Question 1 (15 marks)

In South African law, a distinction is made between original and derivative acquisition of ownership. Discuss and analyse what derivative acquisition is and its requirements as stipulated in the High Court judgement in Concor Construction (Cape)(Pty) Ltd v Santambank Ltd 1993 (A).

Question 2 (35 marks)

The following are extracts from a Notarial Deed.

Extract 1:
“NOW THEREFORE the servient owner as owner of the servient tenement, hereby gives and grants to the dominant owner and his successors in title, as owner of the dominant tenement a perpetual sewerage pipeline servitude over the servient tenement along a route to be determined by agreement between the servient owner and the dominant owner with the right to the dominant owner to use the said servitude in perpetuity for the conveyance thereover of sewerage by way of a sewerage pipeline.”

Extract 2:
“Upon my death, I bequeathed my house to my grandson GD subject that my surviving spouse SS shall be entitled to occupy the property, free of rental, for the rest of her lifetime and on her death, to my daughter D until her death.”

Extract 3:
“No house in a certain township may be smaller than 250 square metres and no corrugated iron roofs are allowed.”

2.1 Identify what types of servitudes are referred to in the above extracts. (3)
2.2 What is the essential difference between a personal servitude and a praedial servitude? Discuss fully whether either or both of them are real rights or personal rights and give full reasons for your answer. (12)
2.3 Can the right in Extract 2 be enforceable against D’s successors in title after her death? (2)
2.4 Is the right that is established in Extract 2 correct and enforceable? (2)
2.5 What condition applies with respect to the example in Extract 3? (10)
2.6 How will the right in Extract 1 be terminated? (6)
Question 3 (25 marks)

H builds a shed made of corrugated iron and wood. He roll-bolted the corrugated iron and wood to a concrete foundation on the farm that he leases from L. Upon the expiry of the lease contract, H wants to remove the shed. L warns him that he cannot do that because this would amount to theft. L argues that he became the owner of the shed.

You are the legal advisor of L. Write a legal opinion where you advise L what form of ownership he is referring to and what his chances of success will be in a Court of Law. Your answer may not exceed more than two (2) pages. You must substantiate your answer with relevant law sources.

Answers to Above Question on Law of Property

Answer 1: The original and derivative acquisition of ownership is significantly differentiated in South African law. The derivative acquisition of ownership implies the acquisition of ownership rights through a process that is extracted out of the rights of another party. This right is not gained through original means. However in case of derivative acquisition of ownership, the ownership is transferred from one person to another by following a contract or a legal process. This concept of derivative acquisition of ownership can be better understood by evaluating the High Court judgement in Concor Construction (Cape)(Pty) Ltd v Santambank Ltd 1993 (A)