Possession

Question 1

What is Possession?

Answer 1

Possession describes the situation where a person has physical control (detentio) of a thing together with the mental attitude (animus possidendi) that includes a consciousness of that control.

Question 2

What are the two elements of possession?

Answer 2

• Corpus or physical element (detentio)
• Animus or mental element (animus possidendi)

Question 3

What is ‘bare possession’?

Answer 3

‘Bare possession’ describes the factual situation where a person is in physical control and has the mental attitude that she intends to benefit from the physical control of the thing.

Question 4

What does ‘ius possessionis’ refer to?

Answer 4

Ius possessionis refers to the right of possession (bare/factual possession).

Question 5

What does ‘ius possidendi’ refer to?

Answer 5

Ius possidendi refers to the right to possession (factual possession + entitled).

Question 6

True or False: Possession can be established for incorporeal things.

Answer 6

True

Question 7

What happens if someone mistakenly transfers money into your bank account?

Answer 7

You are in possession of the money but not physical possession.

Question 8

What is required for factual or bare possession to exist?

Answer 8

Both the corpus and animus elements are necessary.

Question 9

Fill in the blank: The mental attitude in possession is referred to as _______.

Answer 9

[animus possidendi]

Question 10

What is the implication of ‘simultaneous right to possession’?

Answer 10

More than one person may simultaneously have the right to possession of a particular thing, but it is a rare occurrence.

Question 11

What is the difference between ‘ius possessionis’ and ‘ius possidendi’?

Answer 11

Ius possessionis is the right of possession, while ius possidendi is the right to possession, which includes entitlement.

Question 12

What is the purpose of the mandament van spolie?

Answer 12

The purpose is to restore peaceful possession and prevent self-help in disputes.

Question 13

What are the basic conditions for the mandament van spolie?

Answer 13

• Legal capacity
• Conscious of sufficient and effective physical control
• Intention to benefit from the possession
• Proof of peaceful and undisturbed possession

Question 14

What does the term ‘spoliator’ refer to?

Answer 14

The person who unlawfully deprives someone of possession.

Question 15

What is required to prove unlawful deprivation of possession in the mandament van spolie?

Answer 15

The applicant must prove that the respondent unlawfully deprived her of possession.

Question 16

True or False: The mandament van spolie applies when possession is merely disturbed.

Answer 16

False

Question 17

What is the significance of the case Meyer v Glendinning?

Answer 17

It set a precedent that one can be considered a legal possessor of an object even if holding it ‘in the name of another’, provided there is intention to derive benefit.

Question 18

What is the consequence when peaceful possession is unlawfully deprived?

Answer 18

The status quo ante must be restored by the spoliator.

Question 19

What is the relationship between corpus and animus in the context of possession?

Answer 19

Both elements must be proved for possession to be established.

Question 20

What is meant by ‘sufficient and effective physical control’?

Answer 20

Physical control must be judged objectively and must be appropriate to the factual context.

Question 21

Fill in the blank: The right to be in possession is known as _______.

Answer 21

[ius possidendi]

Question 22

What is an example of a situation where one lacks animus possidendi?

Answer 22

If someone drops a bag of cocaine in your bag at the airport, you have physical possession but lack animus possidendi.

Question 23

What does the term ‘res deperditae’ refer to?

Answer 23

A lost item that belongs to someone else.

Question 24

Can a third party be a defendant in a mandament van spolie action?

Answer 24

No, it can only be used against the spoliator.

Question 25

What remedy can be sought when one has been unlawfully deprived of possession?

Answer 25

Mandament van spolie

Question 26

What is the significance of the case Nino Bonino v De Lange?

Answer 26

It established that dispossessing someone non-consensually and unlawfully is unlawful, regardless of force.

Question 27

What is the legal capacity requirement in mandament van spolie?

Answer 27

The person must have legal capacity to claim possession.

Question 28

What does the term 'audi alteram partem' mean in the context of mandament van spolie?

Answer 28

It upholds the principle of considering both sides of the story.

Question 29

What is required for the mandament van spolie to apply?

Answer 29

Intention to derive benefit from possession ## Footnote This principle allows entitlement to the mandament van spolie even against the owner.

Question 30

What does Nino Bonino v De Lange establish regarding dispossession?

Answer 30

Unlawful dispossession is prohibited regardless of violence ## Footnote The status quo ante must be restored immediately after dispossession.

Question 31

In Du Randt v Du Randt, why could the applicant not prove possession?

Answer 31

Insufficient animus as an employee ## Footnote The court stated reliance could not be placed solely on the corpus element of possession.

Question 32

What is the outcome in De Beer v Zimbali Estate Management Association regarding possession?

Answer 32

Insufficient physical control to establish bare possession ## Footnote Access was permitted until it was terminated, but this does not equate to protection under mandament van spolie.

Question 33

What types of property can the mandament van spolie be applied to?

Answer 33

Corporal and incorporeal property ## Footnote Rights of use can be protected, but not general rights or contractual rights.

Question 34

What is quasi possession?

Answer 34

Approximation compatible with the right of use ## Footnote It replaces the need for physical control of intangible property.

Question 35

What are the two forms the right of use may take that can be protected?

Answer 35

* Servitutal nature * Incidental to factual possession of a corporeal thing

Question 36

What is the minimum animus required for the mandament van spolie?

Answer 36

Intention to benefit oneself ## Footnote Without this animus, one cannot use legal remedies to protect possession.

Question 37

What is the role of a custodian regarding possession?

Answer 37

Custodian has no interest beyond looking after the owner's property ## Footnote A custodian cannot establish the minimum animus required for mandament van spolie.

Question 38

What relief does an order of restoration of the status quo ante provide?

Answer 38

Restores the applicant to the position prior to spoliation ## Footnote No damages may be claimed.

Question 39

What defenses are available to a respondent in a mandament van spolie case?

Answer 39

* Attack the facta probanda * Challenge locus standi * Allegation of unreasonable delay * Impossibility of restoration

Question 40

Under what circumstances is the possessory action applicable?

Answer 40

When mandament van spolie cannot apply ## Footnote Such as when bare possession cannot be established.

Question 41

What must the plaintiff prove in a possessory action?

Answer 41

* Prima facie proof of entitlement to possession * Defendant's control of the property or responsibility for its removal

Question 42

What can the plaintiff recover in a possessory action?

Answer 42

* Recovery of the thing * Its value * Both if damaged

Question 43

What form does recovery take for immovable property in a possessory action?

Answer 43

Ejectment order ## Footnote Subject to statutory eviction requirements.

Question 44

What must be proved if the plaintiff seeks compensation instead of recovery?

Answer 44

Elements for a delict must be proved

Question 45

What defense can a defendant use in a possessory action?

Answer 45

Stronger ius possidendi ## Footnote Claiming a better entitlement to possession.