PVL3701 Factual Questions. Verified ans.

Exam Problem Questions and Answers - PVL 3701 QUESnON3 (a) S transferred an exclus1ve right to trade on a certain p1ece of land to Z Z transferred th1s right to hiS son, Zz The nght was not reg1stered 1n favour of Z S sold hts farm to X X argues that Zz 1s not entitled to trade on that p1ece of land, but Zz 1nststs that he acquired that nght from his father, Z Answer the following questions: (1) Wh1ch 1s the appropnate remedy to use here? Expla1n and refer to case law (3) (11) D1scuss the legal pos1tJon of the parties w1th reference to case law This question is based on 'Wiltoughby's Conso&Jated Co Ltd v Coprhall Swres Ltd ( 1913 PD 26 7). To answer this question. you are required to address the fcllowing issues: (i) the difference between a personal right and a personal servitude (limited real right), as well as the consequences of this difference for the parties in the question (iO the acquisition and vesting of servitudes (iii) the remedy available to the parties in this question In the question above S gave the exdusive right to trade to Z. From the facts it is dear that there was no registration of a servitude in Z's name. Z therefore acquired a personal right against S to trade exdusively on the land. Such a personal right can be transferred by means of cession to a third per50n, the cess1onary. who steps into the shoes of the cedent (Z). The cessionary (Zz) can enforce this personal right against the debtor (S). In our question this means that Z could transfer his personal right against S to Zz. Zz could also have enforced this personal right against S. 1-iowever. because it is a personal right and S has sold his land to X, Zz can enforce it against S only, but not against X. Only real rights are enforceable against third parties (see SU 2 par 2). If Z had wanted this right to be enforceable against third parties (eg. X). he should have insisted that S register a servitude. No registra1ion took place and therefore there was no servitude that could be enforced against X. Furthermore. even if this agreement between S and Z had been registered. it would have been a personal servitude since it was granted to Z and not in favour of another piece of land. Personal servitudes cannot be transferred and therefore even after registration of the personal servitude, Zz would still have had no right against X. Because Zz argued that he was entitled to the exclusive right to trade and X denied the existence of his right. there was a dispute between the parties on their legal position. The appropriate remedy in sch u a case is a declaratory order setting out the rights of the parties. In this case Zz has no rights aga1nst X. (10) QUESTfON4 (a) Z rents a bdhard room 1n Newtown from S In terms of the lease agreement Z 1s not allowed to serve alcohol on the prem1ses or stay open after twelve at night S and Z msert a tenn m the agreement entitling S to take control of the prem1ses 1f Z contravenes any of the terms of the lease. Z serves alcohol to h1s friends on the premiSes and holds rowdy partr es until sunnse The ne~ghbours complam to S S removes the locks from the building and frts new locks He locks all entrances to the prem1ses and effectively debars Z from usmg or entenng the prem1ses Z applies for a spoliation order Answer the following questions: (1) W11l Z's apphcabon succeed? In your answer refer to the requirements for a successful rehance on the spohat1on remedy as well as reJevan1 case law (7) Answer Z must prove that - he had peaceful (12) and undisturbed (h) control (I) of the billiard room and - S unlawfully (I) lsturbed his control. Z will succeed because it is dear that S unlawfully disturbed Zs control. (I) S cannot rely on the clause in the lease entitling him to take control of the premises. ( I ) This clause authorises S to take the law into his own hands and is therefore against public policy. (I) In effect it alloM S to be the judge in his own case, (I) seeing that he can decide 'Whether there is a breach of contract, or not (I) Ntno Balino v De Longe. (I) (Maximum 7 marks.) (u) Name four vahd defences that may be ra1sed aga1nst the spoliation remedy (4) Next page