Being dispossessed of property (and/or incorporeal rights) without due legal processes followed may constitute unlawful conduct – and our law has a remedy to restore such possession.
The spoliation remedy (mandament van spolie) is a remedy that pertains to the restoration of possession, where same was wrongfully deprived from a person.
It applies to both movable and immovable property, and in some instances even to legal rights.
The spoliation remedy is a quick and robust remedy available for the restoration of possession.
This remedy is based on the principle that no one should take the law into their own hands.
Provided the requirements for the relief are met, both interim and final relief can be sought – however, same is most often made use of for interim relief, pending further adjudication as pertains to the lawfulness of the possession and/or ownership of property.
Our law requires that you approach a court for assistance; taking the law into your own hands is not an option (Ivanov v Northwest Gambling Board and Others 2012(6) SA 67 (SCA), and cannot be supported by our Courts.
Our Courts often face matters arising from tenants being unlawfully dispossessed of property (although this can apply to vehicles, and the like).
To succeed in obtaining a spoilation order, in the example of a tenant, the tenant must prove the following:
- He/she was in undisturbed possession of the property (Kgosana and Another v Otto 1991 (2) SA 133 (w)) and;
- He/she was deprived of that possession (Lau v Real Time Investments 165 CC (GP)).
In light of the above discussion, we shall refer to the case of Lau v Real Time Investments 165 CC (GP)), a practical example of a spoilation dispute instituted by a Tenant against a Landlord.
An internet café business owner was locked in a dispute with her landlord over a method of electricity billing.
The Landlord’s response was to first cut the electricity to the premises, then change the locks to bar access to the premises.
After trying, without success, to resolve the dispute – the Tenant applied for a spoilation order.
The landlord did not dispute that the applicant was in possession of the premises, nor that he had disposed her with neither consent nor court order.
The court decided against the Landlord and the Landlord was ordered to pay all costs, immediately restore possession of the leased premises to the tenant, and immediately reconnect the electricity.
As discussed above, it should be noted ,however, that the use of the spoliation remedy must be with caution, in that specific performance of contractual obligations cannot be restored using the Spoilation remedy, such as terminated water supply and electricity as a result of defaulting contractual obligations and/or payments specifically for water and electricity supply – Eskom Holdings SOC Ltd v Masinda 2019 (5) SA 386 (SCA) .
Should you have any queries, or require assistance with a related matter, kindly contact our office and schedule a consultation.
Written by Mr Mativandlela (Candidate Attorney)