The mandament van spolie is really a well known legal remedy which has been used for years in a vast array of cases, its main purpose being the restoration of ownership over property, while sustaining the public order. The thinking pertaining to approving spoliation orders is 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 particular matter, as the spoliation order is viewed as an initial measure. The needs which have to be met before a Court will grant a spoliation order is the following:
* It needs to be revealed that the individual had free and uninterrupted possession prior to being deprived of his/her possession; and * The candidate was wrongfully deprived of his/her property without his/her approval.
The mandament van spolie can be utilised without difficulty in instances 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 around the legal concepts relating to spoliation instructions and incorporeal property.
In the High Court of Appeal matter of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') maintained business as an isp, and in order to carry out its internet business it contracted with Telkom ('the Appellant') for the supply of telecommunication solutions. The Appellant supplied, set up and maintained a phone system as well as a bandwidth system at the premises of the Respondent. The Appellant turned off the services to the Respondent following a payment argument pertaining to a online 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 installed 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 unlawful deprivation of its use and possession of the systems, and for that reason brought urgent application to Court for a spoliation order. The Court a quo granted such order and ordered Telkom to hook up the services it had shut off.
On appeal, the learned Judge stated that a need has been felt for hundreds of years to protect incorporeal rights from being disregarded, and consequently the scope of the mandament van spolie was expanded to allow proper protection of quasi possessio.
The Respondent fought it had become in quasi possessio of the services by utilizing it. The Court, in consideration, was not persuaded by the Respondent's proposal, and found that the Respondent was not in possession of the services, since it had never been in possession of any of the mechanisms by which its devices was coupled to the Internet. The Appellant didn't need to go into the building of the Respondent to effect the disconnection, and indeed just didn't do this.
The Supreme Court found out that the Respondent is in fact attempting to force certain performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie hasn't been accessible in such circumstances and there is no power for this kind of extension of the solution. The High Court of Appeal upheld the appeal and the order of the Court a quo was reserved.
A similar principle was applied to the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long term deal with Olkru Handelaars ('the Respondent'). In terms of the contract the Respondent would install and maintain the Applicant's intelligent ATM at its premises. A couple of months following the installing of the ATM the Respondent however took away same and put in an ATM of some other bank.
The Applicant introduced an immediate request for a spoliation order to Court, contending that through its ATM installed at the property of the Respondent, it had had possession over the ATM, and the immediate premises surrounding it. Later in Court the Applicant fought it had quasi possessio over the possessions which had surrounded its ATM prior to its removal. The Court found that the Applicant had nothing more than a contractual right to keep its ATM on the property of the Respondent, and the mandament van spolie was not 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 accordingly refused.
It had been mentioned in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the purpose of the mandament van spolie is the proper protection of control or quasi possessio. It's however not the appropriate remedy for the enforcement of a contractual right. The mandament van spolie cannot be used like a 'catch-all function' to guard all rights, inspite of their nature. The nature of the proclaimed right must be revealed, or characterised, to figure out whether there is in fact a clear case of quasi possessio which deserves protection. The right residing in quasi possessio must indeed reference an incident of possession or control.
It follows that would be candidates for spoliation orders must determine the type of the professed right ahead of bringing application to Court, to distinguish whether or not the resolution sought is not indeed a contractual right which can be enforced through the principles in the law of contract.
* It needs to be revealed that the individual had free and uninterrupted possession prior to being deprived of his/her possession; and * The candidate was wrongfully deprived of his/her property without his/her approval.
The mandament van spolie can be utilised without difficulty in instances 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 around the legal concepts relating to spoliation instructions and incorporeal property.
In the High Court of Appeal matter of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') maintained business as an isp, and in order to carry out its internet business it contracted with Telkom ('the Appellant') for the supply of telecommunication solutions. The Appellant supplied, set up and maintained a phone system as well as a bandwidth system at the premises of the Respondent. The Appellant turned off the services to the Respondent following a payment argument pertaining to a online 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 installed 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 unlawful deprivation of its use and possession of the systems, and for that reason brought urgent application to Court for a spoliation order. The Court a quo granted such order and ordered Telkom to hook up the services it had shut off.
On appeal, the learned Judge stated that a need has been felt for hundreds of years to protect incorporeal rights from being disregarded, and consequently the scope of the mandament van spolie was expanded to allow proper protection of quasi possessio.
The Respondent fought it had become in quasi possessio of the services by utilizing it. The Court, in consideration, was not persuaded by the Respondent's proposal, and found that the Respondent was not in possession of the services, since it had never been in possession of any of the mechanisms by which its devices was coupled to the Internet. The Appellant didn't need to go into the building of the Respondent to effect the disconnection, and indeed just didn't do this.
The Supreme Court found out that the Respondent is in fact attempting to force certain performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie hasn't been accessible in such circumstances and there is no power for this kind of extension of the solution. The High Court of Appeal upheld the appeal and the order of the Court a quo was reserved.
A similar principle was applied to the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long term deal with Olkru Handelaars ('the Respondent'). In terms of the contract the Respondent would install and maintain the Applicant's intelligent ATM at its premises. A couple of months following the installing of the ATM the Respondent however took away same and put in an ATM of some other bank.
The Applicant introduced an immediate request for a spoliation order to Court, contending that through its ATM installed at the property of the Respondent, it had had possession over the ATM, and the immediate premises surrounding it. Later in Court the Applicant fought it had quasi possessio over the possessions which had surrounded its ATM prior to its removal. The Court found that the Applicant had nothing more than a contractual right to keep its ATM on the property of the Respondent, and the mandament van spolie was not 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 accordingly refused.
It had been mentioned in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the purpose of the mandament van spolie is the proper protection of control or quasi possessio. It's however not the appropriate remedy for the enforcement of a contractual right. The mandament van spolie cannot be used like a 'catch-all function' to guard all rights, inspite of their nature. The nature of the proclaimed right must be revealed, or characterised, to figure out whether there is in fact a clear case of quasi possessio which deserves protection. The right residing in quasi possessio must indeed reference an incident of possession or control.
It follows that would be candidates for spoliation orders must determine the type of the professed right ahead of bringing application to Court, to distinguish whether or not the resolution sought is not indeed a contractual right which can be enforced through the principles in the law of contract.
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