The mandament van spolie (spoliation) is a remedy in our law, based upon the fundamental principle that persons should not be permitted to take the law into their own hands to seize property in possession of others without their consent.

Spoliation provides a remedy in such a situation by requiring the status quo preceding the dispossession to be restored by returning the property ‘as a preliminary to any enquiry or investigation into the merits of the dispute’ as to which of the parties is entitled to possession.

As a result, a court hearing a spoliation application does not require proof of a claimant’s existing right to property, as opposed to their possession of it, to grant relief. A spoliation order is thus no more than a precursor to action over the merits of the dispute.

The Supreme Court of Appeal recently analysed the principles applicable to spoliation proceedings in the case of Eskom Holdings SOC Limited versus Nomajapan Masinda[1].

In the matter, Eskom disconnected the supply of electricity to property owned by and in possession of a consumer. The consumer applied successfully for an urgent spoliation order, and Eskom appealed against this decision. Eskom contended that the connection made from its grid to the consumer’s property was illegal and a danger to the public. For this reason, it asserted that it had acted lawfully in disconnecting the supply.

The consumer contended that the lawfulness or otherwise of the dispute was not an issue and that the supply had to be reconnected where after the parties could determine its legality.

It was held by the Supreme Court of Appeal that the mere existence of such a supply is, in itself, insufficient to establish a right constituting an incident of possession of the property to which it is delivered.

To justify a spoliation order, the right must be of such a nature that it vests in the person in possession of the property as an incident of their possession. The obvious examples that come to mind are rights bestowed by servitude, registration or statute.

In contrast, rights that flow from a contractual nexus between the parties are insufficient as they are purely personal and a spoliation order, in effect, would amount to an order of specific performance in proceedings in which a respondent is precluded from disproving the merits of the applicant’s claim for possession.

Judge Leach expressed a view that previous cases which held that such supply is in itself an incident of the possession of the property to which it is delivered, should be regarded as having been wrongly decided.

[1] Eskom Holdings SOC Limited v Masinda [2019]  JOL 44966 (SCA)

For more information, contact the professional legal team at Goldberg & de Villiers Inc on 041 5019800.



© Copyright - Goldberg & de Villiers Inc.