Law of Property: Lecture 6 & 7

How do we determine when the person is a possessor? (2)

(A) The person has physical control (detentio)

(B) The appropriate mental attitude/ consciousness of their physical control (animus possidendi)

Distinguish between the rights involved:

Ius possessionis: the right of possession [objective and factually determined]

Ius possidendi=the right to possession [the person has the right to demand to be in possession. It is a legal relationship between the person and the thing]

Protection of possession (4)

1. Mandament van spolie

2. Possessory action (where MVS does not apply)

3. Prohibitory interdict

4. Delictual action

Mandament van spolie: nature and purpose (5)

• A “true possessory remedy” and a summary remedy. Its nature is described as a “robust” remedy.

• It is aimed at restoring the status quo: the applicant’s possession/control over the property, usually after unlawful self-help has taken place.

• MVS is aimed at deterring unlawful self-help/breach of peace by the spoliator.

• MVS is not concerned with the lawfulness or merits of the applicant’s possession.

• The MVS also applies to incorporeal property.

Mandament van spolie: Spoliation remedy (2 requirements)

1. Possessor must prove they were in “peaceful and undisturbed control” of the property

• The possessor must prove on a balance of probabilities that they were in peaceful and undisturbed possession

• Factual context: the possessor must have had a relatively stable and enduring manner of control to qualify the unlawful disturbance as a a breach of their peaceful undisturbed control.

2. Possessor must prove dispossession of physical control by unlawful self-help/spoliation.

• The possessor must prove they were unlawfully deprived of possession= respondent committed spoliation.

Mandament van spolie: Spoliation remedy

• MVS restores applicant to the position they were before the spoliation

• No damages claim with a MVS