Protection of possession & holdership (Ch. 14) Flashcards Preview

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Flashcards in Protection of possession & holdership (Ch. 14) Deck (53)
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What are remedies?

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.


Why are unlawful holdership and possession protected by remedies?

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.


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

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]
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]


When do you not have to prove a right?

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


Define a 'declaratory order'

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.


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

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.


Discuss 'an actual right in property' (3)

- 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.


Discuss 'a real dispute about such right' (2)

- 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.


Discuss 'reason for the court to issue the order'

- 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.


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

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.


Define interdict

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.


Does a court only set out rights in an interdict?

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


Can an interdict be used once an infringement is completed?



What are the requirements for an interdict? (3)

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.


Discuss 'a clear right' (3)

- 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.


Discuss 'ongoing or impending unlawful infringement' (2)

- 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.


Discuss 'no other effective remedy' (2)

- 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.


Discuss the nature and extent of relief wrt interdict

- 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)


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

- 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.


Define the spoliation remedy

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.


What is unique about the spoliation remedy?

It is not used to protect rights at all.


What is the Latin term for the spoliation remedy?

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


What is the idea behind the spoliation remedy?

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.


Upon what principle is the spoliation remedy based?

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


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

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.


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

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.


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

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


Discuss 'peaceful and undisturbed control'

- 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.


What is quasi control (with relation to case law)

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.


Discuss 'spoliation'

- 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.