The mandament van spolie is a recognised legal alternative that has been helpful for several years in a marvellous array of cases, its main purpose being the recuperation of control over property, whilst keeping the public order. The thought pertaining to allowing spoliation requests is 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 can be regarded as a preliminary measure. The needs that have to be met before a Court will grant a spoliation order are the following:
* It needs to be demonstrated that the candidate had free and uninterrupted control prior to being relieved of his/her property; and * The applicant was unlawfully relieved of his/her property without his/her approval.
The mandament van spolie is employed successfully in situations where the contested property is corporeal, and possession simple to establish. It is, however, a totally different matter where it concerns incorporeal property. Recent case law casts some light on the legal principles relating to spoliation requests and incorporeal property.
In the High Court of Appeal case of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') carried on business as an internet service provider, and in order to execute its job it contracted with Telkom ('the Appellant') for the supply of telecom solutions. The Appellant furnished, set up and managed a phone system plus a bandwidth system on the premises of the Respondent. The Appellant turned off the services to the Respondent following a payment dispute regarding a connectivity 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 set up by the Appellant, and that it had been in peaceful and undisturbed control until the systems were shut off. The Respondent considered the disconnection of the systems as an unlawful deprivation of its use and possession of the systems, and therefore introduced immediate request 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 explained that a need has been felt for hundreds of years to defend incorporeal rights from being violated, and thus the scope of the mandament van spolie was expanded to permit coverage of quasi possessio.
The Respondent contended it has been in quasi possessio of the services by making use of it. The Court, in consideration, was not convinced by the Respondent's proposition, and discovered that the Respondent had not been in possession of the services, as it had never been in possession of one of the means through which its products was connected to the Internet. The Appellant did not need to go into the property of the Respondent to effect the disconnection, and indeed did not do this.
The High Court found out that the Respondent was in truth attempting to force certain performance of a contractual right in order to resolve a contractual dispute. The mandament van spolie has never been available in such situations and there is no power for such an postponement of the resolution. The Supreme Court of Appeal upheld the appeal and the order of the Court a quo was put aside.
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 contract with Olkru Handelaars ('the Respondent'). With regards to the contract the Respondent would install and keep the Applicant's computerized ATM at its buildings. A couple of months after the installation of the ATM the Respondent however took away same and installed an ATM of another bank.
The Applicant produced an immediate request to get a spoliation order to Court, contesting that through its ATM installed at the premises of the Respondent, it had had ownership over the ATM, and the immediate area adjacent it. Later in Court the Applicant fought it had quasi possessio over the possessions which had surrounded its ATM before its extraction. The Court found that the Applicant had nothing more than a contractual right to always keep its ATM on the property of the Respondent, and the mandament van spolie wasn't the appropriate remedy for the enforcement of such contractual privilege. The Applicant's claim in reality was for particular performance of a contractual right, and the spoliation request was accordingly refused.
It was stated in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the reason for the mandament van spolie is the proper protection of possession or quasi possessio. It is however not the right solution for the enforcement of a contractual right. The mandament van spolie can't be used like a 'catch-all function' to protect all rights, regardless of their nature. The nature of the proclaimed right has to be recognized, or characterised, to figure out whether there was really a clear case of quasi possessio which deserves safeguards. The right held in quasi possessio must genuinely reference an incident of possession or control.
It follows that would be candidates for spoliation orders must ascertain the nature of their proclaimed right prior to bringing application to Court, to identify whether or not the remedy wanted isn't indeed a contractual right that could be enforced through the guidelines of the law of contract.
* It needs to be demonstrated that the candidate had free and uninterrupted control prior to being relieved of his/her property; and * The applicant was unlawfully relieved of his/her property without his/her approval.
The mandament van spolie is employed successfully in situations where the contested property is corporeal, and possession simple to establish. It is, however, a totally different matter where it concerns incorporeal property. Recent case law casts some light on the legal principles relating to spoliation requests and incorporeal property.
In the High Court of Appeal case of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') carried on business as an internet service provider, and in order to execute its job it contracted with Telkom ('the Appellant') for the supply of telecom solutions. The Appellant furnished, set up and managed a phone system plus a bandwidth system on the premises of the Respondent. The Appellant turned off the services to the Respondent following a payment dispute regarding a connectivity 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 set up by the Appellant, and that it had been in peaceful and undisturbed control until the systems were shut off. The Respondent considered the disconnection of the systems as an unlawful deprivation of its use and possession of the systems, and therefore introduced immediate request 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 explained that a need has been felt for hundreds of years to defend incorporeal rights from being violated, and thus the scope of the mandament van spolie was expanded to permit coverage of quasi possessio.
The Respondent contended it has been in quasi possessio of the services by making use of it. The Court, in consideration, was not convinced by the Respondent's proposition, and discovered that the Respondent had not been in possession of the services, as it had never been in possession of one of the means through which its products was connected to the Internet. The Appellant did not need to go into the property of the Respondent to effect the disconnection, and indeed did not do this.
The High Court found out that the Respondent was in truth attempting to force certain performance of a contractual right in order to resolve a contractual dispute. The mandament van spolie has never been available in such situations and there is no power for such an postponement of the resolution. The Supreme Court of Appeal upheld the appeal and the order of the Court a quo was put aside.
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 contract with Olkru Handelaars ('the Respondent'). With regards to the contract the Respondent would install and keep the Applicant's computerized ATM at its buildings. A couple of months after the installation of the ATM the Respondent however took away same and installed an ATM of another bank.
The Applicant produced an immediate request to get a spoliation order to Court, contesting that through its ATM installed at the premises of the Respondent, it had had ownership over the ATM, and the immediate area adjacent it. Later in Court the Applicant fought it had quasi possessio over the possessions which had surrounded its ATM before its extraction. The Court found that the Applicant had nothing more than a contractual right to always keep its ATM on the property of the Respondent, and the mandament van spolie wasn't the appropriate remedy for the enforcement of such contractual privilege. The Applicant's claim in reality was for particular performance of a contractual right, and the spoliation request was accordingly refused.
It was stated in Firstrand Ltd t/a Rand Merchant Bank v Scholtz that the reason for the mandament van spolie is the proper protection of possession or quasi possessio. It is however not the right solution for the enforcement of a contractual right. The mandament van spolie can't be used like a 'catch-all function' to protect all rights, regardless of their nature. The nature of the proclaimed right has to be recognized, or characterised, to figure out whether there was really a clear case of quasi possessio which deserves safeguards. The right held in quasi possessio must genuinely reference an incident of possession or control.
It follows that would be candidates for spoliation orders must ascertain the nature of their proclaimed right prior to bringing application to Court, to identify whether or not the remedy wanted isn't indeed a contractual right that could be enforced through the guidelines of the law of contract.
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