Mandament Van Spolie – What must be proved?
In a recent matter I was instructed by one of our clients to assist in an urgent application before the Western Cape High Court which dealt with, amongst other aspects, the question of mandament van spolie.
Mandament van spolie (spoliation) is an old common law remedy used by a person who had been in peaceful and undisrupted possession of an item (or goods), and was unlawfully deprived of that possession, in other words, someone else took possession of that item without following a due legal procedure. Therefore a spoliation application can be brought against the person who had taken the item (called “the dispossessor”). The mandament is not concerned with the underlying rights to claim possession of the property concerned, it seeks only to restore the status quo ante (in other words the situation prior to being dispossessed). The essential rational for the remedy is that the rule of law does not countenance resort to self-help.
In Rikhotso v Northcliff Ceramics (Pty) Ltd and Others (Rikhotso) it was held that:
“The remedy afforded by the mandament van spolie, expressed in the maxim spoliatus ante omnia restituendus est, is generally granted where one party to a dispute concerning possession of property seizes the property pursuant to what he believes to be his own entitlement thereto. In such cases a court will summarily order return of the property irrespective of either party’s entitlement to possession, and will not entertain argument relating to their respective rights until this has been done. The principle underlying the remedy is that the entitlement to possession must be resolved by the courts, and not by a resort to self-help.
By its nature then a spoliation order will usually operate as no more than a preliminary order for restoration of the status quo until the entitlement to possession of the property is determined. The assumption underlying the order is that the property exists and may be awarded in due course to the party who establishes an entitlement thereto.”
Two requirements must be met in order to obtain the remedy. Firstly, the party seeking the remedy must, at the time of the dispossession, have been in possession of the property. Secondly, the dispossessor must have wrongfully deprived them of possession without their consent. As indicated in Rikhotso case he assumption underlying the granting of the remedy is that the property exists and is capable of being restored to the possession of the party that establishes entitlement thereto. It is for this reason that the remedy is not available in circumstances where it has been destroyed. It is also not available, generally, in circumstances where the property is no longer in the possession of the spoliator.
Our courts have also accepted that the remedy may be granted in circumstances in which the property is no longer in the possession of the spoliator, but is held by a third party. In Malan v Dippenaar it was held:
“Na my mening is ’n Hof geregtig om ’n bevel te maak teen ’n spoliator vir teruglewering van die besit van gespolieerde eiendom al is hy nie meer in besit daarvan nie tensy, om een of ander rede—bewys waarvan op die spoliator is—dit duidelik is dat dit onmoontlik vir hom sal wees om die Hof se bevel uit te voer.”
In the Jose Monteiro and one Other v Kenneth Leonardo Diedericks (1199/2019)  ZASCA 015 (2 March 2022) the court had a contrary view to the effect that the mandament does not lie in circumstances where possession of the property has passed into the possession of a bona fide third party.
In Jamieson and Another v Loderf (Pty) Ltd and Others (A595/2011)  ZAWCHC 18 (20 February 2015) Rogers J outlined and considered the nature of this controversy in the authorities. The court came to the conclusion that it was unnecessary to resolve it. Instead, it held, on the facts, that the immovable property in issue in that matter had been sold and transferred to the third party who had no knowledge of the pending spoliation proceedings and had purchased the property bona fide. Accordingly, as a matter of fact, restoration of the property was not possible. For this reason, an order restoring the property could not be granted. The court nevertheless framed a declaratory remedy to vindicate the underlying principle of the rule of law. It did so primarily because the property had been sold after an unsuccessful application for a mandament but while an appeal was pending, in which the court of first instance was found to have been wrong.
Where the spoliator had alienated the thing to a third party, the position is not so clear. In some cases, it was found that restitution would be impossible if the spoliator had in good faith (bona fide) alienated the thing to a bona fide third party.
In Painter v Strauss 1951 (3) SA 307 (O) and Malan v Dippenaar 1969 (2) SA 59(O). The approach was followed that where a third party had acquired possession, the mandament could still be granted unless the spoliator proves that it is impossible for him or her to carry out the court’s order.
In Jivan v National Housing Commission 1977 (3) SA 890 (W). This approach was restricted to the situation where the spoliator had transferred possession in bad faith (mala fide). It is submitted that the approach in Painter and Malan is to be preferred. Transfer of possession to a third party cannot imply that restitution will always per se be impossible. In cases where the spoliator can regain possession without much trouble or delay the mandament van spolie should be granted. The bona fides or mala fides of the spoliator should therefore be irrelevant. Bona and mala fides are only relevant when it comes to the position of the third party as it is accepted that the mandament van spolie can only be granted against a mala fide third party.
In Raik v Raik 1993 (2) SA 617 (W) the court refused restoration of jewellery which was in the possession of the respondent’s mother who acquired it bona fide.
Because the mandament by its nature may involve either mandatory element, such as the delivery of movable property, and where the order cannot be carried into effect it cannot, competently, be granted. Whether the order can be carried into effect is a question of fact to be determined by the court asked to grant an order.
In Eke v Parsons the Constitutional Court affirmed the essential characteristics of a court order. It accepted that a court order must be effective, enforceable and immediately capable of execution. In a minority concurring judgment Jafta J stated that:
“The rule of law requires not only that a court order be couched in clear terms but also that its purpose be readily ascertainable from the language of the order. This is because disobedience of a court order constitutes a violation of the Constitution.”
It bears emphasis that in order to be an effective order, whether or not its language is clear, the order must be capable of being carried into effect by the party under burden of that order.
The matter in which we were instructed was quite interesting wherein the item had been lawfully been dispossessed, but allegedly taken by a third party during the period that the item was lawfully in terms of a Court Order that was binding on the item at the time – our submission was that because of the fact that the removal of the item was lawful, the owner of the item was not dispossessed. Unfortunately the matter was not argued before Court and was (fortunately for the client) resolved prior to the matter proceeding, but it would have been interesting to hear what the Court’s view would have been in these circumstances. In my opinion it would have been found in my client’s favour, but I am certain my opponents were of the same opinion in favour of their client.
Michéle Engela is a director at CK Attorneys.
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