SUPPLEMENTARY EXAM ASSIGNMENT
PRIVATE LAW II - LAW OF THINGS AND SUCCESSION
Course presenter: Liz Kriegler
1. Themba’s attorney, Ms Bright, prepares a will according to Themba’s instructions, which are to leave his entire estate to his girlfriend, Mary. Ms Bright prepares the will on her computer and sends it to Themba as an e-mail attachment. Themba reads the will on his computer, tells Ms Bright he is happy with the will, deletes it from his computer and makes an appointment with Ms Bright to sign the will at her offices. Unfortunately, Themba is killed in a car accident on his way to the appointment. After Themba’s death, Ms Bright prints a copy of the will from her computer.
Mary comes to you for advice about receiving her benefit from the will. Can an order be made in terms of section 2(3) of the Wills Act, 1953 (as amended) in respect of Themba’s will? Discuss the advice will you give Mary with reference to relevant case law. (15 marks)
2. Margaret's father David died at the age of 80. Two weeks before his death, David suffered a major heart attack and had to undergo heart surgery. As he recovered from surgery, David was administered very strong pain and heart medication three times daily, which sometimes made him feel confused. Five days before he died, David was visited by his brother Bob. David dictated a new will to Bob, who wrote out the will, in which he bequeathed all of the assets in his estate to Bob and Bob’s four children. David signed the will in the presence of two nurses who signed the will as witnesses. David is survived by his three children and seven grandchildren.
Margaret consults you as her attorney. She wishes to challenge the will because she believes that David did not intend to bequeath his assets to Bob or to Bob’s children. She contends that Bob unduly influenced David. In David's previous will, which he executed five years before his death, David had bequeathed all his assets to his own children and grandchildren.
Discuss the advice will you give Margaret with reference to relevant case law. In your answer you must explain the concept of undue influence and testamentary capacity and advise Margaret on whether she can successfully challenge the will.
3. Lebo comes to you for urgent help.
He recently moved to Johannesburg from the Eastern Cape. He moved here with his girlfriend and his disabled younger sister who he takes care of. Lebo met Thatho on the taxi to Johannesburg. Thatho informed him that if Lebo gave him R500 he would show Lebo an open, unoccupied piece of land where he could build a shack and live near other families from the Eastern Cape.
About a year after erecting the shack, in which he, his girlfriend and sister live, Lebo received a copy of a Court order stating that the Johannesburg City Council had obtained a mandament van spolie order against him and that he had four weeks to move his shack and other belongings from the Council property.
What is your advice to Lebo?
4. A nightclub opened early last month in Victory Park. The nightclub is in a warehouse, near the shopping centre. This event has resulted in an outcry from local residents who say they have had to endure sleepless nights because of the noise from the club. You are consulted for legal advice by two angry residents, Mr Wilkie and Mrs Clinton.
The owner of the nightclub dismisses the complaints saying:
“It's time that people woke up in this area. They are behind the times and besides, in terms of the Constitution, a man is allowed to earn his living however he likes. We're starting with soundproofing the ceilings. It's costing us a mega amount of money. We're a new club, so we don't really have a big budget. We had eight bass speakers; we have reduced it to four. We built-up the windows, so there's no more sound coming through them. The problem will be totally solved in a month or two. We ask a bit of patience.”
The local residents, on the other hand, say that the music is clearly audible from their homes and the vibrations are felt as far away as six houses down the road from the warehouse, as well as in nearby flats.
Mr Wilkie, who lives within 500 metres of the warehouse, tells you how his prizewinning Chihuahua dogs have become completely hysterical and almost uncontrollable since the nightclub started. He fears that his dogs’ hair will fall out and that they will no longer be able to participate in competitions. Mr Wilkie depends on the prize money from these competitions to add to his state pension of R1 500 per month. The Clinton family has a new baby, born prematurely. Neither Mrs Clinton nor the baby is able to rest and the baby was recently re-admitted to hospital, suffering from dehydration. The doctors believe that the noise is contributing to the baby's suffering.
Write an answer, referring to case law, as follows:
1. Explain fully what is meant by the concept of a “nuisance”.
2. Set out and discuss the test applied by the courts in order to determine whether a landowner’s conduct is unlawful and therefore a nuisance.
3. Advise Mr Wilkie and the Clinton family on their chances of success, if they decide to take legal action against the nightclub owner on the basis of the nuisance.
4. Advise Mr Wilkie and the Clinton family on the specific defences that the nightclub owner might raise. (20 Marks)
Please note that you will not have an opportunity to resubmit your assignment, should you not pass. This is the only attempt that you will have. Answer carefully and in full.
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