Acquisition of Possession & Holdership (Ch. 13)

Question 1

Does possession and holdership affect all rights in property?

Answer 1

No, only corporeal things.

Question 2

Define ‘control’

Answer 2

Control of corporeal things consists of two elements, namely a physical or corporeal element and a mental element. The physical element is the way in which the thing is actually held, and the mental element is the mental attitude with which it is held.

Question 3

What does the physical or corporeal element of control refer to?

Answer 3

The actual holding of a corporeal thing. This is based upon actual, tangible or perceptible power over or holding of a thing.

Question 4

Since the literal interpretation is too restricted, what are the rules that have been developed? (7)

Answer 4

1. Nature of the thing can influence the nature and extent of control required
2. Purpose for use of the thing can determine the nature and extent of control required
3. Specific customs in special fields can influence the nature and extent of control required
4. Control need not be comprehensive
5. Control need not be continuous
6. Control need not be exercised personally
7. The requirements for the establishment of control are stricter than for its retention once acquired

Question 5

Discuss ‘nature of the thing’ (5)

Answer 5

• Can determine what kind of control is required for that thing, as well as the measure of actual corporeal control that is needed.
• Size, movable or immovable property, etc.
• The test for control must be flexible which takes the nature of a thing into account in every individual case
• Buildings & vehicles are controlled by way of keys
• The nature of the thing determines the way in which the thing can be controlled.

Question 6

Discuss ‘purpose or use of the thing’ (3)

Answer 6

• This aspect is closely related to the nature and size of the thing, since it is usually relevant to the purpose or use.
• The purpose and way in which it is used will determine whether a certain type and degree of physical control is sufficient for that thing.
• Certain purposes are seasonal (i.e. skis), but the fact is the owner must simply be able to resume control at will.

Question 7

Discuss ‘specific customs in special fields’ (2)

Answer 7

• Specific principles and customs have developed with regard to control over special categories of commercial property such as merchant ships, building sites and farms.
• Whenever this arises in court, evidence has to be presented to establish the special customs that apply ot each case.

Question 8

Discuss ‘control need not be comprehensive’ (3)

Answer 8

• Depending on the nature, size and use of a thing, control over it need not extend to every single but or part of the object.
• Control over one part may be sufficient to qualify as control over the whole.
• The question is whether the nature and use of the thing is such that control over one part is sufficient to justify control over the whole.

Question 9

Discuss ‘control need not be continuous’ (3)

Answer 9

• Once control is established it may be interrupted, as long as it is still possible to resume control without help or interference from someone else.
• The nature, size and use of the property will usually indicate how long such an interruption can last before it amounts to loss of control.
• The rule is that an interruption becomes loss of control as soon as anybody else establishes a closer or stronger form of control over the thing.

Question 10

Discuss ‘control need not be exercised personally’ (3)

Answer 10

• Control can be acquired and exercised for and obo the controller by an agent.
• It is crucial to distinguish between an employee or attendant who controls for the employer or principal, and the employee or attendant who controls for her own interest.
• This aspect is closely related to the MENTAL aspect of control.

Question 11

Discuss ‘strict requirements for acquisition of control’ (3)

Answer 11

• The requirements for the initial acquisition of control are stricter than for the continuation of existing control.
• The reason being is the fact that control fulfils a publicity function - it serves to show the world that you have a property relation with this thing.
• Relaxation (after initial acquisition) should be applied with circumspection in cases where the continuation of control is a specific requirement for the retention of a right, such as a pledge or lien.

Question 12

What is the result of the considerations to be taken into account when if determining physical control is present?

Answer 12

The physical or corporeal element of control can be described as EFFECTIVE control.

Question 13

What is effective control?

Answer 13

It is the strongest and most effective corporeal relationship in existence at a specific time.

Question 14

How is effective control determined?

Answer 14

Factually.

1. The person who has physical control should be in a closer and stronger physical relationship with the object than anybody else;
2. The person in control should be in a position to resume interrupted control without help from or reference to anybody else.

Question 15

How is the mental element determined/

Answer 15

Factually.

Question 16

To what does the mental element refer?

Answer 16

The mental attitude or intention with which the thing is held or controlled.

Question 17

Is the rule of law more interested in intentions that can be established by appearances or actions or by subjective intentions?

Answer 17

Intentions that can be established by appearance or actions.

Question 18

Name the 5 aspects of the mental element of control

Answer 18

1. Mental capacity is required
2. Conscious control is required
3. Intention to hold for a principal is insufficient for own control
4. A specific intention with regard to control is required (intention to hold as owner AND intention to hold for one’s own benefit)
5. Nobody can change the nature of control simply by means of a change in the intention.

Question 19

Discuss ‘mental capacity is required’ (1)

Answer 19

• Without the mental capacity to form a will or intention which can be established, recognised and given effect by the law, no mental or intention element towards control is possible.

Question 20

Discuss ‘conscious control is required’ (2)

Answer 20

• Even if the person is mentally capable of forming a legally relevant intention to control, it is still necessary for that person to be aware of the corporeal element of control before the mental element can be formed.
• A person can acquire control before being aware that the corporeal aspect of control was established.

Question 21

Discuss ‘a specific intention towards control must be established’ (2)

Answer 21

• Once a person with the required mental capacity is conscious of corporeal control, a specific intention or mental attitude towards control over the thing must be formed.
• There are two subcategories:
  a. The intention to hold as owner (animus domini)
  b. The intention to hold for one’s own benefit (animus sibi habendi)

Question 22

Discuss animus domini (intention to hold as owner) (1)

Answer 22

• This is best defined ito the requirements set out in the Prescription Act, where a person can acquire property originally by acquisitive prescription is he exercises a certain form of possession for 30 years.

Question 23

Discuss animus sibi habendi (intention to hold for one’s own benefit) (4)

Answer 23

• Usually, the intention to hold such property for one’s own benefit is based upon the owner’s permission to do so (such as lease or pledge).
• The intention is to exercise control for a different purpose which benefits them, without being in conflict with the owner’s interests.
• This category must be distinguished from the person who holds the property for someone else.
• The intention to hold for one’s own benefit can, if the control is unlawful, be either in good or bad faith.

Question 24

When is intention recognised?

Answer 24

Insofar as they are reflected in exterior facts or actions (due to the publicity purpose).

Question 25

Discuss ‘direct and indirect control’

Answer 25

• In certain cases it is possible for different kinds of control to be exercised by more than one person. (Eg. one person exercises direct control, and the other indirect control).
• Control of a corporeal thing is DIRECT when actual physical control is exercised immediately by a person.
• Control of a corporeal thing is INDIRECT when it is not exercised immediately by the indirect controller herself, but by someone else. The indirect controller retains indirect control thorugh the direct control of the other person.

Question 26

What are other terms ofr ‘direct’ and ‘indirect’ control?

Answer 26

• Immediate control;

- Mediate control.

Question 27

Discuss ‘shared control’ (5)

Answer 27

• Control which is exercised by more than one person at the same time.
• However, there is no direct and indirect control - all the sharing controllers exercise direct control simultaneously.
• The reason this form of control does not violate the principle is that only one person can exercise control at a time is that they share the control - they do not complete for it.
• As soon as a disagreement causes the sharing controllers to compete for control the basic rule will come into play, and one person might oust the control of the other.