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Lecture Outline 05: Spoliation and Possession Cheat Sheet by

Law of Property - UCT

Introd­uction: Nino Bonino v de Lange

Lease agreement (contract) between Antonnino Bonino and Klaas de Lange:
- Lange is the owner of the premises
- Bonino can lease the billboard room within lease conditions - but he broke conditions so De Lange barred the door.
Bonino took De Lange to court Mandemant van Spolie
Court ruled this was spoliation as "a man cannot take the law into his own hands and dispossess another" His remedy is to enforce his rights through the courts
- MVS used restores the status quo to before De Lange took law into his own hands

What is Posses­sion?

- Physical Posses­sion: Is there sufficient and effective physical control?
- The mental attitude of posses­sion. Four elements: Possessor:
- This means that the strongest corporeal relati­onship exists.
1. Must have capacity to form legal intention
- Does not need to be contin­uous: You control a car if you have the keys.
2. Must be aware of the fact that they are exercising physical control (vd Walt).
- Does not need to be excersised person­ally: you control your car if chauffer takes it as agent
3. Intention must be directed towards exercising control over the thing for themselves.
4. Specific intention regarding control must be establ­ished. (Meyer)
- Animus Domini: intention to own needed for acquis­ition of ownership
- Animus Ex Re commodom acquirendi: intention of securing benefit for yourself not as agent.
Largely depends on whether you want to gain or keep control. If you are trying to gain it, you intuit­ively do not have it

Manament van Spolie

MVS is available when one has been unlawfully dispos­sessed of property and protec­ts/­res­tores possession
Speedy remedy in which the court does not consider who has a stronger claim to the thing/owns it.
The purpose of the remedy is to prevent self help and maintain peace and order. It is a temporary return to status quo while court decides on matter.
Facta Pro Banda:
1. Peaceful and Undist­urbed Possession of Property
2. The respondent dispos­sessed the applicant by means of unlawful self-help (spoli­ation)

Valid Defences to MVS

1. Disprove Facto Probanda
Not in Possession
- Did not have effective control (Mbangi & Van Rhyn)
- Did not have correct animus (Meyer)
Dispos­session was not Unlawful self help (Sillo)
2. Unreas­onable delay in bringing the applic­ation
If you wait long to bring case, court assumes you agree to being dispos­ses­sion. MVS is supposed to be a quick remedy.
"Too long" depends on factual circum­stances of each case.
3. Counte­r-S­pol­iation
Limited and reasonable amount of help allowed in defence of property should it occur in OG dispos­session and not a new incidence. e.g. Thief snatches bag and you grab it back quickly. (Mans & Ness)
4. Restor­ation Impossible
Point of MVS is to return to status ho before spolia­tion. Not possible if they don't have the thing or if it is destroyed (Tswelopele).

Ius Posses­sionis and Ius Possidendi

Ius Posses­sionis
Ius Possidendi
Grants possessor right to protection against disopo­sse­ssion
The entitl­ement to demand control over a thing
- Protected by law even if you have no rights to the thing.
- For other remedies (ie possessory action) you need to prove a right

Invalid defences to MVS

Anything about the merits of the claim
Anything about having a stronger right to the thing

Requir­ements for MVS

Peaceful and Undist­urbed Possession
Did the applicant have effective physical control?
Van Rhyn NO v Fleurbaix Farms: Daily jog on someone else farm disturbed when gate was erected. Jog not "­eff­ective physical contro­l" of road, thus gate was not spolia­tion.
Did the applicant satisfy mental element?
Mbangi v Dobson­ville City Council: Town constantly demolished erected houses. Civic succes­sfully used MVS. Also indicates that those in the process of dispos­sessing someone of a thing & cases in which possession is not yet an accomp­lished fact. MVS cannot be used.
Unlawfully Deprived
Sillo v Naude: Former tenants cattle sent to pound in terms of Pound Ordinance. Not spoliation because he invoked aid of law.
George Munici­pality v Vena: Should action exceed bounds of legal authority = spolia­tion. PISA did not necess­arily allow removal wo court. Held that onus is on dispos­sessor to show actions w/o courts were covered by thesta­tute.
Impala Water Users: WUA suspended water as charge wasn't paid as allowed by National Water Act. Argued water was like Sillo. SCA held that WUA had onus of showing that dispos­session fell within statute. What was unclear: Whether the water was unpaid as it was undecided what would be a reasonable price for the water. Thus this is spolia­tion.


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