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Mlombo v Fourie

From Wikipedia, the free encyclopedia

Mlombo v Fourie[1] is an important and contentious case in South African property law. It was heard before Trollip J in the Transvaal Provincial Division on May 29, 1964.

Facts

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Mlombo, the owner of the property, instituted the rei vindicatio action against Fourie for having fraudulently ceased to possess it.

Judgment

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The court ordered Fourie to make good the value of the lost property.

Criticism

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The decision has been criticised by legal commentators for having blurred the distinction between the rei vindicatio and the actio ad exhibendum.[2][3] 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."[4] The true application of the remedy is aimed merely at restoring proprietary interest; it does not include damages.[5] 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.

See also

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References

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Books

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  • 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).

Cases

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  • Mlombo v Fourie 1964 (3) SA 350 (T).

Notes

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  1. ^ 1964 (3) SA 350 (T).
  2. ^ Mostert & Pope 219.
  3. ^ Badenhorst et al 246.
  4. ^ Mostert & Pope 217.
  5. ^ Mostert & Pope 219.