PVL3701
ASSIGNMENT 1 SEMESTER 1
DUE: MARCH 29 2023
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 theirlives 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.
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
Peter and Jenny obtained real right over the farm since the now both own the farm.
By acquiring the farm from the Khumalos they became co-owners. Co-ownership is defined
as a situation where two or more people own the same thing at the same time in undivided
shares. It is also under free co-ownership as the two are only bound by the co-ownership
and not by any other legal relationship.1
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.
The Khimalos has a personal servitude to live in the homestead.
A personal servitude is a limited real right NOT a personal right. All servitudes are limited
real rights.
A personal servitude is attached to the person in his/her personal capacity and is therefore
not transferable.A personal servitude can be granted only for a specific period of time or for
the holder's lifetime (in the case of a legal person for a period of 100 years).It is therefore
correct to state that a personal servitude is terminated by the death of the holder thereof.
1 Hendricks v Hendricks (2016 (1) SA 511 (SCA)) 7
2 Hendricks v Hendricks (2016 (1) SA 511 (SCA)) 6
ASSIGNMENT 1 SEMESTER 1
DUE: MARCH 29 2023
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 theirlives 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.
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
Peter and Jenny obtained real right over the farm since the now both own the farm.
By acquiring the farm from the Khumalos they became co-owners. Co-ownership is defined
as a situation where two or more people own the same thing at the same time in undivided
shares. It is also under free co-ownership as the two are only bound by the co-ownership
and not by any other legal relationship.1
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.
The Khimalos has a personal servitude to live in the homestead.
A personal servitude is a limited real right NOT a personal right. All servitudes are limited
real rights.
A personal servitude is attached to the person in his/her personal capacity and is therefore
not transferable.A personal servitude can be granted only for a specific period of time or for
the holder's lifetime (in the case of a legal person for a period of 100 years).It is therefore
correct to state that a personal servitude is terminated by the death of the holder thereof.
1 Hendricks v Hendricks (2016 (1) SA 511 (SCA)) 7
2 Hendricks v Hendricks (2016 (1) SA 511 (SCA)) 6
