The rolling stone: Mandament van Spolie

By fluke or by design, and as propitious as my moirai would have it, the memories of my inquisitive youth days not long forgotten came knocking. I remember a paragon who together with many other persons with colossal intellect and drive were tasked with the obligation, as blacksmiths, of hammering me together with countless others into jurists. Professor D was tasked, for the purpose of this letter, with the avocation of sharing his wealth of knowledge in the Law of Property and Roman Law. Needless to say, naysayers had condemned us to remaining in the institution perpetually repeating the same course. Prof D, a man of admirable wits, in detail took us through the dictates of the Law of Property, as it were and as it is under constitutional supremacy. Memorializing the effort and sacrifice made by cognoscente such as our Prof D, in exalting them I proceed herein to take a bit from the wealth of knowledge I have amassed as a result of their ground work and their supererogatory efforts.

Mandament van spolie is derived from the principle of spoliatus ante omnia restituendus est (the person who has been deprived of his possession must first be restored to his or her former position before the merits of the case can be considered), which application and conception can be traced back as canon redintegranda of the Decretum Grataini. The founding purpose of mandament van spolie is to preserve public order by restraining persons from taking the law into their own hands therein causing tohubohu, and allow the court to pronounce on disputes.

The application of mandament van spolie extends to instances wherein a person is deprived unlawfully (in part or in full) of his possession of property, a joint possessor is deprived of his co-possession by his partner taking exclusive control of the object held jointly, a person is deprived unlawfully of his quasi-possession of a servitude right, and where a person is deprived unlawfully of his quasi-possession of other incorporeal rights.

It is established in our law that to obtain a mandament van spolie a person who claims spoliation must prove that he was in peaceful and undisturbed possession of the thing, and further that he was unlawfully deprived of such possession. The Respondent may advance as his defence that: the applicant was not in peaceful and undisturbed possession of the thing at the time of dispossession, the dispossession was not unlawful and therefore did not constitute spoliation, that restoration of possession is impossible, and the Respondent acted within the limits of counter-spoliation in regaining possession of the article.

Mandament van spolie is premised on possession and interruption of such possession. Possession, which, connotes the factual and mental domination of a thing by a person. A minimum measure of control is a prerequisite for all types of possession, while the mental state of the possessor may differ depending on the circumstance. It is paramount to note again that possession is not ownership. And as Prof D once argue to the complete disgruntlement of our young minds, even if you are the owner of the thing the possessor may still successfully bring a mandament van spolie application against you if you spoilage their possession.

Taking all the above into account, and noting that mandament van spolie comes from a time where trees had the ability to walk, animals spoke to humans, stones had hands and stood upright as man. Development around us gesticulates for principles in law to adapt and also calls for the reinvestigation of the original concepts and the need to develop new remedies.

Development has aroused specific questions in relation to the application of the mandament van spolie in instances, which questions amongst others include: whether there can be spoliation in relation to electricity, internet services, telephone services, and cancelation of a subscriptions. Mandament van spolie has in instances been viewed as an old remedy which has been catapulted into obscurity due to its lack of continuous calling for it within our constitutional jurisprudence.

The quintessence of the concept of mandament van spolie cannot be explored fully herein. I submit however that we owe it to ourselves as the legal baton bearers to explore its limits and to advance to the courts stern and puissant arguments that will ensure the development of our common law.

By
Gastavus Chabalala (African Child)
gastavus@dyason.co.za