oa Fundamina : A Journal of Legal History - The nature of the claim for holding over : South African law

Volume 16, Issue 2
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



This article traces the historical development of the nature of the claim for holding over in South African law and analyses the effect of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 on such a claim. Case law shows that although the courts have recognised the possibility of exemplary damages, such an order has never been granted. The courts have been more inclined to grant orders for rent, damages or both, basing the claim on breach of contract. Nevertheless, there has also been support for a claim for unjust enrichment and a claim for damages based on delict. It is in the latter area that the Constitution and recent legislation play a role and appear to have a limiting effect.

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