LPL4801 – Exam prep
EXAMINATION LONGER QUESTIONS
MAY/JUNE 2013
QUESTION 1
X IS THE OWNER OF A DAIRY FARM SITUATED ON THE BANKS OF A RIVER IN THE EASTERN CAPE. Y LEASES THE DAIRY FARM
FROM X FOR 2 YEARS. THE RENT IS PAYABLE MONTHLY. DURING A FLOOD THE DAIRY IS DAMAGED TO SUCH AN EXTENT
THAT ...
x is the owner of a dairy farm situated on the banks of a river in the eastern cape y leases the dairy farm from x for 2 years the rent is payable monthly during a flood the
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LPl4801 EXAM PACK 2022
LPL4801 – Exam prep
EXAMINATION LONGER QUESTIONS
MAY/JUNE 2013
QUESTION 1
X IS THE OWNER OF A DAIRY FARM SITUATED ON THE BANKS OF A RIVER IN THE EASTERN CAPE. Y LEASES THE DAIRY FARM
FROM X FOR 2 YEARS. THE RENT IS PAYABLE MONTHLY. DURING A FLOOD THE DAIRY IS DAMAGED TO SUCH AN EXTENT
THAT Y CAN NO LONGER USE THE PREMISES AS A DAIRY. NEVERTHELESS, X STILL CLAIMS PAYMENT OF RENT. DISCUSS Y’S
DEFENCE AND GIVE REASONS FOR YOUR ANSWER. [10]
ANSWER:
In this case we are dealing with the remission of rent. In which case the lessee is wholly or partially released from his or her
obligation to pay the rent if he or she is prevented by vis manior from having full use and enjoyment of the thing.
Rules for the remission of rent
⇒ A lessee who is deprived through vis maior or casus fortuitus of the use and enjoyment of the property let to him or her
is entitled to remission of rent, is that it is an example of supervening impossibility of performance which extinguishes the
contract wholly or partially, as the case may be.
⇒ Distinction should be drawn between cases of total destruction and cases where the lessee does not have use and
enjoyment of the property
⇒ In the case of total destruction the contract would obviously be extinguished as a result of supervening impossibility
⇒ In cases where the lessor does not have use and enjoyment of the property the lessor is not being prevented from
performing. The lessee remains in occupation of the property. The reason being that the lessee is entitled to remission of
rent is that the continuous full beneficial use and enjoyment of the property was a supposition upon which the parties
contracted and, therefore, on failure of their supposition the lessee is entitled to claim remission of rent. This is acceptable
provided that “supposition” is interpreted as meaning simply a tacit stipulation.
⇒ The lessee will thus be entitled to demand remission of rent is the loss has been caused by a vis maior
From the above facts Y as lessee will be entitled to a remission of rent.
QUESTION 2
BRIEFLY NAME THE ESSENTIALIA CREATED BY THE RENTAL HOUSING ACT 50 OF 1999 [10]
ANSWER:
⇒ All leases, whether in writing or not, are deemed to include the following standard provisions, which may not be waived
by the tenant or the landlord (s 5(3) and (4)):
⇒ Receipts: The lessor must provide the lessee with a written receipt for each payment received from the tenant (s 5(3)(a).
The lessor must also provide receipts to the lessee as proof of costs incurred by the lessor in repairing damage caused to
the dwelling during the lease period- including replacing keys
⇒ Deposits: To demand a deposit is permissible, but the deposit may not be more than the amount specified in the
contract (s 5(3)(c)).
_ The act does not limit the amount of the deposit.
,_ The deposit must be invested by the landlord in an interest-bearing account with a financial institution and the lessor
must pay the tenant interest at the applicable rate, which may not be less than the interest rate on savings accounts with a
bank.
_ When the lease is terminated, the lessor may use the deposit and interest towards the payment of unpaid rental or any
other amounts due and payable by the tenant under the lease, including the reasonable cost of repairing damage to the
dwelling during the lease period and the cost of replacing lost keys.
_ The lessor must refund this to the tenant within 14 or 21 days of restoration of the dwelling to the lessor (s 5(3)(g) and
(m)). If no money is owed in terms of the lease, the lessor must refund the deposit, together with the accrued interest to
the lessee, without any deduction or set-off, within seven days of termination of the lease (s 5(3)(I)).
⇒ Inspection: before and after occupation to pick up any defects or damage to determine the lessor's responsibility for
rectifying such defects or damage as well as to register such defects or damage in a list (s 5(3)(c)) which list must be
attached to the lease, if the lease is a written lease (s 5(7)).
o Upon termination the parties must arrange a joint inspection of the premises- three days before the end of the lease
o If the lessor fails to inspect the premises in the presence of the lessee, such failure is deemed to be an acknowledgement
by the lessor that the premises are in a good and proper state of repair. In this case, the lessor will have no further claim
against the lessee who must then be refunded the full deposit including interest (s 5(3)(j)).
o If the tenant fails to respond to the lessor's request for an inspection, the lessor must inspect the premises within seven
days from the termination of the lease in order to assess any damages or loss, which occurred during the lease period
⇒ Vacation without notice: If the lessee should vacate the premises before expiration of the lease, without notice to the
lessor, the lease is deemed to have expired on the date that the lessor established that the tenant had vacated the
premises. The lessor retains all his/ her rights arising from the lessee's breach of the lease contract
⇒ Tacit renewal: If the lessee should vacate the premises before expiration of the lease, without notice to the lessor, the
lease is deemed to have expired on the date that the lessor established that the tenant had vacated the premises. If this
should happen, the lessor retains all his/ her rights arising from the lessee's breach of the lease contract.
⇒ Written leases: written lease must include the essentials of the contract of letting and hiring of a thing, namely the
names of the parties, a description of the premises, and the amount of rent
_ The addresses of the parties, any other charges payable, provision for a reasonable escalation, if wanted, when payments
are to be made if they are not to be made monthly, the amount of the deposit, the period for which the lease is to be
concluded as well as the notice period.
_ Attached to the contract must be a copy of the house rules, if there are any and the list of defects registered during the
inspection must also be attached
_ Noncompliance with these provisions of the Act causes the agreement to be invalid, which leaves the contracting parties
without the protection of the act and without the protection of the common law of lease.
QUESTION 3
DISCUSS THE LEGAL POSITION WHERE THE THIRD PARTY WHO HAS TO DETERMINE THE PURCHASE PRICE, FIXES AN
UNREASONABLE PRICE. DO NOT DISCUSS THE PROVISIONS OF THE CONSUMER PROTECTION ACT 68 OF 2008. [8]
Unreasonable price fixed: where the 3rd party does fix a price, but it appears to be unreasonable there are 4 possible
solutions:
1. The contract of sale is valid, notwithstanding the unfair price. In English law, the price specified by the 3rd party is
binding in the absence of mala fides, fraud, error or collusion.
2. The contract of sale is invalid as the parties intended for the price to be reasonable
,3. The sale is valid, but the aggrieved party is not bound by the manifestly unjust determination of the price, as the court
has a general power to correct such determination
Dublin v Diner “both parties presumably relied upon the ability, competence and integrity of the 3rd party nominated by
them. Where such a 3rd party determines a value, which is grossly inaccurate, it would be a harsh law, which would
necessarily bind the oppressed party to the payment of the price determined. Whether the parties are bound by the courts
determination, answered in only a single high court decision Van Heerden v Basson held that both parties are bound by the
courts determination
4. The sale is valid but the aggrieved party is not bound by the manifest unjust determination of the price. The court has a
general power to correct such determination, but the other party may elect whether or not to abide by the courts
determination. Accepted by the High Court of 3 jurisdictions. This solution seems to be correct, because it does not allow
the courts to create a new contract for the parties.
QUESTION 4
S SELLS AND DELIVERS FOUR OSTRICHES TO P FOR R4000 CASH. P PAYS THE PURCHASE PRICE BY CHEQUE WITHOUT ANY
FURTHER DISCUSSION. ON THE FOLLOWING DAY, P SELLS AND DELIVERS THE OSTRICHES TO M FOR R4500. M PAYS THE
R4500 IN CASH. THE CHEQUE WHICH P GAVE TO S IS LATER DISHONOURED.
4.1 WILL S SUCCEED WITH THE REI VINDICATIO (ACTION OF THE OWNER FOR THE RECOVERY OF PROPERTY FROM ANY
PERSON IN POSSESSION OF IT) AGAINST M FOR THE RETURN OF THE OSTRICHES? [10]
ANSWER:
From the facts of the case we can identify that this is a cash sale, in which case delivery and payment is to take place
simultaneously for it to be complete and ownership to pass.
Ownership passes with the real agreement and not when the contract is concluded. If the parties do not expressly state
their intention, we work with their tacit intention. This means that the parties have the intention to pass and receive
ownership in the case of a cash sale, with delivery of the thing sold, only if the price has been paid.
From the above we can conclude that ownership did not pass from S to P as the purchase price has not been paid and
therefore S is still the owner of the ostriches. In this case he will be able to institute action and reclaim the ostriches
successfully.
4.2 ASSUME THAT S SUCCEEDED WITH THE REI VINDICATIO AGAINST M FOR THE RETURN OF THE OSTRICHES. DOES M HAVE
ANY REMEDY AGAINST P? DISCUSS [12]
M may claim against P on the grounds of eviction. S’s institution of rei vindicatio will qualify for the return of the ostriches.
Such a demand amounts to eviction. M need not notify P or conduct a virilise defensio if he can prove that S’s right is
unassailable. S is the owner as possession did not pass to P as payment was unsuccessful.
, OCTOBER/NOVEMBER 2012
QUESTION 1 / VRAAG 1
T rents premises in a shopping mall from L and runs a small coffee shop. The shop does very well because many customers
pass by it on the way to do shopping at a Woolworths store, and tend to stop for a quick cup of coffee and something to
nibble. However, Woolworths wants to expand its premises, but to do so, L diverts the passage to Woolworths so that its
customers must enter via another passage. T’s shop is now located at the end of a dead end passage. Soon T’s coffee shop
begins to run at a loss because no customers now walk by. Does T have any remedy against L? Discuss fully with reference
to case law. (15)
Use the following mark rubric to mark this question:
Evaluation criteria Not yet Partially Achieved
achieved achieved
1. Identifying the problem and giving appropriate advice. 0 0.5-4.5 5
2. Discussing the relevant law applicable to the problem referring 0 0.5-6.5 7
to the relevant case law (prescribed cases and cases discussed in
Study Guide), writers and legislation.
3. Applying the law to the facts of the problem. 0 0.5-2.5 3
Answer:
Identification of problem (maximum 3 marks):
Two question are relevant: whether L breached his duty not to disturb T in his use and enjoyment of the shop (1) and
whether L breached an express or tacit term of the contract.(2) This is not a case where remission of rent is claimable.(1)
Discussion of law (maximum 7 marks):
Once the property has been delivered to the lessee, it is obvious that the lessor may not disturb the lessee in his or her use
and enjoyment of the thing, except lawfully, as when he or she reasonably requires such right in order to inspect a property
or when he or she needs to effect necessary repairs.(1)
In Sishen Hotel (Edms) Bpk v Suid Afrikaanse Yster en Staal Industriële Korporasie Bpk 1989 (2) SA 931 (A) the Appellate
Division extended this right by interpreting the lessee's right against the lessor to include a restraint upon the latter to
refrain from direct or indirect conduct which negatively affects the profitability of the leased thing. In this case the parties
had concluded a twenty year lease of an hotel. The site of the hotel was next to a national road and because of this, the
hotel attracted considerable custom. About eight years after the conclusion of the lease, the national road was diverted on
application and at the expense of the lessor in order to expand its mining operations in the area. As a result, the hotel's
profits declined and eventually turned into losses. About three years later the hotel was closed down and the lessee
instituted an action against respondent for the payment of damages for breach of contract. This claim had been dismissed
by the court a quo. The appellant raised the argument that the contract contained an implied term that the respondent
would not take any steps to interfere with the access to the hotel and prevent the flow of custom to the hotel. The judge
came to the conclusion that commodus usus could include the idea of profit where the lessee runs a business from the
leased premises. The judge found that because the lessee conducted the hotel business to make a profit, closing or
diverting the road indirectly infringed the lessee's commodus usus.(6)
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