The mandament van spolie is really a renowned legal solution that's been helpful for years in a marvellous array of matters, its main objective being the recovery of ownership over property, while keeping the public order. The reasons behind allowing spoliation requests 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 considering the merits of the particular matter, as the spoliation order is seen as an initial measure. The needs that have to be met before a Court will allow a spoliation order is the following:
* It needs to be revealed that the individual had free and uninterrupted possession prior to being relieved of his/her possession; and * The applicant was unlawfully relieved of his/her possession without his/her approval.
The mandament van spolie can be employed successfully in instances where the fought for property is corporeal, and possession easy to establish. It's, however, a totally different matter where it concerns incorporeal property. Recent case law casts some light on the legal principles relating to spoliation orders and incorporeal property.
In the High Court of Appeal case of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') continued business as an internet service provider, and in order to carry out its internet business it contracted with Telkom ('the Appellant') for the provision of telecom solutions. The Appellant supplied, installed and managed a telephone system along with a bandwidth system at the premises of the Respondent. The Appellant shut off the services to the Respondent following a fee dispute pertaining to 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 fitted by the Appellant, and that it had been in peaceful and undisturbed control until the systems were disconnected. 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 granted such instruction and ordered Telkom to reconnect the services it had turned off.
On appeal, the learned Judge mentioned that a need has been felt for centuries to shield incorporeal rights from being disregarded, and therefore the scope of the mandament van spolie was increased to allow protection of quasi possessio.
The Respondent contended it was subsequently in quasi possessio of the services by making use of it. The Court, in concern, was not persuaded by the Respondent's proposal, and found that the Respondent wasn't in possession of the services, since it had never been in possession of any of the mechanisms through which its products was connected to the Internet. The Appellant didn't have to go into the property of the Respondent to effect the disconnection, and indeed decided not to do so.
The High Court found that the Respondent was in reality attempting to force certain performance of a contractual right in order to resolve a contractual dispute. The mandament van spolie hasn't ever been available in such situations and there's no power for this kind of postponement of the resolution. 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 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 few months following installing of the ATM the Respondent however removed same and installed an ATM of some other bank.
The Applicant carried an immediate request for a spoliation order to Court, challenging that through its ATM installed at the premises of the Respondent, it had had control over the ATM, and the immediate premises adjacent it. Later in Court the Applicant contended it had quasi possessio over the property which had surrounded its ATM prior to its removal. The Court found that the Applicant had simply a contractual right to maintain its ATM on the premises of the Respondent, and the mandament van spolie was not the suitable remedy for the enforcement of such contractual right. The Applicant's claim in reality was for particular performance of a contractual right, and the spoliation application was consequently rejected.
It had been said 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 is however not the appropriate solution for the enforcement of a contractual right. The mandament van spolie cannot be used like a 'catch-all function' to protect all rights, irrespective of their characteristics. The nature of the proclaimed right must be recognized, or characterised, to determine whether there is in fact an instance of quasi possessio which deserves defense. 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 determine the nature of their professed right ahead of delivering application to Court, to distinguish whether the remedy sought-after is not indeed a contractual right which may be enforced using the regulations in the law of contract.
* It needs to be revealed that the individual had free and uninterrupted possession prior to being relieved of his/her possession; and * The applicant was unlawfully relieved of his/her possession without his/her approval.
The mandament van spolie can be employed successfully in instances where the fought for property is corporeal, and possession easy to establish. It's, however, a totally different matter where it concerns incorporeal property. Recent case law casts some light on the legal principles relating to spoliation orders and incorporeal property.
In the High Court of Appeal case of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') continued business as an internet service provider, and in order to carry out its internet business it contracted with Telkom ('the Appellant') for the provision of telecom solutions. The Appellant supplied, installed and managed a telephone system along with a bandwidth system at the premises of the Respondent. The Appellant shut off the services to the Respondent following a fee dispute pertaining to 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 fitted by the Appellant, and that it had been in peaceful and undisturbed control until the systems were disconnected. 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 granted such instruction and ordered Telkom to reconnect the services it had turned off.
On appeal, the learned Judge mentioned that a need has been felt for centuries to shield incorporeal rights from being disregarded, and therefore the scope of the mandament van spolie was increased to allow protection of quasi possessio.
The Respondent contended it was subsequently in quasi possessio of the services by making use of it. The Court, in concern, was not persuaded by the Respondent's proposal, and found that the Respondent wasn't in possession of the services, since it had never been in possession of any of the mechanisms through which its products was connected to the Internet. The Appellant didn't have to go into the property of the Respondent to effect the disconnection, and indeed decided not to do so.
The High Court found that the Respondent was in reality attempting to force certain performance of a contractual right in order to resolve a contractual dispute. The mandament van spolie hasn't ever been available in such situations and there's no power for this kind of postponement of the resolution. 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 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 few months following installing of the ATM the Respondent however removed same and installed an ATM of some other bank.
The Applicant carried an immediate request for a spoliation order to Court, challenging that through its ATM installed at the premises of the Respondent, it had had control over the ATM, and the immediate premises adjacent it. Later in Court the Applicant contended it had quasi possessio over the property which had surrounded its ATM prior to its removal. The Court found that the Applicant had simply a contractual right to maintain its ATM on the premises of the Respondent, and the mandament van spolie was not the suitable remedy for the enforcement of such contractual right. The Applicant's claim in reality was for particular performance of a contractual right, and the spoliation application was consequently rejected.
It had been said 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 is however not the appropriate solution for the enforcement of a contractual right. The mandament van spolie cannot be used like a 'catch-all function' to protect all rights, irrespective of their characteristics. The nature of the proclaimed right must be recognized, or characterised, to determine whether there is in fact an instance of quasi possessio which deserves defense. 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 determine the nature of their professed right ahead of delivering application to Court, to distinguish whether the remedy sought-after is not indeed a contractual right which may be enforced using the regulations in the law of contract.
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