Protection of Ownership (Ch. 10)

Question 1

What are the 3 types of remedies for protection of ownership? Also, give the purpose/explanation of each.

Answer 1

1. Real remedies - To restore physical control of the thing or to remove any infringement of the owner’s exercise of his entitlements to the thing.
2. Delictual remedies - Actions of the owner against a person aimed at compensation for damages or loss to the owner’s property resulting from unlawful and culpable actions of such person.
3. Enrichment remedies - Aimed at the payment of compensation by a person who was enriched at the expense of the owner without a legal ground for the enrichment.

Question 2

Define the rei vindicatio. (11)

Answer 2

The action whereby 
an owner can recover 
an existing and identifiable thing 
from any person 
who is exercising unlawful physical control over it.

Question 3

Is bad faith a requirement for the rei vindication?

Answer 3

No.

Question 4

Must the owner compensate the controller for the money paid to the third party? Refer to case law.

Answer 4

No, the owner does not have to compensate the controller for money paid to a third-party. - Grosvenor Motors v Douglas.

Question 5

On what principle if the rei vindicatio based?

Answer 5

The remedy is based on the principle that ownership is transferred by the derivative method only if the owner intended transferring ownership.

Question 6

What can the owner recover the thing via the rei vindication (even if compensation was paid by a third party)?

Answer 6

The owner’s real right to the thing is so strong that the thing held by a third party without legal cause, can be recovered by the owner. (Dreyer v AXZS Industries)

Question 7

Ito the rei vindicatio, does it matter whether the owner lost control involuntarily or if he transferred it to another person ito a legal cause that later fell away?

Answer 7

No.

Question 8

Must the owner prove that the thing is being controlled unlawfully ito the rei vindicatio?

Answer 8

No, but the owner will not be successful if the person in control of the thing can prove that he is in lawful control thereof.

Question 9

Against whom can the rei vindicatio be instituted?

Answer 9

Against any person who controls the thing without the owner’s consent.

Question 10

Can the rei vindication be instituted for just movable things?

Answer 10

No - movable and immovable things.

Question 11

What form does the rei vindication assume when relating to immovable property?

Answer 11

An eviction order.

Question 12

Even though the primary reason for the rei vindicatio is to restore the thing to the owner’s physical control, what further claim could be brought under this?

Answer 12

In exceptional circumstances, the owner can claim the value of the thing at the time of the institution of the action, if the controller fraudulently alienated or destroyed the thing so that it can no longer be recovered.

Question 13

Can damages always be claimed with the rei vindicatio?

Answer 13

No, only if the controller was a mala fide possessor (and in exceptional circumstances if bona fide).

Question 14

Does the rei vindication prescribe?

Answer 14

No, it is not an action of monetary debt or a claim which becomes prescribed after 3 years (ABSA v Keet).

Question 15

What are the requirements for the rei vindicatio?

Answer 15

1. The owner must prove ownership of the thing
2. Only an existing and identifiable thing can be reclaimed
3. The property must be in the control of the defendant when the action is instituted

Question 16

What case confirmed that standard of proof with the rei vindicatio?

Answer 16

In Ebrahim the court confirmed balance of probabilities.

Question 17

What presumption is created once the owner proves ownership on a balance of probs?

Answer 17

That he is still the owner.

Question 18

What presumption is there regarding physical control of the thing?

Answer 18

There is a presumption that the person who is in physical control of the thing is also the owner.

Question 19

Is the rei vindication available to the leaseholder of a registered leasehold?

Answer 19

No, but statutory protection exists.

Question 20

If the thing no longer exists, what option does the owner have?

Answer 20

To institute a delictual or enrichment action.

Question 21

Even if the thing still exists, in which 2 cases will the rei vindicatio not be appropriate?

Answer 21

1. When the thing is not easily identifiable;

2. If the thing has passed because of mixing (i.e. money).

Question 22

What must the claimant prove regarding the defendant?

Answer 22

That the defendant as in control of the thing at the time the action was instituted (Mehlape case).
It is not necessary to prove that the property is unlawfully controlled.

Question 23

Name 7 defences which can be raised against the rei vindicatio.

Answer 23

1. Defendant can prove that the claimant is not the owner of the thing.
2. If the thing has been destroyed or is unidentifiable.
3. The defendant was not in physical control of the thing when the rei vindication was instituted.
4. The defendant can show that he has a limited real or creditor’s right ito which he exercises physical control and that right is still valid.
5. The defendant with a lien over the thing remains in physical control of the thing until the obligation which gave rise to the lien has been fulfilled by the owner.
6. Relevant circumstances when related to evictions (i.e. children, old people, etc.)
7. Estoppel - can be raised if the owner acted in a specific way.

Question 24

What are the requirements for estoppel? (5)

Answer 24

If the owner of a thing -

1. Culpably (intentionally or negligently)
2. Created the impression that ownership was transferred to the physical control of the thing
3. And the controller, relying on this impression, exercises physical control with the owner’s intent (animus domini)
4. To his detriment
5. The controller can raise estoppel as a defence against the rei vindication of the owner.

Question 25

In which case were the requirements for estoppel set out?

Answer 25

Oakland Nominees v Gelria & Quenty’s Motos v Standard Credit Corp.

Question 26

Can estoppel be raised as a defence only?

Answer 26

Yes, it cannot be used as the basis for an independent action.

Question 27

What is the impression that must be created with estoppel?

Answer 27

The impression created by the owner is that the owner transferred ownership (dominium) or the right to transfer ownership to the person from whom the aggrieved person received physical control.

Question 28

Name the case and the requirements for when the impression was not a result of representation but from conduct. (3)

Answer 28

Concor Holdings v Potgieter:

1. The owner must have reasonably foreseen that the controller would be misled by his conduct.
2. The controller’s interpretation of the control must be based on reasonable inference.

Question 29

Can stolen money be retrieved by using the rei vindicatio?

Answer 29

No - Bank of Lisbon case.

Question 30

What is the definition of an interdict? (7)

Answer 30

A 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.

Question 31

What are the requirements for an interdict? (3)

Answer 31

1. Proof of clear right with regard to property.
2. Proof that 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 the future; and that it will cause the applicant damage.
3. Reasons why there is no other effective remedy available to the applicant.

Question 32

Define a Declaratory Order. (4)

Answer 32

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

Question 33

What are the requirement for a declaratory order? (3)

Answer 33

1. Proof of an actual, existing or future right or obligation with regard to property.
2. Proof of an existing and real dispute about the right or obligation in question.
3. Convincing reasons why the circumstances make it necessary for the court to make a declaratory order to solve the dispute by setting out the rights and obligations of the parties.

Question 34

Name the 3 delictual actions available.

Answer 34

1. Actio ad exhibendum
2. Condictio furtiva
3. Actio legis Aquiliae

Question 35

Define the Actio ad exhibendum. (4)

Answer 35

The actio ad exhibendum is instituted by the owner
against the controller of a thing
who has fraudulently lost physical control of the thing,
in which case the value of the thing can be claimed from such a controller.

Question 36

What are the requirements for the Actio ad exhibendum? (4)

Answer 36

1. The thing must have been destroyed or alienated ON PURPOSE (negligence is not sufficient)
2. It could have been consumed or destroyed or alienated in any other way.
3. The controller must have been mala fide at the time of destruction of alienation in that he had knowledge of the owner’s rights at that stage.
4. This remedy is available only to the owner of the destroyed or alienated property and the owner is entitled to recover the MARKET VALUE of the thing from the mala fide controller.

Question 37

Define the Condictio furtiva

Answer 37

The condictio furtiva is instituted by the owner or lawful controller of a thing
against a thief or a thief’s heirs
and is an action with which the thing or the highest value of the thing since the theft can be claimed.

Question 38

What action should be used if the thing is still in the control of the thief or its heirs?

Answer 38

The rei vindicatio.

Question 39

What action should be used if the thing has been destroyed or consumed on purpose?

Answer 39

The actio ad exhibendum

Question 40

What action should be used if the thing was destroyed accidentally?

Answer 40

The condictio furtiva

Question 41

What are the requirements for the condictio furtiva? (5)

Answer 41

1. The owner, lawful holder or any other person with a lawful interest in the thing can institute the condictio furtiva only if he retained his ownership or interest in the thing from the date of the theft until the date of institution of the action.
2. If the thing is destroyed and the owner’s ownership is terminated thereby, the previous owner retains the remedy.
3. The action can be instituted only against the thief or his heirs and not against accessories or later bona/mala fide acquirers and controllers.
4. If the thing itself can no longer be claimed, the claim will be for the highest value of the thing since the theft.
5. The action cannot be instituted together with the rei vindication, but only in the alternative.

Question 42

For the purposes of the condictio furtiva, must ‘theft’ meet the reqs for criminal liability?

Answer 42

No, but will be sufficient if claimant can prove that defendant removed the thing from his physical control with fraudulent purposes.

Question 43

Define the Actio legis Aquiliae

Answer 43

If a thing has been damaged or destroyed
in an unlawful and culpable way,
the owner can claim damages with the actio legis Aquiliae
for patrimonial loss from the person who caused the damage.

Question 44

What are the requirements for the Actio legis Aquiliae?

Answer 44

1. An action pertaining to a thing
2. Which in an unlawful way and
3. Performed with a culpable disposition
4. Resulted in
5. Damage or injury to the owner.

Question 45

Define ‘enrichment action’

Answer 45

With an enrichment action the owner of a thing
can claim from the controller
the amount with which the controller’s estate has been enriched without cause
if that enrichment was the result of the consumption or alienation of the thing.

Question 46

What are the requirements for the Enrichment Action? (6)

Answer 46

1. The controller must have been enriched, that is the controller’s estate mist have been enlarged
2. The owner must have been impoverished, that is the owner’s estate must habe been diminished
3. The enrichment of the controller must have been at the expense of the owner’s impoverishment
4. The shift in value must have been without legal cause (sine causa) which means there must not have been any legal basis for the shift
5. The owner must have transferred the control of the goods to the controller, who must have alienated or consumed them bona fide.
6. The balance of the purchase price for which the controller sold the thing and which, at the time of institution of the condiction sine causa, remained in the controller’s possession or the value of the goods as at the institution of the condiction can be claimed.

Question 47

Can the owner use the condictio sine causa (enrichment actio) if the thing is still identifiable and recoverable?

Answer 47

No, the rei vindication must be used.

Question 48

Can the condiction sine cause be used is the controller acquired the thing for consideration (ex causa onerosa)?

Answer 48

No, only if the controller acquired the thing without consideration.