LAPR7311

Semester
2 of 2023

LU 3
Theme 2

1
  You may use the power point slides as a guideline to prepare content for tests,
assessments and the examination

 HOWEVER, THE CONTENT TO THE POWER POINT SLIDES IS INSUFFICIENT TO

SUCSESSFULLY COMPLETE THIS MODULE

 It is your responsibility to build onto the slides from the prescribed textbook,
audios, additional study material, legislation and court cases.

 No demarcations will be provided for any test, assessment or examination, unless

a brief has been provided with authority to share with students.

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 Assessment

 ICE Tasks
 Check VC learn
 Maximum of 6 will be released
 Weight: 10%

 Assignment
 Check PAS for due dates
 LU 2, 3 & 4
 Weight: 30%

 Test
 Check Pass for due dates
 LU 1 & 2
 Weight: 25%

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 Acquisition and Protection of
Ownership
Overview (… continue)
 There are two broad methods of acquiring ownership, namely original acquisition
and derivative acquisition.
 Each of these broader methods of acquisition comprise of various different means
of acquisition of ownership.
 This acquisition is dependent on whether the property in question is movable or
immovable.
 There are remedies available to protect ownership, which are split into real and
delictual remedies.
 A claim of unjustified enrichment is also available to aggrieved parties.
 In this learning unit, we will look at:
o original and derivative acquisition of ownership, as well as
o the various remedies for protection of ownership.

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 Theme 2:
Protection of Ownership
LUO8: Briefly explain each category of available remedy that can be
used to protect ownership and list the actions that fall into each
category, i.e.:
a) Real remedies;
b) Delictual remedies
c) Enrichment remedies.

LUO9: Distinguish between the following remedies , including the

legal requirements that must be established in order for an owner to
successfully rely on each one :
d) rei vindicatio
e) actio negatoria
f) interdict; d) Actio ad exhibendum c) condictio furtiva. d) actio
legis Aquiliae.

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 Theme 2:
Protection of Ownership
LUO10: Apply the various remedies that may be used to protect
ownership, namely
a) rei vindication
b) Action negatoria
c) Condictio furtive
d) Actio legis Aquiliae

LU011: Discuss the limitations on the use of the rei vindicatio, with
specific reference to the following:
e) Relevant circumstances
f) Estoppel
g) Stolen money;

LUO12: Advise a party to a dispute on the protection available to an

unlawful occupier against an unlawful eviction.

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 Theme 2:
Protection of Ownership
LUO13: Advise a party to a dispute on eviction proceedings, bearing
the complexity of factors involved ineviction proceedings in mind.,
with specific reference to the case of Port Elizabeth Municipality v
Various Occupiers 2005 (1) SA 217 (CC).

LUO14: Briefly explain the ways in which ownership may be

terminated;

LUO15: Briefly explain the ways in which a legal relationship may

terminate, i.e.:
• Transfer of ownership;
• Loss of physical control; and
• By operation of law

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 Theme 2:
Protection of Ownership
 Chapter 10 and 11

 Clifford v Farinha 1988 4 SA 315 (W)

 Quenty’s Motors (Pty) Ltd v Standard Credit Corporation

Ltd 1994 3 SA 188 (A) Port Elizabeth Municipality v Various
Occupiers 2005 (1) SA 217 (CC

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 Protection of Ownership

Remedies available to OWNER of a thing where his entitlements are infringed

upon :
Real remedies
Purpose = is to restore
physical control of thing or to
remove any infringement of
owner’s exercise of his
entitlements to thing
Delictual remedies
Actions of owner against a
person aimed at compensation
for damages or loss to owner’s
property resulting from
unlawful and culpable actions
of such person
Enrichment remedies
Aimed at payment of
compensation by a person
who was enriched at
expense of owner without a
legal ground for enrichment

Real remedies

Rei vindicatio

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

Owner of a thing who was deprived of his physical control of thing against his will or
in an unlawful way can RECOVER IT FROM ANY CONTROLLER, irrespective of fact that
such person acquired control of thing in good faith or paid for it.

Owner need not compensate controller for money paid to 3rd party – Grosvenor
Motors (Potchefstroom) v Douglas.
 Protection of Ownership
• Remedy is based on principle that ownership is transferred by derivative
method only if owner intended transferring ownership. Bona fide acquirer of
a thing, who for instance paid a thief for thing, does not become owner of thing
because owner never intended to transfer ownership to him.

• In these circumstances, owner can recover thing from bona fide acquirer with
rei vindicatio irrespective of compensation paid to thief – reason is that owner’s
real right to thing is so strong that thing held by a 3rd party (without legal cause)
can be recovered by owner – Dreyer v AXZS Industries.

• It also makes no difference to institution of action whether owner lost control

involuntarily or if he transferred it to another person in terms of a legal cause
that later fell away. It is not necessary for owner to prove that thing is in
unlawful control, but owner will obviously not be successful with rei vindicatio if
person in control of thing can prove that he is in lawful control thereof.

• Rei vindicatio can be instituted against ANY PERSON who controls thing without
owner’s consent.

• It can be instituted in respect of MOVABLE and IMMOVABLE things (usually in

form of an eviction order with immovables).
 Protection of Ownership
• President of the RSA v Modderklip Boerdery
o Court held that there is an obligation on a landowner to prevent unlawful
occupation of her land and that obligation to remove unlawful occupiers cannot
be left entirely to state.

• Although rei vindicatio is usually instituted to restore thing to owner’s physical

control, it can in exceptional circumstances be used by owner to claim value of
thing at time of institution of action or delivering of judgment if controller
fraudulently alienated or destroyed thing so that it can no longer be recovered.

• Damages can be claimed with rei vindicatio only from a bona fide controller in
exceptional circumstances of fraudulent alienation or consumption of thing by such
bona fide controller. If thing is lost or destroyed through negligence, value thereof can
be claimed only from a mala fide possessor and not from a bona fide possessor

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 Protection of Ownership
Requirements :

1. Owner must Claimant must prove that he is owner. Onus of proof resting
prove on claimant is that he must prove, on a balance of probabilities,
ownership of that he acquired ownership.
thing
Ebrahim v Deputy Sheriff, Durban

Test whether claimant has discharged onus of proving his

ownership of movable property which is not in his
possession = whether in result, probabilities are balanced in
his favour. Strength of evidence which he has to produce to
succeed depends upon circumstances of particular case.

Once claimant has established acquisition of ownership on a

balance of probabilities, a rebuttable presumption that he is
still owner is created :
 Immovable property – sufficient to prove that property is
registered in claimant’s name
 Movable property – onus of proof is much heavier, since
there is a presumption that person who is in physical
control of thing is also owner. To satisfy this onus of
proof, claimant will have to rebut this presumption.
Rei vindicatio is not available to leaseholder of a registered
leasehold, but statutory measures for protection do exist.
 Protection of Ownership
58

2. Only an existing and Thing must still exist and be identifiable. If thing no longer
identifiable thing can exists, owner will have to use a delictual or enrichment action. In
be reclaimed extraordinary circumstances, however, damages can be claimed.
Where thing is not easily identifiable (e.g. where it has been
mixed with other things), it is also not possible to use this
action.
If ownership has passed because of mixing (e.g. in case of
money), action can also not be instituted
3. Property must be in Claimant must prove that defendant was in control of thing at
control of defendant time action was instituted.
when action is instituted
It is not necessary for owner to allege and prove that property
is unlawfully controlled by defendant, but claimant will
obviously not be successful with rei vindicatio if defendant can
prove that he was in lawful control of thing. It is also not
necessary for claimant to prove that defendant had a limited
real right or a creditors’ right to control thing which has
lapsed. However, if claimant avers existence of such a right, he
must prove that right in terms of which defendant controlled
thing has lapsed.

Defendant must therefore prove that he was lawfully in control

of thing at time of institution of action, but if claimant avers
that this right has lapsed, he (claimant) must prove it.
 Protection of Ownership
59

DEFENCES which can be raised by defendant against rei vindicatio :

(a) Defendant can prove that claimant is not owner of thing – this will usually be case
where claimant acquired ownership of thing but lost it shortly thereafter (e.g. by
means of prescription), or where claimant’s predecessor in title was not owner and
could, therefore, not transfer ownership to claimant.

(b) If thing has been destroyed or is unidentifiable.

(c) Defendant was not in physical control of thing when rei vindicatio was instituted.

(d) Defendant can show that he has a limited real right or creditor’s right in terms of which
he exercises physical control and that this right is still valid. Right claimed by
defendant must be a right enforceable against owner.

e.g. if owner transferred physical control to another person, that person would be only one
who can raise that as a defence against rei vindicatio and defence is not available to
persons who acquired thing from original controller.

If defendant has paid part of purchase price in terms of an invalid sale agreement, owner
does not have to tender repayment, because defendant has an enrichment action
against owner.

(e) Defendant with a lien over thing remains in physical control of thing until obligation
which gave rise to lien has been fulfilled by owner.
 Protection of Ownership
Lien of following persons can, in various circumstances, be raised as a
defence against rei vindicatio of owner :
• Bona fide possessor
• Mala fide possessor
• Bona fide ooccupier
• Mala fide occupier
• Usufructuary
• Lessee
(f) An occupier in terms of
following Acts may
raise this as a defence
until such an occupier’s
claim has been
dismissed by an
appropriate court :
 Land Reform
(Labour Tenants) Act
3 of 1996
 Extension of
Security of Tenure
Act 62 of 1997
 Prevention of Illegal
Eviction and
Unlawful Occupation
of Land Act 19 of
 Protection of Ownership
61
RELEVANT CIRCUMSTANCES include issues such as whether there are small children or elderly
people among those who would be evicted, and availability of alternative accommodation.

Obviously, landowner’s right to obtain an eviction order will be limited dramatically if

burden of proof would be amended in this way.

• Brisley v Drotsky (SCA)

o Court held that section 26(3) does not amend common-law provisions regarding
evictions but is applicable only to evictions in terms of statutory measures
mentioned above.

• Ndlovu v Ngcobo; Bekker v Jika (SCA)

o SCA decided that common-law provisions regarding evictions were not amended by
Constitution, but by Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19
of 1998 to extent that relevant circumstances must be taken into account before an
eviction order is granted.

• Port Elizabeth Municipality v Various Occupiers (CC)

o Constitutional court decided that, in case of evictions, a court must find a just and
equitable balance between protection of rights of a landowner and interests of an
unlawful occupier. All RELEVANT CIRCUMSTANCES must be considered, and an
eviction order will be granted only in JUST AND EQUITABLE circumstances.
o Court must determine whether SUITABLE ALTERNATIVE HOUSING is available for
occupier, even in case where occupied building is not safe for habitation any more.
Protection of Ownership
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(h) Estoppel

Estoppel is a DEFENCE which can be raised against rei

vindicatio of owner, if owner acted in a specific way.

Requirements :

If owner of a thing :

1. Culpably (intentionally or negligently)

2. Created impression that ownership was transferred to

controller of thing

3. And controller, relying on this impression, exercises

physical control with owner’s intent (animus domini)

4. To his detriment

5. Controller can raise estoppel as a defence against rei

vindicatio of owner
 Protection of Ownership
63
Oakland Nominees v Gelria Mining and Investment Co and Quenty's Motors (Pty) Ltd v
Standard Credit Corporation Ltd set out requirements to raise estoppel as a defence :

1. Owner must make a representation or create impression that intention is to transfer

ownership to controller or that controller is empowered to transfer ownership on
behalf of owner. Mere transfer of physical control over thing by owner does not, in
itself, indicate that such an impression has been created.

B&B Hardware Distributors (Pty) Ltd v Administrator, Cape

Building materials were delivered to a building site. Court held that such conduct
does not create impression that ownership of material is transferred to building
contractor.

2. Representation must have been made culpably (intentionally or negligently)

3. Person raising estoppel must have relied on this representation – if such person
did not rely on representation, but on other documents, defence of estoppel will not
be successful

4. Action taken because of representation must have been to controller’s detriment.

5. Representation must have been sustainable – thus consequences of raising of

estoppel must not be unlawful or against public policy.
 Protection of Ownership
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Grosvenor Motors (Potchefstroom) v Douglas

A (Grosvenor Motors) sold his car to B for R500 cash. B did not have his cheque book
with him and A sent his employee (C) with B to get cheque from B. Car was then delivered
to B. B requested A to provide him with a document stating that A had sold car to B. B
thereafter sold and delivered car to Douglas and showed him document provided by A.
B’s cheque was then dishonoured by bank against whom it was drawn, being a bank in
another town.

Grosvenor Motors instituted rei vindicatio against Douglas to recover physical control of
car.

Douglas raised estoppel against action and averred that document provided by A to B
negligently created impression that A had transferred ownership to B. Furthermore,
Douglas averred that A was no longer owner of car and that ownership had been
transferred to B before purchase price was paid, since acceptance of cheque drawn on
bank in other town indicated an intention to grant credit.

Court found that ownership was not transferred to B, since rule of payment of purchase
price was not complied with. Acceptance of a cheque drawn on a bank in another town
did not indicate an intention to grant credit and ownership was therefore not transferred
before payment of purchase price. Court also found that Douglas could not raise estoppel
against rei vindicatio of A, as document provided by A to B did not create impression that
ownership had been transferred to B, but merely confirmed that car had been sold to B.
 Protection of Ownership 65

Johaadien v Stanley Porter (Paarl)

A (Johaadien) bought a vehicle from B. B declared that he was owner of vehicle and referred A to C
(car dealer, Stanley Porter) from whom he had bought vehicle. An employee of C declared that B had
bought vehicle from C, had paid full purchase price and that ownership of vehicle had been
transferred to B. After delivery of vehicle by B to Johaadien, C found out that purchase price had not
been paid in full.
C could not recover purchase price from B and instituted rei vindicatio against Johaadien to recover
physical control of vehicle. Johaadien raised estoppel and averred that C created impression that
ownership had been transferred to B and that Johaadien had acted to his detriment on basis of
this impression.

However, Johaadien did not aver in his pleadings that C had acted negligently and court a quo, as
well as AD, found that negligence of person creating impression must be proved before defence of
estoppel can succeed.

Kia Motors (SA) (Edms) Bpk v Van Zyl en ‘n Ander

Applicant (Kia Motors) applied for an order to recover a vehicle which was sold and delivered by
Kia Motors to N, a car dealer. In terms of sale agreement with N, ownership of vehicle would not be
transferred to N until purchase price had been paid to Kia Motors. N paid purchase price with a
post- dated cheque. Subsequently, N sold vehicle to Van Zyl, who paid purchase price to N, and
vehicle was delivered to Van Zyl. Van Zyl insisted on a trade guarantee, which was supplied to Van
Zyl by Kia Motors. Thereafter, cheque by N to Kia Motors was dishonoured (i.e. not paid by bank)

Kia Motors applied for an order to recover vehicle from Van Zyl with rei vindicatio, averring
that ownership was not transferred to N because purchase price had not been paid.
 Protection of Ownership
66

Van Zyl raised defence of estoppel against rei vindicatio on following grounds

1. Kia Motors delivered vehicle to N, a car dealer, knowing that N was going to display
vehicle in his showroom, without making any attempt to inform general trading public
that ownership of vehicle had not been transferred to N – thus Kia Motors made a
negligent misrepresentation to Van Zyl that N was owner of vehicle.

2. Kia Motors knew of sale agreement between N and Van Zyl and even supplied Van
Zyl with a trade guarantee – they negligently omitted to notify Van Zyl that Kia
Motors, and not N, was owner of vehicle.

Court upheld defence of estoppel.

Estoppel can be raised as a defence only and it cannot be used as basis for an independent
action.

Impression created by owner is that owner transferred ownership (dominium) or right to

transfer ownership to person from whom aggrieved person received physical control.

In B&B Hardware case it was decided that owner’s actions must indicate clearly and
unambiguously that controller is entitled to transfer ownership of thing or to acquire
ownership, and courts should not lightly infer creation of such an impression from owner’s
actions, however negligent.

If creation of an impression can be inferred, it must be proved that creation of impression

contributed to aggrieved person’s belief that controller had dominium or entitlement to alienate
thing.
 Protection of Ownership
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Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter

If impression was not a result of representation by owner, but resulted from owner’s
conduct, following must be proved :

1. Owner must have reasonably foreseen that controller would be misled by his conduct.
2. Controller’s interpretation of control must be based on reasonable inference.

NOTE : there is difference of opinion on question whether a successful defence of

estoppel against rei vindicatio of owner means that ownership is transferred to controller
of thing. Although obiter remarks were made regarding this in Johaadien v Stanley Porter
(Paarl) case, it was not decided explicitly.

Stolen money – if stolen money has become unidentifiable because of mixing (commixtio),
owner can, in any case, not institute rei vindicatio, since thing has been lost. If it has not
been mixed, rei vindicatio cannot be instituted if it was acquired in good faith and for value. 24

Money confiscated lawfully in terms of section 20 of Criminal Procedure Act 51 of 1977

cannot be reclaimed with rei vindicatio.

Van der Merwe v Taylor

Court held that unlawful confiscation of money is no defence to rei vindicatio.
Protection of Ownership
68

Interdict

Definition = an interdict is 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, to stop or prevent an infringement of
property rights

Requirements :

1. Proof of a CLEAR RIGHT with regard to property

2. Proof that respondent INFRINGES UPON 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
applicant damage

3. Reasons why there is NO OTHER EFFECTIVE REMEDY

available to applicant
 Protection of Ownership
69

Declaratory order
Definition = A declaratory order is a court order, issued upon application, in which court
sets out rights and obligations of parties to a dispute before an26actual infringement
takes place

Requirements :
1. Proof of an ACTUAL, EXISTING OR FUTURE RIGHT or obligation to property
2. Proof of an existing and real DISPUTE about right or obligation in question
3. Convincing reasons why circumstances make it necessary for court to make a
declaratory order to solve dispute by setting out RIGHTS AND OBLIGATIONS of parties

Delictual remedies
These remedies differ from real remedies because they do not aim to restore physical
control over a thing but are aimed at a person in order to claim compensation from such a
person for damage or injury that owner experienced in respect of his property as a result of
another person’s actions.

Actio ad exhibendum

Definition = actio ad exhibendum is instituted by owner against controller of a thing who

has fraudulently lost physical control of thing, in which case value of thing can be claimed
from such a controller.
 Protection of Ownership
70

RMS Transport v Psicon Holdings

Court laid down specific requirements must be met before actio ad exhibendum can be
instituted.

Requirements :
1. Thing must have been destroyed or alienated on purpose i.e.
INTENTIONALLY – not sufficient to prove negligent behaviour
by controller
2. It could not have been consumed or destroyed or alienated in
any other way
3. Controller must have been mala fide at time of destruction or
alienation of thing in that he had knowledge of owner’s rights
at that stage – this includes a thief and any mala fide
controller of thing who became aware during or after receipt
of thing that he controlled thing mala fide
4. Remedy is available only to OWNER of destroyed or 27

alienated property and owner is entitled to recover market value

of thing from mala fide controller

Condictio furtiva
Definition = condictio furtiva is instituted by owner of a thing
against a thief or a thief’s heirs and is an action with which thing or
highest value of thing since theft can be claimed
 Protection of Ownership
If thing is still in control of thief or his heirs, it should, however, rather be claimed with rei
vindicatio, while actio ad exhibendum would be used if thing has been destroyed or
consumed on purpose – however, actio ad exhibendum cannot be used if thing was
destroyed by accident or removed from his control against his will. In this case condictio
furtiva will be best action that an aggrieved party can institute.

Requirements :
1. OWNER, LAWFUL HOLDER or any other person with a
lAWFUL INTEREST in thing can institute condictio furtiva only
if he retained his ownership or interest in thing from date
of theft until date of institution of action.
2. If thing is destroyed and owner’s ownership is terminated
thereby, previous owner retains remedy.
3. Action can be instituted only against THIEF OR HIS HEIRS and not against accessories
or later bona or mala fide acquirers and controllers of thing. For purpose of this
action, theft need not meet all requirements for criminal liability, but it should be
enough if claimant can prove that defendant removed thing from his physical control
with fraudulent purposes.
4. If thing itself can no longer be claimed, claim will be for HIGHEST VALUE of thing since
theft.
5. Action cannot be instituted together with rei vindicatio, but only in alternative
 Protection of Ownership
72

Minister van Verdediging v Van Wyk

Court held that thing cannot be reclaimed with rei vindicatio while compensation for
damage to it is claimed with condictio furtiva. In certain circumstances, it will be better to
use condictio furtiva, because highest value since removal from owner’s control can be
claimed. If thing has been alienated, consumed or destroyed by thief and can therefore no
longer be found, rei vindicatio can no longer be used and, if thief did not consume, destroy
or alienate thing on purpose, actio ad exhibendum cannot be used either. In both these
cases owner can, however, institute condictio furtiva against thief.

Actio legis Aquiliae

Definition = if a thing has been damaged or destroyed in an unlawful and culpable
(intentional or negligent) way, owner can claim DAMAGES with actio legis Aquiliae for
patrimonial loss from person who caused damage.

Requirements :
1. An action pertaining to a thing (Conduct)
2. Which in an unlawful way and (Wrongfulness)
3. Performed with a culpable disposition (intent or negligence) (Fault)
4. Resulted in (Causation)
5. Damage or injury to owner (Damages)
 Protection of Ownership
73

Enrichment action
Definition = owner of a thing can claim from controller amount with which
controller’s estate has been enriched without cause if that enrichment was result of
consumption or alienation of thing.

A bona fide controller cannot be held liable with rei vindicatio for compensation of value
of thing if thing has been consumed or alienated by him, but that a mala fide controller
can be held liable in this way. It is also not possible to claim compensation with actio
legis Aquiliae from such a controller.

If bona fide controller alienated thing for value or derived benefit from consumption
of thing, can owner institute an enrichment claim against bona fide controller for
purchase price for which thing was alienated or benefit that controller derived from use
or consumption of thing ? Enrichment claim that can possibly be used here is condictio
sine causa.

Requirements :
1. Controller must have been ENRICHED i.e. controller’s estate must have been
enlarged
2. Owner must have been IMPOVERISHED i.e. owner’s estate must have been diminished
3. Enrichment of controller must have been at expense of owner’s impoverishment
4. Shift in value must have been WITHOUT LEGAL CAUSE (sine causa), which means that
there may not have been any legal basis for shift
5. Owner must have transferred control of goods to controller, who must have alienated
or consumed them bona fide
 Protection of Ownership
74
6. Balance of purchase price for which controller sold thing and which, at time of
institution of condictio sine causa remained in controller’s possession or value of
goods as at institution of condictio can be claimed

If thing is still identifiable and can be recovered with rei vindicatio from person to whom
controller alienated it, owner cannot use condictio sine causa.

It is not possible to use condictio sine causa against a controller who acquired thing
for consideration (ex causa onerosa).
If controller acquired thing without consideration (ex causa lucrativa), condictio sine
causa can be used.

If it is money that was acquired without consideration by bona fide controller and then
used, owner will also be able to use condictio sine causa.

29
 Protection of Ownership
Remedy What can be Who can Against whom can What must be
claimed ? claim ? action be proved ?
instituted
?
Rei vindicatio  Ownership
Thing Owner Any person in  Thing exists and is
control identifiable
 Defendant in control
when action
instituted
Interdict Order to do  Owner Violator  Clear right
something / refrain  Lawful holder  Injury actually
from doing committed or
something reasonably
apprehended
 No similar protection
by any other ordinary
remedy
Declaratory Order for setting  Owner Opponent in  Existing / future right
order out rights and  Possessor / dispute or interest
duties of parties to holder  Real dispute about
dispute  right or interest
 Requirements for
right or interest
relied on
 Protection of Ownership
76

Remedy What can be Who can Against whom can What must be
claimed ? claim ? action be proved ?
instituted ?
Condictio furtiva Stolen thing or Owner or person  Thief or thief’s  Ownership /
highest value of with lawful heirs (after retention of lawful
thing since theft interest thief’s death) interest from date of
 Person who theft to date of
removed with institution of action
deceitful intent or until destruction of
thing
 Theft / removal with
deceitful intent by
defendant
 If action is not
instituted against
thief / deceitful
remover, that
defendant is an heir
of thief
 Protection of Ownership

What can be Against whom can What must be

Remedy claimed ? Who can claim ? action be proved ?
instituted ?
Actio ad Market value of Owner Former holder who  Ownership
exhidendum thing at time of mala fide  Wrongful and
alienation / alienated or intentional
destruction destroyed thing alienation /
destruction
 Mala fide
conduct (with
knowledge)
 Loss
Actio legis Damages  Owner Person who  Wrongful conduct
Aquiliae  Bona fide caused  Culpability
possessor / damage (intention /
holder negligence) of
defendant
 Proprietary
right / interest in
thing
 Patrimonial loss
 Causal
connection
between
patrimonial loss
and conduct of
defendant
33
 Termination of ownership – Chapter 11 78

30

Ownership terminates in following ways :

1. Death of owner
2. Destruction of property
3. Termination of physical control of thing with intention to be owner (animus
domini). This happens in one of following ways :
(a) Transfer of ownership by owner
(b) Passing of ownership by operation of law in that either physical control
of thing or intention to be owner (or both) is terminated

Death of owner

Death of owner of a thing terminates his ownership of thing. It is not certain

who then becomes owner. Greenberg v Estate Greenberg

Court held that, at moment when inheritance arises (dies cedit), an heir acquires
only a creditor’s right against executor of the estate to claim delivery or
transport of assets of estate. Ownership is transferred to heir, only after
delivery (in case of movables) or registration (in case of immovables).

There is no clear answer to question of who owner of estate is during period

between date of death and date of delivery or registration.
Object no longer exists
If a thing is destroyed or, in any way, becomes a thing that falls outside commerce (res
extra commercium), ownership of thing is terminated. If a thing loses its independent
character, that also usually leads to loss of ownership (exceptions to this rule are
mixing (commixtio) and fusing (confusio)).
Termination of legal relationship
Transfer of ownership
• A person's ownership of a thing is
terminated if it is transferred to another
person in terms of a real agreement by
means of delivery (in case of
movables) or registration (in case of
immovables). In these circumstances,
recipient becomes new owner as he
controls thing with intention to be
owner
Loss of physical control
• Ownership terminated if thing is no longer
owned (becomes res nullius) e.g. through
loss of control over wild animals or if
domesticated animals lose habit of returning
to their owners. It can also happen that
owner abandons physical control of thing
with intention of abandoning his ownership
(res derelicta).
• Mere loss of physical control over thing
without relinquishing intention to be owner
(res deperdita) cannot result in termination
of ownership. Intention to relinquish thing
can be explicit or implicit, but loss of
physical control does not necessarily
indicate an intention to relinquish the
thing. A thing lost without owner
relinquishing intention to be owner as well,
does not become property of the person
finding it – under these circumstances,
finders do not become keepers. Person who
acquires ownership will only become owner
by prescription or in case where owner
relinquishes intention to be owner after a
while and thing becomes res derelicta at that
stage.
Operation of law
80

With loss of ownership through operation of law, owner always loses his control over
thing, although he does not necessarily abandon intention to be owner (animus
domini).

(a) Acquisitive prescription

Acquisitive prescription is an original method of acquiring ownership whereby
ownership of thing of owner is passed to possessor who possesses thing openly
and as if he is owner with intention to be owner (animus domini) for an
uninterrupted period of 30 years.

(b) Accession (accessio)

Accession takes place when a thing which, through human activity or natural
elements, is added as accessory thing to a principal thing as a result which
owner of accessory thing loses his ownership because the thing does not exist
independently anymore, and owner of principal thing becomes owner of new
composite thing.

(c) Manufacture (specificatio)

Ownership of material or a thing is terminated by means of manufacture if it is
transformed into a new thing by someone.

(d) Insolvency of owner

Assets of a sequestrated estate pass, in terms of section 20(1)(a) of Insolvency
Act 24 of 1936, to master of high court immediately after sequestration order
and, after appointment of a curator, to curator.
 81
(e) Attachment and sale in execution
 After attachment of a debtor’s assets in terms of a court order for execution or
excussion, physical control of assets passes to sheriff; and after judicial sale,
ownership passes to buyer by means of operation of law and delivery (in case of
movables) or registration (in case of immovables), without debtor’s co-operation. If
judgment or warrant of execution is deficient, ownership does not pass to purchaser.
 In terms of section 20 of Criminal Procedure Act 51 of 1977, South African
Police Service is authorised to attach a movable if they have reason to believe that
movable was used in committing a crime. If complaint is withdrawn, movable may, in
terms of section 31(1) be returned only to person who controls it lawfully – Khan v
Minister of Law and Order 1991 (T). Onus to prove that person from whose control
vehicle was removed is not entitled to have it returned, rests with the state. A
person who, at the time of the attachment, was in lawful possession of vehicle in
terms of a lien, can claim vehicle from SAPS. Lien revives as soon as physical
control is restored.

(f) Forfeiture
Things used by or with consent of owner to commit a crime, can be declared forfeit in
favour of state by means of a court order if that is authorised by statute. Such provisions
can be found in section 35(1) of Criminal Procedure Act 51 of 1977; Films and Publications Act
65 of 1966 and Drugs and Drug Trafficking Act 140 of 1992

(g) Confiscation
Property was previously confiscated by state if this was regarded as being in public or
national interest. This was usually case during a declared state of emergency or during
common law situations of self defence or emergency.
In terms of section 25 of Constitution, property may be confiscated only in terms of
enabling legislation, which must comply with strict requirements. Compensation must
usually be paid by state, except if excluded by relevant emergency legislation.
 82

(h) Expropriation
By means of expropriation, ownership of a thing (movable and immovable),
vests in expropriator, while previous owner loses his ownership without his
consent, usually against payment of compensation.

(i) Abandonment condition

A condition of abandonment is usually included in insurance agreements.
This provides that ownership of insured goods passes to insurer if a
payment is made to insured after theft of goods and goods are thereafter
recovered. It is, however, doubtful if, in these circumstances, requirement of
delivery is met.
REFERENCES 83

Van der Walt, AJ and Pienaar, GJ, Introduction to the Law of Property, 7th edition, 2016, Juta & Co.

1. http://images.clipartpanda.com/smuggler-clipart-Fishing_Cartoon.gif
http://www.cliparthut.com/clip-arts/70/no-guns-allowed-sign-70656.jpg
2. http://polarfield.wpengine.netdna-cdn.com/wp-
content/uploads/2012/08/PickartDS6Recovery2012RachelFletcherWHOI-500x332.jpg
3. https://postmediawindsorstar.files.wordpress.com/2013/04/u_of_w_-_garbage.jpg?w=950
&h=682
4. http://fscomps.fotosearch.com/compc/CSP/CSP687/k6873625.jpg
5. http://content.mycutegraphics.com/graphics/science/plant-with-roots.png
6. http://everybodylovescocktails.com/wp-content/uploads/2015/04/wine-making-grapes-
growing-02.jpg
7. http://www.clipartbest.com/cliparts/dT7/oRr/dT7oRrkLc.gif
8. http://boscoanthony.com/wp-content/uploads/2012/04/multiple-streams-of-income.jpg
9. http://270c81.medialib.glogster.com/media/04/044b4f64f457002a5bbf75e52bc2dceeb8e
ad689e100bf36d56c23a3e1786264/images-
jpg.jpg
10. http://lakeshorenonprofits.com/wp-content/uploads/2013/11/Calendar-Clip-Art.jpg
11. http://www.selfhelpafrica.org/us/images/about_images/sha-30-years.jpg
12. http://www.canadianunderwriter.ca/MktgImages/cu-
risks/2013012910075100dlxrw45wgez4a45bcetvp55.jpg
13. http://6minutelegal.com/wp-content/uploads/2013/10/beenserved.jpg
14. http://www.artpalestine.org/wp-content/uploads/2011/03/251539099.jpg
15. http://travelwithagingparents.com/wp-content/uploads/2014/11/cash-vs-credit-
610x300.jpg
16. http://www.webweaver.nu/clipart/img/misc/food/chefs/restaurant-delivery.gif
17. http://ec.l.thumbs.canstockphoto.com/canstock12602671.jpg
18. http://cliparts.co/cliparts/5TR/XRK/5TRXRKjXc.jpg
19. http://steelburgernews.co.za/wp-content/uploads/sites/47/2014/06/Eskom-300-2.jpg
20. http://classroomclipart.com/images/gallery/Clipart/People/TN_smiling-driver-in-car-
holding-steering-wheel.jpg
21. http://sr.photos3.fotosearch.com/bthumb/CSP/CSP994/k16063905.jpg
22. http://assets.usta.com/assets/640/15/confused-person.jpg
23. http://sd.keepcalm-o-matic.co.uk/i/keep-calm-and-argue-estoppel-1.png
24. http://www.newstalkflorida.com/wp-content/uploads/2015/05/spoto-prom-ticket-money-
stolen2.jpg
25. http://sosconso.blog.lemonde.fr/files/2013/06/interdiction.jpg
26. http://3.bp.blogspot.com/-xJKnhG-HOAo/UJFTz-
fPsXI/AAAAAAAAE_Q/GACKzlkiyNo/s1600/judge+2.jpg
27. https://www.youtube.com/watch?v=-dABP2kiZUo
28. https://www.vectorstock.com/royalty-free-vector/car-thief-steal-automobile-robber-robbery-
purse-vector-20891931
29. http://palletloss.com.au/wp-content/uploads/2011/07/Unjust-Enrichment.jpg
30. http://cdn.xl.thumbs.canstockphoto.com/canstock25849628.jpg
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