THE LEGAL NATURE OF A LIEN IN SOUTH AFRICAN LAW

The South African law acknowledges two types of liens or rights of  retention, namely enrichment liens and contractual liens (also known as debtor and creditor liens). Enrichment liens are regarded as limited real  rights which are enforceable against the owner of the thing. Contractual  liens are not regarded as limited real rights: sometimes they are referred to as personal rights which are enforceable only inter partes. Thus, a lien is classified as a right (subjektiewe reg) (ie a real right or a personal right). This article reflects on the correctness of this classification of liens. The term "right" can have various meanings and the aim of this article is to determine the exact meaning of the term "right" in the context of "right of retention". In my opinion a lien is not a right. I therefore reject the  classification of liens into contractual liens and enrichment liens with its concomitant consequences. A lien is a defence against an owner's rei  vindicatio in that it allows a creditor (a lienholder) to retain control of the owner's thing until the debt has been paid. Because the law grants a  defence to a creditor in control of a thing, the owner cannot succeed with her rei vindicatio. A distinction should be drawn between an entitlement that flows from a right (it describes the content of the right) and a  competency or capacity which emanates directly from the law. A lien is not an entitlement flowing from a lienholder's personal right - based on a  contract or an enrichment claim - against the debtor. It is rather a capacity to withhold because the law grants this defence. The term "capacity" is not used in a technical sense but rather in the context of the ability to withhold, which is granted by the law.


Introduction
There are many uncertainties pertaining to the law of liens in South Africa.These include the real operation of a lien, the question whether a mala fide possessor can rely on a lien for money spent or work done on a thing which he knew he controlled unlawfully, the circumstances under which the lienholder has sufficient physical control over an immovable thing, the effect of involuntary loss of control over the thing by the lienholder and, finally, the influence of section 25 of the Constitution of the Republic of South Africa, 1996 on the validity of a lien in specific instances.In this article I focus on the following concern raised by Van Zyl J 1 in ABSA Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers: 2 Sonnekus is critical (at 464-9) of the reference to a lien as a 'right' rather than a 'competence' or a 'power'.He describes it (at 467) as a 'power to withhold' ('terughoudingsbevoegdheid') arising from a claim on whatever ground and (at 469) rejects the distinction between enrichment liens and debtor and creditor liens as real and personal rights respectively.His argument is persuasive and it would appear that the distinction should be reconsidered.
In view of the above I first consider the different approaches to liens in South African law before providing a brief overview of liens in Roman law.This is followed by a discussion of a lien -as a (subjective) right 3 -as a defence and as a capacity to withhold.By way of conclusion I make some suggestions pertaining to the legal nature of a lien in South African law. Mitzi Wiese.LLB (UP) LLM (Child law) (UP) LLD (UNISA).Senior Lecturer, Property Law Department, University of South Africa.E-mail: wiesem@unisa.ac.za.The author would like to acknowledge the National Research Foundation of South Africa for the funding provided in the form of a grant that made the research for this note possible.The author would like to thank Prof Susan Scott for her valuable input on the drafts of this analysis, but accepts full responsibility for the content of the final text.

Approaches to liens in South African law
Most courts and scholars acknowledge two types of liens: enrichment liens (verrykingsretensieregte) and debtor and creditor liens (skuldeiser-skuldenaarretensieregte, also referred to as liens ex contractu). 4This classification relates to the source of the personal right that the lien secures.In the case of enrichment liens the lien secures the creditorʹs enrichment claim against her debtor.In the case of a contractual lien it secures the creditorʹs contractual claim against her debtor.In the latter situation I prefer the term "lien ex contractu" or "contractual lien" to the term "debtor and creditor lien" because the latter term gives no indication of the source of the personal right which the lien protects.In addition, in both situations there are debtors and creditors, though the source of their obligations differs.
Enrichment liens are regarded as limited real rights which are enforceable against third parties, the third party being the owner of the thing.Contractual liens are not regarded as limited real rights: sometimes they are referred to as personal rights which are enforceable only inter partes. 5There are three lines of thinking in case law and legal literature pertaining to the nature of a lien.In this sense a lien is described as (i) a right 6 (a personal right, a real right, 7 a limited real right or a real security right 8 ); (ii) a defence against an ownerʹs rei vindicatio; 9 and (iii) an ability 10 to withhold (terughoudingsbevoegdheid11 ).Although the term "real right" is used, it can be only a limited real right because it is a right to another personʹs property.
The term "real security right" merely classifies this limited real right as a security right.To provide the background for my discussion and evaluation of the different lines of thinking in South African law I briefly consider the development of liens in Roman law.

Right to withhold in Roman law
In Roman law the term retentio was used in various contexts, inter alia as the keeping or holding back of a thing, remembrance, to maintain a certain factual situation, and a legal institution for compensation. 13In the course of Roman legal development, three forms of real security rights were known: fiducia cum creditore, pignus and hypotheca. 14Retention of the thing was a type of security for the enforcement of a claim.The maxim minus est actionem habere quam rem (it is less satisfying to have an action than to be in control of a thing) 15 applied.Julian 16 thus states that it is better to be in control of a thing and to wait than to claim from the debtor.In Roman law a right of retention was allowed at classical law: the defendant, who had made necessary or useful expenses on a thing, could resist the ownerʹs rei vindicatio with the exceptio doli (defence). 17The exceptio doli is a defence based on reasonableness that can be raised against a debtor who claims his thing, knowing that he himself still has to perform.Recognition of a lien was based on the principle of fairness (aequitas). 18The operation of a lien was very simple: when a debtor reclaimed his thing with the rei vindicatio from the creditor (the lienholder), the latter could either return the thing or ask the praetor for an exceptio doli if the debtor had not fulfilled his obligation.One of two possible orders could be made: (i) the debtorʹs rei vindicatio was granted conditionally, thus the debtorʹs claim for the return of his thing was granted on condition that he performed first. 20e exceptio doli is therefore the basis from which liens developed further.

4
Classification of liens in South African law I now briefly consider the most significant judgments and literature dealing with the classification of a lien as a right (jus/ius), a defence or the capacity (power) to withhold.

Case Law
In case law enrichment liens are often classified as limited real rights and I therefore reflect on the recognition of a lien as a right in the leading cases.things.It is therefore a right to exclude the world from the enjoyment of one of the most important of the privileges which accompany dominium.
The judge 23 decided in favour of Golombick.This judgment declared that a lien as a real right enjoys preference over a registered mortgage bond over the property in question.Although this is an oft-quoted judgment and the conclusion is correct, the reason for this outcome is wrong.It can also be criticised on various grounds: the judge often made statements without reference to any authority; he contradicted himself and regularly used phrases like "we think", "it well may be" and "we doubt".In this specific part of his judgment the judge seems fairly unsure of the legal position and referred to no authority for his statement that an enrichment lien is a real right. 24Consequently, I argue that this judgment is not conclusive authority for the statement that a lien is a real right.The judgeʹs reference to "possession in a legal sense" also creates the impression that he might even regard possession as a right.Authors like Sonnekus and Neels 25 and Kleyn 26 indicate that possession is not a right.According to these authors possession is a factual physical relationship between a person and a thing and therefore it cannot be a right.They further explain that this factual situation is a legally recognised and protected relationship.
They consider possession as a legal fact to which the law attaches certain consequences.
Possibly due to a misunderstanding of the nature of a lien, the judge thought that the only way in which he could protect Golombick in the circumstances (due to the insolvency of Smookler) was to regard a lien as a real right.This explanation of Bristowe J in United Building Society v Smooklerʹs Trustees and Golombickʹs Trustee was followed in subsequent cases as authority for the view that a lien is a real right.Allanridge -to Anglo American (OFS) Housing Co Ltd (the respondent).The property consisted of 329 vacant stands.In terms of the agreement the respondent could commence with building work, but the stands would be transferred into its name only once the Town Council approved the town plans.The purchase price was the price of the land excluding the value of the buildings.For taxation purposes the question was whether or not the value of the stands should include the value of buildings when calculating the transfer duty payable.The respondent averred that he had a lien for useful improvements and that the property was sold to him for the value of the land and not for the value of the land and the buildings thereon.Steyn CJ 29 and Ramsbottom JA 30 accepted that a lien for useful improvements is a real right, with reference to United Building Society v Smooklerʹs Trustees and Golombick's Trustee.All the remarks pertaining to liens were, however, obiter since the case did not deal with the recognition of a lien.There was no need for the court to determine the nature of a lien.The existence of a lien was used merely to determine the purchase price under the particular circumstances.
In Brooklyn House Furnishers v Knoetze and Sons 31 the court had to decide if reliance on a lien for necessary expenses in respect of the thing could succeed against the owner who had no agreement with the lienholder.The facts are briefly as follows: Bond bought furniture in terms of a hire purchase agreement from Brooklyn House Furnishers (Pty).In terms of the agreement Bond was not allowed to transport or store the furniture without Brooklyn House Furnishersʹ consent.
Despite this clause Bond contracted Knoetze and Sons to transport the furniture and Inkomste v Anglo American (OFS) Housing Co Ltd and stated that liens based on expenses for the preservation or improvement of things are real rights -the reason being that they do not arise from agreement but from enrichment.
In the case of Lubbe v Volkskas Bpk 34 the appellant (Lubbe) had an agreement with the owner of a piece of land to sow wheat on that land.After Lubbe sowed his wheat he was informed that the land would be sold by the bank, as mortgagee, to cover the ownerʹs unpaid debts.Lubbe approached the court for an urgent order declaring that he had a lien over the land.The court dismissed Lubbeʹs ex parte application.All subsequent appeals against the court a quoʹs finding were also dismissed.Smuts JP 35 made no finding on the nature of a lien but it seems as if the court accepted that a lien was a real right because it indicated, by way of obiter dictum, that the prior in tempore rule applies to liens. 36 disturbs the operation of the prior in tempore rule based on the principle of fairness.
According to Sonnekus the mortgagee is enriched by the creditorʹs (the lienholder's) actions in the case of a concursus creditorum.Consequently, the lienholderʹs lien can be enforced against the mortgagee who holds a mortgage over the land and who is enriched by the creditorʹs improvements on the land. 39 Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 40 the appellant applied for an eviction order against the respondent.The respondent had an oral agreement with Canadian Gold in terms of which the respondent would extract chrome for Canadian Gold.At the time of the agreement the land from which the chrome had to be extracted was owned by one De Waal.The respondent took all their equipment to the land and commenced with the extraction.Canadian Gold paid the respondent on a regular basis for the work done.De Waal sold the land to the appellant, who then contracted another company to extract the chrome from the said land.
Consequently, the appellant requested the respondent to vacate the land.The respondent averred that Canadian Gold owed them money for work done.It claimed to have a debtor-creditor lien over the stockpile of excavated material which contained some chrome ore and two open pits.The court a quo did not grant the eviction order.The appellant appealed against this decision.
On appeal Nienaber JA 41 formulated the legal question as follows: [W]hether the respondent's admitted debtor and creditor lien against Canadian Gold extended to the appellant, a non-contracting party, on the ground that the appellant was aware of, consented to and authorised the respondent to conduct its excavating activities on the appellant's property -this was essentially the issue on which the Court a quo found in favour of the respondent … The Judge 42 then referred to the classification of liens into enrichment liens and debtor and creditor liens and declared the former to be real rights, but not the latter.
For Golombickʹs Trustee 43 and Brooklyn House Furnishers v Knoetze and Sons. 44As he indicated in the formulation of the legal question, this case did not deal with the existence of an enrichment lien but with the operation of a debtor-creditor lien against a new owner who was not a party to the agreement.Furthermore, the respondent had ceded all his rights in terms of the agreement to a bank.
Consequently, he no longer had a right to enforce his contractual right against Canadian Gold.The bank, as the holder of the contractual right against Canadian Gold, could also not rely on a lien because it was not in control of the premises.
Nienaber JA 45 implied that the respondent should have relied on an enrichment lien against the new owner.In my opinion the respondent was advised incorrectly, but would also not have succeeded in relying on an enrichment lien because he had ceded all his rights to the bank and was therefore no longer a creditor.
Although the above judgments followed United Building Society v Smooklerʹs Trustees and Golombickʹs Trustee 46 with specific reference to Bristowe Jʹs unsubstantiated statement that an enrichment lien is a real right, I am of the opinion that none of these judgments provide conclusive authority for such an interpretation of the nature of a lien.

Literature
In academic literature as well as several judgments the term "right" (jus/ius) is used to describe a lien.The term "right" can have various meanings.I now briefly discuss some definitions of a "right" in order to determine the exact meaning of the term "right" in "right of retention".
Van der Vyver and Van Zyl 47 distinguish between seven different depictions of the term "right".Only two of these are relevant for the current discussion.First, a "right" can be defined as the unity of relationships between a legal subject and the legal legal subject and the legal object and the law must acknowledge this legal relationship (for example the legal relationship between an owner and a thing, which the law acknowledges as ownership) and, finally, the right must be protected by the law.
Although Van Warmelo 55 lists the protection of the legal relationship as an element of a right, he does not consider it necessary for the existence of a right. 56He refers to the so called leges imperfectae, which do not enjoy protection. 57Furthermore, the protection does not necessarily take the form of an action or similar legal remedy, since this postulates a legal community with a reasonable measure of organisation, such as a state.A description of a right that always requires a legal remedy would negate the existence of, for example, public international law, since a legal action or a legal remedy is not always available. 58e reference to public international law (volkereg) creates uncertainty.Possibly Van Warmelo requires protection as an element of a right in private law, but not necessarily in public international law.Regrettably, the author does not explain this statement further.Sonnekus and Neels, 59 on the other hand, argue quite the reverse: they insist that an action is always required as an element of a right.

57
See Schiller Roman Law Mechanisms 247-248 for a comprehensive discussion on leges perfectae, leges imperfectae and leges minus quam perfectae.In bief leges imperfectae is a statute which forbids something to be done, but that does not rescind or impose a penalty on a person who acted contrary to the law.According to Schiller "leges imperfectae are ancient or obsolete pre-classical laws, reinvigorated in an era in which the conviction of the immutability of the ius civile was still the governing idea".The authors distinguish the following three elements of a right: its nature, its formation and its legal effect.With this in mind the authors then define a right as: ... an interest conferred by, and protected by the law, entitling one person to claim that another person or persons either give him something, or do an act for him, or refrain from doing an act.[My emphasis.]In terms of this definition a right is an interest derived from and protected by the Sonnekus and Neels 65 are not convinced that a lien is a right in the above sense, and reject the classification of liens as real rights (enrichment liens) and personal rights (debtor creditor liens).Sonnekus 66 argues that if liens are regarded as rights in the above sense they must form part of the legally recognised categories of rights, namely real rights, personal rights, immaterial property rights and personality rights.
Furthermore, in such categorisation one would expect that all liens fall under the same category of rights.
If one regards liens as rights and has to categorise them with reference to their objects, all liens should be classified as real rights since the object of the right is a thing.Liens can therefore also not be classified as personal rights, since the object of a personal right is performance.Although the lienholder has a personal right against the debtor for performance, depending on the circumstances, this right originates from either a contractual agreement or enrichment.In my opinion Sonnekus correctly indicates that a lien cannot in some instances qualify as a real right and in other cases as a personal right.above, there are different descriptions and definitions of the term "right".However, if one accepts the views expounded above, which are generally in line with the subjective-rights theory of private law, one should rethink the classification of liens as rights.
A further very important aspect of rights, namely their enforcement by means of an action, has been disregarded in the case law discussed above.Contrary to Van Warmeloʹs statement that a right does not always have to be protected by the law, Sonnekus and Neels 67 refer to the maxim ubi ius ibi remedium.The authors explain that where there is a right there has to be an action or legal remedy to enforce that right.It is clear from the general principles of the operation of liens that the lienholder can never actively enforce his lien with an action.The legal remedy to protect retention of the thing is merely a defence. 68 indicated above, a lien developed from the exceptio doli, which is an equitable defence (billikheidsgefundeerde verweer).A lien cannot be enforced as an independent right against the debtor.Sonnekus and Neels 69 emphasise the fact that a lien is a passive ability to withhold, which does not grant a right of action to the creditor.To explain the operation of a lien the authors 70 refer to the analogous position in estoppel where an ownerʹs rei vindicatio is met with the defence of estoppel.A successful reliance on estoppel does not mean that the person relying on estoppel has a right to the thing.He therefore cannot institute action against the owner.He must wait for the owner to institute the rei vindicatio but then he has a defence (estoppel).Similarly, the lienholder cannot institute action against the owner but has a defence (a "right" of retention) when the owner acts.Sonnekus and Neels argue that the person raising estoppel has no right but relies on the factual circumstances.A lienholder has no right, but relies on his ex lege ability to withhold.The authors 71 furthermore compare a lien with the exceptio non adimpleti contractus.This exception can be raised where a creditor claims performance from the debtor, but is also in default.Such a creditor cannot demand performance until she has performed. 72The authors consequently describe reliance on a lien, estoppel and the exceptio non adimpleti contractus as passive weapons in the hands of the excipients. 73They describe a lien as a legally recognised ability to withhold, which is granted to the lienholder in terms of his personal right against the owner.From their discussion it is not clear whether Sonnekus and Neels regard this ability as an entitlement in terms of the personal right.For example, they describe the lawfulness of the relationship as flowing from "die onderliggende vorderingsreg" and as a legally recognised "terughoudingsbevoegdheid" afforded to a creditor "uit hoofde van sy vorderingsreg".It entitles the lienholder to suspend his duty to return the thing in his control until his claim against the debtor has been discharged.The lien therefore secures the lienholderʹs personal right against the debtor.Although it has a security function, it is not a right because it grants the lienholder no active entitlements to the thing in his control. 74 the light of the above approach the term "right" in "right of retention" to my mind is used in a loose and imprecise way referring to an interest protected by the law.I agree with Sonnekus and Neels that it is not a right at all.Therefore, it can also neither be a real right 75 nor a personal right.

Case law
Three of the judgments describing a lien as a right also refer to the procedural nature of liens.In United Building Society v Smooklerʹs Trustees and Golombickʹs Trustee 77 the judge 78 remarked as follows: Furthermore we doubt whether it is correct to say ... that the jus retentionis is a mere weapon of defence, for we think that if a person exercising that right were forcibly dispossessed he might make use of it as a weapon of offence in an action for spoliation.
Again, as so often in this judgment, the judge was uncertain ("we doubt") of the correctness of the proposition that a lien is a mere defence.His subsequent exposition of the legal position is also completely wrong and provides no explanation of why a lien is not a defence.The spoliation remedy does not protect a lien; it protects a personʹs control over a thing.The spoliation remedy therefore protects a factual situation, not a right.If control is taken from a lienholder against her will, she can institute the spoliation remedy to restore control.In Brooklyn House Furnishers v Knoetze and Sons 79 the court clearly and correctly stated that a lien never constitutes a cause of action, but that it is a defence against the owner's rei vindicatio.
In Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 80 the court held that both classes of liens can be raised as defences against an ownerʹs rei vindicatio.The court held that a debtor and creditor lien is a contractual remedy and not a real right.This contractual remedy is maintainable by the one party (the lienholder) to a contract against the other party.According to the court the other party (the debtor) may or may not be the owner of the property.Van der Merwe et al 88 inform us that the exceptio non adimpleti contractus 89 is a means of enforcing actual performance.Furthermore, the exceptio non adimpleti contractus can be described as a temporary defence aiming at actual performance where performance is still possible.In essence it means that in reciprocal contracts a party cannot claim performance without having performed herself.
Both Brooklyn House Furnishers v Knoetze and Sons 90 and the literature regard a lien as a defence against an ownerʹs rei vindicatio.A lienholder has the capacity to withhold control an ownerʹs thing until the owner has satisfied her debts to the lienholder.The law provides a defence to the lienholder to protect this capacity.
When an owner claims her thing with the rei vindicatio the lienholder can rely on her capacity to withhold (terughoudingsbevoegdheid).The latter term is propagated by Sonnekus.In the Dutch Burgerlijk Wetboek 91 the term "opschortingsbevoegdheid" (capacity to suspend) is used. 92

Capacity to withhold
In private-law literature we distinguish between rights, entitlements, 93 capacities (bevoegdhede) and competencies (kompetensies). 94Sonnekus and Neels 95 warn against the tendency to refer to "rights" 96 in a loose sense.The term "right" used in this loose sense can refer to a right (subjektiewe reg), entitlement, competency or a capacity.An entitlement flows from a right -it describes the content of the right.A competency or capacity emanates directly from the law and a legal subject can therefore not increase or limit another legal subject's competencies.From this statement the sui generis nature of a lien 99 is clear.He describes "retentie" as a lawful withholding of an ownerʹs thing.It is lawful because the law grants a remedy (defence) against the ownerʹs rei vindicatio.Due to its exceptional nature it is difficult to describe the ability to withhold in legal terms.This is possibly also the reason why the courts refer to the "right" of retention."terughoudingsbevoegdheid" can be translated as "capacity to withhold", because the law grants this defence.Capacity is used here not in the technical sense described by Sonnekus and Neels, but in the meaning of the ability to withhold granted by the law.

Practical implications
This "new" approach to liens is not only of academic value, but has practical implications.It clearly separates the question of whether a lien exists in a particular case from the determination of the nature of a lien.It recognises different forms of rights of retention, some falling under property law and others under the law of obligations.For example, when an owner institutes her rei vindicatio against the lienholder, the latter has a right to retain the thing, provided she has a claim against the owner.Where the owner has no contract with the lienholder, the only basis for the claim can be enrichment.Enrichment law determines both the existence of a claim in the particular circumstances and the extent of that claim.Where the owner has a contract with the lienholder, the latter has a contractual claim and its extent is determined by the contract between the owner and the lienholder.A lien should therefore not be classified as a limited real right, but as a defence to the rei vindicatio.This approach separates reliance on this defence from the operation of the exceptio non adimpleti contractus, which is historically also derived from the exceptio doli.Where a non-owner claims return of a thing on which a person has spent money or work in terms of a contract, the latter will rely on the exceptio non adimpleti contractus 101 before returning the thing to the non-owner.The extent of the claim is determined by the contract.There is, to my knowledge, no case in the South African law where in the latter situation the non-owner (the debtor) claimed a thing from her creditor, who then relied on a lien.This strengthens my argument that a lien is a mere defence against the ownerʹs rei vindicatio.In the event that a non-owner (a debtor) claims a thing from her creditor, the creditor should rely on the exeptio non adimpleti contractus.
Therefore a clear distinction should be drawn between the existence of a lien (as a defence against the rei vindicatio) and other rights of retention on the one hand, and the consequences of this distinction both for the parties and third parties affected by the existence of such rights of retention (third party operation): (i) X, the creditor, has a contract with Y, the debtor, who is not the owner of the thing.When Z claims the thing with rei vindicatio, X can raise the defence that she is entitled to retain control of the thing until her claim (based on enrichment, in other words for necessary and useful expenses) has been satisfied; or (ii) X, the creditor, has a contract with Z, the owner of the thing.When Z claims the thing with the rei vindicatio, X can rely on the defence that she is entitled to retain the thing until Z has fulfilled her contractual duty to pay (in other words, for all expenses provided for in the contract); (iii) X, the creditor, has a contract with Y, the debtor, who is not owner of the thing.Without tendering payment of the contractual debt, Y claims return of the thing based on Xʹs contractual duty to return the thing on completion of the work.X can rely on the exceptio non adimpleti contractus to enforce the payment of the expenses agreed upon in the contract before she returns the thing.
The above discussion concerns the classification of rights of retention and their creation.A different issue, related to the nature of the different rights of retention, pertains to their enforceability against third parties 102 such as creditors of the owner or the other contracting party in (iii).Since this article deals with the legal nature of a lien, the issue of the real operation does not fall within the discussion.
102 Despite the fact that the lien in United Building Society v Smooklerʹs Trustees and Golombickʹs Trustee 1906 TS 623 was a so-called creditor-debtor lien, the court held that it had third-party operation (derdewerking) against a secured creditor (the mortgagee) of the owner (the debtor).This is the only authority for the third-party operation of a lien in South African law.
law.It entitles the holder to expect other persons 61 to give her something, to do something or to refrain from doing something.This definition contains most of the elements of a right 62 but refers to only one leg of the legal relationship (ie the one between the two legal subjects).There is no mention of the object of the relationship, an element that Sonnekus and Neels regard as essential.The emphasised part of the definition appears to limit this right to a creditor's right (a personal right).Unlike Van Warmelo they require legal protection for it to qualify as a right.This definition of Hutchison et al is a very broad and general definition of a right.Sonnekus and Neels 63 explain that a right in terms of the subjective-rights theory is a relationship between the entitled person and other legal subjects (the subjectsubject relationship) in regard to a certain legal object (the subject-object 60 Hutchison et al South African Law 38.[The latest edition of Willeʹs Principles of South African Law 9 th ed (2007) does not define a legal right.]61 Legal relationship between two legal subjects.62 Also see Sonnekus and Neels Sakereg Vonnisbundel 7. 63 Sonnekus and Neels Sakereg Vonnisbundel 7.relationship).A right in terms of this theory is always a dual relationship, namely the subject-subject relationship and the subject-object relationship.Hosten et al 64 write in a similar vein and define a right as a relation between legal subjects, which relationship is regulated by law.The authors explain that a legal subject does not only have a right against someone, but also a right to something.A right is therefore a dual relationship consisting of a legal subjectʹs relationship with the object of his right and the relationship with all other legal subjects who must respect this right.
Although a lien appears to have elements of a right in the above sense, taking into consideration the subject-subject relationship, as well as the subject-object relationship, other elements of a right should also be considered.As I indicate 64 Hosten et al South African Law 543-544.65 Sonnekus and Neels Sakereg Vonnisbundel 771-772.66 Sonnekus 1983 TSAR 102-106.
10I prefer to use the term "ability" at this stage.The problem with the term "capacity" is discussed in 4.3 below.
When this came to the attention of Brooklyn House Furnishers it immediately claimed the furniture from Knoetze and Sons, who then relied on a salvage lien for the transport and storage of the furniture.Brooklyn House Furnishers paid the amount claimed by Knoetze and Sons in order to get the furniture.Thereafter they instituted action in the Magistrates Court to reclaim the money paid.According to the Magistrates Court Knoetze and Sons proved that the carrying and storage of the furniture were essential for their preservation.Brooklyn House Furnishersʹ application was dismissed and they appealed this decision.On appeal Brooklyn House Furnishers averred that it was not enriched by the carrying Brooklyn House Furnishers (Pty) Ltd v Knoetze and Sons 1970 3 SA 264 (A).2532 to store it.and storage of the furniture, and, if it were enriched, it was not at the expense of Knoetze and Sons.Botha JA 32 acknowledged Knoetze and Sonsʹ lien and the appeal was dismissed with costs.The judge 33 referred to United Building Society v Smookler's Trustees and Golombick's Trustee and Kommissaris van Binnelandse This point of view is criticised by Van der Merwe 37 and Sonnekus.38Vander Merwe is of the opinion that a lien 34Lubbe v Volkskas Bpk 1992 3 SA 868 (A).35 Lubbe v Volkskas Bpk 1991 1 SA 398 (O) 409E-F.36 Lubbe v Volkskas Bpk 1991 1 SA 398 (O) 408G-H.
this statement he relied on United Building Society v Smooklerʹs Trustees and 39See the discussion in Wiese Retensieregte 342-344.40 Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 1 SA 77 (A).
et al 60 emphasise the importance of a legal right and indicate that it is extremely challenging to define a right.The authors then analyse some definitions: met ʹn redelike mate van organisasie soos ʹn staat.ʹnStandpunt wat altyd ʹn regsmiddel verwag sou bv die bestaan van die volkereg in ʹn groot mate negeer, aangesien daar nie altyd ʹn aksie of ander soort gelyke regsmiddel beskikbaar is nie."VanWarmelo Regsleer para 242.59 Sonnekus and Neels Sakereg Vonnisbundel 769.Hutchison such as age, domicile and marital status.97Sonnekus and Neels 98 show that the competency of one legal subject can limit a right of another legal subject: a traffic officer has the competency (emanating from the law) to take away the car from an owner who drives under the influence of alcohol.This limitation on the ownerʹs ownership does not grant the traffic officer a correlative right to the carhe has a mere competency emanating from the law.It is not a capacity or competency in the meaning ascribed to these terms by Sonnekus and Neels.Perhaps one can turn to the Roman-Dutch authority to whom Sonnekus and Neels refer, namely Kersteman.He states as follows: 93Real rights, personal rights, immaterial property rights and personality rights.94Sonnekus and Neels Sakereg Vonnisbundel 12. 95 Sonnekus and Neels Sakereg Vonnisbundel 12. 96 See the discussion under 4.1 above.factorsRetentie, is een regtmatige wederhouding van eens anders zaak, die wy in onze magt of bezit hebben, ter tyde en wylen de Eigenaar van de zaak, ons, het geen hy wegens dezelve zaak aan ons schuldig is, voldaan of betaald heeft … (Rechtsgeleerd Woorden-Boek (1768) sv 'retentive') 100Because the law grants a defence to a creditor (the lienholder) in control of a thing, the owner cannot succeed with her rei vindicatio.I suggest for practical reasons that the term 97 Sonnekus and Neels Sakereg Vonnisbundel 13; Hosten et al South African Law 293.
afgifte van een zaak aan zijn schuldenaar op te schorten totdat de vordering wordt voldaan."A lien in Dutch law is not classified as a right, but as a capacity (bevoegdheid) to withhold.See Wiese 2013 CILSA 279-282.100 Het retentierecht.