The amendment van spolie is a legal remedy directed at restoring possession to a party which has been unlawfully dispossessed. The Court hearing an application for spoliation does not concern itself with the rights of the parties (whatever they may have been) before the spoliation took place, it merely enquires whether there has been spoliation or not (Rosenbuch v Rosenbuch and another 1975(1) SA 181 (W)).
In order to obtain a spoliation order the person seeking such an order (the Applicant) must prove that he/she was in possession of the property in question and that the other party (the Respondent) deprived him/her of the possession forcibly or wrongfully against his/her consent.
What exactly does it mean to be forcibly deprived of possession against your consent? Does one have to literally put up a fight?
Consider the following scenario:
A building contractor has been contracted to build a house for MR and Mrs X. Everything goes well for a few months however Mr and Mrs x start complaining about the progress of the work and are not satisfied that the contractor is working according to the building contract. Mr and Mrs X then inform the contractor that they are cancelling the building contract. A representative of Mr and Mrs X then goes to the building site and inform the workers to vacate the site seeing that the building contract has been cancelled. The workers then pack their tools and materials and vacate the site without any fuss or fight.
Does voluntarily leaving the site in the above scenario mean that dispossession was consented to?
In the case of Stocks Housing (Cape) (Pty) Ltd vs Chief Executive Director, Department of Education and Culture Services and Others 1996 (4) SA 231 (C), the Court held that “spoliation may take place in numerous unlawful ways. It may be unlawful because it was by force, or by threat of force, or by stealth, deceit or theft, but in all cases spoliation is unlawful when the dispossession is without the consent of the person deprived of possession.” Therefore spoliation will take place if a party is deprived, by the action of another party, of control over the property in question. Force or stealth in the deprivation does not need to be shown.
The above was reiterated by the Western Cape High Court in the case of Top Assist 24 (PTY) Limited t/a Form Work Construction v Cremer and Another  4 All SA 236 (WCC).
What defenses can be raised against a spoliation order?
There are a limited number of defences which a party can raise in spoliation proceedings and these are: denial; restoration impossible and counter spoliation. A party may deny that the act alleged was one of spoliation or claim that it was legally justified. However that the allegations that a contractor was in default and in breach of the building contract and that the owners where entitled to cancel the contract, and did so and that they were entitled in terms of the contract to demand that the contractor vacate the site, does not serve as a defense to the claim of spoliation. The aforesaid does not justify the owner of depriving the contractor of possession of the building site without the contractors’ consent and without proceeding lawfully against the contractor for an ejectment order from the site.
Going back to the given scenario, it can be said that the fact that the workers on the site left voluntarily does not in itself show that there was consent from the contractor for the dispossession of the site. Arguably the position would still be the same if the contractor himself had left the site without a fight when asked to do so.
One does not have to tack a ‘punch to the face’, as it were, in order to prove a claim for spoliation. The notion of force in the deprivation does not in itself need to be shown in order to obtain a spoliation order, the Courts are concerned with the wrongful of dispossession against the consent of the party being dispossessed. However, that being said, when a party seeks a spoliation order it is not sufficient for him/her to simply make out a prima facie case for the order: he/she must ‘prove the facts necessary to justify a final order. The burden of proof still lies with the person seeking the spoliation order to show on a balance of probabilities that he/she did not consent to the dispossession of the property that was in his/her possession.
By Kgolofelo Makhuthudisa