SAR 310 Exam Case Law Terms in this set (34) PGB Boerdery Beleggings v Somerville Difficult for nuisance causing neighbour to defend itself against the nuisance claim if the Plaintiff voluntarily occupies a property in the vicinity of a known and

SAR 310 Exam Case Law Terms in this set (34) PGB Boerdery Beleggings v Somerville Difficult for nuisance causing neighbour to defend itself against the nuisance claim if the Plaintiff voluntarily occupies a property in the vicinity of a known and existing nuisance i.e. the nuisance causing neighbour is exceeding what the Plaintiff is reasonably expected to tolerate Laskey v Showzone Held that a Disturbing Noise is a scientifically measurable noise level, whilst a Noise Nuisance is subjective and is defined as any noise that disturbs or impairs or may disturb or impair the convenience or peace of any person. In this case, the offending neighbour (Showzone) was allowed to continue doing business eliminating the cause of the nuisance. Allaclass Investments v Milnerton Golf The courts do express sympathy towards the Defendant with regards to the locality principle. However, it was concluded that it was valid to impose an interdict against the golf course from proceeding with ordinary business until the danger of stray golf balls to the appelant was eliminated. UP v Jolly Roger UP applied for an interdict. Jolly Roger exceeded the ambient noise levels in terms of what the property was zoned as. UP had a direct and substantial interest in protecting itself and its students from the noise nuisance. Gien v Gien Court pointed out that neighbours have competing rights. However, an owner must not use and enjoy their land in a manner which unreasonably interferes with the neighbour's enjoyment of their own land. Madarasah Taleemuddeen Islamic Institute v Chandra Giri Ellaurie The right to undisturbed use and enjoyment of own property is not unlimited. Oversensitivity of personal perculiarities does not serve as a standard for reasonableness. Ellaurie interdict application failed because he could not establish a clear right. MacDonald v Radin (MacDonald Case) 3 Part Test: 1. Nature and purpose of the attachment of movable (Objective factor) 2. Manner and degree of attachment (Objective factor) 3. Intention of the Annexor (Subjective factor) SAR 310 Exam Case Law USS Graphics (Pty) Ltd v Urban Print Factory (USS Graphics Case) Fancy printer case. Focus on normal/standard practice of the industry. Khan v Minister of Law and Order Court determined test to determine principal thing is to look at the character, form, and function. The stolen car parts added gave the customised car it's character, form, and funtion. Cohen Moters v Alberts It was wrongly decided that tyres do not form part of the truck through accession. The correct stance is that the tyres do form part of the truck through accession because they lose their identity. Melcorp v Joint Municipal Pension Fund This case is a confirmation and clarification of the so-called "new approach". The annexor specifically stated and included in the contract that the lift is a rental until the end of the contract and does not form part of the building. Subjective factor (actual intention) overrides the objective factors (MacDonald Case) because the intention of the annexor was expressed very clearly from the start. Commissioner of Customs and Excise v Randles, Brothers and Hudson Ownership of movable property does not in our law pass by the making of a contract.. It passes when delivery of possession is given accompanied by an intention on the part of the transferor to transfer ownership and on the part of the transferee to receive it. Legator McKenna Inc and Others v Shea and Others When there is an invalid (sale) agreement but performance was done in full and was legitimate and lawful, neither party can recover that performance. Therefore a valid transfer of ownership occured. Concor Construction v Santam Bank Established the pre-requisite conditions and essential requirements for transfer. Southern Tankers v Pescana Requirements for valid attornment. 1. Tripartitie agreement 2. Detentor must exercise direct physical control (detentio) over the movable at conclusion of tripartite agreement Airkel v Bodenstein Notification of change of ownership is insufficient Hearn & Co (Pty) Ltd v Bleiman It is impossible for the detentor to voluntarily give up physical and legal control Goldinger's Trustee v Whitelaw & Son 1) Transferor must be in physical control of the thing prior, during and after transfer 2) Transferor's intention must change from owner to mere holder (detentor) Transferee's intention must be animus domini: Valid and genuine causa detentionis (Vasco Drycleaners v Twycross) Question 1: Is there causa detentionis Question 2: Is this causa detentionis genuine or simulated? Vasco Drycleaners v Twycross One must consider the factual scenario and factors similar to what was done in this case by answering the following 4 questions. 1. Did they view the thing before the sale? (knew services offered) 2. Did they have a need for the thing? (did they request it etc.) 3. Did they have knowledge of the value of the thing? (did the know the costs of the services) 4. Was the purchase price realistic? (costs and payment for services) Rekdurum v Weider Gym Athlone Actio negatoria (Real remedy) Cliffard v Farinha Condictio furtiva (Delictual remedy) Victoria and Alfred Waterfront v Police Commissioner Interdict (Interim remedies) SAR 310 Exam Case Law Chetty v Naidoo Set out the Rei Vindicatio Requirements 1. Ownership Smit v Kleinhans • Existence of an instalment sale agreement? • Registration as owner as per National Road Traffic Act? 2. Defendant is in possession 3. Existing and identifiable thing Van der Merwe and Another v Taylor Precedent that the value of the property can be claimed by the rei vindicatio in case it's found that the property no longer exists Port Elizabeth Municipality v Various Occupiers The approach the court may adopt when approaching, interpreting, or applying PIE: Court held that PIE must be understood with the history and the spirit, purport, and object of the BoR Joe Slovo Community Western Cape v Thublisha Homes Unlawful occupier(s) Ndlovu v Ngcobo and Bekker v Jika Tenants holding over Stay at South Point Properties v Abulele Mqulwana Students occupying university residences Hendricks v Hendricks Procedural requirements 1. Standing-Private owner: Section 4(1) • Owner/person in charge Sturdy v Pirezenthal Procedural requirements 1. Standing-Private owner: Section 4(1) • Owner/person in charge Unlawful Occupiers School Site v City of Johannesburg 2005 Procedural requirements Notice of motion Effective notice • Information listed in section 4(5)a-d • Notice must be served by the court Daisy Dear Investments Impact of homelessness Occupation of more than 6 months Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg Impact of homelessness The granting of the order By Organ of state: Sections 6(1) & 6(3) City of Johannesburg v Changing Tides The case established that courts should approach eviction applications with a consideration of the rights and interests of all parties involved. The right to property is not absolute, and the obligation to provide accommodation and housing is shared among various stakeholders. Meaningful engagement and negotiation should be prioritized before resorting to eviction.