Mandament van spolie (spoliation) is an old common law remedy that is available in South African law to protect possession of property. The remedy results in the restoration of possession to persons who have been unlawfully dispossessed of the property. The remedy fulfills the function of peace-keeping as far as unlawful dispossession of property is concerned and prevent individuals from taking the law into their own hands. Bare possession is enough to satisfy the locus standi in the case of mandament van spolie.
It is usually brought by way of application and by its nature it is often brought on an urgent basis.
Anybody who asserts this remedy must prove the following:
- that he/she was in peaceful and undisturbed possession of the property;
- that he/she was unlawfully dispossessed by the spoliator.
Since the object is to restore possession to the applicant, the court will not consider any defenses based on the respondent’s rights of ownership. Therefore neither the Applicant nor the respondent need to prove ownership.
One of the recognized defenses is that of impossibility in that it may be impossible to return the property because it does not exist anymore or the property may have suffered irreparable damage or harm that makes restoration impossible.
Application of the remedy
Our Superior Courts endowed with the competence to set precedents have handed down varied decisions resulting in uncertainties as to the outcome of any matter coming before these Courts. This is due in part to the interpretation and application of the remedy.
The question giving rise to divergent decisions is ‘whether the mandament van spolie is still a feasible remedy in instances where the spoliated property suffered irreparable damage.’
On one hand, we have those who argue that the remedy is premised on repossession of the spoliated property and if it is no longer possible to restore possession, then the mandament can in principle not be applied.
In Rikhotso v Northcliff Ceramics (Pty) (Ltd), Nugent J, then presiding, held that a spoliation order cannot be granted if the property at issue has ceased to exist. He further stated that the Mandament is a preliminary and provisional order based on the assumption that the property in fact exists and may be awarded in due course to the properly entitled party and if the property is destroyed, the spoliatus has recourse against the spoliator in both civil and criminal action. He held that property can accordingly not be restored by substitution. The decision in Rikhotso was therefore not to grant the remedy on account of impossibility.
A similar rationale was held by the Supreme Court of Appeal in Tswelopele Non – Profit Organization v City of Tshwane Metropolitan Municipality. In this matter, occupiers of a vacant piece of land in Garsfontein were evicted from their homes and their homes were demolished by the nature conservation division of the City, the immigration control office of the Department of Home Affairs and the South African Police Services. The homes of occupiers were built using pieces of plastics and scrap sheet metals picked up from manufacturers around the City. Tswelopele Non – Profit Organization applied for restoration of possession of the homes to the occupiers in terms of the mandament van spolie and for provision of temporary shelter to the desolate occupiers in terms of their rights under section 25 and 26(3) of the Constitution while their homes are being restored.
The Supreme Court of Appeal confirmed in line with the Rikhotso judgment that the main objective of the mandament is to temporarily restore physical control and enjoyment of property and not its reconstructed equivalent. The Court evaluated existing remedies and found that none provided the occupiers with suitable protection. The Court instead decided to create a constitutional remedy to provide the type of relief, which according to the court, the mandament was unable to do in that particular instance. The Court held a view that the object of remedying the kind of harm it had to deal with was to vindicate the Constitution and thereby ordered that the occupiers should get their shelters back. Since the materials belonging to the occupiers have been destroyed, the Court ordered that they should be replaced with materials that afford habitable shelters. Because the occupiers were alleged to have amongst them unlawful occupiers and vulnerable to lawful evictions, the reconstructed structures were to be erected in a manner capable of being dismantled with ease.
On the other hand, there are those authors who believe that it should be possible in some instances to require the spoliator to restore or reconstruct what he has demolished: and this restoration or reconstruction can be done in terms of the mandament van spolie.
In Fredericks and another V Stellenbosch Divisional Council, where the council demolished squatters corrugated – iron homes in flagrant contempt of the law, the then Judge Diemont, issued an order requiring the Council to re-erect the applicants homes. The order entailed recreating shelters of approximately similar size and efficacy and if the original sheets of corrugated iron could not be found or if they were so damaged by the bulldozer that they could not be used again, the other sheets of iron of similar size and quality should be used
In another Supreme Court of Appeal matter, City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents Association, City officials aided by private contractors under the watchful eye of a large police contingent, removed the roof structures and roof coverings of Block J, Mamelodi Hostel while occupants were still inside it. This gave rise to the urgent spoliation proceedings which ended up in the Supreme Court of Appeal.
Despite the doctrinal difficulty with the application of the mandament, the Court in Mamelodi Hostel Residents Association went ahead to apply the Mandament. The debate concerning whether spoliatiation remedy is available in instances where restoration of destroyed or demolished goods is required, was not re – evaluated. The result of the judgment was that the roof would have to be re – erected or rebuilt so that the City could comply with the order.
Accordingly, from Mamelodi Hostel Residents Association case, the conclusion may be drawn that the mandament van spolie is available where parts of property have been destroyed and the spoliator is required to place residents in the same position they were in prior to the dispossession.
In conclusion, it is my submission that the Mandament van spolie is still relevant and needs to be developed not only to fulfil constitutional obligation in terms of section 25 and section 26 of the Constitution, but to cater for situations of impossibility of restoration if justice is to be adequately served and order to prevail in our constantly changing society. If the remedy does not undergo further development, its original object and purpose will not be realized. It is an important safeguard of citizen’s real and personal rights.