27 OCTOBER 2023 EXAM ANSWERS - PROPERTY LAW PVL3701

Question 1 Mr Nkosi, a retired attorney, owns a residential property in Pretoria. The Pienaars, own the house next to Mr Nkosi’s house. Mr Nkosi has a beautiful garden with very big Jacaranda trees. Although the Pienaars adore the trees, the branches are overhanging on their property. During the Spring season, hundreds of purple flowers end up falling on their lawn to make it look untidy. In summer the branches prevent their lawn from getting enough sunlight. There is also a very big Marula tree in the garden of the Pienaars. A few months ago, they considered removing the Marula tree, but Mr Nkosi informed them that the Marula tree is a protected tree species in terms of section 15(3) of the National Forest Act 84 of 1998 which means that they are not allowed to remove the tree without a licence granted by the Minister of Environment, Forestry and Fisheries. The Pienaars do not want to upset Mr Nkosi, because they know that he is fond of his Jacaranda trees. A friend of the Pienaars, Lora, told them that since Mr Nkosi owns the property the trees also belong to him and, therefore, he can do with the trees and the property as he wishes. Against this background, answer the following questions: 1.1 Evaluate the correctness of Lora’s opinion that Mr Nkosi should be allowed to do as he pleases since the property belongs to him. [6] [Your answer should not exceed 10 lines.] 1.2 Advise the Pienaars about their legal position and options regarding the flowers and the overhanging branches of the Jacaranda trees. [8] [Your answer should not exceed 16 lines.] 1.3 The Pienaars feel aggrieved about the provision regarding the removal of the Marula tree. They went to their computer and asked ChatGPT for legal advice on the matter and the answer that was created indicated that the provision in terms of the National Forest Act 84 of 1998 could possibly contravene their right to property in terms of section 25(1) of the Constitution, 1996. Briefly explain to them how a court could possibly approach the Constitutionality of the provision. 4 [Your answer should not exceed 10 lines.] [5] 1.4 The Pienaars decide that they do not want to confront Mr Nkosi about the trees. Since their children moved out of the house, they realise that it is time for them to move to a smaller house. They sell the house to a good friend, of theirs, Johnny, who already rents a garden flat on their property. How will Johnny become the owner of the property of the Pienaars? Your answer should briefly deal with all relevant requirements. (10) [Your answer should not exceed 20 lines.] Question 1 total: [29] Question 2 Katlego owns a flat in Pretoria. Katlego owes SA Bank an amount of R 50 000 which was advanced to finance the acquisition of the flat. The debt is secured in terms of a mortgage that is registered over the flat. She rents the flat to a Unisa student, Mark. She signs a one-year lease agreement with Mark. Mark pays Katlego R5000 per month. One of the terms of the lease agreement is that Katlego can change the locks of the flat should Mark fall into arrears. The agreement contains another term, namely that Katlego may enter the flat to remove all of Mark’s belongings should he fall into arrears. Katlego also owns a townhouse in Midrand. Her elderly father, Tshephang, resides in the townhouse in terms of a personal servitude of right of habitation. Katlego and her father had an argument because her father allows Katlego’s youngest sister, Dikeledi, to stay in the townhouse when she comes to Midrand for business. Katlego and Dikeledi do not get along. This argument negatively affects Katlego and Tshephang’s relationship and Tshephang is concerned that Katlego might ask him to move out of the townhouse. Against this background answer the following questions: 2.1 Briefly identify three different rights that the various parties have in the set of facts. In your answer also indicate what the object of each right is and whether the right is registrable in the Deeds Registry. For example: Katlego has a personal right against Mark. The object of this right is the R5000 rental that Mark must pay monthly. This right cannot be registered in the Deeds Registry. (10) 5 [Your answer should not exceed 15 lines.] 2.2 Mark discusses the terms of the lease agreement with his friends who are law students at Unisa. They correctly indicate to him that the two terms of the lease agreement referred to above are invalid and that there will be a remedy available to him should Katlego enforce these terms. 2.2.1 Briefly explain why these terms are invalid. (5) [Your answer should not exceed 10 lines.] 2.2.2 Identify and briefly discuss the remedy that will be available to Mark should Katlego enforce these terms. In your answer also indicate whether Mark will be successful with this remedy should Katlego enforce the terms. (7) [Your answer should not exceed 10 lines.] 2.3 Mark falls behind with the rental. Fully advise Katlego about her options to secure the arrear rental amount. (6) [Your answer should not exceed 10 lines.] 2.4 Briefly describe the real relationship that Tshephang has with Katlego’s townhouse in Midrand. (3) [Your answer should not exceed 3 lines.] 2.5 Tshephang decides to get legal advice regarding his legal position. Fully advise Tshepang about the possibility that Katlego could evict him from her townhouse. (8) [Your answer should not exceed 15 lines.] 2.6 Katlego is unsure of the type of special mortgage that SA Bank has over her flat in Pretoria. Advise Katlego on the nature of the mortgage. (4) [Your answer should not exceed 10 lines.] Question 2 total: [43] Question 3 Sandra, a game farmer, keeps two impalas, four kudus and a giraffe in a camp on her farm. The camp is enclosed by a fence. She marks all the animals with the initials SA. Late one evening the game ranger leaves the camp’s gate open and the four kudus escape. Sandra’s neighbour, John, finds the kudus on his farm and captures them in a camp. Sandra sees her kudus in John’s camp and claims them with the rei vindicatio. John refuses to give the kudus to Sandra and claims that he became the owner of the kudus through appropriation (occupatio). 6 Against this background briefly explain who the owner of the kudus is and discuss Sandra’s chances of succeeding with the rei vindicatio. (8) [Your answer should not exceed 15 lines.] Question 3 total: [8] Question 4 Nomvula owns a farm near Pietermaritzburg. She is an attorney who works in Sandton. She only visits the farm once a month over a weekend. One Saturday morning when she arrived on the farm, she discovered that a group of around 100 people had moved onto the farm and are staying there. Nomvula is worried and discusses her options with you. She knows that she may institute the rei vindicatio to apply for the eviction of the group of people but also knows that the application of the rei vindicatio is limited under certain circumstances. Against this background answer the following questions: 4.1 Which defence or limitation that may be raised against the rei vindicatio will apply under the abovementioned circumstances? Briefly discuss. (5) [Your answer should not exceed 10 lines.] 4.2 Briefly advise Nomvula on how she could go about evicting the group of people. In your answer refer to relevant statutory law and case law. (5) [Your answer should not exceed 10 lines.] Question 4 total: [10] Question 5 Tanya has an agreement with Tom, the owner of the farm “Laughing Meadow” in terms of which she undertakes to register a servitude of right of way over her farm, “Merry Cricket”, in favour of Laughing Meadow. Against this background answer the following questions: 5.1 Before the servitude can be registered, Tanya sells Merry Cricket, to Karabo, who knows of the servitude agreement between Tom and Tanya. After ownership of Merry Cricket has been transferred to Karabo, he prevents Tom from using the road over Merry Cricket. Fully discuss Tom’s legal position. (5) [Your answer should not exceed 20 lines.] 7 5.2 After the servitude has been registered, Tom dies, and his wife (Simoné) wishes to use the road over Merry Cricket. Will she be entitled to use the road? Fully discuss. (5) [Your answer should not exceed 20 lines.]