Opposing cynical evictions: The possessory action

Authors: Jeremy Phillips & Arthur van Coller

ISSN: 1996-2177
Affiliations: Senior Associate, Cheadle Thompson & Haysom Inc; Associate Professor, Faculty of Law, University of Fort Hare
Source: South African Law Journal, Volume 141 Issue 1, p. 24-44


The possessory action is a relatively unknown common-law remedy. It has not featured in the law reports for the best part of the last one hundred years and is generally relegated to a cursory discussion in most property-law textbooks. Its basic formulation is that where one has been dispossessed of an item, one is to be restored in possession, paid compensation and/or paid damages if one has a stronger right to possess the item than the dispossessor. Although it has fallen out of fashion, there is growing interest in how the possessory action may be used to address contemporary issues. One such issue is persistent and recurring cynical evictions — unlawful evictions during which the home structure is demolished and destroyed. Whether the possessory action is at all available as a remedy for cynical evictions is unclear. This article explores the history, nature, and scope of the possessory action and asks whether it can be appropriately applied to oppose cynical evictions.