Protection of Ownership (Ch. 10) Flashcards Preview

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Flashcards in Protection of Ownership (Ch. 10) Deck (48)
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What are the 3 types of remedies for protection of ownership? Also, give the purpose/explanation of each.

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.


Define the rei vindicatio. (11)

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


Is bad faith a requirement for the rei vindication?



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

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


On what principle if the rei vindicatio based?

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


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

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)


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?



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

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.


Against whom can the rei vindicatio be instituted?

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


Can the rei vindication be instituted for just movable things?

No - movable and immovable things.


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

An eviction order.


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?

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.


Can damages always be claimed with the rei vindicatio?

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


Does the rei vindication prescribe?

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


What are the requirements for the rei vindicatio?

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


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

In Ebrahim the court confirmed balance of probabilities.


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

That he is still the owner.


What presumption is there regarding physical control of the thing?

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


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

No, but statutory protection exists.


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

To institute a delictual or enrichment action.


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

1. When the thing is not easily identifiable;
2. If the thing has passed because of mixing (i.e. money).


What must the claimant prove regarding the defendant?

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.


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

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.


What are the requirements for estoppel? (5)

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.


In which case were the requirements for estoppel set out?

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


Can estoppel be raised as a defence only?

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


What is the impression that must be created with estoppel?

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.


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

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.


Can stolen money be retrieved by using the rei vindicatio?

No - Bank of Lisbon case.


What is the definition of an interdict? (7)

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.