For many practitioners, the mandament van spolie (spoliation) is a concept you vaguely remember from law school. In practice, however, it is known as a robust remedy and often not the first choice.

According to Mgedeza, “the rationale behind the remedy of spoliation is to avert chaotic backdrop wherein the members of society take the law into their hands without resorting to the recourse of law.”

In Van Rhyn and Others NNO v Fleurbaix Farm (Pty) Ltd 2013 (5) SA 521 (WCC) the court held that:

“The mandament van spolie is directed at restoring possession to a party which has been unlawfully dispossessed. It is a robust remedy directed at restoring the status quo ante, irrespective of the merits of any underlying contest concerning entitlement to possession of the object or right in issue; peaceful and undisturbed possession of the thing concerned and the unlawful despoilment thereof are all that an applicant for a mandament van spolie has to show...”

In essence, it is a remedy that originates from common law which aims to restore possession to the rightful owner. It is not codified into our law, and perhaps this is where some of the issues emanate from.

When can this remedy fail?

Requirements

According to the van Rhyn matter:

• peaceful and undisturbed possession of the thing concerned and,
• the unlawful despoilment thereof.

The merits regarding the lawfulness of the entitlement (from the applicant’s perspective) are for purposes of this remedy irrelevant.

Defences

According to Mgedeza, the following defences can be raised by a respondent alleging that  he/she:

• believed in good faith and that he or she acted in good faith;
• that he or she acted lawful;
• that the possession of the article was not illicit;
• that the spoliator has a ius possidendi with respect to the article;
• that the spoliator is the proprietor of the article.

The defence of impossibility

For purposes of this article we will focus our attention on the defence of impossibility. The defence of impossibility can apply in two situations:

• where the spoliated article has been destroyed, irreparably damaged or lost; and/or
• where a third party has acquired possession of the article.

This is relevant practically speaking because this is the defence most raised in my experience with the remedy. In most instances, the facts or evidence in the matter would, when taking the instructions from client, already clarify whether or not other defences exist or would succeed.

Case Law

In Administrator, Cape and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) at 720 G-H the court held that:

“In the context of the mandamant van spolie, impossibility is a question of fact, and where it is contended that an order should not be granted because it cannot be complied with, it must be shown that compliance is impossible on the facts.”

In Barclays national Bank Ltd v Thompson 1985 (3) SA 778 (A) it was held that where the restoration is impossible, the courts cannot coerce the respondent to do something, which is practically impossible.

However, according to Zinman v Miller 1956 (3) SA 8 (T), Rumpff J held at 11 A – C that:

“There seems to be no doubt that the mandament van spolie not only envisaged the return of possession, but also a restoration.”

This was confirmed in Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others 2007 (6) SA 511 (SCA), where approximately one hundred people were removed from their homes on a vacant piece of land. The court ordered that the respondents should: “jointly and severally, be ordered to reconstruct them. And, since the materials belonging to the occupiers have been destroyed, they should be replaced with materials that afford habitable shelters.”

Conclusion

This means that, if the defence of impossibility is raised, the court may order restoration if return is impossible. Perhaps now, given that the decision is from the Supreme Court of Appeal and thus binding on all High Courts, the remedy will find more regular application.