Mlombo v Fourie is an important and contentious case in South Africa

South Africa

The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...

n property

South African property law

South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law....

 law. It was heard before Trollip J in the Transvaal Provincial Division on May 29, 1964

1964 in South Africa

-June:* Nelson Mandela's original 5 year sentence is commuted for life for high treason in the Rivonia Trial* 5 June - South Africa is expelled from the Universal Postal Union in Vienna-July:...

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Facts

Mlombo, the owner of the property, instituted the rei vindicatio

Rei vindicatio

Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing...

action against Fourie for having fraudulently ceased to possess it.

Criticism

The decision has been criticised by legal commentators for having blurred the distinction between the rei vindicatio and the actio ad exhibendum. The rei vindicatio, or vindicatory action, is a remedy available to an owner to reclaim his property, from wherever it is found and from whosoever is holding it, entitling him to "exclusive possession." The true application of the remedy is aimed merely at restoring proprietary interest; it does not include damages. The actio ad exhibendum, which is a delictual remedy, usually does include a claim for damages. By awarding damages in terms of the rei vindicatio, which is a restorative proprietary remedy, the court failed to appreciate this distinction.

Books

• PJ Badenhorst, JM Pienaar and H Mostert Silberberg and Schoeman's The Law of Property 5 ed (2006).
• H Mostert and A Pope (eds) The Principles of The Law of Property in South Africa 1 ed (2010).