The Mandament van Spolie is a cornerstone of South African common law, safeguarding the possession of property by swiftly restoring possession to those unlawfully deprived, irrespective of their legal entitlement to the property itself.
The core objective of this remedy is to reinstate the status quo ante, thereby undoing any unlawful disturbance of possession. A spoliation order is granted solely on the basis of unlawful deprivation, rather than on the applicant's legal right to the property.
To succeed in a spoliation claim, two essential requirements must be met:
1. The applicant must demonstrate they were in peaceful and undisturbed possession of the property up to being deprived thereof.
2. The applicant must establish that they were unlawfully deprived of that possession.
The application of the Mandament van Spolie may become complex when consent to possession is involved. If the applicant (person relying on the mandament) initially consented to the respondent’s (the person depriving him/her of possession) possession, the question arises: does this consent invalidate the claim of unlawful deprivation once consent has been withdrawn or violated?
Key Case Law dealing with consent
• Nino Bonino v De Lange (1906): This case established the fundamental principle that no individual is permitted to forcibly dispossess another of their property, whether movable or immovable, without their consent. Should such an unlawful dispossession occur, the Court will summarily restore the previous possession, prioritizing the immediate return of property over any investigation into the merits of the underlying dispute.
• Yeko v Qana (1973): The Court emphasized that once consent to possess is revoked, any continued possession by the respondent without the applicant’s consent becomes unlawful. This withdrawal of consent renders the respondent’s retention of the property unlawful, supporting a spoliation claim.
• Street Pole Ads Durban v Ethekwini Municipality (2008): The Supreme Court of Appeal clarified that, in spoliation proceedings, the respondent is precluded from challenging the applicant’s title to the property. The focus of the claim lies in the unlawful disturbance of possession, not ownership rights.
• Andric v Fourie (2024): In this recent High Court case, the Court reaffirmed that the Mandament van Spolie can still apply even if the applicant initially consented to the respondent’s possession. The Court maintained that the primary objective of spoliation is to restore possession that was unlawfully taken, irrespective of any prior consent given to the respondent. In this case, the respondent’s unlawful retention of the applicant’s tools, which had been left on their premises as part of an ongoing building project, was deemed an unlawful deprivation, warranting the return of the property to the applicant.
In conclusion, the Mandament van Spolie is not negated by initial consent to possession. As long as the respondent’s continued possession becomes unlawful - whether due to the withdrawal of consent or a breach of the terms under which possession was granted - the applicant remains entitled to seek a spoliation order. The focus of the remedy is on protecting the sanctity of possession, ensuring that unlawful dispossession is swiftly addressed, regardless of the legal complexities surrounding consent.
Article by Elize-Mari Gerber, Candidate Attorney at Malan Lourens Viljoen Inc.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.