Chapter 2
The historical background and nature of the Rei Vindicatio
2.1 Introduction
Remedies in property law are designed to protect ownership and is primarily
designed to play a secure role in society.1 From a historical context the right to
property is explicit and is in a very comfortable position as far as vindication is
concerned.2 The action negatoria and rei vindicatio are probably the oldest
routes to prohibitory injunctions and have developed into a rather strong
procedural position for the owner.3 The right to property in itself is one of the
most powerful rights a person could have.
This is evident as it provides the owner with a strong factual and economic
position in case of a threatening infringement of this right. 4 Although the
theoretical starting point seems to have created the basis for understanding
vindicatory remedies in the pre-constitutional era it has been clear that under
the current dispensation that the protection of ownership has changed
considerably in modern South African law. Generally courts refer to the
Roman-Dutch law notion of ownership but even when the courts do decide to
cite Roman-Dutch law it sometimes may appear as if they apply an absolutist
notion of ownership.
2.2.1 The historical foundations of the South African rei vindicatio
The remedy that is available in South African law and restores possession of
property is known as the rei vindicatio and has its origin in ancient Roman
law.5 The Roman law rei vindicatio was known as the vindicatio and was part
of the legis action sacramento in rem that applied to the ancient standard of
laws in ancient Rome.6 The current rei vindicatio known to us today definitely
has its roots firmly in Roman law but these remedies are not identical by any
1
Boggenpoel 2017:38
2
Boggenpoel 2017:38
3
Lindenbergh 2010:48-57
4
Lindenbergh 2010:48-57
5
Van der Walt AJ 2002:254-258
6
Diosdi G 1970:94
means.7 The rules and regulations as we know it in the modern rei vindicatio
fell on actions and were developed subsequent to these actions. 8 This varies
greatly from the South African position in the pre-constitutional era where the
main focus was always on rights and not so much on actions.
The correct process or requirements for the application of the rei vindicatio as
a legis actio sacramento in rem is that the plaintiff had to prove that he is in
fact owner of the property.9 The defendant then had to try and prove that he is
in fact the true owner. The court then had to choose and give the property
over to either the plaintiff or the defendant. 10 Lastly, each of the parties would
have to put some money up at the end of which the successful party would
obtain the entire pot and the unsuccessful party would forfeit his share to the
state.11
These hard and fast rules failed to explain what then would happen if neither
the plaintiff nor the defendant were successful in actually proving ownership.
This as a result could have meant that the vindicatio was not only available to
owners but also to those who could prove any entitlement to possession.
Furthermore, where the disputed property produced fruits the successful party
then had a delictual claim against the other on the basis of false vindication. 12
This may also be due to the fact that ownership was never clearly defined in
ancient Roman law.13 The reason why no precise definition of ownership
existed is due to the fact that the paterfamilias exercised control over all
persons and all things in the household. He signed all contracts and made all
decisions relevant to the household.14 This structure in the household would
factor out any possible property disputes among private citizens due to the
dominance of the paterfamilias.15 In later classical Roman times the Romans
7
Diosdi G 1970:94
8
Stein GP 1989:185-194
9
Cloete 2016:17
10
Cloete 2016:17
11
Diosdi G 1970:94-95
12
Diosdi G 1970:94
13
Diosdi G 1970:51
14
Borkowski et al 2005:157
15
Cloete 2016:18
coined the institution of ownership as “dominium”, which referred to the
relationship between the owner and his property.16
2.2.2 The philosophical underpinnings of the rei vindicatio in Roman law
Classical writers and modern philosophers assumed that the primary use of
law is to maintain and give effect to moral notions and ideals. According to
Natural law God was considered the divine natural order that regulates all
rules and in effect controls the universe. 17 All law under this regime had to be
aligned with the standard of right and wrong that is found in the actual order.
This elaborates on the fact that Roman law in ancient times was based on
actions rather than on rights.
Thomas Aquinas a natural philosopher indicated that the natural and moral
justification for accepting that a man can have ownership of and control
objects in nature is the belief that there is a divine God and that man is made
in the image of God. Therefore man’s position in nature allowed him to own
and control property at his will and give back that property when necessary.
2.2.3 The operation of the rei vindicatio in Roman-Dutch law
The same action that was accessible to an owner in the restoration of lost
property in Roman-Dutch law was the same action that was available in
Roman law, this was known as the vindicatio. Grotius deemed a general rule
that an owner may vindicate his property from anyone who possesses it
without a title; he may vindicate his property even though the holder may
possess the property in good faith and for value. This rule was then received
from Roman law into Roman-Dutch law.
Johannes Voet set the requirements out for the rei vindicatio in Roman-Dutch
law. He clearly demonstrated that an owner needed to prove he was in fact
the owner in order to be successful at a vindication claim. He was clearly
satisfied that all the person claiming needed to show with regard to this
requirement was this his possessor in title was the actual and legal owner of
16
Cloete 2016:18
17
Cloete 2016:20
the property and that an appropriate legal basis existed for the transfer of the
property from the predecessor in title to himself. With regards to immovable
property only the proof of registration of the property was sufficient to prove
legal ownership. He further showed that the person claiming had to also prove
that the property in question is still identifiable and still exists at the time the
claimant institutes the claim. The last requirement Voet explained was that the
person against whom the claim is instituted had to still be in possession of the
property at the time of the proceedings.
From what is discussed above it becomes clear that in Roman-Dutch law the
requirements for the rei vindicatio were far clearer than in Roman law times
and in fact mirror the South African law requirements of the rei vindicatio. This
is mainly due to the fact that in Roman-Dutch law times the concept of
ownership was clearly defined, whereas, in Roman law times ownership was
mainly based on the so-called paterfamilias and ownership was in limbo to an
extent. Grotius clearly defined ownership in Roman-Dutch law as “ that which
entitles a man to do with a thing and for his advantage anything he pleases
which is not forbidden by the law.” This made the owner’s right to vindication
very prominent and seemed that the more a right was clearly defined as
ownership, the stronger the right to vindicate property.
2.2.4 Development of the rei vindicatio in South African law
Legal rules concerning ownership and its protection were directly inherited
from Roman-Dutch law and have been consistently applied in the South
African legal system.18 Both ownership as a full and complete right as well as
the rei vindicatio were brought by the Dutch settlers as early as the 1900’s
and formed part of the early South African common law. Grotius the Roman-
Dutch scholar was therefore awarded with the development and early basis of
SA law. Although Roman –Dutch settlers were known for forming the basis of
SA law , German scholars played a great role in the interpretation of the
Roman-Dutch law in SA. They also relied constantly on modern natural and
moral philosophy to explain Roman-Dutch rules and principles
18
Milton 1996:659-699
2.3 Modern Rei Vindicatio
2.3.1 Nature of the rei vindicatio
The rei vindicatio is described in South African law as a real remedy because
the remedy seeks to prevent disturbances with actual ownership or contain
breaches of certain entitlements that are inherent in ownership. 19 The rei
vindicatio is considered a principle remedy as according to Roman-Dutch law
allows the owner to claim the possession from anyone who has it. 20 This is the
case only when the controller is bona fide or mala fide.21 The remedy in this
case is ordinarily used to claim the thing back. However, in circumstances
where the thing in question cannot be returned, the owner may then claim the
equivalent value of the thing returned to him.22
The rational thinking behind this idea is that no one may be deprived of
physical control of his property without his given consent. This remedy is
therefore a strong embodiment of a property rule.23 Property rules are there to
protect an entitlement to the degree that the holder of the entitlement is
assigned the initial protection and anyone else there after wishing to acquire
that title must then negotiate with the rightful owner or holder. Since property
rules tend to favour injunctive remedies their remedies rely on the assumption
of strictly upholding and enforcing property rights that are only transferred or
lost by way of agreement.24 The rei vindicatio in this regard serves an
important tool to enforce the owner’s relatively strong right against the world. 25
The rei vindicatio can be used to protect ownership of movables and
immovables. With regards to the protection afforded by the remedy in the
context of immovable property there has been some interesting developments
with specific reference to the final Constitution. 26 The final Constitution has
19
Van der Merwe 1989:346
20
Van der Walt: 2017:384
21
Van der Merwe 1989:347
22
Boggenpoel 2017:41
23
Boggenpoel 2017:41
24
Chetty v Naidoo 1974 (A) par: 23
25
Chetty v Naidoo 1974 (A) par: 20
26
Boggenpoel 2017:42-43
played a significant role in the extent to which the rei vindicatio is applied in
the context of eviction.27 The most notable implications of the Constitution for
the use of the rei vindicatio in the context of movables will be instances where
the owner of the movable has a choice between using the rei vindicatio to
claim return of the thing based on S25 of the Constitution28 in order to protect
his property rights in the movable object. In this context the rei vindicatio
should be applied to give effect to the right not to be arbitrarily deprived of
property in terms of S25 and the owner should not directly claim on the basis
of S25. This will probably be a clear indication of what a single system of law
requires in a particular case. Therefore, if the rei vindicatio can be used to
give adequate effect to constitutional rights, that option needs to be
considered as a point of departure.
2.3.2 Requirements of the rei vindicatio
There are three requirements that a claimant must prove in order to succeed
with the rei vindicatio.29 To succeed, the owner is required only to prove that
he or she is the owner of the property; that the property is in the possession of
the defendant; and that the property is still in existence and clearly
identifiable. If an owner can fulfill these requirements he or she is entitled to
vindication, which in the case of land assumes the form of an eviction order.
In the first instance, the claimant must be the owner of the property he is
trying to vindicate.30 Ownership must be proven here on a balance of
probabilities.31 In terms of immovable property ownership is usually proven by
showing that the property is registered in the name of the owner. However, in
terms of movable property the person who is in control of the property is
usually presumed to be the owner. There seems to be some inconsistency in
the onus of proof in rei vindicatio decisions. 32 In this context, the rei
vindicatio characterises the presumptive power of ownership. The case
27
Boggenpoel 2017:43
28
Constitution of the Republic of South Africa of 1996
29
Boggenpoel 2017:42
30
Gruenewald v Mathias 1925 (SWA) par: 117
31
Chetty v Naidoo 1974 (A) par: 20
32
Chetty v Naidoo 1974 (A)
of Chetty v Naidoo is a classic example. The court held that the owner was
entitled to exclusive possession of property an entitlement that arises from
ownership or is inherent in ownership.
In the common-law tradition, an eviction application by a private landowner
using the rei vindicatio tends to focus on the landowner's right to exclusive
possession. The remedy shows the centrality, strength and essentiality of the
right to exclude.33 The Appellate division at that time provided some clarity in
this regard in the case of Chetty v Naidoo. Here they reasoned that the
burden of proof is managed by the legal concept of ownership. 34 The court in
the Chetty v Naidoo case said that the owner instituting the rei vindicatio need
not do anything more than allege and prove that he is the owner and that the
defendant is holding the res, the onus being on the defendant to allege and
establish any right to continue to hold against the owner. 35 The landowner is in
a position to exercise his or her right to exclude non-owners from possessing
a part or all of his property. Ownership in this light can be regarded as
absolute and exclusive because the owner merely has to prove ownership
and that the defendant holds the property. Context plays no role, and
therefore the rei vindicatio might appear to reflect the absolutist view of
ownership. In fact, however, the apparent absolutism of ownership is the
result of a process guided by the power of presumption. The protection
afforded by the rei vindicatio is based on the assumption that the owner is
entitled to exclusive possession of his or her property in the absence of a valid
defence.36 The only common-law defence available to a defendant is to allege
and prove a valid right of possession, for example the existence of a right
arising from a lease agreement or from law.
The second requirement of the rei vindicatio is that the owner using the rei
vindicatio must prove that the property still exists and is identifiable.37 Many
different modes of original acquisition may have an impact on proving this
33
Van der Walt et al: 2017:384
34
Chetty v Naidoo 1974 (A)
35
Chetty v Naidoo 1974 (A) par: 20
36
Van der Walt: 2017:384
37
Boggenpoel 2017:44
requirement and consequently influence the applicability of the remedy. 38If the
thing no longer exists, the owner will have to use a delictual or enrichment
action.39 In rare circumstances, however, damages may be claimed with the
rei vindicatio. In the case where the thing is not easily identifiable where it has
been mixed with other types of goods, it is also not possible to use this
remedy.40 If ownership has passed due to mixing the action can therefore not
be instituted.41
The third and final requirement of the rei vindicatio is that the owner must
prove that the property is still in possession of the defendant so that the
defendant is able to restore physical control of the property to the owner. 42 It is
not necessary for the owner to allege and prove that the defendant unlawfully
controls the property but the claim will most probably not be successful with
the rei vindicatio if the defendant can prove he was lawfully in control of the
thing. It is also not necessary for the claimant to prove that the defendant had
a limited real right or a creditors’ right to control the thing which has lapsed,
however, if the claimant denies such an existence of such a right, he must
prove that the right in terms of which the defendant controlled has now
lapsed.43 The defendant must therefore prove that he was lawfully in control of
the thing at the time of institution of the action but if the defendant then claims
that this right has lapsed, he must then prove it.44
2.3.3 Defences against the rei vindicatio
There are many defences that may be used against an owner using the rei
vindicatio to claim back his property. The first defence against the rei
vindicatio is that if a defendant can prove the claimant is not the owner of the
thing in question. This will usually be the case where the claimant acquired
ownership of the thing but then lost it shortly thereafter by means of for
example prescription or where the claimants’ predecessor in title was not the
38
Boggenpoel 2017:44
39
Van der Walt 2016:165
40
Van der Walt 2016:165
41
Van der Walt 2016:165
42
Boggenpoel 2017: 46
43
Van der Walt 2016:165
44
Van der Walt 2016:165
actual owner and therefore could not legally transfer ownership to the
claimant.45 If the thing is destroyed, can no longer be identified or the
defendant was not in physical control of the property, that can be raised as a
defence.46 If the defendant can prove that he has a limited real right or
creditors’ right in terms of which he exercises physical control and that the
right is still valid.
The right claimed by the defendant must be a right enforceable against the
owner. If the owner transferred physical control to another person, that person
will be the only person that is allowed to raise that defence against the rei
vindicatio and that defence is not applicable to those that acquired the thing
from the original controller. If the defendant has paid part of the purchase
price in terms of an invalid sale agreement, the owner then does not have to
tender repayment because the defendant now will have an enrichment
claim.47
The defendant with a lien over the thing remains in physical control over the
thing until the owner has fulfilled the obligation, which gave rise to the lien.
The lien of the bona fide possessor, mala fide possessor, bona fide occupier,
mala fide occupier, usufructury and lessee can in various circumstances, be
raised as a defence against the rei vindicatio of the owner.48An occupier in
terms of the Land Reforms Act49, the Extension of Security of Tenure Act 50
and the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 51
may raise this as a defence until an appropriate court has dismissed such an
occupier’s claim.52in terms of relevant circumstances S26(3) of the
Constitution53 provides that no one may be evicted from a home without a
court order, which may not be granted unless all relevant circumstances have
45
Van der Walt 2016:166
46
Van der Walt 2016:166
47
Rhoode v DeKock 2013 (SCA)
48
Van der Walt 2016:166
49
Land Reform Act 3 of 1996
50
Extension of Security of Tenure Act 62 of 1997
51
Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of1998
52
Van der Walt 2016:166
53
Constitution of the Republic of South Africa of 1996
been taken into account. The subject of relevant circumstances will be
discussed in depth in chapter 3.
Estoppel is the final defence that can be raised against the rei vindicatio if the
owner acted in a specific way. 54 In order to raise the defence of estoppel
against the rei vindicatio the owner must have culpably created the
impression that ownership was transferred to the physical controller of the
thing and the controller, relying on this impression, exercises physical control
with the owner’s intent to his detriment.55
2.3.4 Application of the rei vindicatio in the case of immovables
It is widely accepted that the rei vindicatio can be used to reclaim ownership
of movable and immovable property.56 The possibility of using the rei
vindicatio in the case of immovable property has changed substantially in the
new constitutional era.57 It may have been possible before the enactment of
the final Constitution58 for the owner of land to use the rei vindicatio against
anyone who unlawfully occupied the property. 59 The use of the rei vindicatio in
this context usually took the form of an eviction order. 60 The PIE Act61, applies
to specifically to residential leases and the eviction of occupiers by owners.
The object of PIE Act is not to protect the wealthy unlawful occupiers against
eviction. Eviction is still possible if there lacks relevant circumstances for the
unlawful occupants still living there.62 The application of PIE is directed at the
consideration of all the relevant social and economic circumstances of the
lessee to obtain a just and equitable outcome 63 and to provide a procedure
that enables all parties to prove such relevant circumstances. In private law
the general rule is that the owner may evict the unwanted occupiers fairly
54
Van der Walt 2016:166
55
Van der Walt 2016:166
56
Boggenpoel 2017: 46
57
Boggenpoel 2017: 46
58
Constitution of the Republic of South Africa of 1996
59
Boggenpoel 2017: 46
60
Boggenpoel 2017: 46
61
Prevention of Illegal Evictions from Unlawful Occupation of Land Act No 19 of 1998
62
Pienaar 2010:130
63
Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) (SCA)
easily but this is at least in principle. This strong right to evict is said to be
based on a central incident of ownership, namely the owner’s right to
undisturbed and exclusive use to his property. 64 This comes into force
whenever someone occupies the property against the owner’s will or without
the permission of the owner.65 The normality assumption is the idea that the
protection afforded by the rei vindicatio is considered normal and that the rei
vindicatio should be awarded unless there is a good reason not to do so. 66
Wills J while delivering a judgment on the potential eviction of a group of
unlawful occupiers, pointed out that reliability and predictability are central
virtues in property law and therefore there is only one remedy for an unlawful
occupation and that is eviction of the unlawful occupants. 67In a different
context, the consequences of this type of approach to ownership and the
relatively strong right to be free from interference with that ownership is that
the main role of property law and the remedies used to enforce property rights
68
is to protect owners from non-owners. Remedies that are used to protect
ownership are therefore primarily based on the right of exclusion. 69This
exclusionary point shows how ownership is seen as the apex of all rights
within I hierarchy of rights. Limited real rights are therefore seen as much
more inferior than ownership. This points to a hierarchical approach to
landownership and other rights to land. However this approach is continuously
coming under scrutiny because it fails to provide adequate solutions in the
context of land reform legislation.70 Therefore a tool like eviction is seen as a
powerful tool and is a powerful remedy in which a landowner can enforce his
superior right to exclusive use of his property and gain possession against
almost any occupier.71 A tenant may legally defend an eviction proceeding if
the tenant has the requisite grounds or reasons to do so. 72 Improvements
made by the tenant during the tenant’s stay may be a ground to challenge an
64
Van der Walt 2009:53-54
65
Van der Walt 2009:53-54
66
Van der Walt 2002:267-258
67
Emfuleni Local Municipality v Builders Advancement Services 2010 (4)(CC)
68
Dyal-Chand 2013:647-723
69
Boggenpoel 2017:47
70
Badenhorst et al 2006:65
71
Boggenpoel 2017:47-48
72
Pienaar 2010:129
unlawful eviction.73 In the pre-constitutional era the owner’s right to demand
eviction was further strengthened by the legislation that was applicable to deal
effectively and swiftly with evictions.74
A tenant or unlawful occupant has a legitimate ground for appealing an
eviction when the landlord makes use of self-help procedures. Illegal
disconnection of water and electricity forced evictions and lockouts are
unlawful means of evictions. The reasons landlords do this is due to the high
cost of prolonged legal battle in removing the tenant from the property and
therefore the landlord then takes the law into his own hands. This then opens
a defence for the tenant in which the tenant may now challenge the court by
reason of being evicted illegally.75There is also no excuse for an organ of Sate
to evade or ignore the rule of law and to disrespect the legal process and
procedures.76 The common-law right to evict was reinforced through
legislation in order to ensure the stability and security of individual owners
through the exercise of arbitrary and discriminatory state power. 77 In post-
apartheid evictions law with regard to the rei vindicatio in the context of
immovable property what has emerged is the distinction that is drawn
between property unlawfully occupied for residential purposes and unlawful
property used for commercial purposes that is mainly based on S26 (3) of the
Constitution78.79
2.4 Conclusion
It is evident and profusely clear that the natural and moral legal understanding
and the concept of ownership was adopted by the South African society due
to the immense influence by Grotius and the pandectist scholars. 80 It made
room for developments such as completeness and exclusivity to dominate the
73
Blue Moonlight Properties 39 (Pty) Ltd v The Occupiers of Saratoga Avenue and
another (2009) 1 All SA 458 (W)
74
Boggenpoel 2017:47-48
75
Mohamed 2010:77
76
Mohamed 2010:77
77
Muller 2013:367
78
Constitution of the Republic of South Africa of 1996
79
Boggenpoel 2017:48
80
Cloete 2016:71
conceptual understanding of ownership. This was true in respect to how the
courts interpreted and applied the rei vindicatio as the primary mechanism of
protecting ownership.81 The theoretical framework that formed comparison
rights not only formed doctrinal rules but also applied logical assumptions on
the basis of a remedy.82 In this pre-constitutional era, the courts approached
the rei vindicatio as a common law remedy with a conservative attitude.
Meaning the owner’s position and ownership had to be defended as a point of
departure.83
81
Cloete 2016:71
82
Cloete 2016:72
83
Cloete 2016:72
