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Spoliation of Incorporeals

Spoliation of Incorporeals. An analysis of recent case law in comparison with established principles. Research question. Analyse the latest trends in spoliation cases dealing with quasi-possession of incorporeals, especially with regard to the supply of water. Possession.

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Spoliation of Incorporeals

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  1. Spoliation of Incorporeals An analysis of recent case law in comparison with established principles

  2. Research question Analyse the latest trends in spoliation cases dealing with quasi-possession of incorporeals, especially with regard to the supply of water.

  3. Possession Theoretical dispute Is it a factual enquiry or a form of right (real or otherwise)? Essentially an academic argument only Ius possessionis – right of control Ius possidendi – entitlement to demand control

  4. Spoliation ‘unlawful or wrongful deprivation of possession’ Mandament van spolie Show possession Show that dispossession was unlawful No examination of the merits

  5. Spoliation of incorporeals Doctrine of quasi-possession Referred to in common law Introduced in our courts in Nino Bonino and Nienaber v Stuckey Key case is Bon Quelle 1989 AD Applicant must prove exercise of actions normally associated with the right

  6. High Court cases Zulu v Minister of Works, KZN 1992 D Plaatjie v Olivier 1993 O Zolani v Cathcart Transitional Local Council 1999 E Le Riche v PSP Properties CC 2005 C

  7. SCA cases - facts Impala case First Rand case Water distribution board locks sluices after a payment dispute The Water Act of 1998 s59(3) gave them this power Bank financed pipeline, and supply pursuant to agreement expiring 31 December 2004 On 1 December 2005 they stopped the flow at remote pump stations

  8. SCA cases - findings Impala case First Rand case The right was sourced in statute, and was an incident of the properties in question The payment dispute was the subject of other litigation Appeal dismissed Distinction between the right to supply and the means of supply Amounted to contractual claim – not enforceable under the mandament Appeal upheld

  9. Comments Water User Association (statutory) v private company Difference between right to supply and means of supply Scrutiny of right v examination of merits Relevance of ‘incident of property’ No substantial new trends, mainly restatement of established principles Conclusions from different cases somewhat conflicted

  10. Further research Telkom v Xsinet 2003 SCA Contract interface Supply of consumables Incident of property Distinction between broadband and electricity/water

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