Topic 5 – possession

Possession = can be divided into 2 elements including corpus and animus

Corpus = physical situation
- Physical control over a thing
Animus = mental state
- Persons mental attitude towards the thing must be to derive some benefit from
possession

Example:
I purchase a car from a dealership, purchase is financed through bank who RETAINS
ownership of car in terms of finance agreement pending payment of final installment due.
I do not own the car (yet) but I can claim certain entitlements to the car through my right
to POSSESSION of the car.

Ius possidendi – right TO possession

This is the ACTUAL right to possession, which can be found in having a PERSONAL RIGHT or a
REAL RIGHT

Ius Possessionis – right OF possession

Powers and privileges that flow from simply BEING IN POSSESSION of a thing

Example: Car hire company HIRES out car to someone.

- When the delivery of the car has occurred then person has possessionis ( right OF
possession) over the car = right of possession over the car, the power is derived from
the persons possession over the car
- Possesidendi (right TO possession) occurs after an agreement has been made
between the person and the car hire company, therefore they either have a real or
personal right to the ownership of the car

Example:
First motors = originally had both possessidendi (right TO possession) and possessionis (right
OF possession), as they originally owned the car and the car was in their possession
Wheels bank= has right to possessidendi as based on their real right to the car through their
ownership as ownership is considered an absolute real right, until the last payment was
made
Chris = right to possessionis (right of property) as the rights which he has is derived from his
power through ownership,
Sydeny = right to possessionis (right of property) as the rights which he has is derived from
his power through ownership
Police = right to possessionis (right of property) as the rights which he has is derived from
his power through ownership

Physical control
Physical control must be both sufficient and effective, and must be judged objectively in
view of particular factual context:
Case: underwater construction and salvage co v bell
 1. Plaintiff found shipwreck
2. To claim possession it loosened and separated 4 propeller blades
3. IT HOISTED 2 OF THEM UP TO SHORE, but left 2 behind with intention of fetching
them later, the spot was marked with a floating rope
4. Court found that merely forcing the propeller blades apart demonstrated AN
ASSUMPTION OF CONTROL OVER THE THING, thus satisfying the physical element of
the possession
*The more portable a thing is, the more actual physical control is required to satisfy the
corpus element
* The physical control does not need to be exercised personally and continuously

Mental attitude (animus)

Mental attitude needs to be appropriate to the factual context
- Person holding the thing MUST INTEND to derive some kind of benefit from such
possession
- Appropriate mental attitude means person MUST HAVE LEGAL CAPACITY

Yeko v Qana

1. Were the rights merely contractual? Why would this question matter?
2. How did the court say this case differed from Xsinet? Are you convinced by
this difference?
3. How did the court use the respondent’s statutory right to draw water?
4. Were the City’s actions unlawful?
5. What did the above four findings mean for the case as a whole?
6. Look at para 10, where the judge quotes Impala Water Users Association v
Lourens NO & others 2008 (2) SA 495 (SCA): how did the judge in this case
differentiate itself from Xsinet?