Mea Malan

Can one safely say that possession is nine-tenths of the law? The two concepts of possession and ownership are entirely different in our law. Just because you are the owner of property does not automatically mean that you are entitled to the possession thereof.

The mandament van spolie remedy, which is usually dealt with on an urgent basis in the form of an urgent application, is an ancient remedy aimed at restoring control or possession of property to the applicant from whom it was taken through unlawful self-help and without investigating the merits of the parties’ rights to control the property.

This remedy focuses on protecting possession and does not consider ownership of the property. For this reason it is usually said that this remedy is based upon the principle that nobody is allowed to take the law into his / her own hands. Our courts frown upon people taking the law into their own hands and acting against another person’s wishes without a court order or authorising legislation.

This remedy is in other words not used to protect rights at all, but rather to restore possession of property and also to restore peace and order. Any form of self-help is therefore discouraged by the mandament. The remedy does not investigate any merits of any of the interested parties, the court will simply be concerned by the factual position – whether there is proof of existing control and proof of unlawful spoliation of that control.

After a factual investigation of the position a court will order the spoliator to restore the spoliated control to the successful applicant immediately, regardless of the lawfulness of the control.

In basic terms, the two requirements for an applicant to be successful with this remedy were set out in Yeko v Qana 1973 (A):

  1. Showing actual dispossession, and
  2. That the dispossession was unlawful (i.e. it was not done with consent, a court order or legislation which authorised it).

Possession is in other words nine-tenths of the law and spoliation is not permitted in our law.

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.