The purpose of the possessory action is to claim the thing or its value from anyone with a weaker right to control the thing.
PROTECTION OF POSSESSION 2. POSSESSORY ACTION Plaintiff must prove that she is entitled to be in possession ( ius possidendi ) . Plaintiff must also prove that that the defendant is in control of the thing or that she was responsible for its removal from the plaintiff’s control. The Plaintiff may recover the thing, its value or both (where thing is damaged) or compensation.
3. Interdict (prohibitory or mandatory) • Protects applicant’s right to a thing or control over a thing from prejudice ensuing from the continued or imminent disturbance of his right. • Summary order prohibiting or ordering a specific act to prevent the prejudice from continuing or occurring. • Mandament can not be used where there is disturbance of possession but an interdict can. • It can stop an encroachment or occurring interference.
3. Interdict (prohibitory or mandatory) • It is available to owners or possessors with the ius possidendi when their rights are being infringed upon or threatened by infringement. • The effect of an interdict is to stop the respondent from interfering conduct or refrain from doing it. • It may be temporary or final.
3. Interdict (prohibitory or mandatory) When Disturbance or imminent disturbance of property rights. Available to Ius possidendi those who can prove a right to the property (e.g. owner or servitude-holder). Purpose Stop ongoing/current disturbance or to prevent threatened disturbance. Not for damages but court has discretion to award damages instead of final interdict if this would give sufficient protection. How Temporary interdict plus return date. Final interdict rights of parties set out plus order (prohibitory or mandatory). Requirements Ius possidendi - clear right in the property. Ongoing or impending unlawful infringement with accompanying irreparable damage. No other effective remedy. Setlogelo v Setlogelo 1914 AD 221.
4. Delictual action • A plaintiff who wishes to protect a possessory relationship also has a delictual action at his disposal. • When the thing is not available for recovery by the dispossessed person, a claim for compensation for patrimonial loss may be appropriate. • The claim would be for the value of the thing and any damage suffered as a result of the dispossession and loss of the thing. • The claim is instituted by action proceedings under the lex aquilia.
COMPENSATION FOR IMPROVEMENTS • Possessors who have improved another person’s property have rules that are in place to compensate them for the improvements. • A distinction should be drawn between bona and mala fide possessors as well as lawful occupiers. • The nature of the improvement should also be taken into account to assess the merits of a claim for compensation.
COMPENSATION FOR IMPROVEMENTS 3 types of compensation and corresponding improvements are distinguished – 1. Necessary expenses – these are incurred for the preservation or protection of property.
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- Winter '16
- Thing, Possession, physical control