Question

Against this background consider the following set of facts:

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 their lives 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.
Against this background answer the following questions:

question 1
Is the spoliation remedy the correct or incorrect remedy for the Khumalos to institute against
Peter and Jenny to have their control of the smaller homestead restored? Motivate your answer.

question 2

Will the Khumalos succeed with the spoliation remedy? Keep in mind that they consented to the
removal of the roof tiles and to moving out of the homestead and that the roof tiles were
damaged. Fully substantiate your answer. In your answer refer to the requirements to succeed
with the spoliation remedy as well as the nature and purpose of the spoliation remedy. (7)
​

Answer 1

Step-by-step explanation:

Answer to Question 1:

The spoliation remedy is the correct remedy for the Khumalos to institute against Peter and Jenny to have their control of the smaller homestead restored. The spoliation remedy is a legal action that a person can take to regain possession of property that has been taken from them unlawfully or through force. In this case, Peter and Jenny removed the roof tiles and thus deprived the Khumalos of their control of the smaller homestead without their consent. This amounts to spoliation, which is a violation of the Khumalos' possession rights. Therefore, the Khumalos have the right to institute the spoliation remedy to regain possession of the smaller homestead.

Answer to Question 2:

It is likely that the Khumalos will succeed with the spoliation remedy. The spoliation remedy is based on the principle that no person should be allowed to take the law into their own hands and that the courts will protect a person's possession rights. In order to succeed with the spoliation remedy, the Khumalos will have to prove the following:

They were in peaceful and undisturbed control of the smaller homestead before Peter and Jenny removed the roof tiles.

Peter and Jenny removed the roof tiles without their consent and thereby unlawfully deprived them of their control of the smaller homestead.

The Khumalos acted promptly in instituting the spoliation remedy once they became aware of the spoliation.

In this case, it is clear that the Khumalos were in peaceful and undisturbed control of the smaller homestead before Peter and Jenny removed the roof tiles. They did not consent to the removal of the roof tiles and were thus unlawfully deprived of their control of the smaller homestead. They also acted promptly in instituting the spoliation remedy once they became aware of the spoliation. Therefore, it is likely that they will succeed with the spoliation remedy.

The fact that the roof tiles were damaged may not be relevant to the Khumalos' right to regain control of the smaller homestead. The spoliation remedy is not concerned with the condition of the property that has been spoliated, but rather with the principle that possession should not be taken unlawfully. The nature and purpose of the spoliation remedy is to protect a person's possession rights and to prevent the unlawful taking of property.