By by Adv Marius van Vuren – Pretoria Bar
Spoliation (Mandament van Spolie)
Spoliation is the wrongful deprivation of another’s right of possession. It may relate to movable or immovable property or even a legal right. It is not available to enforce a contractual obligation.
The Mandament van Spolie is an extraordinary, quick and robust remedy for the restoration of possession.
Its object is to restore the status quo ante (return possession to the person who was deprived), and is based on the principle that no man should take the law into his own
Since the object is to restore possession to the applicant, the court will not consider any defences based on the respondent’s rights of ownership. Therefore neither the applicant nor the respondent need to prove ownership. Only the requirements listed below needs to be proven. Based on this unique characteristic of the Mandament van Spolie this remedy can be used by a thief or any other person without the right of ownership.
The Mandament van Spolie is a final order and is appealable. The respondent, however, may continue with other proceedings if he is the owner.
It is usually brought by way of application and by the nature of it is often brought on an urgent basis.
• Legal requirement:
1. The applicant must have been in possession of the property1
o The applicant does not need to prove that the possession was lawful.
o He must have factually held the thing with the intention of securing some benefit for himself.
o Possession need not be physical, exclusive or personal; provided it is effective.
2. The respondent must have deprived the applicant of that property forcibly or wrongfully.
o The deprivation must have been actual and physical.
The applicant must prove the above mentioned requirements on a balance of probabilities.
• The defenses to a spoliation application are:
1. A denial that the respondent has dispossessed the applicant;
2. The applicant was not in possession;
3. The deprivation was not unlawful;
4. The impossibility of restoration;
5. Counter-spoliation – that the respondent recovered possession immediately in the act of spoliation by the applicant;
6. That the application is merely ancillary to an application for specific performance.
1 Nino Bonino v De Lange 1906 TS 120; Yeko v Qana 1973 (4) SA 735 (A)
This note is written upon request from Ray Green in his capacity as administrator of the Legal Talk, Facebook page. The request was to provide a short explanatory note for the lay person in regards to Mandament van Spolie, and is in no way intended as a legal opinion. All users are urged to approach an attorney for any legal assistance.