Wits Property Law 2018

Topic 7: POSSESSION
Jackie Dugard

The rule against self help

The expression ‘possession is nine tenths of the law’ describes a common law principle that
where there is disagreement about who owns a thing (for example, where someone possesses
it but another person says they own it), such disagreement must be resolved by due process –
the courts – rather than by force. And that while the disagreement is being resolved by the
courts, the thing should remain with the possessor. If the person claiming ownership has
‘snatched’ the thing back, this is called spoliation and is wrong in our law (even if
subsequently she is proved to be the rightful owner) and the mandament van spolie is an
action to return the thing to the person who peacefully possessed it prior to the dispute.

This principle is set out in Nino Bonino v De Langa 1906 (TPD):

“It is a fundamental principle that no man is allowed to take the law into his own
hands; no-one is permitted to dispossess another forcibly or wrongfully and against his
consent of the posession of property, whether movable or immovable. If he does so,
the Court will summarily restore the status quo ante, and will do that as a preliminary
to any enquiry or investigation into the merits of the dispute”.

This is so that while the dispute is being resolved there is public order – otherwise, if people
were ‘helping themselves’ then we’d be back in the era where e.g. disputes were settled by
duals at dawn and those with more guns/physical strength would always have the stronger
claims.

So, in order to regulate disputes over property ownership, the common law provides the
mandament van spolie as a means of restoring the status quo ante prior to the courts
determining who the rightful owner is.

7.1 The mandament van spolie

The mandament van spolie can be used by any possessor who is unlawfully dispossesed of
property they possessed (whether lawfully or not). The only requirements are that the
applicant (spoliatus) on a balance of probabilities:
 Was in peaceful and undisturbed possession of the thing; and
 That he was unlawfully deprived of the thing (so if a car rental company takes it back
or an owner of property obtains an eviction order, the spoliatus cannot use the
mandament van spolie [or any other legal mechanism] to claim back the thing)

If these two requirements are satisfied, the property must be returned, even if the person has
no rights to it i.e. even if their possession was unlawful in the first place. Rights and remedies
are all determined as part of the court enquiry, and are not relevant in spoliation proceedings.
Famously Voet remarked that even a thief can bring spoliation proceedings.

Regarding how the possessor is deprived of the thing, open force will of course be one of the
ways (e.g. an illegal eviction where the Red Ants force unlawful occupiers off the land; or a

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stick-up in which my watch is taken by an armed robbers), but this isn’t necessary to ground a
mandament van spolie action. Any form of duress or unlawful interference or trickery that
compels you to give up possession is sufficient – as long as the deprivation is without your
consent (obviously if you consent, it’s not an unlawful deprivation).

An example of how the courts determine whether there was consent to the deprivation is the
case of Mokebe v January (7 Feb 2011, Boksburg Magistrates Court) in which Mrs Mokebe
had resided with her children at a property owned by Mr January for several years. She fell ill
and was unable to pay her rental, falling into arrears. The owner demanded a higher rental that
she couldn’t afford, and so he gave told her to leave. She had nowhere else to go and
remained on the property. According to the owner, she then consented to leave, but according
to Mrs Mokebe, she was forcibly moved out / unlawfully dispossessed.

Looking at the facts – she had left most of her personal belongings at the property; the owner
was a police officer who had his service weapon with him and threatened to use it against her;
she was sleeping at the time and had to leave in her night-dress with her baby in only a nappy;
she had nowhere to go – the court found there was not consent and that in fact even if there
was consent, the eviction would still be unlawful because it was obtained without a court
order. So the mandament van spolie succeeded and Mrs Mokebe could return to the property
pending a proper eviction application.

Regarding the nature of the possession, this will be determined on the facts. For example, if I
have occupied land and lived there for three months, this will be sufficient to ground a claim.
However, if I lend my car to my neighbour to go to the shops, he probably can’t use a
mandament van spolie to retrieve it after I take it back. So often duration will be part of the
consideration (the longer the possession the more clear the intent is to possess/occupy rather
than to borrow/move through), which is ultimately about your intention as the possessor (e.g.
whether you intend to borrow or occupy).

The nature of possession will usually be closely linked to the question of ‘peaceful and
undisturbed’ possession, which also often encompasess the duration of the possession – how
long you’ve held/occupied the thing without ceding to others. In the case of an unlawfully
occupied building, the High Court in Mthimkulu v Mahomed (2011GSJ) (which at the SCA
level became Changing Tides) found that having lived without interference on the property
for six weeks, was sufficient to satisfy the peaceful and undisturbed possession requirement
(paras 9-12). (In this case, the owners also alleged there was ‘consent’ for the unlawful
eviction, but the court found that there was not, based on the owners own averments including
that the occupiers started throwing bricks, umbrellas and bottles and spears at them on the day
of the eviction; as well as the evidence that the occupiers had successfully repelled attempts
by the owners to evict them three days previously, and that the occupiers had called the police
to say an unlawful eviction was underway [paras 13-14]).

Yeko v Qana (1973 A) established that in order to obtain a spoliation order, the onus is on the
applicant to prove the required posession and that he was unlawfully deprived of such
possession.

Defences to the mandament

There are four clearly established defences to the mandament (i.e. that the owner can use to
defend a mandament van spolie application brought by the possessors/occupiers):

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 a) The applicant’s possession was not peaceful and undisturbed (‘counter-spoliation’)
b) The applicant was not unlawfully deprived of possession (there was consent or a court
order or statutory right to dispossess)
c) There was no possession because the object of the application is not property per se
(this raises questions about ‘quasi-possession’ of incorporeals)
d) The property no longer exists or has been bona fide alienated to a third party
(‘impossibility’)

a) Counter-spoliation

Counter-spoliation is a limited exception to the rule against self-help. According to this

common law rule:

If, in the process of being spoliated (e.g. a thief is grabbing your bag from your shoulder), you
snatch back your property / prevent the thief from taking it, this is termed counter-spoliation
and is accepted without recourse to the law (i.e. you are lawfully allowed to snatch back your
property and you may use reasonable force to do so).

Whether or not there is lawful/valid counter-spoliation will depend on the facts, largely
determined by whether or not the spoliator has secured peaceful and undisturbed possession
of your property (if you snatch it back in the course of him stealing it/spoliating you, he does
not have peaceful and undisturbed possession).

In Mthimkulu this issue was raised by the landlord, who (as an alternative to arguing there
was consent for the eviction), said that by evicting without a court order he was counter-
spoliating the occupation. The court didn’t deal with this question directly but since it found
that the occupiers had been living on the property for six weeks and that this amounted to
peaceful and undisturbed possession, it is clear that the counter-application argument/defence
wouldn’t succeed.

b) Lawfulness

If you have been lawfully dispossessed you cannot succeed in a spoliation application. Thus
the owner can raise the lawfulness defence to defeat any such application. There are three
forms of lawfulness:

 consent - as explained previously, if you freely and voluntarily (consensually) give up

a thing, you are not spoliated and therefore you cannot succeed with the mandament
van spolie;
 court order - if an occupier is evicted from land or a building with a valid court order,
even if force is used, there is no spoliation, because the eviction is authorised by law
(they might have a claim against the Red Ants or owners for any damage/harm, but
this would be a delictual claim rather than a spoliation application)
 certain laws permit non-consensual takings (e.g. Expropriation Act) – where the
forcible taking away of possession of a thing is authorised by statute, then it is lawful.
But the statute must specifically authorise this taking. For example, in Rikhotso v
Northcliff Ceramics (1997 W), the court considered whether, in relation to the
(thankfully subsequently repealled) Prevention of Illegal Squatting Act (PISA) - which
authorised the landowner, without a court order, to evict unlawful occupiers and

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 “dismantle” any structures – the landowner was authorised to burn down the shacks,
as the owner had done. The court held that the authorisation had to be narrowly
interpreted, that the words ‘dismantle’ did not authorise burning, and that the burning
was therefore unlawful (but because of impossibility – see below – the mandament
could not succeed). See also Ngqukumba v Minister of Safety of Security (2014 CC) in
which the CC ruled that the National Road Traffic Act did not authorise the police to
retain a vehicle it had unlawfully seized (on the grounds it had falsified chassis
number or engine parts) i.e. the mandament was not precluded and the court ordered
the police to return the vehicle to the erstwhile possessor.

c) Impossibility

If the property has been destroyed – as in Rikhotso – or alienated in good faith to a third party,
then it is not possible to restore it to the applicant. The mandament is an action for the return
of the precise property taken, not an appropriate/reconstructed alternative/ equivalent.

Rikhotso is the key case on this issue. Here the court had to consider whether the mandament
required a spoliator to rebuild shacks it had destroyed by burning them to ashes. The court
decided that the mandament was to be narrowly interpreted as an action for the return of the
precise thing that was unlawfully dispossessed, and that it could not be used to compel the
owner to provide new shacks identical to those that had been destroyed. This principle has
been reconfirmed in Tswelopele and Schubart Park (discussed below). However, fortunately,
unlike in Rikhotso, where the court simply dismissed the application, leaving the occupiers
stranded without remedy, in Tswelopele and Schubart Park the courts came up with a novel
way to provide a remedy for people whose shacks had been destroyed and in relation to which
the courts said it was impossible to use the mandament.

e) Quasi-possession of incorporeals

Our courts have also extended the mandament beyond actual possession of physical property
to ‘quasi-possession’ of incorporeal rights. These are rights to use amenities/services closely
associated with possession of property. Examples include the unlawful disconnection of water
and electricity supplies to a building. Because these utilities are intimately connected to the
possession of it (and are often part and parcel e.g. of rental agreements), the unlawful
disconnection of such services will normally be considered a spoliation of an incident of
posssession of the building.

However, there is a narrow band of recognised quasi-possession that qualifies for bringing a
mandament claim.

In Telkom v Xsinet (2003 SCA), Telkom provided telephone services to Xsinet, but Xsinet
stopped paying its Telkom bill. Instead of going to court, Telkom flicked a switch at its office
and disconnected the phone service. Xsinet said it had been spoliated. The SCA said Xsinet
had not been spoliated because telephone services weren’t incidents of possession of the
building and because the disconnection had not involved interference with Xsinet’s
possession of the building (it was done remotely) [but electricity?].

In ATM Solutions v Olkru Handelaars Kwikspaar had unplugged an ATM and replaced it
with an ABSA one. ATM solutions said it had been spoliated. The SCA ruled this wasn’t
spoliation. This is because, although the ATM belonged to ATM solutions, it did not exercise

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physical control over the ATM at the time of the alleged spoliation (i.e. it wasn’t in peaceful,
undisturbed possession) and what it really wanted was an order that the Kwikspaar was
contractually bound to retain its services – this isn’t what the mandament is aimed at, so
contractual actions and remedies should be sought.

7.2 Constitutional impact

Please read these cases carefully especially regarding the implications for situations in which
property has been destroyed. We will discuss the cases in class.

Tswelopele

Tshwane

Schubart Park