Unpacking the Mandament of Spolie

Class ActionIntroduction

 

The mandament van spolie (also known as the spoliation remedy, or the mandament) is an ancient remedy available to any person who is dispossessed unlawfully without a court order, or authorizing legislation for the dispossession, or consent.  Very basically, there are (generally speaking) two requirements that a dispossessed person needs to prove in order to succeed in court:

 

  • Showing that there was actual dispossession  and
  • That that dispossession was unlawful.

 

In Van Rhyn and Others NNO v Fleurbaix Farm (Pty) Ltd 2013 (5) SA 521 (WCC) the court described the mandament of spolie as follows:

 

“The mandament van spolie is directed at restoring possession to a party which has been unlawfully dispossessed. It is a robust remedy directed at restoring the status quo ante, irrespective of the merits of any underlying contest concerning entitlement to possession of the object or right in issue; peaceful and undisturbed possession of the thing concerned and the unlawful despoilment thereof are all that an applicant for a mandament van spolie has to show…”

 

Defenses and obtaining a final interdict

In Daylo v Mnquma Local Municipality and Another (8490/2016) ZAECMHC 36 (9 Septermber 2016), the court held that: 

[7]        “The following defenses are recognised in spoliation proceedings:

  • the applicant was not in peaceful and undisturbed possession of the thing in question at the time of the dispossession;
  • the dispossession was not unlawful and therefore did not constitute spoliation;
  • the restoration of possession is impossible; and
  • the respondent acted within the limits of counter-spoliation in regaining possession of the article.

 

[8]        In order to obtain a final interdict as contemplated in addition to his mandament van spolie, the applicant must establish the following:

  • that there is a clear right on the part of the applicant;
  • an injury actually committed or reasonably apprehended; and
  • the absence of any other satisfactory remedy.”

 

In respect of the requirements for a final interdict, thes have consistently referred to the requirement to stablish a clear right as a requirement to establish, on the balance of probabilities, facts and evidence. This will depend on the facts and evidence at hand.

 

Impala Water Users Association v Lourens NO and Others (087/2003) [2004] ZASCA 15; 2008 (2) SA 495 (SCA) ; [2004] 2 All SA 476 (SCA) (26 March 2004):

 

The mandament van spolie does not have a ‘catch-all function’ to protect the quasi-possessio of all kinds of rights irrespective of their nature…. but not where contractual rights are in dispute or specific performance of contractual obligations is claimed: Its purpose is the protection of quasi-possessio of certain rights. It follows that the nature of the professed right, even if it need not be proved, must be determined or the right characterised to establish whether its quasi-possessio is deserving of protection by the mandement. Kleyn seeks to limit the rights concerned to ‘gebruiksregte’ such as rights of way, a right of access through a gate or the right to affix a nameplate to a wall regardless of whether the alleged right is real or personal. ….’.

 

Conclusion

A clear right must be established and this will largely depend on the facts / evidence concerned. Where performance of an agreement is concerned, the mandament may not be the most appropriate remedy. It is therefore important to consult with a professional, contact SchoemanLaw today.

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