill was adopted by National Assembly in 2022 and has
provisions on how compensation must be paid.
©
UNISA 2024
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