Think twice before you take the law into your own hands

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It is a well-established principle in South African law that a person may not take the law into his or her own hands. People aggrieved by the conduct of another must follow proper legal procedure in order to address their grievances and to obtain the relief they want. For instance, a landlord may not evict a non-paying tenant without a court order. It does not matter how delinquent the tenant may be, you may not deprive the tenant of his or her possession of the leased premises until a court order that authorises the eviction has been obtained. The same principle applies to goods that are in another’s possession of which you are the lawful owner, or others misusing your land to gain access to their property. Our law requires you to approach the courts in order to grant you the relief you seek.

The South African legal system has an old common law remedy known as the mandament van spolie (spoliation), which provides relief to persons who have been deprived of goods without due legal procedure having been followed. Such a deprived person can then regain possession of the dispossessed goods by way of the spoliation remedy.

Relief by way of the mandament van spolie is mostly claimed in application proceedings as opposed to action proceedings due to the often urgent nature of these matters. For example, a tenant who has been evicted without notice of due legal procedure having been followed would be left without any shelter and would thus need to urgently gain access to the leased premises in order to be protected from the elements.

A person wishing to bring a spoliation application must allege and prove two elements.

These are: 

  1. The applicant will have to allege and prove that he had undisturbed and peaceful possession of the good(s).
  2. The applicant must allege and prove unlawful deprivation of possession by the respondent.

The first requirement does not require the dispossessed party to have a legal right to possess the property. The cause for the applicant’s possession is irrelevant for the purposes of the spoliation remedy. It is likewise irrelevant whether the respondent has a stronger right or claim to possession, such as ownership. The mandament van spolie protects only physical possession and not the right to possession.

There are very few defences available to a spoliation application which do not amount to a mere denial of the applicant’s allegations, since the merits of the applicant’s possession are not relevant to spoliation proceedings. One such example is where a statutory right to dispossess exists. An example of this is when law enforcement officials dispossess a person of goods in terms of the search and seizure powers contained in the Criminal Procedure Act 51 of 1977.

A respondent can also plea that it is impossible to return the dispossessed goods, and to thus restore the status quo ante, as a defence to a spoliation claim. This defence will be available to a respondent in circumstances where the dispossessed goods were destroyed, stolen, or in some other way alienated to a third party. The mandament van spolie would not be the appropriate remedy in such circumstances and the applicant should rather consider other remedies, such as claiming for damages.

Finally, a person who wishes to restore his or her possession of goods by way of the mandament van spolie must bring the spoliation application within a reasonable time, as spoliation may be refused otherwise.

Reference List:

  • Amler’s precedents of pleadings, 8th Edition, Harms.
  • Various case law
  • Personal experience

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. Errors and omissions excepted (E&OE)