Topic 5.3. Acquisition of ownership Occupatio 1. Reck v Mills Facts: Reck and Mills were interested in a large condenser from a shipwreck abandoned by its owners (res nullius). Reck and Hartman wanted to cut sections of the condenser and sell accordingly. Mill, however, wanted to remove the whole condenser by virtue of the fact that he had physical control over it. Given that he wanted to preserve the integrity of the entire condenser – he first had to prove that he had control – thus prevent Reck and Hartman from stripping it down for parts. The trial court ruled in favour of Mills. The case was an application for spoliation remedy. Question: whether Mills was entitled to spoliation remedy (mandament van spolie) or in the alternative, an interdict – to prevent Reck and Hartman from their activities. Principle: Common law = Ownership terminates via abandonment (there must be intention of no longer being the owner) Spoliation is based on a principle that who has been deprived of control must be reinstated in his original state of control before merits can be investigated. Mills must thus prove that he had free and undisturbed control and that he was unlawfully deprived of such control (physical control) To be granted an interdict (which was Mills’ alternative remedy), he must prove: a) That he had a clear right to the condenser b) That he suffered damage/ as threatened by irretrievable damage c) He had no other effective/appropriate remedy available A person who physically takes after an abandoned object – with intention of being an owner – becomes a holder and an owner via occupatio . The physical power of dealing with the subject immediately, and of excluding any foreign agency over it = basis of acquiring ownership via occupation Application: It was common cause that the condenser was res nullius (thus he had free control) and that the appellant’s activities deprived him of control. Mills can thus be said to have been eligible for spoliation remedy BUT he failed to prove accession of condenser. He failed to prove that he exercises requisite control to justify spoliation He also cannot be granted an interdict He did not prove that he and a clear right to the condenser of that he had been prejudiced by the appellants or that the latter’s actions threatened to cause him harm or that there was no other appropriate remedy
Even if the court accepted that Mills tied a buoy with a rope to the condenser, he still lacks proof that he was exercising physical control. Mills’ application for a temporary interdict was denied not because he did not take control of the condenser but that he did not show a prima facie right to the object, that he was threatened with irreparable harm, that the balance of convenience favours him and that he has no other remedy at his disposal.
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- Fall '19