The mandament van spolie is a well known legal alternative that has been employed for years in a marvellous array of matters, its main purpose being the recovery of ownership over property, while preserving the public order. The thought associated with approving spoliation orders may be the principle that no human being should take the law into his/her own hands, if he/she does so, a Court will restore the status quo ante. The Court will do so without considering the merits of the specific matter, as the spoliation order is viewed as a preliminary measure. The prerequisites which have to be met before a Court will allow a spoliation order is the following:
* It needs to be demonstrated that the applicant had free and uninterrupted ownership prior to being deprived of his/her possession; and * The candidate was unlawfully relieved of his/her possession without his/her consent.
The mandament van spolie is employed without difficulty in situations where the fought for property is corporeal, and possession very easy to establish. It is, however, a totally different matter where it concerns incorporeal property. Recent case law casts some light around the legal concepts relating to spoliation instructions and incorporeal property.
In the Supreme Court of Appeal case of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') maintained business as an internet provider, and in order to carry out its internet business it contracted with Telkom ('the Appellant') for the supply of telecom services. The Appellant furnished, set up and managed a telephone system and a bandwidth system on the property of the Respondent. The Appellant shut off the services to the Respondent after having a fee argument concerning a connectivity service. The disconnection was done from its own premises without entering the Respondent's premises. The Respondent claimed that it had a contractual right to use the systems as fitted by the Appellant, and that it had been in peaceful and undisturbed possession until the systems were disconnected. The Respondent thought of the disconnection of the systems as an illegal deprival of its use and possession of the systems, and therefore introduced immediate request to Court for a spoliation order. The Court a quo awarded such instruction and requested Telkom to reconnect the services it had shut off.
On appeal, the trained Judge stated that a need has been felt for centuries to guard incorporeal rights from being violated, and therefore the scope of the mandament van spolie was extended to allow for coverage of quasi possessio.
The Respondent quarreled it has been in quasi possessio of the services by utilizing it. The Court, in consideration, wasn't persuaded by the Respondent's proposition, and found that the Respondent was not in possession of the services, as it had never been in possession of one of the mechanisms through which its equipment was linked to the Web. The Appellant didn't have to go into the premises of the Respondent to effect the disconnection, and indeed did not do so.
The Supreme Court learned that the Respondent is in truth endeavoring to compel certain performance of a contractual right in order to solve a contractual dispute. The mandament van spolie has never been available in such instances and there is no authority for this kind of extension of the resolution. The Supreme Court of Appeal upheld the appeal and the order of the Court a quo was set aside.
Exactly the same principle was applied in the matter of ATM Solutions v Olkru Handelaars. In this case ATM Solutions ('the Applicant') had entered into a long agreement with Olkru Handelaars ('the Respondent'). In terms of the agreement the Respondent would install and keep the Applicant's computerized ATM at its buildings. A couple of months following installation of the ATM the Respondent however removed same and hooked up an ATM of another bank.
The Applicant helped bring an urgent application to get a spoliation order to Court, challenging that through its ATM installed at the premises of the Respondent, it had had control over the ATM, and the immediate area adjoining it. Later in Court the Applicant suggested it had quasi possessio over the property that had surrounded its ATM prior to its removal. The Court found that the Applicant had simply a contractual right to maintain its ATM on the premises of the Respondent, and the mandament van spolie was not the suitable solution for the enforcement of such contractual privilege. The Applicant's claim in essence was for particular performance of a contractual right, and the spoliation request was accordingly denied.
It was mentioned in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the purpose of the mandament van spolie is the proper protection of possession or quasi possessio. It is however not the right solution for the administration of a contractual right. The mandament van spolie cannot be used as a 'catch-all function' to protect all rights, irrespective of their nature. The nature of the proclaimed right must be identified, or characterised, to identify whether there is in fact an instance of quasi possessio which merits protection. The right residing in quasi possessio must indeed make reference to an incident of possession or control.
The result is that would be candidates for spoliation orders must determine the type of their professed right before delivering application to Court, to recognize whether the treatment sought isn't genuinely a contractual right which can be imposed through the regulations of the law of contract.
* It needs to be demonstrated that the applicant had free and uninterrupted ownership prior to being deprived of his/her possession; and * The candidate was unlawfully relieved of his/her possession without his/her consent.
The mandament van spolie is employed without difficulty in situations where the fought for property is corporeal, and possession very easy to establish. It is, however, a totally different matter where it concerns incorporeal property. Recent case law casts some light around the legal concepts relating to spoliation instructions and incorporeal property.
In the Supreme Court of Appeal case of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') maintained business as an internet provider, and in order to carry out its internet business it contracted with Telkom ('the Appellant') for the supply of telecom services. The Appellant furnished, set up and managed a telephone system and a bandwidth system on the property of the Respondent. The Appellant shut off the services to the Respondent after having a fee argument concerning a connectivity service. The disconnection was done from its own premises without entering the Respondent's premises. The Respondent claimed that it had a contractual right to use the systems as fitted by the Appellant, and that it had been in peaceful and undisturbed possession until the systems were disconnected. The Respondent thought of the disconnection of the systems as an illegal deprival of its use and possession of the systems, and therefore introduced immediate request to Court for a spoliation order. The Court a quo awarded such instruction and requested Telkom to reconnect the services it had shut off.
On appeal, the trained Judge stated that a need has been felt for centuries to guard incorporeal rights from being violated, and therefore the scope of the mandament van spolie was extended to allow for coverage of quasi possessio.
The Respondent quarreled it has been in quasi possessio of the services by utilizing it. The Court, in consideration, wasn't persuaded by the Respondent's proposition, and found that the Respondent was not in possession of the services, as it had never been in possession of one of the mechanisms through which its equipment was linked to the Web. The Appellant didn't have to go into the premises of the Respondent to effect the disconnection, and indeed did not do so.
The Supreme Court learned that the Respondent is in truth endeavoring to compel certain performance of a contractual right in order to solve a contractual dispute. The mandament van spolie has never been available in such instances and there is no authority for this kind of extension of the resolution. The Supreme Court of Appeal upheld the appeal and the order of the Court a quo was set aside.
Exactly the same principle was applied in the matter of ATM Solutions v Olkru Handelaars. In this case ATM Solutions ('the Applicant') had entered into a long agreement with Olkru Handelaars ('the Respondent'). In terms of the agreement the Respondent would install and keep the Applicant's computerized ATM at its buildings. A couple of months following installation of the ATM the Respondent however removed same and hooked up an ATM of another bank.
The Applicant helped bring an urgent application to get a spoliation order to Court, challenging that through its ATM installed at the premises of the Respondent, it had had control over the ATM, and the immediate area adjoining it. Later in Court the Applicant suggested it had quasi possessio over the property that had surrounded its ATM prior to its removal. The Court found that the Applicant had simply a contractual right to maintain its ATM on the premises of the Respondent, and the mandament van spolie was not the suitable solution for the enforcement of such contractual privilege. The Applicant's claim in essence was for particular performance of a contractual right, and the spoliation request was accordingly denied.
It was mentioned in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the purpose of the mandament van spolie is the proper protection of possession or quasi possessio. It is however not the right solution for the administration of a contractual right. The mandament van spolie cannot be used as a 'catch-all function' to protect all rights, irrespective of their nature. The nature of the proclaimed right must be identified, or characterised, to identify whether there is in fact an instance of quasi possessio which merits protection. The right residing in quasi possessio must indeed make reference to an incident of possession or control.
The result is that would be candidates for spoliation orders must determine the type of their professed right before delivering application to Court, to recognize whether the treatment sought isn't genuinely a contractual right which can be imposed through the regulations of the law of contract.
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