~ UNIT 3: POSSESSION ~

THE ELEMENTS

Corpus: Physical Control

 Effective control
 Factual determination:
- Is this person trying to have the strongest legal relationship with the object?
- Is it possible for this person to resume control without assistance?
 Matter of degree
- Nature and Size of the Thing: The nature and size of the thing determine the
degree of physical control necessary. Portable movables require extensive physical
control, while larger objects may require control to exclude [Link],
movable thing and unmanageable, movable thing
 Cases that concern shipwrecks are particularly interesting with regard to how ‘effective’
control is exercised. In Underwater Construction & Salvage Co (Pty) Ltd v Bell, employees of
the plaintiff blasted four propeller blades from a shipwreck located on the ocean floor. They
salvaged two of these blades and left the other two on the ocean floor with the intention of
recovering them later. They marked the spot with a floating rope that was tied to a shaft.
Before the plaintiff could recover the blades, however, the defendant salvaged them. The court
held that the acts of the plaintiff, performed by its employees, regarding the disputed blades
were sufficient to constitute effective control; removing some of the blades from the wreck
and marking the spot indicated to others that control over the remaining blades had already
been obtained.
 Reck v Mills en ’n Ander concerned a slightly different scenario. One of the legal questions the
former Appellate Division of the Supreme Court (now the Supreme Court of Appeal) had to
decide in this matter was whether Mills established control over part of a shipwreck, namely a
large and heavy condenser. Mills wanted to salvage the condenser by removing it from the
wreck, which process he initiated. But the operation had to be postponed due to bad weather.
Mills attached a rope with a buoy, which floated on the sea surface, to indicate his ‘control’
over the condenser. Before Mills could return to finish salvaging the condenser, though, Reck
salvaged it by severing it from the wreck. The court ruled that merely tying a rope with a buoy
to the condenser did not constitute effective control by Mills. It held that Mills would have
obtained control over only parts of the wreck he physically removed from it. As he did not
remove any components from the wreck, he never established control over the condenser.
- Immovable thing
  Urban context of houses or buildings (Once you have occupied a home,
locking it with the only key will be sufficient to satisfy the physical element of
controlling it, along with all its contents)
 Rural context of farms (Physically using a farm, by cultivating it, fencing it
or living there, for example, will amount to sufficient custody. The prime
consideration here is that effective and exclusive control is necessary to satisfy
the corpus element. ‘Effective’ in this context means that the controller must
be able, if he/she is not in direct physical control of the property, to regain
control without the assistance of anyone else. As to exclusivity, the controller
must be able to exclude other persons from the farm.)
 Purpose (sheep, gas heater, cargo ship and building site)
- Control need not be continuous but must be effective and exclusive. It can be
exercised intermittently as long as the controller can resume control without
assistance.
- Control Through Agents: Control can be exercised through agents, with the
intention to hold for another (animus non sibi sed alteri habendi).

 ≠ comprehensive e.g. holiday home (haven’t used it in a long time).

 ≠ continuous e.g. you don’t always need to be touching it.
 ≠ exercised personally e.g. agent, security guard…
- (animus non sibi sed alteri habendi)
 Pertains to acquisition or retention?
- Clear and unequivocal physical acts are required to acquire control unilaterally. It
is more difficult to acquire control through appropriation (occupatio) than through
transfer.
- Once control is obtained, a lesser degree of control is required to retain it.
 There is a rebuttable presumption that the controller of a movable thing is the owner.
However, a similar presumption does not exist for land due to land registration systems
replacing physical control.
Animus: Mental Attitude

 The intention element, also known as animus, refers to the subjective mindset with
which a person holds a thing.
 Subjectivity of Intention:
 The intention with which a thing is held is purely subjective and may not necessarily
align with the legal position.
 For example, thieves may control stolen goods with the intention of an owner, despite
having no legal right to them.
 Objective Requirements:
 Two objective requirements exist for the animus element:
a. The person must have the mental capacity to realize they are in control of
a thing.
 b. The person must be conscious or aware that they are in control of the
thing.
 Exceptions exist where certain actions or circumstances demonstrate control, such as:
a. Hunters setting traps.
b. Owners or renters of post-boxes.
 Statutes may also dictate control in specific cases, such as with prohibited items like
drugs, child pornography (accidentally downloading it), and uncut diamonds ().
 Mental Attitudes (Animi):
 Various mental attitudes exist, including:
a. Intention of an owner (animus domini).
b. Intention to possess or control (animus possidendi).
c. Intention to hold for oneself (animus rem sibi habendi).
d. Intention to secure some benefit for oneself through holding the thing (animus ex
re commodum acquirendi).
Debates and Clarifications:
 Scholars debate the precise meanings and differences between these mental attitudes, especially
concerning the spoliation remedy.
 Two primary mental attitudes, animus domini and animus sibi habendi, are identified under a control-
based approach.
 Intention of an Owner:
 This intention may be present when a lawful possessor holds property or when an
unlawful possessor controls something.
 Legal consequences typically stem from ownership itself rather than the owner's
subjective intention.
 Unlawful Possessors:
 Unlawful possessors act as if they own the property but lack the entitlement to dispose
of it.
 They may control a thing in good or bad faith.
 Acquisition of ownership by prescription
 Section 1 of the Prescription Act illustrates the requirement of holding a thing
openly as if one were the owner for a specified period. “…a person shall by
prescription become the owner of a thing which he has possessed openly and as if he
were the owner hereof for an uninterrupted period of thirty years or for a period
which, together with any periods for which such thing was so possessed by his
predecessors in title, constitutes an uninterrupted period of thirty years.”
 Holding for One's Own Benefit:
 Controllers holding a thing for their own benefit acknowledge the owner's
rights but derive some advantage from controlling the thing.
 It's essential to distinguish between holding for one's benefit and holding for
someone else's benefit.
Note…weight of acts over professed intentions: - The law gives more weight to a person's actions than their
professed state of mind due to the publicity function of physical control.
 PROTECTION

THE MANDAMENT VAN SPOLIE

The mandament van spolie is a speedy and robust remedy that is usually issued on an
urgent basis. It requires the spoliator to restore the applicant (the spoliatus) to the position
he/she was in prior to dispossession (status quo ante) before the merits of the dispute may be
heard.
It is based on the maxim that control must first be restored to the dispossessed party before all
else (spoliatus ante omnia restituendus est). A court may adjudicate on the merits in
subsequent legal proceedings only after control has been returned to the spoliatus. The
merits, including the wrongfulness and illegality of control, are not considered in spoliation
proceedings at all.
It is therefore possible that injustice might occur if the respondent (spoliator) is ordered to
restore control to the applicant before all else. When spoliation proceedings have been
instituted, the respondent may not bring a counter-application based on his/her rights in the
thing concerned, as such considerations touch on the merits.
∴ NATURE

 = restore possession ante omnia "before anything else"

 = protect stable property relations from infringements
 = discourages self-help
 One can use this remedy only to regain control; it cannot be used to claim damages
 The remedy offers temporary relief only and is therefore provisional in nature.
- Yet, it is still a final order.
- Parties are free to litigate on the merits after it has been awarded; if they do not,
the status quo ante – as ordered by the court under the spoliation proceedings –
will remain in place
 Parties cannot contractually agree to exclude the spoliation remedy by allowing one party
to commit spoliation (against public policy ∴ void)
Requirements:
unlawful dispossession

 some form of
dispossession
(whole or part)
 interference
affects ability of
the applicant to
use the property.
 dispossession is
done “forcibly
and wrongfully”.
 ≠ to prevent or in anticipation of dispossession.
Defences
 A defence is an answer that the respondent may raise against a spoliation claim.
 Must prove it on a balance of probabilities.
 Should he/she succeed in this, the court will dismiss the applicant’s claim.
 Things to use for defences:
As has been pointed out, the merits may not be raised in spoliation cases. Spoliation proceedings may
therefore not be combined, or heard together (even in the alternative), with an application based on the
merits, like the rei vindicatio or an interdict. The merits include who has a stronger right to the thing, the
fact that the respondent may have a valid counterclaim and the allegation that the spoliator is married to the
spoliatus. Other inadmissible defences, which are based on a misinterpretation of the spoliation remedy’s
requirements, include that the spoliator did not take control of the thing, that the spoliator did not use
violence or fraud to take control, that the respondent acted in good faith, that the applicant derived no
benefit from his/her control and that restoration of control would seriously inconvenience the respondent.
 Facta probanda (requirements)
- control was not stable and enduring.
- consent, authorised ito legislation or executed ito court order.
 Unreasonable delay in bringing the application (depend on the circumstances of each
case)
- A guideline was laid down in Jivan v National Housing Commission on
determining the reasonableness of delays in bringing spoliation claims:
 Even though proceedings are instituted less than a year after spoliation took
place the delay may still be unreasonably long, which would be for the
respondent to show.
 A delay of more than a year may yet be reasonable, but the applicant would
have to prove reasonableness.
 Whether there was unreasonable delay is a question of fact and will depend on
the circumstances of each case
- De Villiers v Holloway
The delay in the application stemmed from the significant changes in living arrangements
following the death of Veni, one of the parties involved. The applicant and their son moved in with
the applicant's parents, while Veni's minor daughter and the second respondent (the respondent in
the case) were cared for by the first respondent and her husband. This change in circumstances
likely contributed to the delay in seeking legal recourse, along with the existence of a hostile
relationship between the parties, including the making of death threats. Additionally, the applicant
may have needed time to assess the situation, seek legal advice, and become aware of their rights
and legal options before deciding to pursue the mandament van spolie remedy.
The court's opinion was that the application for the mandament van spolie remedy was not brought
within a reasonable time. The court observed that significant changes had occurred in the living
arrangements of the parties since the alleged spoliation, including the death of one of the parties,
which resulted in the breakdown of the familial living arrangements. The court determined that
even if the order had been granted at the time of the application, it would not have effectively
restored the situation to the status quo ante. Therefore, the court concluded that granting the relief
sought in the application would not practically advance the underlying rationale that justifies the
existence of the mandament van spolie remedy.
As a result, the court dismissed the application for the mandament van spolie remedy. Additionally,
the court did not make a costs order in favour of the respondents, considering that their success in
resisting the relief sought was of a procedural nature, and they may have contravened
constitutional provisions regarding eviction without a court order.
 The exceptio spolii is a legal defence closely tied to the counter-spoliation argument, used
when an applicant unlawfully removes property from a respondent. Despite its name, it's
not an exception but a special plea in modern legal terms. Unlike the mandament van
spolie, which allows reclaiming control, the exceptio spolii enables the spoliatus (the one
being unlawfully dispossessed) to counterclaim against any legal action initiated by the
spoliator (the one who unlawfully dispossessed). For instance, if the spoliator sues the
spoliatus for payment or tries to reclaim another item in the spoliatus' possession, the
spoliatus can raise the exceptio spolii as a defence until control of the property is
returned. This defence effectively delays legal proceedings until the property is restored
to the respondent, granting them a right to withhold similar to a lien. The exceptio spolii
aligns with constitutional rights, such as protection against arbitrary deprivation of
property, freedom from violence, and human dignity. It can be enforced outside of court
proceedings, making it a practical tool in legal practice.
 Impossibility of restoration? - CASE LAW
Irreparable damage and harm
 Health and safety reasons
Illegal or unlawful possession
Fredericks and Another v Stellenbosch Divisional Council 1977 (3) SA 113 (C) (where
restoration of destroyed materials was allowed under the mandament van spolie) 
This case involves an application for a spoliation order brought by the Applicant against the Respondents. The
Applicant, Tshwaro Maruping, alleges that the Respondents, including S.M. Apolus and Tsholofelo Mogorosi,
unlawfully removed certain goods from her residence. The goods belonged to the late wife of the Second
Respondent, who is the sister-in-law of the Applicant.

The facts presented in court show that the Third Respondent, represented by the First Respondent, sent a letter
to the Applicant's aunt, informing her that certain goods would be removed from the house on a specified date.
On that date, accompanied by police officers, the Respondents arrived and proceeded to remove the goods
despite objections from the Applicant.

The court determined that the Applicant was in peaceful and undisturbed possession of the goods and had the
necessary locus standi to bring the application. The court also noted that the goods were sold to third parties
immediately after being removed, but held that this does not absolve the Respondents of their unlawful actions.

The court further addressed the citation of the First and Second Respondents, finding that they were properly
cited in their personal capacities. Additionally, the conduct of the First Respondent, who is an advocate, was
questioned, and the court suggested that it be reported to the Society of Advocates for investigation.

In conclusion, the court confirmed the rule nisi issued earlier, ordering the Respondents to return the goods and
pay the costs of the application. The court also directed that the conduct of the First Respondent as an advocate
be investigated by the local Society of Advocates.
Rikhotso v Northcliff Ceramics (Pty) Ltd and Others 1997 (1) SA 526 (W) (where such
restoration was denied under the mandament van spolie) 
This case involves an application for a mandament van spolie brought by the applicant, Robert Byron Burger,
against the respondents in relation to a right of way. The applicant's farm is adjacent to the first respondent's
farm, and historically, the applicant used a road passing through the first respondent's farm to access his
property. The first respondent, represented by the second and third respondents, obstructed the applicant's use of
this road by erecting a gate and ploughing parts of the road, thereby denying him access.

The applicant argues that he was unlawfully dispossessed of the road, which he had a right to use under a
registered servitude. The respondents acknowledge the obstruction but argue that the road was not located where
it should be according to the servitude.

The court finds that the applicant has been unlawfully dispossessed of the road, which constitutes spoliation.
The respondents' contention that the road was not properly positioned does not justify their actions. The purpose
of the mandament van spolie is to discourage self-help remedies, and the respondents' actions were not justified.

Regarding the restoration of the road, the court notes that while part of it has been ploughed over, restoration is
not impossible. The respondents are obligated to restore the road to its former condition, which may require
scraping over the ploughed part.

Concerning delays in the legal proceedings, the court finds that the applicant acted promptly upon being
unlawfully dispossessed and engaged in settlement negotiations, which ultimately prolonged the process. The
court determines that the delay in finalizing the matter does not disentitle the applicant to relief.

In conclusion, the court grants relief to the applicant in terms of his application for a mandament van spolie.

Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan

Municipality and Others 2007 (6) A 511 (SCA) (Constitutional aspects of spoliation) 
The respondent municipality sought the eviction of unlawful occupiers from municipal land with the assistance
of various departments, including the South African Police Service (SAPS). However, the eviction did not
comply with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). During
the eviction process, the materials used in the occupiers' informal homes were intentionally burned in an attempt
to dissuade them from returning to the land.

The central issue before the court was whether the mandament van spolie remedy could be invoked to compel
the municipality to (i) provide replacement materials similar to those destroyed (e.g., sheets of corrugated iron),
and (ii) rebuild the homes of the occupiers.

The Supreme Court of Appeal examined previous judgments concerning the restoration of destroyed material
under the spoliation remedy. It emphasized that the purpose of the spoliation remedy is to restore control of
existing property and is not intended to serve as a general remedy against unlawfulness.

The court ruled that developing the mandament van spolie remedy to fulfil the occupiers' requests would impose
a constitutional function on it that it was not intended to perform. Therefore, the court decided to craft a new
constitutional remedy, modelled on the mandament van spolie, but not limited by the defence of impossibility of
restoration. This new remedy, founded on section 38 of the Constitution, aimed to uphold the occupiers' rights
to human dignity and protection from arbitrary eviction.

Under this new remedy, the court ordered the municipality to supply the occupiers with generic materials similar
to those destroyed and to rebuild their homes. Additionally, the materials had to be easily disassembled,
considering the occupiers' unlawful status and the potential for future eviction.
City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents Association
(Constitutional aspects of spoliation) 
The Supreme Court of Appeal issued an order under the mandament van spolie remedy. The order required the
appellant (the municipality) to re-erect roofs of hostels that were removed without the occupiers' consent.
However, due to legislation prohibiting the use of the original materials (which contained asbestos), the court
mandated the municipality to use alternative materials for re-erection.

This development parallels the desired outcome sought by the litigants in the Tswelopele case. However, the
Supreme Court of Appeal in the Tswelopele case refused to undertake such action.

The judgment suggests that in the future, courts should adopt a more principled approach when deciding
between using or developing common-law remedies versus crafting new constitutional remedies. This approach
is particularly relevant when legislation exists to uphold a constitutional right but does not adequately protect it.
By ensuring coherence in the legal system and preventing the creation of parallel legal sources, this approach
aims to uphold the rule of law and facilitate the effective protection of fundamental rights.

Schubart Park Residents’ Association and Others v City of Tshwane Metropolitan

Municipality and Another 2013 (1) SA 323 (CC) 
The court was tasked with determining whether the spoliation remedy could be utilized to return control of an
unsafe and dilapidated building to occupiers who had been unlawfully evicted from it.

The court concluded that returning control to the occupiers through the mandament van spolie should be denied
due to the hazardous condition of the building, which was unsuitable for human habitation and prohibited by
legislation. Granting the spoliation remedy would not align with the constitutional standards outlined in section
26(3) of the Constitution.

Instead, the court granted the occupiers a remedy in accordance with section 38 of the Constitution. This
allowed them to return to the building after it had been renovated. However, the implementation of this remedy
was postponed until the renovation was completed. Meanwhile, the municipality was ordered to provide
temporary housing for the occupiers.

This case illustrates a shift away from using traditional common-law remedies like the mandament van spolie
when the circumstances don't warrant it, and instead, resorting to constitutional remedies that better address the
situation and adhere to legal standards.

Svetlov Ivanov v North West Gambling Board and Others [2012] 4 All SA 1 (SCA); 2012
(6) SA 67 (SCA) (where the Supreme Court of Appeal held that control of certain gambling
machines had to be returned to the appellant – in terms of the spoliation remedy – despite the
fact that controlling them without the necessary gambling licence (which licence the
appellant did not have) is unlawful) 
The appellant, Svetlov Ivanov, was found in possession of gambling machines without the necessary license
during an inspection by the North West Gambling Board. Subsequently, the South African Police Service
(SAPS) obtained a search warrant and confiscated the machines. Ivanov sought legal recourse, initially applying
for the cancellation of the search warrant and return of his premises, which was partially granted by the
Magistrates Court.

Later, Ivanov pursued the nullification of the search warrant and the return of his property through an
application to the High Court. Although the High Court declared the search warrant invalid, it condoned the
actions of the SAPS due to the timing of the search and seizure before the declaration of invalidity.

Ivanov then sought a spoliation order from the Supreme Court of Appeal (SCA) for the return of his property,
despite lacking a gambling license. The SCA ruled that the legality of Ivanov's possession was irrelevant in the
context of a spoliation order. Instead, the court emphasized that the applicant only needs to prove possession of
the property and wrongful deprivation thereof.

Consequently, the SCA upheld Ivanov's appeal and ordered the respondents to return the confiscated equipment.
Notably, costs were awarded against the North West Gambling Board, Inspector Freddy, Inspector Pitso, and the
station commander of Rustenburg Police Station, but not against the Minister of Safety and Security.

The case underscores the principle that the law prioritizes protection against self-help (spoliation) over
questions of the legality of possession. As long as the applicant can demonstrate possession and wrongful
deprivation, they are entitled to relief under spoliation law, irrespective of the legality of their possession.

Ngqukumba v Minister of Safety and Security and Others 2014 (5) SA 112 (CC) 
In this case, Mr. Ngqukumba was in possession of a motor vehicle, which members of the South African Police
Service (SAPS) suspected to be stolen. Without a warrant or consent, SAPS conducted a search and seized the
vehicle. Upon inspection, it was found that the engine and chassis numbers had been tampered with,
contravening the National Road Traffic Act 93 of 1996.

Ngqukumba sought legal redress, approaching the High Court to declare the search and seizure unlawful and to
restore the vehicle through the mandament van spolie (spoliation remedy). The High Court ruled the search and
seizure unlawful but held that returning the vehicle was prohibited by the Act.

Ngqukumba's appeal to the Supreme Court of Appeal (SCA) was unsuccessful, leading him to approach the
Constitutional Court. In a unanimous judgment, the Constitutional Court emphasized the purpose of the
spoliation remedy, which is to restore possession to an unlawfully deprived possessor, in line with the rule of
law—a founding value of the Constitution.

The Court reasoned that while the Act criminalizes possession of a tampered vehicle without lawful cause, an
inquiry into the lawfulness of possession would undermine the spoliation remedy's purpose. The Court (CC)
held that even though possession of a tampered vehicle may be prohibited, returning it to the deprived possessor
wouldn't necessarily be unlawful.

The Court underscored that SAPS, in combating and preventing crime, must also adhere to the law.
Consequently, the Constitutional Court ordered the return of the vehicle to Ngqukumba

Eskom Holdings SOC Limited v Masinda [2019] ZASCA 

Synopsis:

Eskom Holdings SOC Limited (Eskom) appealed to the Supreme Court of Appeal (SCA) against a decision
granting Ms. Masinda (Masinda) a spoliation order for the reconnection of electricity to her property. Masinda
had sought this order after Eskom disconnected her electricity supply.

Eskom argued that Masinda's property, along with others, had been illegally connected to its power grid, posing
a safety risk. Masinda claimed she believed her electrical connection was installed by an agent of Eskom.

The SCA clarified that a spoliation order is based on possession, not necessarily on an existing legal right. It's an
interim remedy pending a final determination of rights. However, the court noted that the spoliation remedy
doesn't protect contractual or personal rights; it's for the protection of possession of immovable property.

The SCA found that Masinda's right to electricity stemmed from a contractual arrangement rather than
possession of her property. Therefore, a spoliation order wasn't appropriate. Moreover, the court deemed the
original order problematic because it required the reconnection of electricity without addressing the safety
concerns of the illegal connection.
Held:

The SCA upheld Eskom's appeal, setting aside the original order. The court clarified that for a spoliation order to
be granted regarding an incorporeal right like electricity supply, it must be shown that the supply is an incident
of possession of the property and not merely derived from a contractual agreement.

Value:

This case underscores that spoliation orders are intended to protect possession, not contractual rights. It clarifies
that when seeking a spoliation order for an incorporeal right like electricity supply, it must be shown that the
supply is directly linked to the possession of the property.

 Counter-spoliation
- The defence of counter-spoliation, also known as contra-spolie, asserts that the
respondent's action constitutes lawful dispossession rather than unlawful
interference with property control (permits reasonable measure of extra-judicial
violence).
- Legal subjects are allowed to protect their property control against unlawful
interference through limited self-help measures.
- Contra-spolie is a valid defence against spoliation only if the respondent acts
immediately to regain control after the original act of spoliation occurs. Failure to
act immediately results in a new act of spoliation and may lead to a mandament
van spolie.
- Counter-spoliation must be proportional to the original act of spoliation in
intensity and scope. (permits reasonable measure of extra-judicial violence)
- Requirements
 spoliatus must be in peaceful and undisturbed possession
 spoliatus must act instanter (forthwith or immediately)
- Whether a respondent acted immediately (instanter) depends on the specific
circumstances of each case and is not always easy to determine.
- Case law follows two interpretations of acting instanter:
A. a narrow interpretation requiring a very short period between the original
spoliation and counter-spoliation.
B. broader interpretation allowing a longer period, up to 11 days.
 Counter-spoliation: land incursion
- In cases of unlawful land occupation, determining instanter action is crucial due to
the lengthy and costly eviction process under the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act (PIE Act).
- The judgment in Residents of Setjwetla Informal Settlement v Johannesburg City
highlights issues with applying counter-spoliation in unlawful land occupation
cases.
- HOWEVER…There are concerns about permitting landowners to employ
counter-spoliation measures in attempted land occupations due to potential
violence and violation of fundamental rights.
 It might be preferable for the PIE Act to regulate instances of attempted land
occupation explicitly, excluding the possibility of relying on counter-
spoliation.
  Proposed amendments to the PIE Act could establish a special procedure for
urgent eviction orders in cases where occupiers have not yet stabilized their
control over the land, ensuring compliance with constitutional rights for both
landowners and occupiers.

- Requirements
 peaceful and undisturbed possession
 corpus
1. nature, size and function of the land
2. original mode of acquisition
3. concerns acquisition of possession
4. stringent approach (Mbangi, Denel and Fischer SCA)
Mbangi v Dobsonville City Council 1991 (2) SA 330 (W) 337.
5. lenient approach (Fisher a quo, Setjwetla and SAHRC)
 animus (intention to benefit from control / animus rem sibi habendi)
 instanter
 act immediately upon attempted spoliation
 wide (Ness) or narrow (Mans) approach to amount of time?