Assignment 1

Property Law

PVL3701

Semester 1 2023

Department of Private Law

Open Rubric
 ASSIGNMENT 1
• This is a written assignment.
• Your mark out of 20, will count 50% towards your semester mark.
• Your answer should not exceed two typed A4 pages.
• Make use of your prescribed sources for this module to answer this assignment (see
Tutorial Letter 101 pages 9-11).
• This is an individual Assignment. If you discussed it as a group, your answers must not be
identical.
• Sign, and include the academic dishonesty declaration in your assignment. Make sure that
you adhere to all the policies that are referred to in the declaration. Do not copy and paste
from any source. Use your own words and own interpretation of the relevant material.

Before you answer the questions of this assignment, read Study Units 1-10 very carefully. Also
read the cases of Hendricks v Hendricks (2016 (1) SA 511 (SCA)) and City of Tshwane
Metropolitan Municipality v The Mamelodi Hostel Residents Association ((025/2011) [2011]
ZASCA 227 (30 November 2011)). These cases can be found and downloaded from the Unisa
Library’s e-reserves. Read your Tutorial Letter 101 on how to access prescribed material on
the e-reserves.

While reading the Study Units and the Hendricks decision. 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 with regard to his or her own thing, but the law and the rights of others can limit this right
(Study Unit 3). Real rights such as ownership and limited real rights, such as servitudes, should
be registered in the Deeds Registry, while personal rights are usually not registered. Ownership
can be acquired in different ways, either through original means or through derivative means
(Study Units 4 and 5). Certain remedies exist to protect the rights and interests of persons
(Study Unit 6).

After you read the Hendricks decision, you will see that different rights were relevant in that
case.

Now read the City of Tshwane Metropolitan Municipality decision, focus on the nature of the
different real relationships that are dealt with in this module, namely ownership, holdership and
possession. As we mention in Study Unit 8, on page 145 of the Study Guide, it is very important
to understand that possession in a narrow sense is an unlawful relationship when it is
distinguished from holdership. The example that is provided on page 145 of the Study Guide is
that of a thief of a car. A thief’s control (possession) can never be lawful. For this reason, it is
more accurate to say that an owner controls his or her own car. Being in control of your own
property constitutes one of the entitlements of ownership. (See Study Unit 3 page 45)
Possession in the broad sense, refers to physical control and it is therefore not wrong to say
an owner is in possession of his or her car. (See Study Unit 8 page 144) Certain remedies exist
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to protect the rights and interests of persons (Study Unit 6). There are also remedies that
specifically protect possession and holdership (Study Unit 9).

Against this background consider the following set of facts:

In 2004 the Khumalos sold their farm to Peter and Jenny, a couple who are married in community
of property. There are two homesteads on the farm. A right of habitatio was reserved over the
smaller homestead on the farm in favour of the Khumalos for as long as they lived. This right
was duly registered against the title deed of the farm of Peter and Jenny. Peter and Jenny moved
into the bigger homestead but made life unbearable for the Khumalos. As a result of Peter and
Jenny’s ill-mannered behaviour the Khumalos decided to leave the smaller homestead in which
they lived. After a few years the Khumalos wish to return to the smaller homestead on the farm.
During an appointment with their attorney, the Khumalos described themselves as pensioners
who are struggling to make ends meet on their small state pension. The attorney promised to
consider their legal position and to provide them with and opinion, but the Khumalos decided to
return to the smaller homestead while Peter and Jenny were on holiday. Upon their return, Peter
and Jenny find the Khumalos in the smaller homestead. They were not impressed and decided
to make their lives unbearable again. Peter and Jenny decided that the smaller homestead
needs to be redeveloped for a period of two years. Their argument was that the homestead was
severely dilapidated and was extremely hazardous and uninhabitable to occupy. Many planning
and negotiations took place between Peter and Jenny and the Khumalos. At first, the Khumalo’s
refused because according to them there was nothing wrong with the state of the smaller
homestead.

The Khumalos eventually consented to the removal of the roof tiles and also to move out of the
smaller homestead, however they did not agree on the date on which they would be vacating
the homestead. Peter and Jenny assisted by private contractors removed the roof tiles while the
Khumalos were still inside. During this process most of the roof tiles cracked to such an extent
that that they could not be used again. The Khumalos realised that they have to move out of the
homestead immediately, although they were not satisfied to do so. After moving out, they
approach their attorney who advised them to institute the spoliation remedy immediately. The
Khumalos however inform the attorney that Peter and Jenny told them that they will not be
successful with the spoliation remedy since they agreed to move out of the homestead and
furthermore that it is impossible to restore control because the roof tiles were broken.

Against this background answer the following questions:

Question 1

Identify and briefly describe the nature of Peter and Jenny’s right over the farm. Also briefly
explain how Peter and Jenny acquired this right. Fully substantiate your answer with reference
to specific paragraph numbers of the Hendricks case that you consulted as well as your Study
Guide. (4)

Not yet Partially

Evaluation criteria Achieved
achieved achieved

3
 1. Nature of right clearly identified and described
correctly Correct reference to the relevant 0 1 2
paragraph number of Hendricks.
2 Clear understanding of how this right was
0 1 2
acquired

Question 2

Is it correct to say that the Khumalos have a personal right over the homestead? Fully
substantiate your answer. Also, include a reference to the specific paragraph number in the
Hendricks decision where the nature of this type of right was described. (4)

Not yet Partially

Evaluation criteria Achieved
achieved achieved
Correct or not? Clear that student understands.
Correct reference to the relevant paragraph number 0 3 4
of Hendricks.

Question 3

Could Peter and Jenny evict the Khumalos from the smaller homestead? Substantiate your
answer by referring to the relevant paragraph number in the Hendricks decision. (3)

Not yet Partially

Evaluation criteria Achieved
achieved achieved
Clear understanding illustrated based on information
contained in the Study Guide and the Hendricks
0 2 3
decision. Correct reference to the relevant paragraph
number of Hendricks.

Question 4

Is the spoliation remedy the correct or incorrect remedy for the Khumalos to institute against
Peter and Jenny to have their control of the smaller homestead restored? Motivate your answer.
(2)

Evaluation criteria Not yet Partially Achieved

achieved achieved
Clear understanding illustrated. 0 1 2

Question 5

Will the Khumalos succeed with the spoliation remedy? Keep in mind that they consented to the
removal of the roof tiles and to moving out of the homestead and that the roof tiles were
damaged. Fully substantiate your answer. In your answer refer to the requirements to succeed
with the spoliation remedy as well as the nature and purpose of the spoliation remedy. (7)

4
 Not yet Partially
Evaluation criteria Achieved
achieved achieved
Evaluation and conclusion about the chances of
success of the Khumalos with the spoliation remedy
in view of the nature and purpose of the spoliation
remedy, the requirements for a successful reliance 0 3 or 4 7
on the spoliation remedy, based on information
found in the Study Guide and relevant prescribed
case law and in view of all the relevant facts.

Assignment total: [20]

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ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa’s policies in this regard
and confirm that I have read and adhered 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. I also understand the implications of not adhering to the
abovementioned policies.

2. I declare that these assignment answers are my own, original work.

3. I have not allowed, and will not allow anyone to copy my work with the intention of passing it
off as his or her own.

4. I did not make use of another student’s work and submitted it as my own.

NAME:

SIGNATURE:

STUDENT NUMBER:

MODULE CODE: PVL3701

DATE: