The mandament van spolie is really a well known legal alternative that has been used for years in a vast array of cases, its main purpose being the restoration of ownership over property, whilst sustaining the public order. The thinking associated with allowing spoliation instructions may be the principle that no man or woman 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 specific matter, as the spoliation order can be regarded as a primary measure. The needs that have to be met before a Court will grant a spoliation order is the following:
* It has to be revealed that the individual had free and undisturbed control prior to being relieved of his/her property; and * The individual was wrongfully deprived of his/her possession without his/her approval.
The mandament van spolie can be utilized quite easily in cases where the fought for property is corporeal, and possession very easy to establish. It is, however, an entirely different matter where it concerns incorporeal property. Recent case law casts some light on 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') continued business being an internet service provider, and in order to execute its internet business it contracted with Telkom ('the Appellant') for the supply of telecommunication services. The Appellant furnished, hooked up and maintained a phone system as well as a bandwidth system at the property of the Respondent. The Appellant turned off the services to the Respondent following a payment dispute regarding a online 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 fitted by the Appellant, and that it had been in peaceful and undisturbed possession until the systems were turned off. The Respondent regarded the disconnection of the systems as an illegitimate deprivation of its use and possession of the systems, and therefore introduced immediate application to Court for a spoliation order. The Court a quo approved such order and ordered Telkom to hook up the services it had turned off.
On appeal, the learned Judge mentioned that a need has been felt for hundreds of years to defend incorporeal rights from being violated, and therefore the scope of the mandament van spolie was extended to allow for defense of quasi possessio.
The Respondent fought it was subsequently in quasi possessio of the services by using it. The Court, in concern, wasn't persuaded by the Respondent's proposition, and discovered that the Respondent isn't in possession of the services, as it had not been in possession of one of the ways through which its equipment was coupled to the Web. The Appellant didn't need to get into the premises of the Respondent to effect the disconnection, and indeed decided not to do so.
The High Court found that the Respondent was in fact trying to force certain performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie has never been available in such situations and there's no power for such an postponement of the remedy. The Supreme Court of Appeal upheld the appeal and the order of the Court a quo was put aside.
Exactly the same principle was applied to the matter of ATM Solutions v Olkru Handelaars. In this case ATM Solutions ('the Applicant') had entered into a long term deal with Olkru Handelaars ('the Respondent'). In terms of the agreement the Respondent would install and maintain the Applicant's automated ATM at its buildings. A few months following the installing of the ATM the Respondent however removed same and put in an ATM of another bank.
The Applicant brought an urgent request to get a spoliation order to Court, challenging that through its ATM installed at the premises of the Respondent, it had had possession over the ATM, and the immediate property surrounding it. Later in Court the Applicant fought it had quasi possessio over the property that had surrounded its ATM prior to its extraction. The Court learned that the Applicant had simply a contractual right to maintain its ATM on the property of the Respondent, and the mandament van spolie wasn't the suitable solution for the enforcement of such contractual right. The Applicant's claim in reality was for specific performance of a contractual right, and the spoliation application was consequently denied.
It had been stated 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's however not the correct solution for the enforcement of a contractual right. The mandament van spolie can't be used as a 'catch-all function' to protect all rights, irrespective of their nature. The nature of the proclaimed right has to be identified, or characterized, to establish whether there was genuinely an instance of quasi possessio which merits proper protection. The right held in quasi possessio must genuinely make reference to an incident of ownership or control.
It follows that would be candidates for spoliation orders must establish the type of the proclaimed right before taking application to Court, to distinguish whether the treatment desired is not in truth a contractual right that may be imposed through the guidelines of the law of contract.
* It has to be revealed that the individual had free and undisturbed control prior to being relieved of his/her property; and * The individual was wrongfully deprived of his/her possession without his/her approval.
The mandament van spolie can be utilized quite easily in cases where the fought for property is corporeal, and possession very easy to establish. It is, however, an entirely different matter where it concerns incorporeal property. Recent case law casts some light on 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') continued business being an internet service provider, and in order to execute its internet business it contracted with Telkom ('the Appellant') for the supply of telecommunication services. The Appellant furnished, hooked up and maintained a phone system as well as a bandwidth system at the property of the Respondent. The Appellant turned off the services to the Respondent following a payment dispute regarding a online 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 fitted by the Appellant, and that it had been in peaceful and undisturbed possession until the systems were turned off. The Respondent regarded the disconnection of the systems as an illegitimate deprivation of its use and possession of the systems, and therefore introduced immediate application to Court for a spoliation order. The Court a quo approved such order and ordered Telkom to hook up the services it had turned off.
On appeal, the learned Judge mentioned that a need has been felt for hundreds of years to defend incorporeal rights from being violated, and therefore the scope of the mandament van spolie was extended to allow for defense of quasi possessio.
The Respondent fought it was subsequently in quasi possessio of the services by using it. The Court, in concern, wasn't persuaded by the Respondent's proposition, and discovered that the Respondent isn't in possession of the services, as it had not been in possession of one of the ways through which its equipment was coupled to the Web. The Appellant didn't need to get into the premises of the Respondent to effect the disconnection, and indeed decided not to do so.
The High Court found that the Respondent was in fact trying to force certain performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie has never been available in such situations and there's no power for such an postponement of the remedy. The Supreme Court of Appeal upheld the appeal and the order of the Court a quo was put aside.
Exactly the same principle was applied to the matter of ATM Solutions v Olkru Handelaars. In this case ATM Solutions ('the Applicant') had entered into a long term deal with Olkru Handelaars ('the Respondent'). In terms of the agreement the Respondent would install and maintain the Applicant's automated ATM at its buildings. A few months following the installing of the ATM the Respondent however removed same and put in an ATM of another bank.
The Applicant brought an urgent request to get a spoliation order to Court, challenging that through its ATM installed at the premises of the Respondent, it had had possession over the ATM, and the immediate property surrounding it. Later in Court the Applicant fought it had quasi possessio over the property that had surrounded its ATM prior to its extraction. The Court learned that the Applicant had simply a contractual right to maintain its ATM on the property of the Respondent, and the mandament van spolie wasn't the suitable solution for the enforcement of such contractual right. The Applicant's claim in reality was for specific performance of a contractual right, and the spoliation application was consequently denied.
It had been stated 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's however not the correct solution for the enforcement of a contractual right. The mandament van spolie can't be used as a 'catch-all function' to protect all rights, irrespective of their nature. The nature of the proclaimed right has to be identified, or characterized, to establish whether there was genuinely an instance of quasi possessio which merits proper protection. The right held in quasi possessio must genuinely make reference to an incident of ownership or control.
It follows that would be candidates for spoliation orders must establish the type of the proclaimed right before taking application to Court, to distinguish whether the treatment desired is not in truth a contractual right that may be imposed through the guidelines of the law of contract.
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