L3301 Notes 24-09-2024

L3301 notes – 24 September 2024
PROTECTION OF POSSESSION
There are legal remedies that are available to protect possession. The remedies
are available to possessors, whether:
- they hold Possessio civilis (civil possession which requires animus domini) or
Possessio naturalis (natural possession which requires animus sibi habendi);
- they are unlawful bona fide possessors or unlawful mala fide possessors, and;
- they have possession in movable or immovable property.
The main purposes of remedies for protection of possession are:

1. To protect property rights against infringement. Remedies aimed at this
goal require proof of a property right. They are only available to lawful
possessors.
2. To protect the community against chaos and anarchy resulting from

people taking the law into their own hands.
These remedies do not protect property rights as such, but rather prevent
and discourage people from using self-help and force. If everybody took
the law into their own hands, law and order would degenerate into chaos
and war.
These remedies do not require proof of a property right, hence even

unlawful property relations are protected against self-help for sake of
peace and order.
We will now look at the available remedies.
1
REMEDIES FOR PROTECTION OF POSSESSION
The first remedy is an Interdict.

1. Interdicts
Where possession is not actually lost, but a person is disturbed in his
possession, or there is a threat that he will be disturbed, he may apply for an
interdict to prohibit the actual or threatened disturbance.
Definition of an interdict
An interdict is defined as a summary court order issued upon urgent application
(that is, it is given at a short notice and urgently) by which the court orders a
person to either:
a. do something,
b. to stop doing something or
c. refrain from doing something
in order to prevent or stop an infringement of property rights.
a. above is called a mandatory interdict because the court mandates one to act
in a certain way.
In b. above, the court orders one to stop a continued disturbance of possession
while in c. above the court orders one to refrain from committing a threatened
wrong. b. and c. are called prohibitive interdicts as the court prohibits one
from acting in a certain way.
Prohibitive interdicts are applicable for the protection of possession.

Example of b. above:
Thabo accuses Limpho of putting up a house on his (Thabo) father’s land. He
drives a bull dozer into the land and starts to demolish Limpho’s house. Limpho
can apply for a remedy of an interdict from court that orders Thabo to stop the
demolition of the house as by doing so, Thabo is disturbing Limpho in his
possession of the land and house.
2
Example of c. above.
Thabo accuses Limpho of putting up a house on his (Thabo) father’s land. He
threatens that he is going to collect a bull dozer from his friend and demolish
Limpho’s house before sunset today! Limpho can apply for a remedy of an
interdict from court that orders Thabo to refrain from committing the imminent
threatened act of demolition, as he is threatening to disturb Limpho in his
possession of the land and house.
The purpose of an interdict

The purpose of an interdict application is to stop an ongoing infringement or an
imminent infringement on one’s possession. Therefore, it cannot be available or
of any use where the infringement or deprivation of possession is complete.
For example, where Limpho arrives home and finds that Thabo has demolished
his house with a bulldozer and has left the premises, Limpho cannot apply for
an interdict against Thabo because infringement of his possession is complete.
Requirements for an interdict

Requirements of an interdict were laid down in the case of Setlogelo v Setlogelo
1914 AD 221.
The applicant must establish that:
a. He has a clear right to the thing, or at least a prima facie established right,
though open to some doubt.
b. The respondent is unlawfully disturbing his possession or threatening to
do so.
c. Failure to provide the interdict will cause irrepairable harm/damage.
d. There is no other remedy available which would afford the applicant the
similar protection.
Let’s scrutinize the requirements individually, starting with:
a. Clear right
3
Applicant must show that he has a clear right to possess or control the thing, or
a prima facie right to that effect.
As a rule, the court does not require absolute proof of this right for purposes of
a temporary interdict, hence why prima facie proof is sufficient.
Better proof of the right is required upon the return day when a final interdict
is in consideration.
An interdict is meant to protect property right against infringement, thus, such a
right must be proved. The remedy can therefore only be used by lawful
controllers of property who can prove a right to the property.
b. The unlawful infringement complained about/of must be impending (in

the near future) or ongoing.
See Roussouw v. Minister of Mines and Minister of Justice 1928 TPD
741. If it is completed, then an interdict will be of no use, such
infringements will have to be addressed by other remedies.
c. Applicant should also prove that failure to grant him an interdict will
cause him damage. Therefore, the court will only grant the interdict if it
convinced that the unlawful infringement will actually cause harm or
damage.
d. No other remedy to provide similar protection.

An interdict is a remedy of last resort. It is a preventive remedy – it prevents
disturbance of possession – therefore if there is any other effective remedy
available which is preventive in nature, that remedy must be used to prevent
the infringement before an interdict is resorted to.
The fact that an interdict must be a remedy of last resort does not mean that
an applicant must wait for the infringement to take place and damage to
result from the infringement if she can obtain another remedy to rectify the
damage. Rather an interdict should be used to prevent the damage from
occurring where possible.
See Candid Electronics v Merchandise Buying Syndicate 1992 (2) SA 459 (c)
4
Facts: The applicant borrowed money from respondent and pledged a number
of video cassette recorders (VCRs) with respondent as security for the loan. The
idea was, as is usual with a pledge, the applicant would repay the debt and
retrieve the VCRs in due course. However, soon after pledging the property, the
applicant discovered that the respondent was selling the VCRs unlawfully. He
applied for an interdict to prohibit the sale of further VCRs. The respondent
argued that the interdict should be denied because the applicant could always
use the delictual action for damages at a later stage to recover any damage that
was caused to him.
Principle: The court pointed out that an interdict can and should be used to
prevent damage from being caused in the first place. Any other effective
remedy should be able to do the same.
Held: A delictual action for damages does not prevent damage. The court
therefore rejected the Respondent’s argument.
Prepared by: ‘Matšepo Kulehile, PhD

Faculty of Law
NUL
Roma
Date: 24 September 2024

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L3301 notes – 24 September 2024

The main purposes of remedies for protection of possession are:

2. To protect the community against chaos and anarchy resulting from

These remedies do not require proof of a property right, hence even

We will now look at the available remedies.

The first remedy is an Interdict.

Prohibitive interdicts are applicable for the protection of possession.

The purpose of an interdict

Requirements for an interdict

Let’s scrutinize the requirements individually, starting with:

b. The unlawful infringement complained about/of must be impending (in

d. No other remedy to provide similar protection.

Prepared by: ‘Matšepo Kulehile, PhD

Date: 24 September 2024

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