The concept of law and its enforcement through the justice system is there to ensure that peace and justice prevail in society. Key to its functions is the endeavor to redress injustice as well as prescribing acceptable standards of conduct. Had it not been for law and its process, anarchy would rule the day in society as each individual or entity would strive to advance their interests no matter what stands in their way.
To avert the above, taking the law into one’s hands is frowned upon. We strongly advise complainants to utilize available judicial and law enforcement processes in seeking redress.
A mandament van spolie (Spoliation) is an Order of Court that is aimed at discouraging parties from taking the law into their own hands where disputes occur. As was held in the case of Ngqukumba v Minister of Safety and Security and Others 2014 (5) SA 112 (CC) parties ought to seek the redress of disputes through lawful means and any conduct that defies this obligation should be reprimanded.
In seeking a Spoliation Order, the Court in Yeko v Qana 1973 (4) SA 735 (A) outlined what is required;
- A party must have peaceful and undisturbed possession of a thing; and
- Such party must unlawfully be deprived of such possession.
It is clear from the above that the deprivation of possession must be actual and not impending. To explain this we will briefly discuss the case of Bisschoff & Others vs Welbeplan Boerdery (Pty) Ltd (815/2016)  ZASCA 81.
The parties entered into Purchase and Sale Agreements whereby the Respondent would buy some portions of farms owned by the Appellant. The sale was subject to suspensive conditions which required the Respondent to secure finance within a stipulated period. The agreement also stipulated that where the Respondent fails to secure such financing within the given time, the arrangement would be one of lease for a period of 12 months. The Respondent subsequently failed to secure the finance in the given period and the arrangement turned into lease agreements as provided. During the course of its tenancy the Respondent breached the lease and in response the Appellant, through strongly worded letters of demand, advised that the leases had been cancelled and the Respondent must not trespass through the farm portions which had been leased to them.
The High Court
In response to the letters of demand the Respondent successfully secured a Spoliation Order in the High Court.
Supreme Court of Appeal (SCA)
The Appellant then approached the SCA to appeal the High Court Order. In our summary of the decision, the Supreme Court of Appeal considered the following in overturning the High Court Order;
- Deprivation of possession was impending, not actual;
- Threats to dispossess do not constitute deprivation;
- The appropriate order against threats of dispossession is a Prohibitory Order (not a Spoliation Order).
It was held in the case of The Three Musketeers Properties (Pty) Ltd and Another v Ongopolo Mining and Processing Ltd and Others  NASC 15 that threats to dispossess or deprive do not constitute dispossession or deprivation. The requirements for a Spoliation Order are clear, only when these successfully manifest can an Order for Spoliation be triggered.
We advise parties not to resort to self-help means in disputes, but utilise the available judicial and law enforcement processes. We assist parties to apply for Spoliation Orders or to respond to Spoliation procedures against them. Our website and social media pages outline a wide array of other specialist areas of law that we assist in. Kindly contact us for committed and professional assistance.
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