Common Law Right Of The Owner To Recover Property From Unlawful Possessor

Rei vindicatio is a common law remedy available to an owner of a property for its recovery from the possession of another person.

The principle on which the action rei vindicatio is based is that an owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who retains possession of it without his consent.  The claimant in such a case must allege and prove that he is the owner of a clearly identifiable movable or immovable asset and that the defendant was in possession of it at the commencement of the action.  Once ownership has been proved its continuation is presumed.  Once this is proved the onus shifts to the possessor to justify basis for possession.

The possessor herein must establish a claim of right in respect of the property sought to be vindicated.

 In Introduction to Law, C.G Vander Merwe and JE Du Plessis summarize defenses available to a claim for vindication as follows:-

• The possessor had acquired the property by prescription.
• The third party is the owner.
• The property was alienated and destroyed or
• The possessor has a superior contractual right to possess.

In the absence of any ground justifying claim of right of possession, the action for rei vindicatio will succeed. The rei vindicatio remedy is available to employers who face challenges of dismissed employees who refuse to surrender property such as cars, houses, laptops etc. given to them during the subsistence of the employer-employee relationship. Our courts have gone a step further holding that even where an employee is challenging the dismissal, the employer is entitled to have its property back as the owner. Our courts spite these actions by most aggrieved former employers. In Montclair v Mukuhwa HH 501/15 the High Court had strong words as follows;

“Just from where do former employees think they derive the authority to hold on to property belonging to a former employer given to them for use during the subsistence of the contract of employment in the discharge of their duties as employees, after they have lost employment? This matter is one of several of its nature which are now finding their way to the courts with alarming frequency of late where a dismissed employee would simply not surrender the employer’s property but would cling to it as if life itself depends on it.”

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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