In South African law, a fundamental principle emphasises that individuals cannot take matters into their own hands. Rather, they must adhere to proper legal channels to address grievances and seek the necessary recourse. For instance, landlords cannot simply evict non-paying tenants without obtaining a court order. Regardless of the tenant’s delinquency, it is impermissible to deprive them of possession of the leased premises without the proper legal authorisation.
Similarly, individuals cannot unlawfully seize goods or encroach on another’s land to access their property. Instead, the legal system mandates approaching the courts to obtain the desired relief. One avenue available within the South African legal framework is the ancient common law remedy known as the mandament van spolie, commonly referred to as spoliation.
The mandament van spolie serves as a remedy for individuals who have been unlawfully deprived of goods without following the due legal process. It allows the aggrieved party to regain possession of the unlawfully seized goods through legal recourse.
Typically, claims for relief under the mandament van spolie are pursued through application proceedings rather than action proceedings due to the urgent nature of such matters. For instance, a tenant who has been evicted without proper notice or legal procedure may urgently seek access to the leased premises to ensure shelter and protection.
To initiate a spoliation application, the applicant must establish and substantiate two key elements:
- Undisturbed and peaceful possession of the goods.
- Unlawful deprivation of possession by the respondent.
Importantly, the possession asserted by the applicant need not be based on a legal right. The focus of the spoliation remedy is solely on physical possession, disregarding the underlying legal entitlement to possession, such as ownership rights.
In spoliation proceedings, there are limited defences available to the respondent, with most defences amounting to mere denial of the applicant’s allegations. However, certain defences may include situations where statutory rights to dispossess exist, such as actions taken by law enforcement officials under the Criminal Procedure Act 51 of 1977.
Additionally, a respondent may argue the impossibility of returning the seized goods and restoring the status quo ante as a defence. This defence applies in cases where the goods have been destroyed, stolen, or transferred to a third party, rendering the spoliation remedy inappropriate, and the applicant may need to pursue alternative remedies, such as damages.
Lastly, it is crucial for individuals seeking to reclaim possession of goods through the mandament van spolie to initiate the application within a reasonable timeframe to avoid potential refusal based on delay.
