Being dispossessed of property be it movable or immovable without due legal process constitutes unlawful conduct. Similarly, some corporeal rights (entitlement to use a thing which has no physical identity but exists in law) are also capable of being dispossessed. The law has remedy to restore possession of such property or incorporeal rights which have been dispossessed.

Remedy for dispossession

The principle that persons are not permitted to take the law into their own hands also has applicability in some instances of unlawful dispossession of property or corporeal right.

The mandament van spolie (“spoliation remedy”) is a remedy based on this fundamental principle. A person who has been dispossessed of property or corporeal right without due legal procedure may apply to court to have possession of the property or corporeal right restored. In granting the spoliation remedy the court will look to whether these elements are fulfilled:

• actual undisturbed possession prior to being dispossessed; and
• that possession was deprived without following procedure or wrongfully without consent

Therefore, it must be shown that the person was in possession of the property or incorporeal right at the time of dispossession. Moreover, that possession was exercised without disturbance and that they were subsequently unlawfully deprived of it.

It is important to stress that the spoliation remedy provides for interim relief and is not a final determination of a party’s rights. In effect the spoliation remedy provides for interim relief pending determination of the matter. For example, it can be applied for in cases of evictions to enable the evicted person to occupy the property pending the finality of the matter.

It is for this reason that the spoliation remedy does not concern itself with ownership of the property or corporeal right, it merely concerns itself with the status quo of the person dispossessed prior to the dispossession. In other words, one need not be the owner of a property or corporeal right to be dispossessed because possession is a separate issue from ownership.

When is the spoliation remedy not applicable?

It is generally accepted that the spoliation remedy is applicable when dealing with tangible property. However, the spoliation remedy does not have a catch all function to protect all kinds of corporeal rights irrespective of their nature and the courts will look to the circumstances of each case.

• Contractual obligations – when parties have a reciprocal duty to perform in terms of a contract then performance between the parties is regarded as a personal right and cannot be enforced with the spoliation remedy. The breach clause in the contract should be looked to for recourse in cases of breach.

When is the spoliation remedy applicable?

• Servitudes – possession of a servitude such as right of way or access, or right of access to water supply. Possession lies in the outward manifestation of the use of the servitude over time.
• Evictions – possession of the property exists despite the person being evicted being in unlawful occupation of the property as the Constitution protects unlawful evictions.

It must be noted that the person who dispossessed the property or corporeal right may still institute proceedings after possession has been reinstated as the spoliation remedy is interim relief.

Incidents of possession

Incidents of possession concern cases where the occupier of immovable property has the benefit of a host of services rendered at the property. In these cases, the parties usually conclude a contract for services and a dispute leads to one party terminating the services. Common disputes regarding dispossession and incidents of possession are in relation to services of telecommunication, water and electricity. The courts are often tasked with determining whether occupation of the property results in possession of the services provided to the property thereof.

It is settled law that specific performance of contractual obligations cannot be restored using the spoliation remedy. This position has raised controversy as to whether electricity, water and telecommunication services constitute incidents of possession. Some cases have determined that occupying property wherein these services are provided is an incident of possession of the service however the position seems to be unsettled.

Recently, the Supreme Court of Appeal (the “SCA”) in Eskom Holdings v Masinda 2019 JDR 1127 (SCA) held that the supply of electricity was dependent upon it being paid for in advance and therefore a personal right flowing from the contract. The court emphasised that in cases of alleged incidents of possession: –

• “The mere existence of a supply of services is insufficient to establish a right constituting an incident of possession of the property to which it is delivered. More than a personal right is required to constitute an incident of possession”.
• The person dispossessed need more than just argue being unlawfully disconnected. “In order to justify a spoliation order the right must be of such a nature that it vests in the person in possession of the property as an incident of their possession. Rights bestowed by servitude, registration or statute are obvious examples of this. On the other hand, rights that flow from a contractual nexus between the parties are insufficient as they are purely personal and a spoliation order, in effect, would amount to an order of specific performance”.

Dispossession is not prohibited provided the correct procedures are followed and a court order is obtained authorising the dispossession of the property or corporeal right. This position upholds irrespective whether the person seeking the spoliation order is in fact the holder of the property or corporeal right. The courts have interpreted the requirement of possession very stringently. Thus, in alleged incidents of possession the facts need to be cautiously examined before seeking the spoliation remedy.

Nolwazi Mathebula, Candidate Attorney

Reviewed by Sifiso Msomi, Partner