LAW OF PROPERTY

Lecture: 4: Part 3
Chapter 14 -15: Possession
Protection of possession and holdership

• Remedies – legal procedures provided for the protection of property rights against
infringement or for the control of the effects of unlawful actions with regard to property
relations.

• The protection of possession and holdership is protected by a number of

remedies.

 Some of the remedies are aimed at prohibiting or preventing infringements,

 Others at restoring property relations which have been infringed upon and,

 Still others are aimed at providing compensation for damages suffered as a result of
infringements.
Purpose of remedies for the protection of possession and holdership.

a) To protect property rights-

 In the form of lawful holdership, against infringement.

 Remedies aimed at this goal will require proof of a property right.

• Certain remedies are specially designed for this protection of property rights, and their
requirements are formulated accordingly.

• You first have to prove your right.

b) To protect the community against chaos and anarchy -

• By preventing people from disturbing existing property relations, whether lawful or

unlawful, by self-help.

• Remedies aimed at this goal will not require proof of a property right.

• You are required to use the legal way and institute an action through the courts;

• You cannot use force to uphold your rights.

• Certain remedies are not supposed to protect property rights as such,

 But rather to prevent and discourage people from using self-help and force.
 The requirements for these remedies are formulated accordingly; they do not require
proof of a right.
• Declaratory order

• A declaratory order – a court order, issued upon application, in which the court sets
out the rights and obligations of parties to a dispute before the actual infringement
takes place.

 This declaration of rights binds the parties once it is given.

• Requirements (three)

• A) proof of an actual, existing or future right or obligation with regard to property.

• B) proof of an existing and real dispute about the right or obligation in question.

• C) convincing reasons why the circumstances make it necessary for the court to make
a declaratory to solve the dispute by setting out the rights and obligations.
• A) An actual right in property

• A person who approached the court for declaratory order must:

 Convince the court of her interest in the matter, and

 Prove her right or obligation

• If no right or obligation – court will not entertain the matter.

The right or obligation concerned must:

 Be an actual right or obligation

 Not just theoretical

• However, the order can be granted with regards to future rights which have not yet
materialized,
• The rights themselves have not come into existence or
 Become enforceable,
 Even though it is already clear when and how they will become enforceable and what
their effect will be.
• B) A real dispute about such right

• There must be a real dispute about the right or obligation, and

• Dispute must be of such nature that the parties can be bound by the order once it is
given.
• The order must be able to solve the real dispute.
• The applicant’s interests must clearly be capable of conflicting with the interests of
other persons.

• Ex Parte Nell 1963 (A)

• Redy v Decro Investments CC 2004 (D)

• C) Reason for the court to issue the order

• Court will grant order if convinced there is a good reason to do so,

• Court has discretion to not grant order.
• Usually, it is sufficient to prove that the order will prevent an infringement of rights or
damage to property.
Nature and extent of relief

• The most important aspect of this remedy is,

• It can be obtained before an infringement take place.
• It can be used to prevent an infringement.
• Only lawful property relations can be protected with this remedy.
N.B!!!! Interdict

An interdict – summary court order, usually issued upon urgent application, by which a
person is ordered to either do something, stop doing something or refrain from doing
something, in order to stop or prevent an infringement of property rights.

• It is usually given on short notice and urgently.

• In this order, the court sets out the rights of the parties, and
 orders one of the parties to do something (mandatory interdict), or
 To refrain from doing something ( prohibitory interdict).

Purpose:

• Usually, its to either stop an ongoing infringement of rights or to prevent an imminent

infringement, and
 Therefore, it cannot be used once an infringement is completed.
• Requirements (three)

• Set out in Setlogelo v Setlogelo

• 1. Proof of a clear right with regard to property.

• 2. Proof the respondent infringes upon the right unlawfully and in an ongoing and
continuing way, or that there is a reasonable expectation that such an infringement will
occur in future; and that it will cause the applicant damage.

• 3. Reasons why there is no other effective remedy available to the applicant.

1. A clear right

• Applicant must have a clear right to property ( show prove of such right).

• As a rule, the court does not expect absolute proof of this right for purposes of the
temporary interdict ( for which prima facie or superficial proof of an existing right is
sufficient);

• Applicant must also prove that the damage which might result from the denial of the
temporary interdict is greater than the damage that might result for the respondent from
the granting of the temporary interdict.
2. Ongoing or impending unlawful infringement

• The interdict is meant to stop ongoing infringements or,

• Prevent imminent infringements, and
 not to repair the results of the past infringements which have already been completed.

• Court must be convinced that the unlawful infringement is still going on, or
 That it has not yet started but is reasonably expected to start in the near future.

• An interdict is a discretionary remedy, and the court will grant it only if the unlawful
infringement will actually cause harm or damage.
3. No other effective remedy

• This requirement ensures that the interdict retains its character as a measure of last
resort.
• If another effective remedy is available, that remedy should be used and not the
interdict.
• The other remedy must be able to prevent the infringement.

Candid Electronics v Merchandise Buying Syndicate – this requirement does not

mean that the interdict should be denied because the applicant could always, if the
infringement takes place and damage is caused, wait and claim damages with a different
remedy at a later stage.

Nature and extent of relief

• Interdict is meant to protect property rights against infringement.

• A right must be proved.
• It can only be used by lawful controllers of property, who can prove a right to the
property.
• N.B!!!! Spoliation remedy or mandament van spolie

• Spoliation remedy – a summary remedy , usually issued upon urgent application,

aimed at restoring control of property to the applicant from whom it was taken by
unlawful self—help, without investigating the merits of the parties’ rights to control.

• Unique remedy because,

• It is not used to protect rights at all.
• It is aimed at undoing the results of (and discouraging) the taking of property by means
of unlawful self-help.

• Spoilation means unlawful dispossession through self-help.

• The idea is that people should enforce and protect their property rights by legal means
and procedures, and
• Not by self-help and force, because self-help eventually results in chaos and anarchy.

• This remedy is based upon the principle that:

• Nobody is allowed to take the law into their own hands.
• Purpose:

• To restore peace and order and discourage self-help, hence

 The remedy does not investigate the merits of any of the parties’ interest to the
property.
 Neither of the parties is allowed to raise the question of rights at all.

• The court focuses on the factual investigation namely,

 Whether there is in fact proof of existing control (whether lawful/unlawful), and

 Proof of unlawful spoliation of that control.

• If so:
 The court will order spoliation to restore the spoliated control to the applicant
immediately, regardless of whether control was lawful/unlawful or even illegal.
Nino Bonino v De Lange – businesses or people cannot conclude contracts in term of
which they avoid the legal procedure, such contracts are against public policy and
therefore void.

• In certain instances, the availability of the spoliation remedy is affected by land reform
laws.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998.

PIE – provides strict requirements for the eviction of unlawful occupiers of land.

City of Cape Town v Rudolph – landowners cannot choose to rather make use of
common law remedies (like the spoliation remedy) when evicting unlawful occupiers if the
Act applies, common law remedies such as the spoliation remedy are excluded to
prevent frustration of the purposes of legislation.
• Requirements

• Set out in Nino Bonino v De lange

And Yeko v Qana

1.Proof that the applicant was in peaceful and undisturbed control of the property.

2. Proof that the respondent took or destroyed that control by means of unlawful self-help.

1. Peaceful and undisturbed control

• Applicant must have had control over the property.

• Control must have existed peacefully and undisturbed for a period long enough, and
• In a manner stable enough, to qualify any unlawful disturbance as a breach of the peace.
• Existing control must have included the normal corporeal element.
• The mere intention of control is insufficient.
• Control need not have been continuous, comprehensive or exercised personally.
 However, it must be effective control.
• Applicant must prove that she was in a better and stronger corporeal relationship with
the property than anybody else.

• It is also possible for partners or married people to commit spoliation against each
other,
• When one of the uses unlawful self-help to take exclusive control,
• Thereby ousting the existing shared control of the other partner or spouse.

• Spoliation remedy has also been applied in where so-called quasi control of a right is
concerned –
• Where the control in question is the kind of control usually associated with the
existence of a right such as a servitude.
• Since rights are not investigated,
• What form should control take in these cases?

• The question is not:

• Whether there was such a right but,
• Whether there is proof of the acts usually associated with such a right.

• Xsinet v Telkom 2002 (C)

• in the case of a principal and an agent:
 the principal is the one with control , and therefore should apply for this remedy,
 Agents and representatives who control obo a principal can apply obo principal and not
in their own names.

• 2. spoliation

• The existing peace and undisturbed control must have been spoliated by the
respondent.

• There are two elements here:

• i) the respondent must have spoliated the applicant’s control.

 respondent need not actually take control,

 It will suffice that applicant’s control is effectively destroyed.
 Respondent can, therefore, spoliate by destroying the object, which would put an end
to the applicant’s control without the respondent taking control.
Ntshwaqela v Chairman, Western Cape Regional Services Council – confirmed that
any act which effectively terminates the applicant’s control can constitute spoliation, even
if the respondent did not take control from the applicant.

• Partial deprivation of control can also constitute spoliation.

• Disturbance must be substantially enough to effectively end or frustrate the applicant’s
control.

ii) The spoliation must be unlawful.

• When the action is authorized by a law or by a court order it is lawful and does not
constitute spoliation, unless it exceeds the limits of the authorization.

Usually, it is said that an action of the respondent amounts to unlawful spoliation

when:

• It is not properly authorized by proper legal authority, and

• Implemented according to prescribed legal procedure, and
• It deprives the applicant of control without her knowledge or against her will.
• Defences

 Refers to an answer which may be raised against an applicant’s claim for a spoliation
order.
 If successfully proven by respondent, application will be dismissed.

• A) Inadmissible defences

• Certain defences are not allowed against this remedy because,

 they raise the merits of the parties’ rights to the property,

 Which are not investigated for the purpose of this remedy or

 Are based upon misrepresentation of the requirements.

• 1. defences based upon the merits:

• i) Respondent is owner of the property;

• ii) respondent has a stronger claim;
• iii) applicant’s control was illegal/unlawful;
• iv) the balance of convenience favours the respondent;
• v) respondent was entitled to commit spoliation;
• vi) respondent has a counterclaim
• vii) respondent is married to or partner of the applicant.

• 2. defences based on misrepresentation:

• i) respondent did not take control of the thing;

• ii) respondent acted as someone else’s agent ;
• iii) respondent die not commit violence or fraud;
• iv) Respondent acted in good faith;
• v) applicant derives no benefit from control.
• B) Admissible defences

• i) applicant did not have the requisite control

• ii) respondent did not commit spoliation
• iii) unreasonable delay in bringing the application
• iv) impossibility of restoration
• v) counter-spoliation

• Counterproof

 Respondent can offer counterproof to prove that the applicant did not in fact satisfy the
requirements.
• Unreasonable delay

• The applicant is expected to bring the application as soon as possible after spoliation
took place.
• If delay is too long,
• It can be assumed that applicant permitted or consented to the respondent’s action,
thereby making it lawful.

• Jivan v National Housing Commission -

 If delay is shorter than a year,

 respondent must show reasons why its too long.

 If longer than a year,

 Applicant must show why it is still reasonable and not too long.
• Impossibility

• The spoliation remedy loses its impact when it is impossible to restore the applicant’s
control.
• The court cannot force the respondent to do something which is impossible.

• Impossibility is usually accepted a s a defence where:

 the property is either destroyed or damaged beyond repair or transferred to an innocent

third party from whom it cannot be claimed back.

• The court can do more than just order restoration of control.

• Usually, the respondent is required to restore the property in its former state-
 Which includes reasonable reparations and re-assembly.
 Where such re-assembly and reparations are possible and still within the limits of
reasonable repairs, they should be included in the restoration order.
Rikhotso v Northcliff Ceramics – the defence of impossibility must succeed when
squatters’ huts were completely destroyed by fire, and that replacement cannot be
effected by the spoliation remedy in such a case.

Tswelopele Non-Profit Organisation v City of Tshwane Municipality – court

confirmed that the decision in Rikhotso was undoubtedly correct, and that the spoliation
order could not be used when replacement materials were required to restore the
property to its former state.

Ierse Trog CC v Sulra Trading CC – court ordered the rebuilding of a wall that had been
demolished as part of a spoliation order, even though some replacement materials might
be required.

counter-spoliation

• This defence is based upon the assertion that the respondent’s action amounted to
lawful rather than unlawful self-help.
• A limited and reasonable measure of self-help in the defence of one’s own property
against unlawful intrusion is permissible,
• Provided it occurs during the original intrusion and does not constitute a new or
separate occasion of violence or self-help.
Nature and extent of relief

• Spoliation provides no more than temporary relief.

• It is not meant to protect rights, and it cannot grant rights.
• All it does is restore the situation as it was before the unlawful spoliation took place,
 So that any dispute can be solved properly by a court of law or by legal procedures.

• It simply restores factual control, which was spoliated unlawfully.

• The property can immediately, subsequent to return of the thing, be claimed back by the
spoliator, provided they use proper legal procedures to do so and not unlawful self- help.

SELF STUDY: possessory action; action for delictual damages; condictio furtiva;
extended enrichment action, termination of possession and holdership
• How to answer application questions.

• Given scenario
• Understand the concept discussed

• Your answer:

• Define concept
• Discuss/state the requirements or principles of the concept
• Refer to case law with similar facts or legislation where applicable
• State the court decision of the case law

• Apply given set of facts to the concept’s requirements/principles and the case law
identified.
• State the outcome of given set of facts based on what you have already discussed
• Example:

• A group of about 150 occupiers are evicted unlawfully from private land by the local
authorities. They had been staying there for almost two years. The land is owned by a
private company. In the process of the eviction, the local authorities destroyed the
shelters, materials and belongings of the occupiers. A representative of the occupiers
approaches for advice with regard to an application for a madament van spolie. Advice
him fully.