Protecting against unlawful dispossession: the mandament van spolie
Author: Henri Strydom – Candidate Attorney
*Supervised by Candice Pillay – Director
Unlawful evictions are a common feature during tough economic times. While some protection is afforded by the Disaster Management Regulations during the current Covid-19 lockdown, unlawful evictions continue to take place. This article explores a remedy to restore possession when a person has been unlawfully dispossessed.
Spoliation is the wrongful deprivation of another person’s right of possession and relates to both movable and immovable property, or even to a legal right. The mandament van spolie is an extraordinary, quick and robust remedy available to an applicant for the restoration of possession.
The object of the mandament is to restore the status quo ante (return possession to the person who was deprived) and is based on the principle that no one should take the law into their own hands. It is important to emphasise that the mandament merely seeks to restore possession pending a final order being made regarding the rights of the party seeking the remedy. It is not a final determination of the party’s rights to ownership but provides interim relief for those who meet the requirements.
Since the object is to restore possession to the applicant, the court will not consider any defences based on the respondent’s rights of ownership. Therefore, neither the applicant nor the respondent needs to prove ownership.
The mandament is brought by way of an application and, by its nature, is often brought on an urgent basis (such as in cases of unlawful evictions). In order to succeed with a mandament application, the applicant must prove on a balance of probabilities that:
They were in peaceful and undisturbed possession of the property (this possession does not necessarily have to be lawful);
They must have factually held the thing with the intention of securing some benefit for themselves (possession need not be physical, exclusive or personal; provided it is effective); and
They were dispossessed forcefully or wrongfully and without their consent (the deprivation must have been actual and physical).
If the applicant satisfies these requirements, then they will likely be returned possession of the thing of which they were dispossessed. There are, however, defences available against the mandament such as:
A denial that the respondent has dispossessed the applicant;
The applicant was not in possession;
The deprivation was not unlawful;
The possession lost is impossible to restore;
Counter-spoliation, meaning that the respondent recovered possession immediately in the act of spoliation by the applicant; and/or
That the application is merely ancillary to an application for specific performance.
With the mandament action, a dispossessed individual need no longer despair that they have been evicted and can at least be returned to their property on a temporary basis.
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