Protection of possession & holdership (Ch. 14)

Question 1

What are remedies?

Answer 1

Legal procedures provided for the protection of property rights against infringements or for the control of the effects of unlawful actions with regard to property relations.
- Some remedies are aimed at prohibiting or preventing infringements, others at restoring relations which have been infringed upon and still others at providing compensation for damages suffered as a result of infringements.

Question 2

Why are unlawful holdership and possession protected by remedies?

Answer 2

Not because the constitute rights (they do not), but because the law does not allow unlawful interferences with property relations, even if those relations are unlawful.

Question 3

What are the two purposes of remedies for the protection of possession and holdership?

Answer 3

1. To protect property rights, in the form of lawful holdership, against infringement. Remedies aimed at this goal will require proof of a property right. [Aimed to protect property rights]
   OR
2. To protect the community against chaos and anarchy by preventing people from disturbing exiting property relations, whether lawful or unlawful, by self-help. Remedies aimed at this goal will not require proof of a property right. [Aimed at protecting the community]

Question 4

When do you not have to prove a right?

Answer 4

If the remedy is aimed at preventing and discouraging unlawful self-help.

Question 5

Define a ‘declaratory order’

Answer 5

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.
This declaration of rights beinds the parties once it is given.

Question 6

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

Answer 6

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 7

Discuss ‘an actual right in property’ (3)

Answer 7

• If there is no right or obligation that can be proved, the court will not entertain the matter;
• The right or obligation concerned must be an actual right or obligation and not just theoretical;
• However, the order can be granted with regard to future rights which have not yet materialised, in the sense that the rights themselves have not yet come into existence or enforceable.

Question 8

Discuss ‘a real dispute about such right’ (2)

Answer 8

• There must be a real dispute about the right or obligation, and the dispute must be of such a nature that the parties can be bound by the order once given.
• It does not mean that the opponent must have already been identified, it mean that the applicant’s interests clearly be capable of conflicting with the interests of (as yet unidentified) other persons.

Question 9

Discuss ‘reason for the court to issue the order’

Answer 9

• The court grants a declaratory order only if it is convinced that there is good reason to do so.
• It has a discretion to refuse to make such an order if it is not convinced of its necessity.
• Usually it will be sufficient to prove that the order will prevent an actual infringement of rights or damage to property.

Question 10

What is the most important aspect of the declaratory order relief?

Answer 10

It can be obtained before an infringement takes place (i.e. to prevent an infringement).
But, it is only a remedy for the protection of rights, and not for the protection of all property relations against unlawful disturbance.

Question 11

Define interdict

Answer 11

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 12

Does a court only set out rights in an interdict?

Answer 12

No, the court also orders one of the parties to do something (mandatory interdict) or to refrain from doing something (prohibitory interdict).

Question 13

Can an interdict be used once an infringement is completed?

Answer 13

No.

Question 14

What are the requirements for an interdict? (3)

Answer 14

1. Proof of a 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 future; and that it will cause the applicant damage.
3. Reasons why there is no other effective remedy available to the applicant.

Question 15

Discuss ‘a clear right’ (3)

Answer 15

• The remedy requires that the applicant must have a clear right to property (i.e. show proof of such right).
• The court does not require absolute proof.
• Better proof (after prima facie) is required when the final interdict is considered.

Question 16

Discuss ‘ongoing or impending unlawful infringement’ (2)

Answer 16

• The court must be convinced that the unlawful infringement ist still going on, or that it has not yet started, but is reasonably expected to start in the near future.
• An interdict is a discretionary remedy, and the court will grant it only if the unlawful infringement will actually cause harm or damage.

Question 17

Discuss ‘no other effective remedy’ (2)

Answer 17

• This remedy must be one of last resort
• The interdict is also a preventative remedy, which means that the other effective remedy must be able to prevent the infringement.

Question 18

Discuss the nature and extent of relief wrt interdict

Answer 18

• Since an interdict is meant to protect property rights against infringement, it can only be used by lawful controllers of property, who can prove a right to the property.
• If refusal of the application for an interdict would amount to judicial condonation of illegal acts, the interdict should also be granted. (Chapman’s Peak Hotel)

Question 19

What did the court determine in the case of Candid Electronics v Merchandise Buying Syndicate?

Answer 19

• The court confirmed that an interdict can and should be used to prevent the damage from being caused in the first place;
• Any other effective remedy should be able to do at least the same.

Question 20

Define the spoliation remedy

Answer 20

The spoliation remedy is a summary remedy,
usually issued upon urgent application,
aimed at restoring control of property to the applicant from whom it was taken by unlawful self-help,
without investigating the merits of the parties’ rights to control.

Question 21

What is unique about the spoliation remedy?

Answer 21

It is not used to protect rights at all.

Question 22

What is the Latin term for the spoliation remedy?

Answer 22

Mandament van spolie (“the unlawful dispossession through self-help”)

Question 23

What is the idea behind the spoliation remedy?

Answer 23

People should enforce and protect their property rights by legal means and procedures, and not by self-help and force; because self-help eventually results in chaos and anarchy.

Question 24

Upon what principle is the spoliation remedy based?

Answer 24

The principle that nobody is allowed to take the law into their own hands.

Question 25

Does the spoliation remedy investigate the merits of any parties’ interest in the property?

Answer 25

No, neither party is allowed to raise the question of rights at all. The court is simply interested in a factual investigation: whether there is, in fact, proof of existing control (whether lawful or not), and proof of unlawful spoliation of that control.

Question 26

Can the spoliation remedy be circumvented by contract? Give a reason.

Answer 26

No, because it is aimed at preserving peace and order in the community. Thus, a contractual agreement cannot allow one person to take the property of another without proper legal procedure.

Question 27

What are the requirements for the spoliation remedy (2) and which cases are relevant (2)?

Answer 27

1. Proof that the applicant was in peaceful and undisturbed control of the property.
2. Proof that the respondent took or destroyed that control by means of unlawful self-help or spoliation.
   - Nino Bonino v De Lange
   - Yeko v Qana

Question 28

Discuss ‘peaceful and undisturbed control’

Answer 28

• Must have existed peacefully and undisturbed for a period long enough, and in a manner stable enough, to qualify any unlawful disturbance as a breach of peace.
• This does not refer to its legal merits, but to the fact that it must have been relatively stable.
• The existing control must include the normal corporeal element - the mere intention to control is insufficient.

Question 29

What is quasi control (with relation to case law)

Answer 29

In Zulu v Minister of Works, KZN it involved the cutting off of water.
Quasi control is concerned with the which is usually associated with the exercise of a right such as a servitude.

Question 30

Discuss ‘spoliation’

Answer 30

• This requirement (which is the 2nd part of the spoliation remedy) includes 2 elements:
  a. The respondent must have spoliated the applicant’s control. (This includes simply destroying the applicant’s control)
  b. The spoliation must be unlawful (i.e. it must not be authorised by a court order)
• Even though legislation authorises the authority to demolish illegal structures, doing so without a court order would amount to unlawful spoliation.
• Spoliation is always unlawful (in the absence of authorising law or court order) if it takes places without the applicant’s permission or against her will.

Question 31

What is a defence?

Answer 31

An answer which may be raised against the applicant’s claim.

Question 32

Name the 6 admissible defences against spoliation

Answer 32

1. Applicant did not have the requisite control
2. Respondent did not commit spoliation
3. Unreasonable delay in bringing the application
4. Impossibility of restoration
5. Counter-spoliation
6. Special pleas based on spoliation

Question 33

Discuss ‘counter-spoliation’

Answer 33

• Counter-spoliation is a defence based upon the assertion that the respondent’s action amounted to lawful rather than unlawful self-help.
• A limited and reasonable measure of self-help in the defence of one’s property against unlawful intrusions is permissible, provided it occurs DURING THE ORIGINAL INTRUSION and does not constitute a NEW or SEPARATE occasion of violence or self-help.
• For an act of counter-spoliation to be lawful, the counter-spoliation should occur close enough to the original spoliation in time to form part of the same chain of violence.
• It should also fit the original spoliation in intensity and scope and not exceed it.

Question 34

Discuss ‘special plea based on spoliation’

Answer 34

• Excpetio spolii
• WHich works exactly like the spoliation remedy, except it is raised in DEFENCE AGAINST ANOTHER ACTION with regard to the same property.
• It would normally be raised against a person who first removed a thing from your control unlawfully (spoliation) and then also claims damages from you.
• The requirements are exactly the same as in the case of the spoliation remedy.

Question 35

What is the nature and extent of relief wrt the spoliation remedy?

Answer 35

• It is a summary remedy which is instituted urgently
• It only provides temporary relief
• Not meant to protect rights
• Does not require the court to investigate the presence of rights, and it cannot grant rights

Question 36

Define the ‘action for delictual damages’

Answer 36

The delictual action for damages is an action used to claim compensation (damages) for losses (damage) suffered as a result of the defendant’s unlawful actions.

• It is a repairing action
• Comes into operation once it is clear that the infringement cannot be reversed

Question 37

What are the requirements for the delictual action for damages (actio legis Aquiliae)?

Answer 37

1. Proof of a patrimonial right or interest in property
2. Proof of damage (patrimonial loss) suffered as a result of an unlawful and culpable action of the defendant
3. Proof of a causal connection between the unlawful action of the defendant and the loss

Question 38

Define the ‘condictio furtiva’

Answer 38

The condictio furtiva is a special delictual remedy used to recover the value of a thing from the thief or the thief’s heirs, in situations where the property was damaged or lost after being stolen.
- In principle, this is an action for the protection of ownership.

Question 39

Why is the condictio furtiva remedy particularly useful?

Answer 39

It is still available when the stolen property has been destroyed.

Question 40

What did the court decide in Clifford v Farinha?

Answer 40

• Even though the condictio furtiva is primarily an action for protection of ownership, it was extended to a lessee (who had their car stolen by the person who looked after their house).

Question 41

What are the requirements for the condiction furtiva?

Answer 41

1. Proof of ownership or any other lawful interest which is not automatically terminated when the property is stolen.
2. Proof that the thing was stolen by the defendant or that the defendant is an heir of the thief.
3. Proof that the thing was destroyed, lost or disposed of and not recoverable.

Question 42

When is the condictio furtiva used?

Answer 42

Only when the rei vindicatio and actio ad exhibendum is not available.

Question 43

What is the nature and extent of relief wrt to the actio furtiva?

Answer 43

• Used to claim the value of the stolen thing from the thief or its heirs, because it was lost or destroyed and cannot be returned.
• What makes it useful is that the highest value of the stolen object since the theft is claimed
• Theft need not meet the criminal requirements

Question 44

Define the ‘extended enrichment action’

Answer 44

The extended enrichment action is a remedy with which the plaintiff can recover compensation
for unjustified enrichment from the owner of property
which was improved without legal cause by the plaintiff

Question 45

What are the requirements for the extended enrichment action?

Answer 45

1. Proof of action or expenses undertaken by the plaintiff to improve the defendant’s property or save it from damage
2. Proof that there is no contract or other legal cause for such action or expenses being undertaken
3. Proof that the defendant is enriched without legal cause and at the plaintiff’s expense.

Question 46

Upon what principle is the extended enrichment action based?

Answer 46

That unjustified enrichment must be compensated.

Question 47

How can improvement take place?

Answer 47

Either actual physical improvement or prevention of loss by expenditure of money.

Question 48

Is the extended enrichment action intended to protect a right?

Answer 48

No.

Question 49

What are the 3 categories of improvement or expenditure?

Answer 49

1. Necessary improvements - essential for the preservation or maintenance od the property.
2. Useful improvements - not necessary, but still enhance the property and increase its market value.
3. Luxurious improvements - neither necessary not useful, and even when they increase market value they are undertaken purely for personal whim or taste.

Question 50

Discuss ‘absence of legal cause’ (1)

Answer 50

• If there is a valid legal cause for the claimant’s action, the plaintiff must claim her compensation on the basis of that contract or obligation, and no enrichment action is available.

Question 51

Discuss ‘enrichment at the plaintiff’s expense” (2)

Answer 51

• The defendant must be enriched at the plaintiff’s expense, which means that the plaintiff is poorer and the defendant richer as a result of the plaintiff’s action,
• The defendant’s enrichment and the plaintiff’s loss or expense must be directly related - the one must be caused by the other.

Question 52

What are the 3 forms of relief available with the enrichment action?

Answer 52

1. A claim for payment of compensation, which is the sum, calculated when the action is instituted, bu which the defendant is enriched or the plaintiff impoverished (whichever is smaller)
2. In some cases the plaintiff may be allowed to simply remove the improvements, if that is feasible and does not cause damage to the property (ius tollendi)
3. In some cases the plaintiff’s claim might be enforced by way of a right of retention or lien, which allows the plaintiff to retain control fo the defendant’s property until the compensation is paid.

Question 53

What value is recoverable?

Answer 53

• Necessary expenses can usually be claimed in full
• Useful expenses can be claimed back by the increase in market value
• Luxurious expenses cannot be recovered at all