QUESTION 1admin / March 1, 2019
(a) Can it be said that ownership is an “unrestricted right”
The ownership cannot out rightly be considered to be an unrestricted right. This can be curbed by law as well as the rights of other legal subjects.
The limitations imposed by law refer to statutory limitations, neighbour law principles and the limitations imposed by the limited real rights of third parties can be in the form of personal servitude which are limited real right such as the existence of the mortgage as well the personal rights in the form of creditor’s rights or other third parties such as right created by an agreement.
(b) What does the entitlement “to burden” ones property entail? Give one practical example of this entitlement. (2)
Property that belongs to someone may at their option be burdened by granting limited real rights to other people. In doing this the owner would have limited himself certain rights over the property that he owns and should enjoy privileges for being the owner. Such burdening can be in the form of pledges or mortgages with these before the owner can do on the property the pledge holder or the mortgage holder must be informed or should give permission.
(c) Briefly discuss the meaning of original acquisition of ownership and derivative acquisition of ownership. Do not mention examples in your answer.
This refers to a situation where ownership is acquired whilst there is no cooperation from a predecessor owner such that the transaction took place without transfer of ownership taking place properly.
The acquisition of this nature is not constrained to things that belong to no one (res nullius). In cases of accession, prescription and expropriation the thing is actually owned by another, but the transfer of ownership has not taken place. Acquisition occurs despite the fact that the thing has been held by another.
With regard to the derivative method of acquiring ownership occurs when there is cooperation of the predecessor at the time when the successor is in the process of securing ownership of the thing. The transferee will have derived the right from the previous owner. The predecessor would have been the owner who had the capacity transfer ownership by law. This is guided by the maxim nemo plus iuris in alium transferre potest quam ipse haberet which means that no-one can transfer rights to another person, which he does not have.
What is also important as well is that the rights that are transferred have advantages and disadvantages attached to them.
In Study Unit 6 we define the rei vindicatio as a real action with which an owner can claim his/her thing from whoever is in control of it unlawfully. In Study Unit 9 we define the spoliation remedy as a summary remedy issued upon urgent application aimed at restoring control of a thing to the applicant from whom it was taken by means of unlawful self-help, without investigating the merits of the original rights of the parties to control the thing.
In view of this, read Nino Bonino v De Lange (1906 TS 120) which concerned the spoliation remedy.
Summarise the Innes CJ’s judgment under the following headings:
Facts of the case.
It was brought in the court that the fundamental principle is that there is no man who is permitted to take the law into his own hands. There is no person who may dispossess another either forcibly or wrongfully such that this is against his consent of the possession of property whether movable or immovable. It is therefore important to note that if someone was to be involved in this practice the court will precipitately restore the status quo ante. This the court will do as a preliminary to any enquiry or investigation into the merits of the dispute. It was not necessary for any authority to be cited in this regard as the principle is clear.
Legal question (What is the legal question that the case dealt with?)
Would it be correct for the lessor to insert a clause in a lease contract that would give the lessor the right, in certain situations to cancel the lease and preclude the lessee and occupants from accessing the premises exacerbated by the fact that such action would be without the law having to be resorted to.
Would it be confirmed that violence or fraud are not essential elements of an act of spoliation provided the deprivation is effected illegally.
The legal question would be was the applicant in possession of the thing and he was that particular unlawfully disposed of it such that the court should assist in ensuring with its restoration.
Ratio decidendi Briefly discuss the court’s reasons for its decision (ratio decidendi)
By its nature mandament van spolie is a legal remedy which has the objective of protecting the interest of the members of the community in a unique manner. This is terms of preventing members of the community who may be correctly aggrieved from participating in in a despicable behaviour of coming with a self-help scheme such there may be an unacceptable breach of peace.
Against this background the lessor was aggrieved by the fact that the conduct of the lessee had annoyed him such that he would correctly want to take back his property by cancelling the lease. This however was done in the manner which was unacceptable as the lessor went over board by preventing the lessor from entering the property before proper procedures were followed. The clause that they inserted giving the lessee the power to recall the lease with having the court adjudicating or even mediating over the matter was unacceptable since the lessee then became the judge over his own matter which would been against the law.in granting the remedy it had the ratio decidendi that such operation in the process of doing business would be such that the community would by characterised by unending conflict resulting from lessor who are aggrieved and lessee who may be subject to non-procedural methods of recouping property held under lease in form of self-help that may destroy the relationship. The spoliation order therefore serves rid off of these practices and the court’s reasons for its decision is therefore appropriate in preserving the rights of leases without referring to the unlawfulness or any form controls put attached by the parties without consent of authority
Judgment (Give a brief summary of the outcome of the decision)
The law should not allow a man to take the law into his own hands.
The law should not allow that someone should to take out of the possession of another, who is unwilling to yield it up.
The correct approach in which a person who has problem over an issue and seek remedy or which to enforce his rights is to do it through the courts.
Clause 18 in the lease contract in this this case could not be arguable and was not allowed to affect the rights of the parties.as it is an agreement whereby two parties agree that one of can perform an them can act in such a manner that the law should not allow to be performed. This the court saw to be contrary to the public policy and the court could not enforce.
The concern that the court had was that circumstances relating to this clause was more likely to lead to a breach of the peace as there would be barricading of entrances against the will of another and would prompt him to resort to force in order to gain access and on the contrary the law would not have allowed an individual to be a judge in his own case. The applicant’s contention was upheld, the law applicable to the matter was impeccably distinct, this was without any scepticism a case of spoliation, and therefore the appeal was granted.
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Signed at _BLOEMFONTEIN on the 27 October 2017