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SAR Supp exam > protection of ownership > Flashcards

protection of ownership Flashcards

1
Q

ius vindicandi

A

the entitlement to claim the property back from any unlawful possessor of the property.

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2
Q

implication of ius vindicandi

A

There are various remedies that can be used to protect ownership of property.

All of these remedies are founded on ownership of property and the right that an owner has to claim the property wherever it is found.

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3
Q

What do these remedies that can be claimed nder the ius vindicandi normally include?

A

These remedies ordinarily include:
* the rei vindicatio,
* the actio negatoria,
* the actio ad exhibendum,
* the condictio furtiva,
* the actio legis Aquiliae
* the remedy based on the law of unjustified enrichment.

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4
Q

Whats the alternative of using these remedies based on particular circumstances of the case?

A

Alternatively, the owner can obtain compensation for loss suffered as a result of the unlawful, culpable conduct of another.

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5
Q

CATEGORIES OF OWNERSHIP REMEDIES

A
  1. Real remedies
  2. Delictual remedies
  3. Enrichment remedies
  4. Interim remedies
  5. Constitutional remedies
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6
Q

What are real remedies?

A

Remedies that seek to prevent interferences with ownership or inhibit breaches of certain entitlements that are inherent in ownership.

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7
Q

Purpose of real remedies

A

Purpose is to restore physical control of the property or to confirm the ability of the owner to exclude others from access, use and enjoyment of the property depending on the specific real remedy being instituted by the owner

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8
Q

Who can institute real remedies?

A

Can only be instituted by the owner of the property or his representative.

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9
Q

List two things that real remedies consist of?

A
  1. Rei vindicatio
  2. Actio negatoria
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10
Q

Primary purpose of rei vndicatio

A

Primary purpose is to restore possession of property.

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11
Q

Aim of actio negatoria + authority

A

Rekdurum case
- Aimed at protecting ownership entitlements in situations where the holder of the right over the owner’s property (limited real right) is exceeding the limits of their rights . - Or where someone is trying to exercise a right over the owner’s property which they do not have (e.g. people use road on property without having a right of way)

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12
Q

Way in which actio negatoria can be instituted and describe its limitations

A
  • Owner can institute the actio negatoria to stop the excessive or baseless exercise of rights.
  • However, whether this remedy still forms part of SA law is questionable, since it is rarely relied on anymore.
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13
Q

Who are delictual remedies available to?

A

Available to an owner when the owner has suffered financial loss either because the property has been alienated, damaged or destroyed, or because he could not exercise entitlements over the property

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14
Q

What solution do delictual remedies provide?

A

Provide a claim for payment of compensation or damages if the requirements of the respective remedies are met.

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15
Q

Types of delictual remedies ?

A
  1. Condictio furtiva
  2. Actio ad exhibendum
  3. Actio legis acquiliae
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16
Q

Case law on Condictio furtiva

A

Cliffard v Farinha

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17
Q

When may Conditio furtiva be instituted?

A

May be instituted by the owner in instances where the property has been stolen.

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18
Q

Interpreation of theft ito conditio furtiva

A

Theft at common law has a wide definition to include stealing in the criminal sense, and also the act of furtum usus.

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19
Q

Furtum usus

A

the appropriation of another’s property without the person’s consent

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20
Q

claiming patrimonal loss ito Condictio furtiva

A
  • Owner can recover patrimonial loss suffered because the theft from the thief or its successors.
  • This patrimonial loss would be equal to the highest value of the property from the time of the theft until the proceedings were instituted.
  • If the thief or its successors are still in possession of the property, the owner can by way of the condictio claim the recovery or return of the property from the thief, but will however not be able to also claim compensation (similar to rei vindicatio)
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21
Q

Cliffard v Farinha

A

Bona fide persons with an interest in the property can also institute the condictio furtiva in these circumstances (e.g. lessee or pledgee)

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22
Q

When is the Actio ad exhibendum used?

A

where the owner was wrongfully dispersed of the property by the mala fide defendant and where the restoration or return of the property is no longer possible.
- For instance, where the property has been alienated, consumed or damaged.

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23
Q

What solution does the actio ad exhibendum grant?

A

Grants owner a personal claim of damages equivalent to the value of the property

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24
Q

Requirements that the actio ad exhibendum claimant must prove

A

o Ownership
o Intentional or deliberate dispossession of property
o Mala fides on the part of the defendant
o Damage or loss suffered

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25
Q

When is the actio legis aqualiae instituted?

A

Instituted by the owner when his property where destroyed or damaged by the defendant in an unlawful or culpable manner.

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26
Q

What does the claimant need to do i order to succeed with actio legis aqualiae claim?

A

he will have to satisfy the court that the
5 requirements of a delict are met on the facts:
o Conduct
o Unlawfulness
o Harm
o Causality
o Fault

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27
Q

What will the actio aqualia claim amount to?

A

Owner can claim amount equal to his harm suffered as compensation for such harm.

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28
Q

When can enrichment remedies be used?

A

Only available to the owner in the event when the owner would not succeed with any of the real or delictual remedies, and provided that the requirements for enrichment liability is satisfied by the owner.

29
Q

What does the enrichment remedy consist of?

A

Condictio sine causa

30
Q

result of conditio sine causa

A

Results in the owner being rewarded with compensation for unjustified enrichment.

31
Q

when does unjustified enrichment occur?

A

when the defendant has been enriched at the expense of the owner without there being just cause for the enrichment.

32
Q

when does unjustified enrichment usually happen?

A

This happens usually when a benefit that should have been obtained by the owner is now obtained by the defendant, or where value moved from the owner’s estate to that of the defendant without a just cause/legal reason to that effect.

33
Q

List the interim remedies

A
  1. Interdict
  2. Declaratory order
34
Q

What are interdicts used for? provide authority

A

Victoria and Alfred Waterfront case
* To prevent or stop interference with possession of the property

35
Q

Requirements for an interdict

A
  • Owner must satisfy court of ownership of the property.
  • Owner must satisfy the court that there is an imminent or ongoing disturbance of her control or right.
  • Owner must show the court that there no alternative remedies that can sufficiently or adequately protect his right.
    o If another remedy is available, but it would not serve the same preventative function that the interdict would, the court will generally be satisfied that this requirement has been met.
  • Court has discretion to grant or decline the interdict
36
Q

use of declaratory order

A

Also aimed at protecting infringements to ownership, meaning that it is not useful and appropriate where infringement has already occurred and is concluded

37
Q

where is a declaratory interdict most appropropriate?

A

Consequently, it is an appropriate remedy to institute when the infringement is still imminent/threatening in order to prevent the infringement and/or dispute about rights occurring at all.

38
Q

Requirements for a declaratory order

A
  • Owner has to show that an existing or future right with regards to the property exists.
  • Owner has to satisfy the court that there is a real or actual dispute concerning the property.
  • Owner will have to provide reasons why the court should intervene with the declaratory order.
39
Q

What is rei vindicatio used for?

A

Instituted to claim recovery of property from unlawful possessors

40
Q

What is rei vindicatio a result of?

A

It is therefore a remedy that results from the owner’s entitlement to vindicate (ius vindicandi) and entitlement to possession of the property (ius possidendi)

41
Q

what do Ius vindicandi and the ius possidendi entitle an owner to do?

A

to claim back his property from whomever is in unlawful possession thereof.

42
Q

who can owner recover their property from through the rei vindicatio?

A

It allows an owner to recover possession from any unlawful
possessor (bona fide or mala fide possessor)

43
Q

Bona fide possessor

A

A bona fide possessor is a possessor who has control over
the property without knowing that he has no right to do so.

44
Q

Mala fide possessor

A

A mala fide possessor is a possessor who knows that they
are controlling the property without a right to that effect

45
Q

use of rei vindicatio ito malafide and bona fide possessors

A

Rei vindicatio is available to the owner to recover property from either bona fide or mala fide possessor - Good faith is not a valid defence against the rei vindication

46
Q

Maxim in which use of rei vindicatio is based

A

This is in accordance with the Roman maxim* ubi rem emam invenio ibi eam vindictio
*
(‘an owner is able to vindicate his property wherever he
finds it’)

47
Q

what type of property does rei vindicatio recover?

A

Can be instituted to recover movable and immovable property.

48
Q

remedy ito movable property

A

The rei vindicatio is the common law real remedy available to the owner

49
Q

remedy ito immovable property

A

Action in the form of eviction proceedings

50
Q

Restrictions of eviction action on immovable property

A

o Eviction action cannot however be instituted to recover possession of all types of immovable property.

51
Q

what is required for the recovery of immovable property + authority

A

Section 26(3) of the Constitution requires that the recovery of immovable property that constitutes a home be treated differently than immovable property used for commercial purposes.

52
Q

Immovable property used for commercial or business purposes:

A

Rei vindicatio must be used to evict unlawful occupiers

53
Q

Immovable property that constitutes a home:

A
  • Rei vindicatio not applicable.
  • Owner must use applicable legislation promulgated
    to give effect to section 26(3) of the Constitution.
54
Q

case law for Requirements of rei vindicatio

A

Chetty v Naidoo

55
Q

Requirements of rei vindicatio

A
  • Ownership of property
  • Defendant is in possession of property at the time of the proceedings
  • The property still exists and is identifiable
56
Q

Elaborate on ownership of property as a Requirements of rei vindicatio

A

Smit v Kleinhans
Would have to prove ownership on a balance of probabilities.

Immovable - show he is registered as owner in Deeds Registry.
Movable - person in control is usually presumed to be the owner, so a rebuttable presumption in favour of the defendant who is in possession of the property must be rebutted by the applicant.

57
Q

What does proving on a BoP mean?

A

This means that the court must be satisfied that an event occurred or a state of affairs as submitted based on the evidence is the most likely state of affairs or event, rather than not.

58
Q

elaborate on Defendant is in possession of property at the time of the proceedings as a requirement for rei vindicatio

A

If not in defendant’s possession, court will not be able to make anorder for the defendant to return the property to the owner and the result of the remedy will not be achievable.
Does not have to be unlawful possession by the defendant, but only that defendant is in possession of the property

59
Q

Elaborate on the requirement that The property still exists and is identifiable

A

If the property does not exist or is not identifiable, the court would not be able to order that the identifiable property be returned to the owner

60
Q

DEFENCES AGAINST THE REI VINDICATIO

A

Defendant can refute the facta probanda proved by the plaintiff by showing that:
* The plaintiff is not the owner, or
* The defendant is not in possession of the property, or
* The property is no longer identifiable or in existence

61
Q

Alternative defences if defendant cannot prove above defences

A
  • Right to control the property (limited real right)
  • Prove right is still valid and enforceable against the owner.
  • This right will trump the owner’s claim of return of the property by the rei vindicatio.
62
Q

Estoppel as a defence against plaintiff’s claim for rei vidicatio

A

Owner made a negligent misrepresentation to the defendant by stating that the person in possession of the property is the owner or has a right to alienate the property.
Owner will then be precluded from vindicating his property from the defendant

63
Q

The owner is not allowed to rely on the rei vindicatio to obtain an eviction order from property used for residential purposes if applicable:

A

Section 26(3) of the Constitution that prescribes that orders for evictions from homes may not be arbitrary requiring a court to consider all relevant circumstances to ensure the eviction is just and equitable.
o Since the rei vindicatio in its requirements does not allow a court a discretion to take into consideration all relevant circumstances, its applicability to immovable residential property would be unconstitutional.

64
Q

Eviction legislation as a defence against rei vindicatio

A

Where legislation which was specifically enacted to give effect to section 26(3) finds application and the owner still relies on the rei vindicatio for an eviction order, the defendant can raise a defence that the rei vindicatio is not the correct remedy and refer the court to the correct legislative measure that the court should have relied on

65
Q

Different types of eviction legislation

A

o Extension of Security of Tenure Act 62 of 1997
o Land Reform (Labour Tenant) Act 3 of 1996
o Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)

66
Q

what should owners looking to evict unlawful occupiers do?

A

Owners looking to evict unlawful occupiers must follow the procedures and satisfy the substantive requirements that are set out in the appropriate and applicable eviction legislation in order to obtain an eviction order

67
Q

Kleinhans v Smit

A

Background: Ms. Ronel Noleen Smit sought the return of a vehicle from Mr. Calvin Kleinhans.

Legal Issue: Could Ms. Smit rightfully invoke rei vindicatio to claim the return of the vehicle?

Court Decision: The Supreme Court of Appeal (SCA) held that rei vindicatio was not available to non-owners. However, a bona fide possessor (like Ms. Smit) could reclaim possession through a possessory remedy. The SCA upheld her right to possess the vehicle

68
Q

Port Elizabeth
Municipality v Various
Occupiers

A

Background: The applicant, Port Elizabeth Municipality, sought eviction of 68 people (including 23 children) occupying shacks on privately owned land within the municipality.

Issue: Whether eviction was just and equitable under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).

Court Decision: The Constitutional Court considered “all relevant circumstances,” including alternative accommodation availability. Negotiation and rights of homeless occupants were emphasized, setting a precedent for eviction cases where no alternatives exist

SAR Supp exam (4 decks)

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