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The mandament van spolie is actually a familiar legal solution that's been utilized for many years in a vast array of matters, its main purpose being the restoration of possession over property, while keeping the public order. The reasons pertaining to allowing spoliation requests 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 taking into consideration the merits of the specific matter, as the spoliation order is seen as a preliminary measure. The prerequisites that have to be met before a Court will approve a spoliation order are the following:
* It should be shown that the individual had free and uninterrupted ownership prior to being deprived of his/her possession; and * The candidate was unlawfully relieved of his/her property without his/her approval.
The mandament van spolie can be utilised without difficulty in cases where the fought for property is corporeal, and possession simple to determine. It is, however, an entirely 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 High Court of Appeal matter of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') continued business being an internet service provider, and in order to carry out its internet business it contracted with Telkom ('the Appellant') for the supply of telecommunication solutions. The Appellant supplied, installed and managed a telephone system plus 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 set up by the Appellant, and that it had been in peaceful and uninterrupted possession until the systems were turned off. The Respondent thought of the disconnection of the systems as an illegal deprivation of its use and possession of the systems, and therefore introduced immediate application to Court for a spoliation order. The Court a quo awarded such instruction and requested Telkom to reconnect the services it had disconnected.
On appeal, the learned Judge mentioned that a need has been felt for centuries to protect incorporeal rights from being disregarded, and consequently the scope of the mandament van spolie was expanded to permit defense of quasi possessio.
The Respondent contended 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 discovered that the Respondent had not been in possession of the services, since it had never been in possession of one of the mechanisms with which its products was coupled to the Web. The Appellant did not need to go into the premises of the Respondent to effect the disconnection, and indeed could not do this.
The High Court learned that the Respondent was in truth looking to force specific performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie hasn't been accessible in such instances and there's no power for this kind of extension of the resolution. The High Court of Appeal upheld the appeal and the order of the Court a quo was reserved.
Exactly the same principle was applied in the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long term contract with Olkru Handelaars ('the Respondent'). With regards to the contract the Respondent would install and keep the Applicant's automatic ATM at its buildings. A couple of months after the installing of the ATM the Respondent however took away same and put in an ATM of another bank.
The Applicant produced an urgent request to get a spoliation order to Court, contesting that through its ATM installed at the property of the Respondent, it had had possession over the ATM, and the immediate premises around it. Later in Court the Applicant fought it had quasi possessio over the property that had surrounded its ATM prior to its removal. The Court learned that the Applicant had simply a contractual right to maintain its ATM on the premises of the Respondent, and the mandament van spolie wasn't the suitable remedy for the enforcement of such contractual right. The Applicant's claim essentially was for particular performance of a contractual right, and the spoliation application was correctly rejected.
It was said in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the reason for the mandament van spolie is the proper protection of ownership or quasi possessio. It's however not the appropriate solution for the enforcement of a contractual right. The mandament van spolie can't be used like a 'catch-all function' to safeguard all rights, irrespective of their characteristics. The nature of the proclaimed right must be identified, or classified, to determine whether there was indeed a clear case of quasi possessio which merits defense. The right held in quasi possessio must genuinely make reference to an incident of possession or control.
The result is that would be applicants for spoliation orders must establish the type of the professed right ahead of delivering application to Court, to distinguish whether or not the treatment searched for is not really a contractual right that may be imposed through the regulations of the law of contract.
* It should be shown that the individual had free and uninterrupted ownership prior to being deprived of his/her possession; and * The candidate was unlawfully relieved of his/her property without his/her approval.
The mandament van spolie can be utilised without difficulty in cases where the fought for property is corporeal, and possession simple to determine. It is, however, an entirely 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 High Court of Appeal matter of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') continued business being an internet service provider, and in order to carry out its internet business it contracted with Telkom ('the Appellant') for the supply of telecommunication solutions. The Appellant supplied, installed and managed a telephone system plus 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 set up by the Appellant, and that it had been in peaceful and uninterrupted possession until the systems were turned off. The Respondent thought of the disconnection of the systems as an illegal deprivation of its use and possession of the systems, and therefore introduced immediate application to Court for a spoliation order. The Court a quo awarded such instruction and requested Telkom to reconnect the services it had disconnected.
On appeal, the learned Judge mentioned that a need has been felt for centuries to protect incorporeal rights from being disregarded, and consequently the scope of the mandament van spolie was expanded to permit defense of quasi possessio.
The Respondent contended 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 discovered that the Respondent had not been in possession of the services, since it had never been in possession of one of the mechanisms with which its products was coupled to the Web. The Appellant did not need to go into the premises of the Respondent to effect the disconnection, and indeed could not do this.
The High Court learned that the Respondent was in truth looking to force specific performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie hasn't been accessible in such instances and there's no power for this kind of extension of the resolution. The High Court of Appeal upheld the appeal and the order of the Court a quo was reserved.
Exactly the same principle was applied in the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long term contract with Olkru Handelaars ('the Respondent'). With regards to the contract the Respondent would install and keep the Applicant's automatic ATM at its buildings. A couple of months after the installing of the ATM the Respondent however took away same and put in an ATM of another bank.
The Applicant produced an urgent request to get a spoliation order to Court, contesting that through its ATM installed at the property of the Respondent, it had had possession over the ATM, and the immediate premises around it. Later in Court the Applicant fought it had quasi possessio over the property that had surrounded its ATM prior to its removal. The Court learned that the Applicant had simply a contractual right to maintain its ATM on the premises of the Respondent, and the mandament van spolie wasn't the suitable remedy for the enforcement of such contractual right. The Applicant's claim essentially was for particular performance of a contractual right, and the spoliation application was correctly rejected.
It was said in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the reason for the mandament van spolie is the proper protection of ownership or quasi possessio. It's however not the appropriate solution for the enforcement of a contractual right. The mandament van spolie can't be used like a 'catch-all function' to safeguard all rights, irrespective of their characteristics. The nature of the proclaimed right must be identified, or classified, to determine whether there was indeed a clear case of quasi possessio which merits defense. The right held in quasi possessio must genuinely make reference to an incident of possession or control.
The result is that would be applicants for spoliation orders must establish the type of the professed right ahead of delivering application to Court, to distinguish whether or not the treatment searched for is not really a contractual right that may be imposed through the regulations of the law of contract.
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