Topic 7: Possession
Definition and acquisition
Possession is a situation where a person has sufficient and effective physical control (detentio) over a
thing together with the mental attitude (animus possidendi). It is a legal fact with certain
consequences.
Ius possidendi = right to possess
▫ Possessory right (can exercise)
▫ Entitled to be in possession
▫ Always lawful
Ius possessionis = right of possession
▫ Consequence of control
▫ Can be unlawful
Elements of possession
Corpus
Possession requires sufficient, effective and stable physical control over a thing, which is a question of
fact and objectively judged. What is required to constitute control depends on factors like the nature,
purpose and use of the thing. Physical control need not be exercised personally nor continuously. The
test for acquiring physical control is stricter than that for continuing it. The general test for corpus is
that (1) you are in control if you can regain physical control without assistance of a third party, (2) you
can exclude third parties, and (3) you can decide how and when the thing is to be used.
Animus
Possession also requires the appropriate mental attitude. Requires the necessary legal capacity and a
specific intention with regard to control. This is judged on the outward manifestation of the mental
attitude, which must be appropriate to the factual context.
• Animus domini = intention to be owner (can be actual owner or bona fide/mala fide possessor)
• Animus ex re commodum acquirendi = not intending to be owner, but wanting some benefit (can
be lawful or unlawful)
Possession is acquired when both these elements (corpus and animus) are present at the same time
and aligned. Start with corpus, if complied with then look at animus.
Note for cases: the bolded sentences are the main takeaway/summary of the case.
De Beer v Zimbali Estate Management
The applicant was an estate agent who had access to the estate through a boom activated by a disc.
Zimbali deactivated her disc. She applied for the mandament van spolie. However, the court held that
she did not have sufficient and effective physical control since she was just a visitor. She had access,
not possession. "People who have access, albeit frequent or even habitual, are not in possession of
the units or the communal areas." The mandament is there to protect possession, not access. The
application was dismissed with costs.
Eastern Cape Parks v Medbury
Facts: A herd of buffalo escaped from Eastern Cape Parks to Medbury, who claimed ownership
through occupatio. However, S2 of the Game Theft Act (GTA) provides protection by stating that a
person who holds game on land that is sufficiently enclosed according to a certificate shall not lose
ownership if that game escapes.
Legal question: Is a certificate a requirement for the protection provided in the GTA? Should there be
a development of the common law?
Property Law 278 Erica Vegter Page 1
, a development of the common law?
Judgement: The SCA said that deeming provisions must always be construed contextually and in
relation to legislative purpose. The certificate is not a prerequisite, as this would defeat the
legislative purpose of the GTA which is to ensure that owners of game who have in fact taken
adequate measures to enclose land do not lose ownership in the event of loss of control due to
escape. Must look at the role and function of the certificate which is to facilitate proof, not a sole
prerequisite for protection against loss of ownership. A certificate is sufficient proof, otherwise an
investigation as to whether game was sufficiently enclosed is needed. Thus Medbury did not gain
ownership of the buffalo.
Monteiro v Diedricks
Diedricks was in possession of a car which he took to Autoglen for a maintenance service. After the
service the car was given to Monteiro, who sold it to a 3rd party who is now missing with the car.
Diedricks applied for the mandament van spolie which was successful, but Monteiro appealed,
claiming that Diedricks was not in possession.
The court said that once possession is acquired it will be retained, as long as the possessor is capable
of exercising physical control over the thing. Continuous physical contact with the thing is not
required for retention of possession. "When Diedricks delivered vehicle to Autoglen, he did not
relinquish possession of it." The mere fact that you don’t have 24/7 control of thing doesn’t mean
you are abandoning it.
Protection of possession
Different scenarios require different remedies. You can sometimes use more than one remedy in the
same factual situation. NB for urgent matters, use mandament van spolie.
1. Mandament van spolie
A very relevant, useful and speedy remedy to restore possession. It does not deal with or consider
merits. Its aim is to (1) immediately restore possession, (2) ensure rule of law and prevent people
taking the law into their own hands and (3) keep peace and order to maintain a regulated society.
Requirements:
1. Peaceful and undisturbed possession
▫ Physical control must have stabilised (corpus)
▪ In Jamieson v Loderf, Jamieson was in peaceful undisturbed possession of
apartments.
▪ In Monteiro v Diedricks, he had the extra set of keys for the car.
▫ Intention to derive some benefit (animus)
▪ In Jamieson v Loderf, the attorney's letter and notice stating it was a builder's lien to
demonstrate an exercise of control.
▪ In Monteiro v Diedricks, he used the vehicle as his primary means of transport and
the use of vindicatory action indicates that he did not intend to forfeit the benefits
derived from his possession of the vehicle.
2. Unlawful dispossession (spoliation)
▫ Forcibly, without consent, unlawful, illegal
▫ Onus is on the person applying for the mandament to prove unlawfulness
Nino Bonino v De Lange
There was a contractual provision in a lease agreement allowing for automatic cancellation by the
landlord if the contract was breached. This provision cannot be recognized because it allows one to
take the law into their own hands, by allowing the lessor to judge whether a breach of contract has
been committed. One cannot legalise taking the law into your own hands.
Property Law 278 Erica Vegter Page 2
Definition and acquisition
Possession is a situation where a person has sufficient and effective physical control (detentio) over a
thing together with the mental attitude (animus possidendi). It is a legal fact with certain
consequences.
Ius possidendi = right to possess
▫ Possessory right (can exercise)
▫ Entitled to be in possession
▫ Always lawful
Ius possessionis = right of possession
▫ Consequence of control
▫ Can be unlawful
Elements of possession
Corpus
Possession requires sufficient, effective and stable physical control over a thing, which is a question of
fact and objectively judged. What is required to constitute control depends on factors like the nature,
purpose and use of the thing. Physical control need not be exercised personally nor continuously. The
test for acquiring physical control is stricter than that for continuing it. The general test for corpus is
that (1) you are in control if you can regain physical control without assistance of a third party, (2) you
can exclude third parties, and (3) you can decide how and when the thing is to be used.
Animus
Possession also requires the appropriate mental attitude. Requires the necessary legal capacity and a
specific intention with regard to control. This is judged on the outward manifestation of the mental
attitude, which must be appropriate to the factual context.
• Animus domini = intention to be owner (can be actual owner or bona fide/mala fide possessor)
• Animus ex re commodum acquirendi = not intending to be owner, but wanting some benefit (can
be lawful or unlawful)
Possession is acquired when both these elements (corpus and animus) are present at the same time
and aligned. Start with corpus, if complied with then look at animus.
Note for cases: the bolded sentences are the main takeaway/summary of the case.
De Beer v Zimbali Estate Management
The applicant was an estate agent who had access to the estate through a boom activated by a disc.
Zimbali deactivated her disc. She applied for the mandament van spolie. However, the court held that
she did not have sufficient and effective physical control since she was just a visitor. She had access,
not possession. "People who have access, albeit frequent or even habitual, are not in possession of
the units or the communal areas." The mandament is there to protect possession, not access. The
application was dismissed with costs.
Eastern Cape Parks v Medbury
Facts: A herd of buffalo escaped from Eastern Cape Parks to Medbury, who claimed ownership
through occupatio. However, S2 of the Game Theft Act (GTA) provides protection by stating that a
person who holds game on land that is sufficiently enclosed according to a certificate shall not lose
ownership if that game escapes.
Legal question: Is a certificate a requirement for the protection provided in the GTA? Should there be
a development of the common law?
Property Law 278 Erica Vegter Page 1
, a development of the common law?
Judgement: The SCA said that deeming provisions must always be construed contextually and in
relation to legislative purpose. The certificate is not a prerequisite, as this would defeat the
legislative purpose of the GTA which is to ensure that owners of game who have in fact taken
adequate measures to enclose land do not lose ownership in the event of loss of control due to
escape. Must look at the role and function of the certificate which is to facilitate proof, not a sole
prerequisite for protection against loss of ownership. A certificate is sufficient proof, otherwise an
investigation as to whether game was sufficiently enclosed is needed. Thus Medbury did not gain
ownership of the buffalo.
Monteiro v Diedricks
Diedricks was in possession of a car which he took to Autoglen for a maintenance service. After the
service the car was given to Monteiro, who sold it to a 3rd party who is now missing with the car.
Diedricks applied for the mandament van spolie which was successful, but Monteiro appealed,
claiming that Diedricks was not in possession.
The court said that once possession is acquired it will be retained, as long as the possessor is capable
of exercising physical control over the thing. Continuous physical contact with the thing is not
required for retention of possession. "When Diedricks delivered vehicle to Autoglen, he did not
relinquish possession of it." The mere fact that you don’t have 24/7 control of thing doesn’t mean
you are abandoning it.
Protection of possession
Different scenarios require different remedies. You can sometimes use more than one remedy in the
same factual situation. NB for urgent matters, use mandament van spolie.
1. Mandament van spolie
A very relevant, useful and speedy remedy to restore possession. It does not deal with or consider
merits. Its aim is to (1) immediately restore possession, (2) ensure rule of law and prevent people
taking the law into their own hands and (3) keep peace and order to maintain a regulated society.
Requirements:
1. Peaceful and undisturbed possession
▫ Physical control must have stabilised (corpus)
▪ In Jamieson v Loderf, Jamieson was in peaceful undisturbed possession of
apartments.
▪ In Monteiro v Diedricks, he had the extra set of keys for the car.
▫ Intention to derive some benefit (animus)
▪ In Jamieson v Loderf, the attorney's letter and notice stating it was a builder's lien to
demonstrate an exercise of control.
▪ In Monteiro v Diedricks, he used the vehicle as his primary means of transport and
the use of vindicatory action indicates that he did not intend to forfeit the benefits
derived from his possession of the vehicle.
2. Unlawful dispossession (spoliation)
▫ Forcibly, without consent, unlawful, illegal
▫ Onus is on the person applying for the mandament to prove unlawfulness
Nino Bonino v De Lange
There was a contractual provision in a lease agreement allowing for automatic cancellation by the
landlord if the contract was breached. This provision cannot be recognized because it allows one to
take the law into their own hands, by allowing the lessor to judge whether a breach of contract has
been committed. One cannot legalise taking the law into your own hands.
Property Law 278 Erica Vegter Page 2
