Intro to aspects of control, possession and holdership

Question 1

Distinction between ownership and possession

Answer 1

Ownership is the most complete real right a legal subject can have in property.

Possession is the most basic legal relationship
between a legal subject and a thing

Question 2

what does possession entail?

Answer 2

It entails the factual holding, or control, of a thing without reference to rights a legal subject may have in it.
(Being in control of a thing without actually having the rights to it)

Question 3

Significance of use of ‘thing’ and not ‘property’ in relation to possession.

Answer 3

Incorporeal objects like rights cannot be physically controlled
hence, are not susceptible to possession.

Possession relates only to
corporeal objects.

Question 4

Does the law generally recognise control of incorporeals?

Answer 4

Yes, however in what is
known as quasi-possession.

Question 5

Options for coexistence of ownership and possession

Answer 5

May coincide

or may be held by diff persons simultaneously

Question 6

Unlawful possession

Answer 6

possession has not been acquired, nor is it held, in accordance with legal rules and principles

However, does not mean the thief’s possession is irrelevant in the eyes of the law: it may generate
certain legal consequences in some instances.

Question 7

two of the fundamental legal functions of possession

Answer 7

the real function
the legal-political function

Question 8

The real function

Answer 8

consists of an acquisitive and a protective element.
The protective element pertains to possessory
protection and depends on a legal subject having a right in a thing.

Question 9

The legal-political
function

Answer 9

Concerns possessory protection but without enquiring into the rights of
parties.

Question 10

Significance of acquisition element

Answer 10

In terms of the acquisitive element, possession gives effect to the publicity principle by
transforming factual (de facto) situations into legal (de iure) ones.

This is why possession is
a requirement for certain methods of original acquisition of ownership, like appropriation
(occupatio), acquisitive prescription and the acquisition of fruits. It also explains the
delivery (traditio) requirement for derivative acquisition of ownership, which entails
transferring possession of a thing to the transferee to enable him/her to exercise control
over it, as well as to publicise the fact that the transferee (and no longer the transferor)
now owns the thing.

Question 11

Significance of protective element

Answer 11

The law grants remedies only to persons who have a right to possession of a thing.

This right, which is actually an entitlement, may derive from a real right or a
personal right

Question 12

what do the remedies that from form real/personal rights depend on?

Answer 12

do not depend on whether the claimant was in possession of thing but on the
existence of the right itself.

Question 13

Who does the law protect ito the political legal function?

Answer 13

The “ bare” or “actual
possession”, which possession does not derive from a right.
This explains why the thief who stole
the car in the earlier example is able to protect his/her possession in certain instances

Question 14

Whic remedy protects bare possession; explain how it achieves this.

Answer 14

The spoliation remedy (mandament van spolie)

is unique in that it does not investigate the merits of a case.
It only investigates whether a claimant was
in peaceful and undisturbed possession of a thing and, if he/she was, whether such possession was unlawfully spoliated

If these latter requirements are met, possession must be restored to the
claimant before the parties may litigate on the merits of the dispute

Question 15

The aim of the legal-political function

Answer 15

To protect the socio-legal order by discouraging legal subjects from taking the law into their
own hands and forcing them to solve legal disputes through proper legal channels (i.e.
the courts) and not through self-help

Question 16

two ways to conceptualise possession in South African law

Answer 16

the rights based approach and the control-based approach

Question 17

right of possession (ius possessionis)

Answer 17

When a legal subject exercises physical control over a thing, with a certain intention,
without reference to whether he/she has a right in it

Question 18

what is the ius posessionis also known as?

Answer 18

bare possession
factual possession actual possession

Question 19

what does the ius possessionis entail ito its other 3 names

Answer 19

concerns the consequences that flow from BARE POSSESSION

Is present only when a
person actually possesses a thing (i.e. FACTUALLY CONTROLS a thing).

Whether possession is
lawful or unlawful is irrelevant.

The presence (or absence) of the ius possessionis is therefore a purely factual question: does a person have physical dominion over the thing with
the requisite intention?

Question 20

Why is describing the ius possessionis as a right (ius) actually a contradiction in terms (contradiction in terminis).

Answer 20

This is because it merely refers to a factual situation that exists irrespective of whether the possessor has a right that entitles him/her to be in possession of
the thing.

Question 21

Describe how protection offered to a thief under the spoliation remedy is not due to an unlawful right in property

Answer 21

Its impossible to have an unlawful righ to a thing
But he’s granted this remedy for
the sake of upholding the socio-legal order in terms of the legal-political function – of
protecting instances of peaceful and undisturbed possession against unlawful self-help

Question 22

right to possession
(ius possidendi).

Answer 22

when a person has a right to be in possession of a thing, which right derives from a property
right (like a real or personal right)

Question 23

Diff between ius possedendi and ius possessionis

Answer 23

ius possidendi depends on a legal subject
having a right in a thing.

the ius possidendi does not consider
whether a person has factual control over property.

The ius possidendi, which is ALWAYS
lawful, is therefore a legal (as opposed to a mere factual) situation

Question 24

What is person with ius possidendi entitled to?

Answer 24

Entitled to reclaim possession from anyone holding the thing without their permission.

This entitlement flows from the right the legal subject has in the thing and forms part of
the protective element of the real function

Question 25

two reasons for this inconsistent use of possessory terminology.

Answer 25

1. possession has various meanings: its meaning changes depending on the context
   in which it operates and the particular function it fulfils, with the result that it has to be
   redefined for each function.
2. the rights-based approach largely ignores the
   holdership concept, which concept is essential to distinguishing properly between the
   two functions of possession mentioned earlier

Question 26

Three things in which possession can refer to

Answer 26

• It can refer to the EXERCISE OF PHYSICAL CONTROL OVER A THING (the corpus element)
  without reference to the type of intention with which the thing is held.
• It can refer to the type of control necc TO ACQUIRE A THING THROUGH ORIGINAL ACQUISITION of ownership, such as through acquisitive prescription.
• It can refer to the type of control necessary to INSTITUTE THE SPOLIATION REMEDY.

Question 27

Three meanings of possession

Answer 27

1. when a person has factual custody
   over a thing to the exclusion of others.
   —This type of possession on its own is not very
   useful, as it cannot generate any legal consequences without reference to the type of intention with which the thing is held
2. refers to the
   exercising of physical control over a thing, with the intention of an owner (animus domini).
   This type of possession is known as civil possession (possessio civilis)