What is spoliation?
Spoliation refers to the unlawful dispossession of someone’s peaceful possession of movable or immovable property without their consent and/or without a court order authorising the dispossessor’s actions. Spoliation focuses specifically on a person’s possession, and ownership of the property involved is not considered relevant. Luckily, our law provides a strong remedy, originating from Roman-Dutch law, for those who have been dispossessed, and it comes in the form of the mandament van spolie.
The remedy: The mandament van spolie
The mandament van spolie (spoliation) is rooted in the basic legal principle that no person is entitled to take the law into their own hands. While the media and childhood stories of Robin Hood make being a vigilante look glamorous, in South Africa, taking the law into your own hands is a serious affront to the rule of law and carries serious consequences.
The mandament’s main goal is to prevent self-help methods and to ensure that legal disputes are resolved through the courts. An individual, even if they have a ‘stronger’ right to property, such as ownership, is not entitled to forcibly take back possession thereof from someone else without following the proper legal procedure.
The practical importance of the mandament van spolie was emphasised by the Supreme Court of Appeal in the matter of Ivanov v North West Gambling Board and the core purpose of the remedy was summarised well in the judgement given in the matter of Nino Bonino v De Lange where it was held that: “It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the possession and will do that as a preliminary to any inquiry or investigation into the merits of the dispute”.
The remedy: In practice
The practical workings of the mandament van spolie are illustrated in the example below:
Imagine a landlord discovers that their tenant has stopped paying rent. The landlord pleads with the tenant but has no luck, and the tenant continues to fall into arrears. Frustrated by the situation, the landlord decides to change all the locks on the house while the tenants are at work in an attempt to get them to pay.
While the landlord, as the owner of the property, has valid frustrations, they are not entitled to take the law into their own hands. By changing the locks at the premises, the landlord has disturbed the tenant’s peaceful possession of the property, which then entitles the tenant to use the mandament van spolie as a remedy to regain such possession.
The important takeaway from this example is that the right of ownership does not justify self-help. As the old saying goes, “possession is nine-tenths of the law”. While this is not legally exact, this phrase captures the spirit of the mandament van spolie.
Dispossession can take many forms, and changing the locks on a property is not the only situation where the mandament is available. If the landlord in the above scenario had cut the tenants’ water or electrical supply, this would constitute a dispossession. If a security estate denies you access to the estate, or if someone tows your car and stores it somewhere that you cannot access, this too would constitute an unlawful dispossession.
The legal requirements and process for a spoliation claim:
There are two key elements which must be proven in order to succeed with a spoliation claim. The applicant must prove:
- They had peaceful and undisturbed possession of the property before the incident, and
- There has been an unlawful dispossession without consent or due legal process.
When considering a spoliation application, the court will not decide on ownership, rights to the property, or the merits of the case. The court simply weighs up the above elements.
The mandament van spolie remains a cornerstone of South African law, ensuring that possession is protected and that disputes are resolved through the correct legal channels. The remedy enforces the rule of law and preserves social order while allowing for the fair resolution of conflicts. In practice, it reminds us that even where you believe you have a strong legal claim, self-help is never permissible, and the courts must be one’s first recourse.
Reference List:
- Ivanov v Northwest Gambling Board and Others 2012 (2) SACR 408 (SCA)
- Nino Bonino v De Lange 1906 TS 120 at 122.
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