Cannot be set off against claim for compensation. Owner has a claim for compensation for fruits consumed / disposed of / value of fruit that could have been gathered. Similarities: Bona fide Mala fide Right of recourse for all useful and necessary and sometimes luxury expenses Right of recourse for necessary, perhaps for useful (except where thief) – definitely not luxurious. Downloaded by Tumelo Mokilane ([email protected]) lOMoARcPSD|3857785
Right of retention Not certain if right of retention. ACCESSIO – CONTINUED Where animus domini absent – occupier / holder o Lawful – lawful occupation for certain period (lessee, pledgee, usufructuary) o Bona fide – mistaken impression he is lawful occupier o Mala fide – de facto exercises powers of lawful occupier – knows he is not. Holder at will – person who possesses thing until possession terminated. At common law – no compensation – created law giving occupier action. Lawful Occupiers o Actio negotiorum gestorum contraria – if all requirements of negotiorum gestio present o Actio negotiorum gestorum utilis - where own interests promoted while managing someone else’s affairs o Enrichment lien available (necessary / useful expenses – to extent of enrichment) o Standard v JOT Motors – lien against holder o Placaats still applicable : protection to owner if he was not able to compensate lessee for improvements and lessee could remain in occupation. o Placaats mean the following: Lesse may remove structures – not leave property in worse condition than received in. Entitled to remove anything planted / saved. Anything not removed becomes property of owner at expiry of lease. Before expiry lessor / lessee may agree on compensation. Lessee may claim compensation for that which was not removed and erected with consent of owner. Restricted to value of material used. Not cost of labour. Owner must compensate for cost of seed, ploughing, tiling, sowing. Lessor may elect to compel lessee to remove attachments after lease expires. Lessee does not have right of retention Lessee claim compensation only when lease expires. De Beers Consolidated Mines v London and SA Exploration Co Compensation restricted to useful improvements. Necessary improvements awarded in terms of general principles applicable to bona fide possessors. o Placaats not applicable if lease terminated by breach of contract / insolvency of lessor. Only if lease expires / lessee commits breach of contract. Distinction between bona fide possessor and lessee: Bona fide lessee restricted in terms of placaats and no enrichment lien. Lessee in position to arrange his affairs and remain in control until lease expires. Not the case with a bona fide possessor. Usufructuary o Must preserve substantial character o May recover unusually heavy expenses Downloaded by Tumelo Mokilane ([email protected]) lOMoARcPSD|3857785
o Impensaes voluptuarias may be removed where it can unless owner prepared to compensate – if unwilling – no right of compensation.
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- Fall '19
- Mr MT Skosana
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