SU 12- Protection of ownership
Introduction
If ownership or the entitlements of the owner of a thing are infringed upon, several
remedies are available to the owner.
Remedies-
Real remedies: Restore physical control of the thing or to remove any infringement of the
owner's exercise of her entitlements to the thing.
Delictual remedies: Instituted by an owner against a person aimed at compensation for
damages or loss to the owner's property resulting from the unlawful and culpable actions of
such person.
Enrichment remedies: Payment of compensation by a person who was enriched at the
expense of an owner without a legal ground for the enrichment.
Real remedies
A. Rei vindicatio
B. Actio negatoria
C. Interdict
D. Declaratory order
A. Rei vindicatio
An owner can recover an existing and identifiable thing from any person who is exercising
unlawful physical control over it.
Chetty v Naidoo-
It may be difficult to define ownership comprehensively but there can be little doubt
that one of its incidents is the right of exclusive possession of the thing with the
necessary corollary that the owner may claim his property wherever found, from
whomsoever holding it.
It is inherent in the nature of ownership that possession of the thing should normally be
with the owner, and it follows that no other person may withhold it from the owner
unless he is vested with some right enforceable against the owner
Requirements
a) The owner must prove ownership of the thing.
b) Only an existing and identifiable thing can be reclaimed.
c) The property must be in the control of the defendant when the action is instituted.
a) Ownership
The claimant must prove that she is the owner.
The onus of proof resting on the claimant is that she must prove, on a balance of
probabilities, that she acquired ownership.
Once the claimant has established ownership on a balance of probabilities, a rebuttable
presumption that she is still the owner is created.
Immovable property- sufficient to prove that the property is registered in the name of
the claimant
Movable things- the onus of proof is much heavier- there is a presumption that the
person who is in physical control of the thing is also the owner.
To satisfy this onus of proof, the claimant will have to rebut this presumption.
The rei vindicatio is not available to the leaseholder of a registered leasehold, but
statutory measures for protection do exist.
,b) Existing and identifiable thing
The thing must still exist and be identifiable.
If the thing no longer exists, the owner will have to use a delictual or enrichment action
to claim the value of the thing or damages.
Thing is not easily identifiable- not possible to use this action.
If ownership has passed because of mixing- action can not be instituted.
Ngomane v Johannesburg (City) 2020 (SCA)-
Things that belonged to a group of homeless people.
The things were left on a traffic island in the City of Johannesburg and were removed
by the police.
The homeless people claimed the return of their belongings.
The supreme court of appeal referred to the decision of the court a quo in the
matter, which court dismissed the application of the rei vindicatio because the things
that were claimed had been destroyed.
c) Control
Defendant must be in control at time the action is instituted
Owner does not have to prove that the control is unlawful
Not necessary for the claimant to prove that the defendant had a limited real right or a
personal right to control the thing which has lapsed, but- if the claimant avers the
existence of such a right, she must prove that the right in terms of which the defendant
controlled the thing has lapsed
o The defendant must therefore prove that she was lawfully in control of the thing
at the time of institution of the action, but if the claimant avers that this right has
lapsed, she must prove it.
Chris Hort Municipality v HIT Transport Mining Civils (Pty) Limited 2020 (ECG)
An application for summary judgment by the applicant for an eviction order against
the defendant based on the rei vindicatio was filed.
The defendant in an amended plea indicated that it was occupying the property in
terms of a mining permit issued in terms of the Mineral and Petroleum Resources
Development Act 28 of 2002.
The applicant argued that the mining permit expired.
In view of this the court held that the defendant did not have the right to occupy the
property and the eviction order was successful.
Defences against rei vindicatio-
a) The defendant can prove that the claimant is not the owner of the thing
b) If the thing has been destroyed or is unidentifiable, that can be raised as a defence.
c) The defendant was not in physical control of the thing when the rei vindicatio was
instituted.
d) The defendant can show that she has a limited real right or personal right in terms of
which she exercises physical control and that this right is still valid.
e) The defendant with a lien over the thing remains in physical control of the thing until
the obligation which gave rise to the lien has been fulfilled by the owner
f) Section 26(3) of the Constitution- No one may be evicted from their house without a
court order
g) Section 9(1) Extension of Security of Tenure Act + Section 5 and 15A(1) of the Land
Reform (Labour tenants) Act + Section 4(1) of the Prevention of Illegal Eviction from
and Unlawful Occupation of land Act- Anti- eviction provisions, amendment common
, law, restrictions on rei vindication= owner must prove common law requirements
and that eviction order will be justified in light of relevant circumstances- elderly or
small children.
h) Sale in execution- Section 70 of the Magistrates Court Act- movable and immovable
property cannot be reclaimed. Section 26(3) of the Constitution- if it involves a
person’s home- judicial supervision is required.
i) Estoppel
A defence which can be raised against the rei vindicatio of an owner, if the owner
acted in a specific way.
SU 14- INTRODUCTION TO POSSESSION AND HOLDERSHIP
, RIGHTS IN PROPERTY AND CONTROL OF CORPOREAL THINGS:
Distinction between ownership, possession and holdership- based upon the question of
actual physical control and the absence or presence of physical control is of great
importance
PHYSICAL CONTROL OF CORPOREAL THINGS
Actual, physical holding or domination of a corporeal thing
The distinction between ownership, possession and holdership is important only with regard
to property which can be held or controlled physically- corporeal things
Incorporeals usually cannot be held or controlled physically
One either has one of these rights or one does not have it- unnecessary to distinguish
between various categories of rights
LAWFUL CONTROL:
Control of corporeal things is lawful when it was acquired and is held in accordance
with the applicable legal rules and principles
Acquired and is held according to applicable property rules, control and the property
relation based on it- recognised and protected by law
Acquired or is held in contravention of applicable property rules, control and the
property relation based on it- not recognised or protected by law- law might still
attach certain consequences and implications
A. GOOD FAITH (BONA FIDES) AND BAD FAITH (MALA FIDES)
When control of corporeal property is established and held lawfully the intentions of
the controlling person are irrelevant
No such thing as an owner or a lawful holder in good or bad faith- fact that control is
lawful is sufficient to determine consequences of the control
B. LEGAL IMPLICATIONS OF LAWFUL CONTROL
If control is established and held lawfully- law will attach all the consequences and
implications which are normally associated with that form of control to it
Nature of the specific form of lawful control will determine exact consequences
The differences between two categories of lawful control is determined by the
entitlements acquired by the holder in each case
Most important consequenceof lawful control- protected by the law
Protection usually takes the form of a remedy
Each remedy must be awarded on the basis of specific requirements that have to be
proved
C. CATEGORIES OF LAWFUL CONTROL
1. Ownership
2. Lawful holdership
Introduction
If ownership or the entitlements of the owner of a thing are infringed upon, several
remedies are available to the owner.
Remedies-
Real remedies: Restore physical control of the thing or to remove any infringement of the
owner's exercise of her entitlements to the thing.
Delictual remedies: Instituted by an owner against a person aimed at compensation for
damages or loss to the owner's property resulting from the unlawful and culpable actions of
such person.
Enrichment remedies: Payment of compensation by a person who was enriched at the
expense of an owner without a legal ground for the enrichment.
Real remedies
A. Rei vindicatio
B. Actio negatoria
C. Interdict
D. Declaratory order
A. Rei vindicatio
An owner can recover an existing and identifiable thing from any person who is exercising
unlawful physical control over it.
Chetty v Naidoo-
It may be difficult to define ownership comprehensively but there can be little doubt
that one of its incidents is the right of exclusive possession of the thing with the
necessary corollary that the owner may claim his property wherever found, from
whomsoever holding it.
It is inherent in the nature of ownership that possession of the thing should normally be
with the owner, and it follows that no other person may withhold it from the owner
unless he is vested with some right enforceable against the owner
Requirements
a) The owner must prove ownership of the thing.
b) Only an existing and identifiable thing can be reclaimed.
c) The property must be in the control of the defendant when the action is instituted.
a) Ownership
The claimant must prove that she is the owner.
The onus of proof resting on the claimant is that she must prove, on a balance of
probabilities, that she acquired ownership.
Once the claimant has established ownership on a balance of probabilities, a rebuttable
presumption that she is still the owner is created.
Immovable property- sufficient to prove that the property is registered in the name of
the claimant
Movable things- the onus of proof is much heavier- there is a presumption that the
person who is in physical control of the thing is also the owner.
To satisfy this onus of proof, the claimant will have to rebut this presumption.
The rei vindicatio is not available to the leaseholder of a registered leasehold, but
statutory measures for protection do exist.
,b) Existing and identifiable thing
The thing must still exist and be identifiable.
If the thing no longer exists, the owner will have to use a delictual or enrichment action
to claim the value of the thing or damages.
Thing is not easily identifiable- not possible to use this action.
If ownership has passed because of mixing- action can not be instituted.
Ngomane v Johannesburg (City) 2020 (SCA)-
Things that belonged to a group of homeless people.
The things were left on a traffic island in the City of Johannesburg and were removed
by the police.
The homeless people claimed the return of their belongings.
The supreme court of appeal referred to the decision of the court a quo in the
matter, which court dismissed the application of the rei vindicatio because the things
that were claimed had been destroyed.
c) Control
Defendant must be in control at time the action is instituted
Owner does not have to prove that the control is unlawful
Not necessary for the claimant to prove that the defendant had a limited real right or a
personal right to control the thing which has lapsed, but- if the claimant avers the
existence of such a right, she must prove that the right in terms of which the defendant
controlled the thing has lapsed
o The defendant must therefore prove that she was lawfully in control of the thing
at the time of institution of the action, but if the claimant avers that this right has
lapsed, she must prove it.
Chris Hort Municipality v HIT Transport Mining Civils (Pty) Limited 2020 (ECG)
An application for summary judgment by the applicant for an eviction order against
the defendant based on the rei vindicatio was filed.
The defendant in an amended plea indicated that it was occupying the property in
terms of a mining permit issued in terms of the Mineral and Petroleum Resources
Development Act 28 of 2002.
The applicant argued that the mining permit expired.
In view of this the court held that the defendant did not have the right to occupy the
property and the eviction order was successful.
Defences against rei vindicatio-
a) The defendant can prove that the claimant is not the owner of the thing
b) If the thing has been destroyed or is unidentifiable, that can be raised as a defence.
c) The defendant was not in physical control of the thing when the rei vindicatio was
instituted.
d) The defendant can show that she has a limited real right or personal right in terms of
which she exercises physical control and that this right is still valid.
e) The defendant with a lien over the thing remains in physical control of the thing until
the obligation which gave rise to the lien has been fulfilled by the owner
f) Section 26(3) of the Constitution- No one may be evicted from their house without a
court order
g) Section 9(1) Extension of Security of Tenure Act + Section 5 and 15A(1) of the Land
Reform (Labour tenants) Act + Section 4(1) of the Prevention of Illegal Eviction from
and Unlawful Occupation of land Act- Anti- eviction provisions, amendment common
, law, restrictions on rei vindication= owner must prove common law requirements
and that eviction order will be justified in light of relevant circumstances- elderly or
small children.
h) Sale in execution- Section 70 of the Magistrates Court Act- movable and immovable
property cannot be reclaimed. Section 26(3) of the Constitution- if it involves a
person’s home- judicial supervision is required.
i) Estoppel
A defence which can be raised against the rei vindicatio of an owner, if the owner
acted in a specific way.
SU 14- INTRODUCTION TO POSSESSION AND HOLDERSHIP
, RIGHTS IN PROPERTY AND CONTROL OF CORPOREAL THINGS:
Distinction between ownership, possession and holdership- based upon the question of
actual physical control and the absence or presence of physical control is of great
importance
PHYSICAL CONTROL OF CORPOREAL THINGS
Actual, physical holding or domination of a corporeal thing
The distinction between ownership, possession and holdership is important only with regard
to property which can be held or controlled physically- corporeal things
Incorporeals usually cannot be held or controlled physically
One either has one of these rights or one does not have it- unnecessary to distinguish
between various categories of rights
LAWFUL CONTROL:
Control of corporeal things is lawful when it was acquired and is held in accordance
with the applicable legal rules and principles
Acquired and is held according to applicable property rules, control and the property
relation based on it- recognised and protected by law
Acquired or is held in contravention of applicable property rules, control and the
property relation based on it- not recognised or protected by law- law might still
attach certain consequences and implications
A. GOOD FAITH (BONA FIDES) AND BAD FAITH (MALA FIDES)
When control of corporeal property is established and held lawfully the intentions of
the controlling person are irrelevant
No such thing as an owner or a lawful holder in good or bad faith- fact that control is
lawful is sufficient to determine consequences of the control
B. LEGAL IMPLICATIONS OF LAWFUL CONTROL
If control is established and held lawfully- law will attach all the consequences and
implications which are normally associated with that form of control to it
Nature of the specific form of lawful control will determine exact consequences
The differences between two categories of lawful control is determined by the
entitlements acquired by the holder in each case
Most important consequenceof lawful control- protected by the law
Protection usually takes the form of a remedy
Each remedy must be awarded on the basis of specific requirements that have to be
proved
C. CATEGORIES OF LAWFUL CONTROL
1. Ownership
2. Lawful holdership
