Know the real remedies in detail and be able to identify them in a scenario with authority. Also, take note of estoppel as you will encounter it in your final year with Capita Selecta. Know the different delictual remedies in depth.
Protection of Ownership
REAL REMEDIES
PURPOSE of real remedies are to restore physical control of the thing or to remove any
infringement of the owners exercise of his entitlements to the thing.
A. Rei vindicatio
The action whereby an owner can recover an existing and identifiable thing from any person who is
exercising unlawful physical control over it.
This remedy is based on the principle that ownership is transferred b the derivative method only if
the owner intended transferring ownership.
The owner of the thing who was deprived of his physical control of the thing against his will or in an
unlawful way, can recover it from any controller irrespective of the fact that such person acquired
control of the thing in good faith or paid for it.
The reason is that the owners real right to the thing is so strong that the thing held by third party
without legal cause can be recovered by the owner.
It makes no difference to the institution of the action whether the owner lost control involuntarily
or if he had transferred it to another person in the terms of legal cause that later fell away.
It is not necessary for the owner to prove that the thing is controlled unlawfully by the controller,
but the owner will obviously not be successful if the person in control of the thing can prove that he
is in unlawful control there of.
Rei vindication can be instituted against any person who controls the thing without the owners
consent.
It can be instituted in respect of movable or immoveable things.
In the case of immovable things it is usually assumed in the form of an eviction order.
In exceptional circumstances be used by the owner to claim the value of the thing at the time of
institution of the action all the delivering of judgement of the controller fraudulently alienated or
destroyed the thing so that it can no longer be recovered.
Damages can be claimed only from a bona fide control in exceptional circumstances of the
fraudulent alienation or consumption of the thing by such a bona fides controller.
If the thing is lost or destroyed through negligence, the value thereof can be claimed only from the
male fide possessor and not from a bona fides possessor.
REQUIREMENTS
The owner must prove ownership of the thing.
Only an existing and identifiable thing can be reclaimed.
The property must be in the control of the defendant when the action is instituted.
, DEFENCES of defendant:
× Defendant can prove that the claimant is not the owner of the thing.
× If the thing has been destroyed or is unidentifiable that can be raised as a defence.
× The defendant was not in physical control when the rei vindication was instituted.
× The defendant with a lien over the thing remains in physical control of the thing until the
obligation which gives rise to the lien has been fulfilled by the owner.
× 166
× Stolen money
If stolen money has become unidentifiable as a result of mixing, the owner can in any case
not institute the rei vindication since the thin has been lost.
If it has not been mixed the re vindicatio cannot be instituted if it was acquired in good faith
and full value.
× Money confiscated lawfully cannot be reclaimed.
× ESTOPPEL: can be raised against rei vindication, if owner acted in specific way.
REQUIREMENTS to raise estopple as a defence to set out in Oakland Nominees v Gelria
Mining and Investment and Quenty’s Motors the Standard Credit Corporation:
The owner or he’s enpowered representative must make a representation or create
the impression that the intention is to transfer ownership to the physical controller.
The representation must have been made culpably.
The person raising estoppel must have relied on this representation.
The actions taken because of the representation must’ve been to the controllers
detriment.
The representation must have been suitable.
-168
Estopple can be raised as a defence only, and cannot be used as the basis for an
independent action.
In B & B Hardware v Administer Cape it was decided that the actions of the owner must
indicate clear and unambiguously that the controller is entitle to transfer ownership of the
thing or to acquire ownership, and the courts should not likely infer with the creation of
such an impression from the owners actions, however negligence.
If the creation of an impression can be inferred it must be proved that the creation of the
impression that contributed to the aggrieved persons belief that the controller had the
dominium or the entitlement to alienate the thing.
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