Mandament van Spolie: protection against unlawful dispossession

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BUSINESS NEWS - It is a well-established legal principle in South Africa that an aggrieved party may not take law into his/ her own hands but must rather follow due legal procedure(s) to obtain the relief they seek.

Unlawful dispossession of movable/ immovable property is, despite the foregoing legal principle, an ongoing and increasing concern, especially considering the growing economic pressure on individuals in South Africa.

Our legal system, luckily, describes a remedy which provides interim relief to persons who have been deprived of their possession, without due legal procedure(s) having been followed.

The Mandament van Spolie is an old common law remedy in South Africa, otherwise known as a Spoliation application. A spoliation application offers protection against an aggrieved party unlawfully dispossessing another from his/her existing right to possess movable/ immovable property without proving, in law, that such person is indeed not entitled to such right.

It is an extraordinary possessory remedy which is brought by means of an application, often on an urgent basis. In an application of spoliation, the applicant must allege and prove the following:

that he/ she was in peaceful and undisturbed possession of the property,
that the respondent deprived him/ her of the possession and
that such deprivation occurred on a wrongful basis and without the consent of the applicant.

It is very important at this stage to pause and emphasise that an applicant need not prove ownership of the property in question. This means that the applicant in the Mandament van Spolie application does not have to be the lawful owner of the property to be in a position to bring such an application before court. Perhaps this statement is best explained by way of the following example: a thief steals your motor vehicle. You continue to take law into your own hands and forcibly re-obtain possession of your motor vehicle a few weeks later. The thief may bring an application against the owner for unlawfully depriving him/ her of his/ her peaceful and undisturbed possession of the motor vehicle.

An order granted in terms of the abovementioned remedy is not a final determination of ownership rights in and to the property, but it provides immediate, interim relief relating to the possession thereof.

Deprivation of the possession of property can take on many forms, it will be impossible to discuss every type of scenario in this article. It stretches from being physically dispossessed of movable property to being locked out of immovable property by way of the landlord changing the locks. If you or anyone you know have fallen victim of an aggrieved party taking law into his/ her own hands, do not hesitate to make use of this possessory remedy available to you.