Protection of Ownership

Question 1

Briefly discuss real remedies.

Answer 1

These remedies are aimed at protecting owner against infringement of the owner’s entitlements.

Question 2

Which remedies fall under the category of real remedies?

Answer 2

• Rei Vindicatio.
• Actio negatoria.

Question 3

What are the general principles of Rei Vindicatio?

Answer 3

• This remedy entitles owner to claim back property from those who are in unlawful possession thereof.
• Owner can take back his property from anyone in unlawful possession thereof, even is person in unlawful possession is bona fide.

Question 4

What are the requirments for Rei Vindicatio?

Answer 4

Naidoo case sets out the requirements.

• The claimant must prove ownership of the property.
• Owner must prove that the defendant is still in possession of the property at the time of the proceedings.
• Owner must prove that the property exists and that it is identifiable.

Question 5

Discuss the claimant must prove ownership of the property requirement.

Answer 5

• Evidence of ownership must be provided.
• Ownership is then proven on balance of probabilities.
• Immovable property the registration of ownership on title deed of the property is provided as evidence.
• Movable property the person in control of property would usually be presumed to be the owner.

Question 6

Discuss the requirement that the owner must prove that the defendant is still in possession of the property at the time of the proceedings.

Answer 6

• This is an important requirement as the purpose of the rei vidicatio is to order the return of the property.
• If property is not in hands of defendant, rei vindicatio will be unsuccessful.

Question 7

Discuss the consequences of satisfying all the requirements.

Answer 7

• In event that owner satisfies all of the requirements, and defendant fails to rise defence against rei vindicatio, possession of property will be restored to owner by way of court order.
• In instances where it’s not possible to claim back the property, the owner may claim that the value of the property be returned to him.

Question 8

What are all the defences against Rei Vindicatio?

Answer 8

• Facta Probanda.
• Lawfulness of control.
• Estoppel.
• Section 26(3) of the Constitution.
• Eviction legislation.

Question 9

Discuss the facta probanda defence.

Answer 9

Defendant can challenge facta probanda of the action by raising as defence the following:

• That plaintiff is not owner of the property.
• That plaintiff is not in possession of the property.
• That property is no longer identifiable or in existence.

Question 10

Discuss the lawfulness of control defence.

Answer 10

• Defendant can argue that they are in lawful control of property or that they have the right to control the property.
• If defendant is in lawful control, owner is not entitled to recover with the rei vindicatio.

Question 11

Discuss the estoppel defence.

Answer 11

In event that owner made negligent misrepresentation to defendant that the person in possession of the property is the owner or at the least has the right to alienate the property, defendant may raise estoppel as defence against rei vindicatio.

Question 12

Discuss section 26(3) of the Constitution defence.

Answer 12

• Owner is not allowed to rely on rei vindicatio to obtain eviction order for property used for residential purposes, because of section 26(3).
• Defendant’s defence will then be based on section 26(3) that orders for eviction from homes may not be arbitrary.

Question 13

Discuss the eviction legislation defence.

Answer 13

Where legislation that was specifically enacted to give effect to section 26(3) finds
application, and owner still relies on rei vindicatio, defendant will be able to raise defence that rei vindicatio is not correct remedy.

Question 14

Discuss the general principle of the PIE Act.

Answer 14

PIE is an eviction order that owner must directly rely on to request eviction order for certain types of unlawful occupiers of residential property.

Question 15

What is the scope of application of PIE?

Answer 15

PIE must be used where owner seeks so evict unlawful occupiers from residential property used as a home.

Question 16

Who qualifies as unlawful occupiers?

Answer 16

• Unlawful occupiers refer to those occupiers who are in occupation of the owner’s property without tacit or express consent from the owner to occupy the land or without a right in law to do so.
• Squatters on privately or state owned land.
• Tenants holding over.

Question 17

What are the procedural requirements of PIE?

Answer 17

• Standing.
• Notice of motion.
• Joinder.

Question 18

Who has standing?

Answer 18

• Section 4(1) private owners.
• Section 6(1) organs of state.

Question 19

Discuss the notice of motion requirement.

Answer 19

Section 4(2)-(4) of PIE states that serving a notice of proceedings must comply with:

• It requires notice to be served 14 days before proceedings.
• Notice must constitute a written and effective notice.

Question 20

Discuss the joinder requirement.

Answer 20

When would it be appropriate to include municipality in notice proceedings?

• Applicant is an organ of state.
• Applicant is a private owner.

Question 21

What are the substantive requirements of PIE?

Answer 21

• Granting the order.
• Conditions of the order.

Question 22

Discuss the granting of the order requirement.

Answer 22

• “Justice and equity” are the main substantive requirement set in PIE for eviction orders.
• Section 25 and Section 26 rights must be balanced.

Question 23

When a person is a private owner, which circumstances is court is obliged to consider before granting or declining eviction order?

Granting of the order.

Answer 23

• Have occupiers occupied land for less than 6 months? (section 4(6)).
• Have occupiers occupied land for more than 6 months? (section 4(7)).
• What is the impact of the homelessness on the eviction decision?

Question 24

Dicuss the impact of the homelessness of the eviction decision circumstance.

Granting of the order.

Answer 24

Changing Tides case.

• Court held that when eviction is sought by private owners (not by the state), finding alternative accommodation for those left homeless after eviction, is not mandatory.
• Private owners do not have obligation to provide housing, but, where it’s possible that people will be left homeless, private parties have obligation to join municipality in proceedings.
• If municipality cannot provide homeless people with alternative accommodation, eviction cannot be denied based on that reason.

Question 25

Where the applicant is an organ of state, which circumstances must the court take into consideration?

Granting the of order.

Answer 25

• Elderly and disabled persons, children and woman-headed households.
• Circumstances under which unlawful occupier occupied the land and erected a building or structure.
• The period the unlawful occupier has resided on the land.
• Availability of suitable alternatives for accommodation.
• Considerations in Section 4.

Question 26

What is the impact of homelessness on eviction?

Granting of the order.

Answer 26

Changing Tides case.

• Court held that where eviction order is brought by the municipality, and eviction will lead to homelessness of some occupiers, Section 6(3) of PIE becomes relevant.
• Section 6(3) imposes availability of alternative accommodation becomes an obligatory consideration.
• However, just because it must be considered, doesn’t mean that occupiers have an absolute right to such accommodation.

Question 27

Discuss the conditions of the order requirement.

Answer 27

• If court decides to grant eviction order after considering all relevant facts and concluded that eviction will be just and equitable, the court will then have to decide on how to ensure that the order will bring just and equitable execution of the eviction order.
• Basically, court must set just and equitable conditions for eviction orders.
• Just and equitable date for eviction must be set by court in terms of Section 4(8).