The mandament van spolie is a renowned legal solution which has been employed for many years in a vast array of matters, its main objective being the restoration of possession over property, whilst keeping the public order. The thinking behind 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 specific matter, as the spoliation order can be regarded as an initial measure. The prerequisites that have to be met before a Court will approve a spoliation order is the following:
* It must be revealed that the individual had free and uninterrupted possession prior to being relieved of his/her possession; and * The applicant was wrongfully deprived of his/her possession without his/her permission.
The mandament van spolie can be utilised quite easily in situations where the fought for property is corporeal, and possession easy to determine. It is, however, a totally different matter where it concerns incorporeal property. Recent case law casts some light around the legal concepts concerning spoliation instructions and incorporeal property.
In the Supreme Court of Appeal case of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') carried on business as an isp, and in order to do its business it contracted with Telkom ('the Appellant') for the provision of telecom solutions. The Appellant supplied, hooked up and managed a phone system and a bandwidth system on the property of the Respondent. The Appellant shut off the services to the Respondent following a fee argument pertaining to 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 uninterrupted control until the systems were turned off. The Respondent considered the disconnection of the systems as an illegitimate deprivation of its use and possession of the systems, and thus introduced 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 disconnected.
On appeal, the learned Judge expressed that a need has been felt for centuries to shield incorporeal rights from being disregarded, and thus the scope of the mandament van spolie was expanded to permit proper protection of quasi possessio.
The Respondent fought it had been in quasi possessio of the services by utilizing it. The Court, in concern, wasn't convinced by the Respondent's proposition, and found that the Respondent wasn't in possession of the services, as it had not been in possession of any of the means with which its devices was linked to the Internet. The Appellant did not have to go into the building of the Respondent to effect the disconnection, and indeed did not do this.
The Supreme Court found that the Respondent was in fact looking to force certain performance of a contractual right in order to resolve a contractual disagreement. The mandament van spolie hasn't been accessible in such situations and there's no authority 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 set aside.
Exactly the same principle was applied in the matter of ATM Solutions v Olkru Handelaars. In this case ATM Solutions ('the Applicant') had entered into a long lasting contract with Olkru Handelaars ('the Respondent'). With regards to the agreement the Respondent would install and sustain the Applicant's intelligent ATM at its location. A couple of months following installation of the ATM the Respondent however took away same and installed an ATM of some other bank.
The Applicant carried an immediate request to get 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 area adjacent it. Later in Court the Applicant contended it had quasi possessio over the property 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 premises of the Respondent, and the mandament van spolie was not the suitable solution for the enforcement of such contractual privilege. The Applicant's claim essentially was for particular performance of a contractual right, and the spoliation request was consequently denied.
It had been said in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the reason for the mandament van spolie is the defense of possession or quasi possessio. It is however not the appropriate solution for the enforcement of a contractual right. The mandament van spolie cannot be used as a 'catch-all function' to protect all rights, regardless of their characteristics. The nature of the proclaimed right must be revealed, or classified, to ascertain whether there is genuinely a clear case of quasi possessio which deserves safeguards. The right residing in quasi possessio must genuinely refer to an incident of ownership or control.
It follows that would be candidates for spoliation orders must establish the type of their professed right prior to delivering application to Court, to distinguish whether the remedy sought-after isn't in fact a contractual right which may be enforced via the guidelines in the law of contract.
* It must be revealed that the individual had free and uninterrupted possession prior to being relieved of his/her possession; and * The applicant was wrongfully deprived of his/her possession without his/her permission.
The mandament van spolie can be utilised quite easily in situations where the fought for property is corporeal, and possession easy to determine. It is, however, a totally different matter where it concerns incorporeal property. Recent case law casts some light around the legal concepts concerning spoliation instructions and incorporeal property.
In the Supreme Court of Appeal case of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') carried on business as an isp, and in order to do its business it contracted with Telkom ('the Appellant') for the provision of telecom solutions. The Appellant supplied, hooked up and managed a phone system and a bandwidth system on the property of the Respondent. The Appellant shut off the services to the Respondent following a fee argument pertaining to 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 uninterrupted control until the systems were turned off. The Respondent considered the disconnection of the systems as an illegitimate deprivation of its use and possession of the systems, and thus introduced 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 disconnected.
On appeal, the learned Judge expressed that a need has been felt for centuries to shield incorporeal rights from being disregarded, and thus the scope of the mandament van spolie was expanded to permit proper protection of quasi possessio.
The Respondent fought it had been in quasi possessio of the services by utilizing it. The Court, in concern, wasn't convinced by the Respondent's proposition, and found that the Respondent wasn't in possession of the services, as it had not been in possession of any of the means with which its devices was linked to the Internet. The Appellant did not have to go into the building of the Respondent to effect the disconnection, and indeed did not do this.
The Supreme Court found that the Respondent was in fact looking to force certain performance of a contractual right in order to resolve a contractual disagreement. The mandament van spolie hasn't been accessible in such situations and there's no authority 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 set aside.
Exactly the same principle was applied in the matter of ATM Solutions v Olkru Handelaars. In this case ATM Solutions ('the Applicant') had entered into a long lasting contract with Olkru Handelaars ('the Respondent'). With regards to the agreement the Respondent would install and sustain the Applicant's intelligent ATM at its location. A couple of months following installation of the ATM the Respondent however took away same and installed an ATM of some other bank.
The Applicant carried an immediate request to get 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 area adjacent it. Later in Court the Applicant contended it had quasi possessio over the property 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 premises of the Respondent, and the mandament van spolie was not the suitable solution for the enforcement of such contractual privilege. The Applicant's claim essentially was for particular performance of a contractual right, and the spoliation request was consequently denied.
It had been said in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the reason for the mandament van spolie is the defense of possession or quasi possessio. It is however not the appropriate solution for the enforcement of a contractual right. The mandament van spolie cannot be used as a 'catch-all function' to protect all rights, regardless of their characteristics. The nature of the proclaimed right must be revealed, or classified, to ascertain whether there is genuinely a clear case of quasi possessio which deserves safeguards. The right residing in quasi possessio must genuinely refer to an incident of ownership or control.
It follows that would be candidates for spoliation orders must establish the type of their professed right prior to delivering application to Court, to distinguish whether the remedy sought-after isn't in fact a contractual right which may be enforced via the guidelines in the law of contract.
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