October/November 2022
PVL3701
Property Law
MEMORANDUM
100 Marks
(4 Hours)
Read the following set of facts before you answer the questions:
In 2004 the Khumalos sold their farm to Peter and Jenny (who are unmarried) in equal
undivided shares. A right of habitatio was reserved over the farmstead in favour of Mr
and Mrs Khumalo for as long as they lived. This right was duly registered against the
title deed of the farm. Peter and Jenny decided to develop a part of their farm as a
residential township. However, legislation stipulates that the area must be utilised for
agricultural purposes only. Peter and Jenny, nevertheless, developed a residential
area on a portion of the farm because, in their opinion, the farm belongs to them and
therefore, they are allowed to make their own decisions regarding the farm. Peter and
Jenny make life unbearable for the Khumalos. As a result of the nuisance caused by
excavations on the farm and Peter and Jenny’s ill-mannered behaviour towards them,
the Khumalos had to leave the home on the farm in which they lived. They now wish
to return to the house on their erstwhile farm. The Khumalos describe themselves as
pensioners who are struggling to make ends meet on their small state pension. They
are unable to afford accommodation in town. After the Khumalos left, Peter and Jenny
move into the homestead that was previously occupied by the Khumalos.
Furthermore, Peter and Jenny give permission to Mr and Mrs Williams in terms of a
lease agreement to reside in one of the newly developed units in the residential area
on the farm. Peter and Jenny also leased a newly developed house to Ben for a period
of 12 months. Ben’s lease eventually expired, but he continued to stay in the house
without paying any rent. Peter and Jenny decided to go away on holiday for a month.
Upon their return, they noticed that Ben’s friend, Jan, had placed a container behind
the house that Ben is occupying. Jan converted the container into a small living unit
and moved in.
1
, Peter and Jenny loaned money from the Blue Bank. A limited real right is registered
over the farm in favour of the Blue Bank until the principal debt has been paid in full.
Peter and Jenny also enter into an agreement with Lerato in terms of which they loan
R100 000.00 from Lerato. They agree that they will deliver their John Deere tractor to
Lerato in pledge as security for the payment of the principal debt. They receive the
money from Lerato but fail to provide Lerato with the tractor.
Jacob contacts Peter and Jenny to purchase their flock of sheep. Peter and Jenny
point the flock of sheep out to Jacob. Jacob fails to collect the sheep from the farm.
Peter and Jenny eventually sell the flock of sheep to Karel by pointing it out to him.
Karel collects the sheep from Peter and Jenny’s farm.
Peter and Jenny decide to move abroad temporarily for a period of 15 years. Before
they leave, they appoint their long-time friend, Elsa as an agent to manage the farm
and their affairs. Elsa acts as if she is the owner of the property and fraudulently
decides to alienate the farm to an unsuspecting third party, Xolisa. Xolisa purchases
the farm, only to find out a few years later that Elsa is not the owner of the farm and
that she was not authorised to sell the house.
Keeping this set of facts in mind, answer all the questions below. Motivate your
answers with reference to the most relevant legislation and case law. Do not consult
your prescribed sources. This is a closed-book exam.
1 It can be said that the concept of the constitutional protection of property is a wide
concept. Briefly discuss this statement and identify the different rights in view of
the set of facts above that could be protected in terms of the Constitution.
(8)
Well in terms of the constitution Section 25 of the Constitution will be
applicable here and it states that, when a person alleges that his/her right to
property has been infringed, it must be determined what constitutes
‘‘property’’ for constitutional purposes The object of constitutional protection
is wider than the traditional private-law category of corporeal or tangible
things. Not only are ownership and limited real rights granted protection, but
presumably also a few other rights such as shares, immaterial property rights
and traditionally neglected property rights, such as customary land rights and
so-called ‘‘new property-rights.
2
PVL3701
Property Law
MEMORANDUM
100 Marks
(4 Hours)
Read the following set of facts before you answer the questions:
In 2004 the Khumalos sold their farm to Peter and Jenny (who are unmarried) in equal
undivided shares. A right of habitatio was reserved over the farmstead in favour of Mr
and Mrs Khumalo for as long as they lived. This right was duly registered against the
title deed of the farm. Peter and Jenny decided to develop a part of their farm as a
residential township. However, legislation stipulates that the area must be utilised for
agricultural purposes only. Peter and Jenny, nevertheless, developed a residential
area on a portion of the farm because, in their opinion, the farm belongs to them and
therefore, they are allowed to make their own decisions regarding the farm. Peter and
Jenny make life unbearable for the Khumalos. As a result of the nuisance caused by
excavations on the farm and Peter and Jenny’s ill-mannered behaviour towards them,
the Khumalos had to leave the home on the farm in which they lived. They now wish
to return to the house on their erstwhile farm. The Khumalos describe themselves as
pensioners who are struggling to make ends meet on their small state pension. They
are unable to afford accommodation in town. After the Khumalos left, Peter and Jenny
move into the homestead that was previously occupied by the Khumalos.
Furthermore, Peter and Jenny give permission to Mr and Mrs Williams in terms of a
lease agreement to reside in one of the newly developed units in the residential area
on the farm. Peter and Jenny also leased a newly developed house to Ben for a period
of 12 months. Ben’s lease eventually expired, but he continued to stay in the house
without paying any rent. Peter and Jenny decided to go away on holiday for a month.
Upon their return, they noticed that Ben’s friend, Jan, had placed a container behind
the house that Ben is occupying. Jan converted the container into a small living unit
and moved in.
1
, Peter and Jenny loaned money from the Blue Bank. A limited real right is registered
over the farm in favour of the Blue Bank until the principal debt has been paid in full.
Peter and Jenny also enter into an agreement with Lerato in terms of which they loan
R100 000.00 from Lerato. They agree that they will deliver their John Deere tractor to
Lerato in pledge as security for the payment of the principal debt. They receive the
money from Lerato but fail to provide Lerato with the tractor.
Jacob contacts Peter and Jenny to purchase their flock of sheep. Peter and Jenny
point the flock of sheep out to Jacob. Jacob fails to collect the sheep from the farm.
Peter and Jenny eventually sell the flock of sheep to Karel by pointing it out to him.
Karel collects the sheep from Peter and Jenny’s farm.
Peter and Jenny decide to move abroad temporarily for a period of 15 years. Before
they leave, they appoint their long-time friend, Elsa as an agent to manage the farm
and their affairs. Elsa acts as if she is the owner of the property and fraudulently
decides to alienate the farm to an unsuspecting third party, Xolisa. Xolisa purchases
the farm, only to find out a few years later that Elsa is not the owner of the farm and
that she was not authorised to sell the house.
Keeping this set of facts in mind, answer all the questions below. Motivate your
answers with reference to the most relevant legislation and case law. Do not consult
your prescribed sources. This is a closed-book exam.
1 It can be said that the concept of the constitutional protection of property is a wide
concept. Briefly discuss this statement and identify the different rights in view of
the set of facts above that could be protected in terms of the Constitution.
(8)
Well in terms of the constitution Section 25 of the Constitution will be
applicable here and it states that, when a person alleges that his/her right to
property has been infringed, it must be determined what constitutes
‘‘property’’ for constitutional purposes The object of constitutional protection
is wider than the traditional private-law category of corporeal or tangible
things. Not only are ownership and limited real rights granted protection, but
presumably also a few other rights such as shares, immaterial property rights
and traditionally neglected property rights, such as customary land rights and
so-called ‘‘new property-rights.
2
