Mandament van Spolie

Spoliation is the wrongful deprivation of another’s right of possession. The mandament van spolie or ‘spoliation order’ is a common-law remedy available in South Africa and its purpose is to prevent people from taking the law into their own hands i.e. self-help. In South Africa, the law requires a person or entity to approach a court for assistance to promote the rule of law and to serve as a shield against cases of ‘self-help’.

Spoliation Requirements Explained

Where a person or entity enjoys peaceful and undisturbed possession of something and this possession is removed without due legal process (i.e. a court order), such a person may be able to bring a spoliation application to immediately restore possession. In order to succeed in obtaining a spoliation order, a person wishing to bring a spoliation application has to prove that they were:

• in peaceful and undisturbed possession; and

• unlawfully deprived of that possession.

An important question that has to be asked is whether or not the person deprived of possession consented to such dispossession. Dispossession can take place via force, threat of force, stealth, deceit, theft or without consent. If consent to the dispossession was given freely and voluntarily then the dispossession will be lawful and if not, then the dispossession will be unlawful.

It is also important to remember that an application for spoliation does not require proof of an applicant’s existing right to property, but rather the possession of the property to grant the relief sought. The remedy for spoliation is preliminary to any investigation into the merits of the dispute (i.e. it provides for interim relief), pending a final determination of the parties’ respective rights.

Spoliation applications can potentially be brought where a tenant’s access to a leased premises is removed without a court order or where a landlord disconnects the electricity supply to a leased premises thereby denying the tenant use of the premises.

Spoliation & Emails

Is the mandament van spolie available to remedy a denial of access to a computer server and e-mail?

In a recent case adjudicated upon in the Supreme Court of Appeal (“SCA”) in 2021, a director dispute had arisen in terms of which a director was alleged to have resigned and his access to the company’s e-mail and server was terminated. The SCA was asked to decide whether the director’s peaceful and undisturbed possession of access could be restored using mandament van spolie as the Court a quo granted an order that the director’s access be restored.

On appeal, the SCA upheld the appeal and ruled that while it was true that the mandament van spolie was available where incorporeal property was spoliated, the issue in this case was whether the prior access to the e-mail address and company’s network and server amounted to quasi-possession of an incorporeal which qualified for protection by a spoliation order. The SCA found that only quasi-possession of a supply of a service that arises as an incident of possession of corporeal property was protectable by the mandament van spolie.

The SCA found that the director’s prior access was not an incident of possession of corporeal property because he did not possess any movable or immovable property in relation to his erstwhile use of the server or e-mail address and that any entitlement to use the server and e-mail address was wrapped up in the contested issue of whether the director remained a director of the company and might relate to the terms of his contract of employment. Consequently, it was a personal right enforceable, if at all, against the company and did not amount to quasi possession of incorporeal property. As a result, the use of mandament van spolie was not possible.

If you would like to find out more about spoliation, please contact our offices to speak to one of our legal professionals.