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: 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.

 

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. 

 

Question 3: Could Peter and Jenny evict the Khumalos from the smaller homestead? Substantiate your answer by referring to the relevant paragraph number in the Hendricks decision.

 

Question 4: 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 5: 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.