PVL3701 ASSIGNMENTS PACK FROM 2015 – 2020. VERIFIED QSNS ANS SOLNS.

QUESTION 1 Indicate whether the following statements are true or false and fully motivate your answers: (a) Ownership is the most comprehensive real right over a thing and therefore an unlimited right. (3) (b) The rei vindicatio is a real action which can be instituted by an owner to claim back his or her thing from whoever is in control of it unlawfully. The remedy may be instituted with regard to movable and immovable property. In the case of immovable property the remedy takes on the form of an eviction order. No defences may be raised against the application of the rei vindicatio. (3) QUESTION 2 Explain the difference between a lawful holder and a mala fide possessor. Provide an example of each. Study Unit 8 pages 143-153 of your Study Guide will assist you. Use your own words and own examples. (4) During 1990 the appellant, Ms Annie Hendricks (an elderly woman), sold her property to her son, Mr Graham Hendricks (the second respondent). A lifelong right of habitation over the property was registered in favour of the appellant. The appellant lived in the property and after registration of the transfer the second respondent took occupation thereof with the appellant. The second respondent married the first respondent (Ms Margaret Hendricks) in community of property on 24 November 1990 where after the appellant and the first and second respondents lived in the property. The relationship between the appellant and the first respondent deteriorated and by 2009 the appellant left the property for a while due to the unbearable QUESTION 3 In Study Unit 10 we introduce you to the concept of limited real rights. A limited real right is a right which a person can have over another person’s thing. A servitude is a limited real right that limits ownership. Have a look at the definition of a servitude on page 181 of the Study Guide; the definition of a land servitude on page 188 of the Study Guide and the definition of a personal servitude on page 192 of the Study Guide. Make sure that you understand that land servitudes as well as personal servitudes are limited real rights. Personal servitudes are not personal rights. Have a look at the differences and common characteristics between land servitudes and personal servitudes on pages 187 and 188 of the Study Guide. On pages 194-197 specific personal servitudes are discussed. One of these is dwelling or habitatio (a right of habitation). Against this background, read Hendricks v Hendricks (20519/14) [2015] ZASCA 165 (25 November 2015) (one of the prescribed cases for this module available in the electronic resources on the Library website (see par 4.3 above)) which dealt with a right of habitation and eviction in terms of the Prevention of Illegal Eviction from and unlawful occupation of Land Act 19 of 1998 (PIE). For purposes of this assignment please focus on the Supreme Court of Appeal’s finding with regard to the personal servitude (right of habitation) and answer the following questions: You must use your own words. One mark will be deducted for each answer copied word for word from the Study Guide, the case or other sources. Please refer to the relevant paragraphs of the case that you use in your answers. (a) Briefly set out the facts that led to the appeal and application for eviction to the Supreme Court of Appeal. (2) A mala fide possessor is a person who knows or is aware of the fact that he/she is not recognised as the owner of a thing because he/she does not comply with the requirements of ownership, (1) but exercises physical control over it with the intention of an owner (½) for example a thief, a person who moves into a house without the permission of the owner and lives there as if he/she is the owner of the house, a person who builds a structure on a piece of land without the permission of the owner of the land and lives there as if he/she is the owner of that piece of land. (½ mark for a suitable example) (Maximum 4 marks) (Study Guide p 150-151) Majiedt JA described a right of habitation (habitatio) as follows: • The right of habitation is a servitude which is a limited real right. (1) • It confers on the holder, the right to dwell in the house of another, (1) without detriment to the substance of the property. (1) • The right can historically be traced back to Roman law when the original objective was to provide accommodation to indigent foreigners. (1) • In that context it was regarded as a factual, rather than a juridical, institution. But Justinian accepted it as a sui generis legal concept and he classified it as a personal servitude. This was generally accepted by Roman-Dutch authorities (1) • Our courts have long recognised a right of habitation as a personal servitude which is a limited real right. (1) (Maximum 4 marks) (Hendricks par 6) The Supreme Court of Appeal held that: • Ownership is the most comprehensive real right and that all other real rights are derived from it. (1) • But limited real rights are absolute in the sense that they are enforceable against any and all. A limited real right detracts from the owner’s dominium (ownership). (1)