Strategies For Professional Excellence: Improving Your Own Practice Through Reflective Measures

What is Reivindicato and Its Valid Defenses?

1. The following paragraph is quoted from the Pretoria News of the 3rd of August 2017:

A BARKING dog is a “nuisance” to neighbours and therefore punishable. This is in accordance with a new city by-law, which will become law once it has been been [sic] promulgated - published in the Provincial Gazette - by city manager Moeketsi Mosola. “If an environmental health practitioner is of the opinion that a dog is creating a
disturbance or a nuisance, he or she may order the owner of the dog to remove the dog from the place,” the by-law states.

Indicate the incorrect statement in view of the abovementioned quote.

(1) A barking dog which causes personal infringement to a neighbour’s right of use and enjoyment of his/her own property is an example of nuisance in the narrow sense.
(2) Nuisance is a branch of neighbour law which is regarded as a limitation on ownership (of the dog) imposed by law.
(3) A barking dog which causes personal infringement to a neighbour’s right of use and enjoyment of his/her own property is an example of nuisance in the broad sense.
(4) Once the by-law is enacted it (the by-law) will constitute a limitation on ownership (of the dog) imposed by law.

2. Angela walks down Modiri Molema Street in Mahikeng when she sees a small shiny thing on the sidewalk next to a municipal dustbin. She decides to investigate and finds a gold necklace with a broken clip. She picks up the necklace and puts it in her handbag. On her way home, she sees you and tells you about her good fortune finding the gold necklace. How would you, as a law student, respond?

Indicate the most suitable statement.

(1) Angela will become owner of the gold necklace through appropriation if she can prove that the previous owner lost the gold necklace.
(2) Angela cannot become the owner of the gold necklace because transfer of ownership of valuable movable things must take place by means of physical delivery of the thing from the transferor to the transferee.
(3) Angela became owner of the gold necklace by means of treasure trove when she took physical control of it.
(4) Angela became owner of the gold necklace through appropriation if she can prove that the previous owner abandoned his/her ownership by throwing it in the municipal dustbin.

3. Indicate the correct answer.
The sources of the current law of things, in order of priority, are …
(1) the Constitution of the Republic of South Africa, 1996; case law; statute law; common law and indigenous law (same level).16
(2) the Constitution of the Republic of South Africa, 1996; case law; common law; indigenous law and statute law.
(3) the Constitution of the Republic of South Africa, 1996; indigenous law; statute law; case law and common law.
(4) the Constitution of the Republic of South Africa, 1996; statute law; case law; common law and indigenous law (same level).

A new chief executive officer was appointed at Marula Mine in Limpopo. Three managers at Marula Mine were not satisfied with the appointment. They set fire to one of the mine’s busses. Although the fire brigade tried to put out the fire, the bus was damaged beyond repair.

Understanding Creditor's Right and Limited Real Right Over Property

4. Which remedy does Marula Mine have against the three managers to recover the damages?
(1) rei vindicatio
(2) actio ad exhibendum
(3) condictio furtiva
(4) actio negatoria

5. Without the mine’s permission, a tow-truck agency, Wow-Tow, tows the bus to its scrap yard. Wow-Tow strips the bus wreck of all its parts and throws all the small screws with other screws from other car wrecks on a pile – ready for recycling.
Indicate the correct option.
(1) Marula Mine can claim the parts, including the screws, from Wow-Tow with the rei vindicatio.
(2) Because the bus was damaged beyond repair it is excluded from commerce (res extra commercium) and is no longer susceptible of ownership.
(3) The bus became a res nullius when it was damaged beyond repair when it burned out and Wow-Tow became owner thereof through appropriation (occupatio) when they took physical control of it.
(4) Wow-Tow became owner of the screws through mixing of solids (commixtio).

6. Ben is the owner of a big erf in Durban. He subdivides the erf and Nina buys the subdivided erf behind Ben’s erf. Her erf has no access to the street and Ben gives Nina permission to use the road over his erf to get access the street. After two years Ben and Nina has a disagreement about Nina’s dogs and Ben refuses to let Nina use the road.

You are Nina’s attorney. How will you advise her? Indicate the most suitable option.

(1) Nina obtained a mere personal right in terms of the agreement between herself and Ben and cannot insist on using the road.
(2) Nina obtained a personal servitude over the front erf and may exercise her right of servitude regardless of Ben’s permission.
(3) Ben merely gave Nina permission and he may revoke it at any time. Nina can, however, apply to court for a permanent way of necessity.
(4) Nina can apply to court for an order of specific performance that Ben must allow her to use the road.

7. Indicate the wrong option.
In Telkom Ltd v Xsinet (Pty) Ltd (2003 (5) SA 309 (SCA))
(1) the Supreme Court of Appeal held that specific performance of a contractual right had never been allowed under the spoliation remedy.
(2) Jones AJA stated that Xsinet’s use of the telephones, lines, modems or electrical impulses, clearly gave it “possession” of the connection of its corporeal property.
(3) it was indicated that the spoliation remedy originally only protected the physical possession of movable or immovable property, but later on a need arose to also protect certain rights.
(4) Jones AJA indicated that an objection against the idea of “quasi-possession” of a right was that it caused confusion between contractual remedies and remedies which were designed to protect real rights.

Unsecured Personal or Creditor's Right

8. Indicate the correct option.
Sam has entered into a servitude agreement with Charles in terms of which Charles grants Sam the right to use the road to Sam’s farm that crosses Charles’s farm. This agreement is in writing, but is not registered. Charles sells the farm. The new owner knows about the servitude agreement but refuses to allow Sam to use the road.
In terms of Grant v Stonestreet (1968 (4) SA 1 (A)), Sam’s legal position is the following:

(1) In terms of the doctrine of notice, Sam obtained a limited real right to use the road and the new owner must respect this real right.
(2) Sam has no legal remedy and the new owner does not have to allow Sam to use the road, because the servitude agreement was not registered.
(3) A buyer (new owner) who has knowledge of the existence of the servitude agreement is bound to register the servitude in terms of the doctrine of notice.
(4) As Charles’s successor in title, the new owner must adhere to the servitude agreement and allow Sam to use the road.

9. Indicate the correct option.regards 
Jacob wants to mine for coal on Peter’s farm. Which one of the following statements is in line with the provisions of the Mineral and Petroleum Resources Development Act 28 of 2002?
(1) As the owner of the farm Peter may grant prospecting and mineral rights to Jacob to mine for coal on his farm.
(2) Peter and Jacob must register the prospecting and mineral rights granted to Jacob by Peter in the deeds office.
(3) The state is the owner of all minerals and may grant Jacob prospecting and mineralrights with to the coal on Peter’s land.
(4) The prospecting and mining rights granted to Jacob by the state are limited real rights but registration in the deeds office is not required.

10. Indicate the wrong option with regards to deprivation and expropriation of property in terms of Section 25 of the Constitution.
(1) Deprivation can be seen as “regulation”, “limitation” and “restriction” of property. It is any interference with the use and enjoyment of private property.
(2) Expropriation should be compensated taking into account the factors contained in Section 25(3) of the Constitution.
(3) Deprivation is a type of expropriation and involves the actual taking away of private property by the state. Compensation is payable for deprivation.
(4) A valid expropriation should take place in terms of a law of general application.

What is Reivindicato and Its Valid Defenses?

Q.1 Reivindicato means a legal action by the plaintiff against the defendant to return the things that belong to plaintiff. In this context, the incorrect statement regarding valid defenses against the reivindicato is (3) because things sold at a judicial sale in execution of judgment cannot be reclaimed back by the plaintiff as things do not remain under the ownership of plaintiff and are regulated by judiciary.

Q.2 The wrong option is (1) because the creditor does not on the basis of right of creditor against the debtor, the creditor acquires limited real right over the property of the debtor as security till the payment by the debtor.

Q.3 The correct option in this case is (4) because David has no security against the money he gave to Vincent. So, he has unsecured personal or creditor’s right against Vincent.

Q.4 The correct option in this case is (1) because Asha had no right over the property of Kagiso and she has taken a bill which was ordinary before it was overdue and in good faith and for value as well and it was not defected who negotiated it to her.

Q.5 In this question, (2) is the incorrect option because Kagiso is the individual owner (separate ownership) of his section in Nzuri Gardens and Asha and Kagiso are neighbours in a sectional title complex.

Q.6 The correct option in this question is (1) because car of Kagiso is an object constructed of various parts and it include number of accessories as well.

Q.7 The correct option in this case is (1) because Kagiso possess the right to institute the reivindicatio against Posh Panel Beaters because he is the owner of the car which can easily be proved by him and the car is in existence and is identifiable and is under the control of Posh Panel Beaters(Definitions, 2018). However, he cannot retain car but can demand for the expenses in god faith because it is not his mistake and Phila came with the car to get it repaired.

Q.8 The personal servitude is considered as a servitude to grant rights in the property to a specific individual and such servitudes are usually personal in nature and terminates on the death of the servitude holder. So, the correct option is (2) which is that it is terminated by the death of the holder.

Q.9 The incorrect option in this case is (1) because in terms and conditions of the South Africa National Water Act 1998, the purpose was to ensure that the water resources of the country could be protected, used, developed, conserved, managed and controlled in ways which could consider amongst various other factors(portal.unesco.org, 1998).

Q.10 As Sandra is the owner of the land, the correct option would be (3) because the municipality under section 25(2) of the 1996 Constitution, confiscate that piece of land and pay Sandra reasonable compensation. The amount, time and manner of payment of compensation must be determined by the parties or should be decided by a court.

References

Definitions, 2018. Definitions for rei vindicatio. [Online]
Available at: https://www.definitions.net/definition/rei+vindicatio
[Accessed 28 September 2018].

portal.unesco.org, 1998. South Africa National Water Act 1998. [Online]
Available at: https://portal.unesco.org/en/ev.php-URL_ID=47385&URL_DO=DO_TOPIC&URL_SECTION=201.html
[Accessed 28 September 2018].