(Claiming back your property or the value thereof)
The high-school “friend” who doesn’t want to return your car or the neighbor who borrowed your lawnmower and sold it for a profit. The sense of unease sits with you, as you read this. A feeling of injustice. What can you do? Is it really a case of “finders keepers” or can you claim back your property?
Before you take matters into your own hands, it might be good to see what the law says.
Let us consider two South African Law remedies. The Rei Vindicatio and Actio ad Exhibendum.
REI VINDICATIO
Finding its origins in Roman law, Rei Vindicatio is based off the age-old maxim of “where my property is found, there I may vindicate it” (ubi rem meam invenio, ibi eam vindico, for all the Latin aficionados). Rei Vindicatio allows the owner to claim back their property, from any person who possesses it, irrespective of whether they possess in good or bad faith. Irrespective of whether they know of another’s ownership right. The claim is against the person who has the property in their possession. Therefore, if the property should exchange further hands, the claim would be against the person who has the property, at the time of claiming it back. The purpose of this remedy is to restore possession to its owner.
When it comes to immovable property, this will take the form of an eviction application. With eviction applications, the court will consider if the circumstances justify the granting of such order and whether the various legislative provisions were complied with.
The person who wishes to rely on the Rei Vindicatio, must prove, on a balance of probabilities, that:
1. They own or co-own the property;
2. The property is clearly identifiable;
3. The property is, at the time of claiming, in the hands of the person from whom they are claiming.
Proving ownership is an integral part of reliance on Rei Vindicatio. In South African law there is a rebuttable presumption that he who is in possession of property, is the owner thereof. Therefore, it is important to prove ownership, in order to disprove this presumption.
Consider the high school “friend”, let’s call him Joe. Joe still has your car, he is just in no particular rush to give it back (also, in no particular rush to answer your calls). In order to successfully rely on the Rei Vindicatio, you will need to prove you 1. own the car (with, for example, your registration certificate), that you can 2. clearly identify the car (the model, specifications, colour, etc) and that the car is 3. still with Joe. Joe, in turn, will need to rely on a specific defence or provide sufficient proof of a right to retain possession.
What about the neighbour who sold your lawnmower? You can prove ownership and the lawnmower is clearly identifiable, but you don’t know to whom it was sold. Enter the Actio ad Exhibendum.
ACTIO AD EXHIBENDUM
Traditionally used together with the Rei Vindicatio, the Actio ad Exhibendum is now accepted as a separate legal remedy against those who have “wrongfully and knowingly disposed of another’s property”. Also referred to as the “action for wrongful disposal”. Rather than restoring physical control of your property, like with the Rei Vindicatio, the purpose of this remedy is to compensate for the owner’s loss. In order to claim compensation for your lawnmower, with the Actio ad Exhibendum, you will need to prove:
1. Ownership, at time of disposal;
2. Your neighbour wrongfully disposed of your lawnmower, before litis contestatio (close of pleadings);
3. Your neighbour had knowledge of your ownership; and
4. You suffered a loss (which would usually be the market value of the lawnmower).
It is insufficient to allege that your neighbour “ought to have known” of your right to claim the lawnmower. You will need to allege and prove the “bad faith”, of your neighbour. That your neighbour knew you were the owner of the lawnmower. That being said, the Actio ad Exhibendum is not only available against those who obtained possession after becoming aware of your ownership. This remedy is also available against those who obtained possession; thereafter, became aware of your ownership and then disposed of the property. With the Actio ad Exhibendum’s basis being another’s “bad faith”, it is clearly distinguishable from the Rei Vindicatio.
CONCLUSION
Whether you want to claim back your property or, at least, be compensated for your loss, it is not necessary to take the law into your own hands. Joe and your neighbour can be held to lawful account. “Finders keepers, losers weepers” might be a catchy childhood phrase, but it has no basis in South African law.
BIBLIOGRAPHY
1. Alderson & Flitton (Tzaneen) (Pty) Ltd v EG Duffeys Spares 1975 3 SA 41 (T).
2. Badenhorst P, W Freedman, H Mostert, J Pienaar & J Van Wyk The Principles of the Law of Property in South Africa (2010) Oxford University Press.
3. Daniels H Beck’s Theory and Principles of Pleading in Civil Actions 6 ed (2002) Butterworths.
4. Du Bois W Wille’s Principles of South African Law 9 ed (2007) Juta & Co (Pty) Ltd.
5. Gleneagles Farm Dairy v Schoombee 1949 2 All SA 60 (A).
6. Gore and Another NNO v Saficon Industrial (Pty) Ltd 1994 4 All SA 48 (W).
7. Van der Merwe CG “Remedies” in The Law of South Africa (2014) 232 233.
8. Van der Merwe CG “Remedies” in The Law of South Africa (2014) 232 242.
9. Van der Walt AJ & GJ Pienaar Introduction to the Law of Property 7 ed (2019) Juta & Co (Pty) Ltd.
