PVL3701

ASSIGNMENT 1

UNIQUE NUMBER: 577994

Name: Gerald Stephen Aobakwe

Surname: Kenosi

Student number: 65414160

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Question 1

Peter and Jenny have a limited real right over the farm when they purchased it
from the Khumalos as the Khumalos have a right of habitation over the small
homestead on the farm, which was subsequently registered against the title deed
of the farm. The right of habitation is a personal servitude that allows the
Khumalos to live on the small homestead with detriment to the substance of the
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property, as mentioned in paragraph 6 of the Hendricks case. Although the
Khumalos may not alienate or sell that part of the farm, nor may they enjoy the
fruits of the farm to use in their daily life, They do have the right to occupy the
small homestead. 2

QUESTION 2

Yes, the Khumalo save a personal right over the farm due to the fact that they
are entitled to live in the small homestead which is derived from the right of
habitation. In this instance the right to live on the small homestead will be
enjoyed until the Khumalos willingly terminate this servitude. This provision can
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be found on paragraph 8 of the Hendricks case and further states the
ownership of the owner of the property is limited until the bearer of the habitation
rights, in this case the Khumalos, die.

QUESTION 3

No, Peter and Jenny cannot evict the Khumalos from the small homestead. In
fact, Peter and Jenny, although the new owners of the entire farm, cannot occupy

1
A Hendricks v M Hendricks & others (20519/14) [2015] ZASCA 165 (25 November 2015).
2
Suzan Scott, Property Law: Only Study Guide for PVL3701 (University of South Africa 2016) 196 -197.
3
A Hendricks v M Hendricks & others.

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the small homestead unless with the permission of the Khumalos as they have a
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limited right over the small homestead as paragraph 11 of the Hendricks case
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clearly states. Paragraph 10 also states that the right of habitatio can be
enforced against the right itself, meaning that the Khumalos have limited real
rights over the small homestead, despite the fact that Peter and Jenny have
purchased the entire farm.

QUESTION 4

Yes, the spoliation remedy is the correct remedy that the Khumalos could
institute against Peter and Jenny. Peter and Jenny had not used the correct legal
channels to remove the tiles, meaning that the Khumalos have been illegally
deprived of their possession over their property, their peace was disturbed, and
Peter and Jenny chose to use “self-help” to deal with the situation.

QUESTION 5

No, the Khumalos will not be successful with the spoliation remedy as they had
consent to the removal of the tiles at their house. A similar situation happened in
the City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents
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Association case whereby the residents of the hostel also gave consent for the
City of Tswhane Municipality to remove the tiles. For the spoliation remedy to be
instituted the Khumalos would need to proof that they were living peacefully
before the tiles were removed, that they were unlawfully deprived of their
property by Peter and Jenny, and Peter and Jenny acted in an unlawful manner.

4
A Hendricks v M Hendricks & others (20519/14) [2015] ZASCA 165 (25 November 2015).
5
A Hendricks v M Hendricks & others.
6
City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents Association (025/2011)
[2011] ZASCA 227 (30 November 2011).

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7 One may say that Peter and Jenny had the consent of the Khumalos to act in
the way that they did, however, Peter and Jenny should have informed the
Khumalos of the proper date in which these tiles would be removed and they
should have made sure that the Khumaos have alternative accommodation.
However, since this action was not an eviction, this principle would not be
relevant in this scenatio as Majiedt JJA had mentioned in paragraph 6 of the City
of Tswhane Municipality had mentioned in their defence that they had arranged
alternative accommodation for the residents when the tiles were removed.

It would be a challenge for the Khumalos to be successful in the spoliation

remedy as it would be difficult to return their property to the condition it was in
before prior to the tiles being removed as some of the tiles were damaged during
the removal. The court may argue that if they had not consented for the removal
of the tiles, there would not be any damage done to the tiles. Another argument
is that the Khumalos had agreed to vacate the premises, which would mean that
the Khumalos would legally forfeit their right to habitatio as this may be seen as
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them abandoning their servitude.

7
Suzan Scott, Property Law: Only Study Guide for PVL3701 (University of South Africa 2016) 162.
8
Scott, Property Law 193.

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Bibliography

Books

Scott, Property Law

Suzan Scott, Property Law: Only Study Guide for PVL3701 (University of
South Africa 2016)

Case Law

A Hendricks v M Hendricks & others (20519/14) [2015] ZASCA 165 (25

November 2015)

City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents

Association (025/2011) [2011] ZASCA 227 (30 November 2011)

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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: GERALD STEPHEN AOBAKWE KENOSI

SIGNATURE:

STUDENT NUMBER: 65414160

MODULE CODE: PVL3701

DATE: 29-03-2023