The mandament van spolie is a well known legal remedy which has been employed for several years in a marvellous array of cases, its main purpose being the recovery of control over property, while sustaining the public order. The reasoning behind granting spoliation instructions may be the principle that no individual 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 seen as a primary measure. The requirements that have to be met before a Court will approve a spoliation order are the following:
* It must be shown that the individual had free and uninterrupted possession prior to being deprived of his/her property; and * The candidate was wrongfully relieved of his/her possession without his/her approval.
The mandament van spolie can be used effortlessly in situations where the fought for property is corporeal, and possession easy to determine. It is, however, a completely different matter where it concerns incorporeal property. Recent case law casts some light on the legal principles relating to spoliation instructions and incorporeal property.
In the High Court of Appeal case of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') continued business being an isp, and in order to carry out its internet business it contracted with Telkom ('the Appellant') for the provision of telecommunication solutions. The Appellant supplied, set up and managed a telephone system as well as a bandwidth system at the property of the Respondent. The Appellant disconnected the services to the Respondent following a fee 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 set up by the Appellant, and that it had been in peaceful and uninterrupted control until the systems were shut off. The Respondent regarded the disconnection of the systems as an unlawful deprivation of its use and possession of the systems, and for that reason brought urgent request to Court for a spoliation order. The Court a quo awarded such instruction and ordered Telkom to reconnect the services it had turned off.
On appeal, the trained Judge mentioned that a need has been felt for centuries to guard incorporeal rights from being violated, and consequently the scope of the mandament van spolie was expanded to allow coverage of quasi possessio.
The Respondent fought it had been in quasi possessio of the services by using it. The Court, in consideration, wasn't convinced by the Respondent's proposal, and discovered that the Respondent had not been in possession of the services, as it had not been in possession of any of the mechanisms with which its equipment was coupled to the Internet. The Appellant didn't need to go into the premises of the Respondent to effect the disconnection, and indeed did not do so.
The Supreme Court learned that the Respondent is in fact trying to force specific performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie has never been available in such situations and there is no power for such an postponement of the remedy. The High Court of Appeal upheld the appeal and the order of the Court a quo was reserved.
A similar principle was applied in the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long term commitment with Olkru Handelaars ('the Respondent'). In terms of the contract the Respondent would install and keep the Applicant's automatic ATM at its premises. A couple of months following the installation of the ATM the Respondent however removed same and put in an ATM of some other bank.
The Applicant carried an immediate request to get a spoliation order to Court, contesting that through its ATM installed at the property of the Respondent, it had had possession over the ATM, and the immediate area adjoining it. Later in Court the Applicant contended 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 maintain its ATM on the premises of the Respondent, and the mandament van spolie was not the appropriate treatment for the enforcement of such contractual privilege. The Applicant's claim in reality was for specific performance of a contractual right, and the spoliation request was consequently rejected.
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 ownership or quasi possessio. It's however not the right solution for the enforcement of a contractual right. The mandament van spolie can't be used as a 'catch-all function' to protect all rights, inspite of their nature. The nature of the professed right must be recognized, or characterised, to figure out whether there was in fact a clear case of quasi possessio which merits safeguards. The right residing in quasi possessio must indeed make reference to an incident of ownership or control.
The result is that would be candidates for spoliation orders must ascertain the type of the professed right before delivering application to Court, to identify whether the remedy wanted isn't really a contractual right that may be imposed using the regulations within the law of contract.
* It must be shown that the individual had free and uninterrupted possession prior to being deprived of his/her property; and * The candidate was wrongfully relieved of his/her possession without his/her approval.
The mandament van spolie can be used effortlessly in situations where the fought for property is corporeal, and possession easy to determine. It is, however, a completely different matter where it concerns incorporeal property. Recent case law casts some light on the legal principles relating to spoliation instructions and incorporeal property.
In the High Court of Appeal case of Telkom SA Ltd v Xsinet (Pty) Ltd, Xsinet ('the Respondent') continued business being an isp, and in order to carry out its internet business it contracted with Telkom ('the Appellant') for the provision of telecommunication solutions. The Appellant supplied, set up and managed a telephone system as well as a bandwidth system at the property of the Respondent. The Appellant disconnected the services to the Respondent following a fee 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 set up by the Appellant, and that it had been in peaceful and uninterrupted control until the systems were shut off. The Respondent regarded the disconnection of the systems as an unlawful deprivation of its use and possession of the systems, and for that reason brought urgent request to Court for a spoliation order. The Court a quo awarded such instruction and ordered Telkom to reconnect the services it had turned off.
On appeal, the trained Judge mentioned that a need has been felt for centuries to guard incorporeal rights from being violated, and consequently the scope of the mandament van spolie was expanded to allow coverage of quasi possessio.
The Respondent fought it had been in quasi possessio of the services by using it. The Court, in consideration, wasn't convinced by the Respondent's proposal, and discovered that the Respondent had not been in possession of the services, as it had not been in possession of any of the mechanisms with which its equipment was coupled to the Internet. The Appellant didn't need to go into the premises of the Respondent to effect the disconnection, and indeed did not do so.
The Supreme Court learned that the Respondent is in fact trying to force specific performance of a contractual right in order to solve a contractual disagreement. The mandament van spolie has never been available in such situations and there is no power for such an postponement of the remedy. The High Court of Appeal upheld the appeal and the order of the Court a quo was reserved.
A similar principle was applied in the matter of ATM Solutions v Olkru Handelaars. In this matter ATM Solutions ('the Applicant') had entered into a long term commitment with Olkru Handelaars ('the Respondent'). In terms of the contract the Respondent would install and keep the Applicant's automatic ATM at its premises. A couple of months following the installation of the ATM the Respondent however removed same and put in an ATM of some other bank.
The Applicant carried an immediate request to get a spoliation order to Court, contesting that through its ATM installed at the property of the Respondent, it had had possession over the ATM, and the immediate area adjoining it. Later in Court the Applicant contended 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 maintain its ATM on the premises of the Respondent, and the mandament van spolie was not the appropriate treatment for the enforcement of such contractual privilege. The Applicant's claim in reality was for specific performance of a contractual right, and the spoliation request was consequently rejected.
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 ownership or quasi possessio. It's however not the right solution for the enforcement of a contractual right. The mandament van spolie can't be used as a 'catch-all function' to protect all rights, inspite of their nature. The nature of the professed right must be recognized, or characterised, to figure out whether there was in fact a clear case of quasi possessio which merits safeguards. The right residing in quasi possessio must indeed make reference to an incident of ownership or control.
The result is that would be candidates for spoliation orders must ascertain the type of the professed right before delivering application to Court, to identify whether the remedy wanted isn't really a contractual right that may be imposed using the regulations within the law of contract.
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