ACQUISITION OF

POSSESSION AND
HOLDERSHIP
Adv. S Kola
 Acquisition of Possession and holdership

 Chapter 13: Acquisition of possession and

holdership
Acquisition of Possession and holdership

UNIT 15 Acquisition of possession and holdership

Textbook Chapter 13
Casebook Nienaber v Stuckey 1946 AD 1049 (not in
Casebook – see eFundi)
[14] Reck v Mills en ’n Ander 1990 1 SA 751 (A)
Time to master 4 hours
unit
Learning After engaging with the materials and activities in
outcomes this study unit you should be able to:
 Identify the elements of possession and
holdership.
 Distinguish between the physical and mental
element of control.
 Define and distinguish between direct control,
indirect control, and shared control.
 Acquisition of Possession and holdership
Chapter 13
Introduction
Corporeal things and rights in property
Elements of possession and holdership
Control

The corporeal element (corpus)

The mental element (animus)
Direct and indirect control
Shared control

Acquisition of possession and holdership

Recap: original and derivative acquisition
Original acquisition of possession and holdership
Derivative acquisition of possession and holdership
Chain acquisitions
 Acquisition of Possession and holdership
LEARNING OUTCOMES

After completion of this chapter you will be able to:

1. Explain the difference between possession and holdership.

2. Identify the elements of possession and holdership.

3. Explain when a person has effective control of property.

4. Interpret how possession and holdership are acquired.

5. Define and differentiate between direct control, indirect control, and shared
control.
 Acquisition of Possession and holdership
Introduction
 The definitions and the distinction between, possession and
holdership is discussed in chapter 12. It is pointed out in
chapter 12 that these property relations are important
because of their involvement with control of corporeal
things.
 The purpose of this distinction is to differentiate between
various property relations on the basis of control, and
therefore the acquisition of each form of control is very
important.
 The basic principle is that two persons cannot
physically control the same thing in the same way but
independently at the same time.
 Acquisition of Possession and holdership
Example
 
You own a house in Mamelodi Gardens. In this
house you have a lounge suite, a dining room
suite and a bedroom suite, as well as a fridge, a
washing machine and a microwave oven. In the
garage you have a motor car and a mountain
bicycle. During the week you commute to your
office at an attorneys’ firm in Pretoria by car, and
you leave the car in a rented bay in a
commercial parking garage. The bicycle is used
for weekend excursions.
 Acquisition of Possession and holdership
A number of questions relating to physical control are raised by this example:

(a) It is easy enough to establish that you are in actual, literal physical control of your car
while travelling to your office in the morning, but are you also in control while it is locked up
in the garage during the night; or when it is parked in the parking garage during the day?

(b) Physical control of your lounge chair is equally easy to establish while you are sitting in
it, relaxing in front of the television after work, but are you also in control of the other chairs
and the couch while sitting in the one lounge chair? Are you in control of the lounge suite
while you are at work, or while you are asleep in the bedroom? Who is in control of your
bed while you are sitting at the dining table? Who controls the dining room suite while you
are washing the dishes? Who controls your bicycle during the week, when you are too
busy to even look at it?

(c) Does it make any difference whether you bought and paid for any of the items
mentioned above; or whether you bought any of them on the basis of a credit agreement
and still have to pay some of the instalments; or whether you just borrowed the microwave
oven from your parents until you can afford a new one?
 Acquisition of Possession and holdership
Corporeal things and rights in property

The discussion of possession and holdership does not affect all rights in property.

From the example in the introduction above it should appear that possession and
holdership are property relations that apply specifically with regard to one kind of
property, namely corporeal things.

In chapter 12 the distinction between ownership, possession and holdership is

explained with reference to lawfulness and the intention of the controller in each
case.

To recap briefly:

Ownership and lawful holdership are lawful forms of control, whereas

possession and unlawful holdership are unlawful forms of control.
 Acquisition of Possession and holdership
Elements of possession and holdership

Control

 It has already been pointed out in chapter 12 that the term ‘control’, which is
concerned with physical holding of objects, was devised with reference to
corporeal things, which can be held and controlled physically.

 Ownership, possession and holdership of corporeal things can be described as

various categories of control.

 What distinguishes them from one another, and what determines their different
legal implications, is the intention with which control is exercised in each case.

 The law attaches great importance to this intention element, which is referred to
as the mental element of control.

 In short, all property relations with regard to corporeal things can be described
as various forms of control, and all forms of control consist of two elements,
namely a physical or corporeal element and a mental element.
 Acquisition of Possession and holdership
Definition
 

Control of corporeal things consists of

two elements, namely a physical or
corporeal element and a mental element.
The physical element is the way in which
the thing is actually held, and the mental
element is the mental attitude with which it
is held.
 Acquisition of Possession and holdership
The corporeal element (corpus)

The physical or corporeal element of control refers to the actual holding of a corporeal thing.

As was stated earlier, this element is based upon actual, tangible or perceptible power over or holding of a
thing, such as sitting in a chair or driving a car. It was also pointed out earlier that this literal interpretation is
too restricted for the complex commercial and social relations between people and property.

In an effort to make the literal interpretation of physical control somewhat more flexible, a number of rules or
guidelines have been developed over the years, according to which the presence or absence of control can
be established in more complicated situations.

The following considerations have to be taken into account when determining whether the corporeal
element of control is present or not in a specific case:

 (a)  Nature of the thing

(b)  Purpose or use of the thing

(c)  Specific customs in special fields

(d)  Control need not be comprehensive

(e)  Control need not be continuous

(f)  Control need not be exercised personally

(g)  Strict requirements for acquisition of control

 Acquisition of Possession and holdership
The principles in (a)-(g) above can be summarised as follows:

Considerations to be taken into account when determining whether physical control is

present 

a) The nature of the specific object can influence the nature and extent of control
required.

b) The purpose and use of the specific object can determine the nature and extent of
control required.

c) Specific customs in special fields such as agriculture or mining can influence the
nature and extent of control required.

d) Control need not necessarily be comprehensive.

e) Control need not necessarily be continuous.

f) Control need not be exercised personally, and can be exercised through an agent.

g) The requirements for the establishment of control are stricter than for its retention
once acquired.
 Acquisition of Possession and holdership
The mental element (animus)
In the previous section it was said that the corporeal element
of physical control is a matter of fact referring to the
actual or visible corporeal holding or control of a thing.
This aspect is common to all forms of control, whether it be
ownership, possession or holdership.

The second element of physical control is the mental

element, which is also a matter of fact, and which refers to
the mental attitude or intention with which the thing is
held or controlled. The following example illustrates the
differences between various attitudes with which the same
thing can be held.
 Acquisition of Possession and holdership
Example
Five people are all in actual corporeal control of diamonds. All five of them carry the
diamonds in their pockets:

(a) The first person is a two year old baby, whose parent placed the diamond in the
baby’s pocket for luck.

(b) The second person is 30 years old, and is unaware of the presence of the diamond
in her pocket. In this case the diamond was placed in her pocket by the person next to
her, who is afraid that the police might search her and find the diamond.

(c) The third person is also 30 years old, and holds the diamond in her pocket in the
firm belief that it is her property.

(d) The fourth person is also 30 years old, and is well aware of the fact that the
diamond belongs to her friend, who gave it to her as a pledge for a debt.

(e) The fifth person is also 30 years old, and is carrying the diamond for her friend,
who owns the diamond, but whose pocket has a hole in it through which the diamond
might be lost.
 Acquisition of Possession and holdership
It is clear that the mental attitudes of the five people in the example towards control over the
diamonds differ.
In the first case there is no intention, since a small baby cannot form a will regarding the holding of
objects. The second person is unaware of the presence of the diamond, and therefore has no
intention towards it either. The third, fourth and fifth persons have the intention to control the
diamonds in their pockets, but their intentions are different: the third one controls something which
she thinks is hers, while both the fourth and the fifth persons control something which they know
belongs to someone else. The difference between the fourth and fifth persons is that the fourth
person holds the diamond for her own benefit, while the fifth person holds it for someone else’s
benefit.
 
The mental element of control is a matter of fact, and therefore it is irrelevant whether the third
person is indeed the owner of the diamond, and whether the fourth and fifth persons are indeed
carrying diamonds that belong to someone else – the point is that, in fact, they think that this is the
situation. When establishing the mental aspect of control the focus is on the actual mental attitude of
the person in question, not on whether they are right in what they think. Such a mental attitude or
intention towards control can be established factually by asking the person what her intention was,
or by establishing her intention from her actions. As a rule the law is more interested in intentions
that can be established by appearances or actions than in merely subjective intentions, because the
latter are not made clear to the outside world.
The differences between the five cases in the example illustrate the most important aspects
of the mental element of control.
 Acquisition of Possession and holdership
Aspects of the mental element of control
 

a) Mental capacity is required.

b) Conscious control is required.

c) Intention to hold for a principal is insufficient to establish own control.

d) A specific intention with regard to control is required, namely :

(aa) intention to hold as owner, or

  (bb) intention to hold for one’s own benefit.

e) Nobody can change the nature of control simply by means of a

change in the intention.
 Acquisition of Possession and holdership
Direct and indirect control

 In the introduction to this chapter it was said that the basic principle with regard
to control over movable things is that only one person can control a specific
thing at a time – two people cannot sit in the same chair at the same time.

 In certain cases it is possible for different kinds of control to be exercised by

more than one person. One such example is where one person exercises direct
control and another person exercises indirect control.

 An example of direct and indirect control is a long-distance truck driver who

exercises direct control over the truck that she drives, while the company that
owns the truck and employs the driver exercises indirect control through the
driver (its employee), and perhaps with the assistance of an electronic motor
fleet monitoring system. For a further example see Sanyati Building (Pty) Ltd v
Energy X-Ray Trading Co KZN (Pty) Ltd 2010 (D) (applicant cannot succeed
with the spoliation remedy if it held the spoliated property as a representative
on behalf of someone else).
 Acquisition of Possession and holdership
Definition
 

 Control of a corporeal thing is direct when actual

physical control is exercised immediately by a person.

 Control of a corporeal thing is indirect when it is not

exercised immediately by the indirect controller
herself, but by someone else. The indirect controller
retains indirect control through the direct control of the
other person (the direct controller).
 
 Acquisition of Possession and holdership
Shared control
 Shared control is also an example of control which is exercised by more than
one person at the same time.

 In this case, however, there is no direct and indirect control – all the sharing
controllers exercise direct control simultaneously.

 The reason why this form of control does not violate the principle that only one
person can exercise control at a time, is that they share the control – they do
not compete for it.

 As soon as disagreement causes the sharing controllers to compete for control

the basic rule will come into play, and one person might oust the control of
another.

 A good example of shared control is the control exercised by husband and wife
over the family home and its contents. Both partners have control at all times,
and neither acts as an agent or for the benefit of the other – they share full
control at the same time.
 Acquisition of Possession and holdership
Acquisition of possession and holdership

Recap: original and derivative acquisition

The acquisition of ownership is discussed in chapters 8 and 9. In those two

chapters a very important distinction is made, namely, between original and
derivative modes of acquisition. As explained in chapter 8, the distinction between
original and derivative acquisition depends upon the source of ownership: if it is
derived from and with the co-operation of a previous owner, it is acquired in a
derivative fashion. However, if the thing did not belong to anybody before, or if it is
acquired without the co-operation (even against the will) of the existing owner, the
thing is acquired in an original fashion. In the one case ownership is transferred
from one person to another, and in the second case ownership vests in the new
owner by operation of law and any existing right of ownership is extinguished.
This same distinction applies to the acquisition of possession and holdership,
albeit in a slightly different way.
 Acquisition of Possession and holdership
Original acquisition of possession and holdership

 Certain forms of lawful holdership can be established in an original way, for example when a
real security right is established by, or when a servitude is established through. In both cases
lawful holdership is established regardless of the rights and without the co-operation of
existing holders or of the owner.

  Possession and unlawful holdership can also be established in an original way, in the sense
that they can be established physically against the will of the owner. Unlawful holdership is
established originally when someone starts using a private road over your land, without a
right or permission to do so. Possession is established when a thief unlawfully takes your
property and uses it as her own. Of course, no right is acquired in the process, unless it forms
part of a chain acquisition as explained below, but as was said at the beginning of this
chapter, control is a factual matter which is not concerned with lawfulness or with the
presence of rights. In both these cases the unlawful property relation (possession or unlawful
holdership) is simply factual control established by an act of the possessor or holder.

 In all these cases the same basic requirements must be met as in the case of original
acquisition of ownership. The person who acquires possession or holdership in this original
fashion must establish a suitable form and measure of corporeal control over the object,
together with the required mental attitude towards such control. If a right is acquired (lawful
holdership) other requirements (such as a certain period of control) must also be satisfied.
 Acquisition of Possession and holdership
Derivative acquisition of possession and holdership
 Lawful holdership can be established derivatively by transfer from one person to
another, for example when a pledge or a servitude is constituted by agreement and
delivery or registration. When lawful holdership is acquired in this derivative fashion
the same basic requirements must be met as in the case of transfer of ownership.
The suitable form and measure of corporeal control must be transferred from one
person to another, together with the mental intention to transfer and to accept the
right in question. In some cases further requirements (such as registration of rights
in land) might have to be met as well for the establishment of a right.

 Unlawful holdership and possession do not constitute rights, and as such they
cannot be transferred in the sense of transferring rights. However, as factual
corporeal property relations, these forms of control can also be transferred from one
unlawful controller to another by simply transferring the actual control. A good
example is a thief who ‘sells’ the stolen object to an accomplice or to another
person: actual control is transferred, although no rights are transferred. (The basic
principle which applies here is that one can transfer only the rights that one has; if
you have no rights you cannot transfer any rights. This is known as the nemo plus
iuris rule.)
 Acquisition of Possession and holdership

Chain acquisitions
The original establishment of unlawful possession can, when the other
requirements are satisfied, be one of the steps towards the original acquisition of
either ownership or lawful holdership.

The acquisition of ownership or of a servitude through prescription are examples

of such a chain acquisition.

In this case the original establishment of the unlawful property relation forms the
first step in a chain acquisition, which results in the original acquisition of a lawful
right.
 Possession and holdership

HOMEWORK

PREPARE CHAPTER 14 – PROTECTION OF POSSESSION

AND HOLDERSHIP –
EXTREMELY NB!!!