The mandament van spolie is a well known legal remedy that's been employed for years in a marvellous array of cases, its main objective being the recuperation of possession over property, while sustaining the public order. The thought process pertaining to approving spoliation orders could be the principle that no person 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 thinking about the merits of the particular matter, as the spoliation order is seen as an initial measure. The needs that have to be met before a Court will allow a spoliation order is the following:
* It should be demonstrated that the candidate had free and uninterrupted ownership prior to being relieved of his/her property; and * The individual was wrongfully relieved of his/her property without his/her approval.
The mandament van spolie can be employed quite easily in cases where the contested property is corporeal, and possession very easy to establish. It is, however, a completely different matter where it concerns incorporeal property. Recent case law casts some light on the legal concepts concerning spoliation orders and incorporeal property.
In the Supreme Court of Appeal matter of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') continued business being an internet provider, and in order to do its job it contracted with Telkom ('the Appellant') for the provision of telecom services. The Appellant furnished, set up and managed a telephone system and a bandwidth system at the premises of the Respondent. The Appellant shut off the services to the Respondent following a fee dispute regarding a connectivity service. The disconnection was carried out from its own premises without entering the Respondent's premises. The Respondent claimed that it had a contractual right to use the systems as set up by the Appellant, and that it had been in peaceful and undisturbed control until the systems were turned off. The Respondent considered the disconnection of the systems as an illegal deprival of its use and possession of the systems, and for that reason introduced urgent request to Court for a spoliation order. The Court a quo awarded such order and ordered Telkom to reconnect the services it had disconnected.
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 expanded to permit protection of quasi possessio.
The Respondent fought it had become in quasi possessio of the services by making use of it. The Court, in concern, wasn't convinced by the Respondent's proposition, and found that the Respondent had not been in possession of the services, since it had not been in possession of any of the ways through which its devices was attached to the Internet. The Appellant did not have to go into the building of the Respondent to effect the disconnection, and indeed decided not to do so.
The Supreme Court discovered that the Respondent was in truth endeavoring to force certain performance of a contractual right in order to resolve a contractual dispute. The mandament van spolie has never been available in such instances and there is no authority for an extension of the remedy. The Supreme Court of Appeal upheld the appeal and the order of the Court a quo was put aside.
A similar principle was used in the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long lasting deal with Olkru Handelaars ('the Respondent'). In terms of the agreement the Respondent would install and keep the Applicant's automated ATM at its buildings. A few months following the installing of the ATM the Respondent however took away same and installed an ATM of some other bank.
The Applicant introduced an urgent application to get a spoliation order to Court, contending that through its ATM installed at the premises of the Respondent, it had had possession over the ATM, and the immediate property adjoining it. Later in Court the Applicant contended it had quasi possessio over the possessions that had surrounded its ATM before its removal. The Court found that the Applicant had nothing more than a contractual right to maintain its ATM on the property of the Respondent, and the mandament van spolie was not the appropriate solution for the enforcement of such contractual privilege. The Applicant's claim in reality was for particular performance of a contractual right, and the spoliation application was consequently rejected.
It had been said in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the reason for the mandament van spolie is the protection of control or quasi possessio. It's however not the right solution for the administration of a contractual right. The mandament van spolie can't be used as a 'catch-all function' to safeguard all rights, inspite of their characteristics. The nature of the proclaimed right has to be identified, or classified, to ascertain whether there is in fact a clear case of quasi possessio which deserves defense. The right held in quasi possessio must genuinely refer to an incident of possession or control.
The result is that would be candidates for spoliation orders must ascertain the type of their proclaimed right before delivering application to Court, to recognize whether the remedy wanted is not in fact a contractual right which may be enforced through the regulations in the law of contract.
* It should be demonstrated that the candidate had free and uninterrupted ownership prior to being relieved of his/her property; and * The individual was wrongfully relieved of his/her property without his/her approval.
The mandament van spolie can be employed quite easily in cases where the contested property is corporeal, and possession very easy to establish. It is, however, a completely different matter where it concerns incorporeal property. Recent case law casts some light on the legal concepts concerning spoliation orders and incorporeal property.
In the Supreme Court of Appeal matter of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') continued business being an internet provider, and in order to do its job it contracted with Telkom ('the Appellant') for the provision of telecom services. The Appellant furnished, set up and managed a telephone system and a bandwidth system at the premises of the Respondent. The Appellant shut off the services to the Respondent following a fee dispute regarding a connectivity service. The disconnection was carried out from its own premises without entering the Respondent's premises. The Respondent claimed that it had a contractual right to use the systems as set up by the Appellant, and that it had been in peaceful and undisturbed control until the systems were turned off. The Respondent considered the disconnection of the systems as an illegal deprival of its use and possession of the systems, and for that reason introduced urgent request to Court for a spoliation order. The Court a quo awarded such order and ordered Telkom to reconnect the services it had disconnected.
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 expanded to permit protection of quasi possessio.
The Respondent fought it had become in quasi possessio of the services by making use of it. The Court, in concern, wasn't convinced by the Respondent's proposition, and found that the Respondent had not been in possession of the services, since it had not been in possession of any of the ways through which its devices was attached to the Internet. The Appellant did not have to go into the building of the Respondent to effect the disconnection, and indeed decided not to do so.
The Supreme Court discovered that the Respondent was in truth endeavoring to force certain performance of a contractual right in order to resolve a contractual dispute. The mandament van spolie has never been available in such instances and there is no authority for an extension of the remedy. The Supreme Court of Appeal upheld the appeal and the order of the Court a quo was put aside.
A similar principle was used in the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long lasting deal with Olkru Handelaars ('the Respondent'). In terms of the agreement the Respondent would install and keep the Applicant's automated ATM at its buildings. A few months following the installing of the ATM the Respondent however took away same and installed an ATM of some other bank.
The Applicant introduced an urgent application to get a spoliation order to Court, contending that through its ATM installed at the premises of the Respondent, it had had possession over the ATM, and the immediate property adjoining it. Later in Court the Applicant contended it had quasi possessio over the possessions that had surrounded its ATM before its removal. The Court found that the Applicant had nothing more than a contractual right to maintain its ATM on the property of the Respondent, and the mandament van spolie was not the appropriate solution for the enforcement of such contractual privilege. The Applicant's claim in reality was for particular performance of a contractual right, and the spoliation application was consequently rejected.
It had been said in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the reason for the mandament van spolie is the protection of control or quasi possessio. It's however not the right solution for the administration of a contractual right. The mandament van spolie can't be used as a 'catch-all function' to safeguard all rights, inspite of their characteristics. The nature of the proclaimed right has to be identified, or classified, to ascertain whether there is in fact a clear case of quasi possessio which deserves defense. The right held in quasi possessio must genuinely refer to an incident of possession or control.
The result is that would be candidates for spoliation orders must ascertain the type of their proclaimed right before delivering application to Court, to recognize whether the remedy wanted is not in fact a contractual right which may be enforced through the regulations in the law of contract.
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