What is a spoliation? A relic of Roman canon law, alive and well in SA in 2013

A spoliation is any wrongful deprivation of another’s right of possession. It can include various acts, such as when a thief steals your car, or a landlord owed arrear rentals switches off the water supply to a tenant’s premises, or a municipal employee demolishes a homeless person’s home under a bridge.

The “mandament van spolie” is an order of court which undoes a spoliation, by ordering the guilty party to restore the status quo after a spoliation, that is, to return the thing that was spoliated. The underlying principle is that people are required to follow due legal process, and not simply help themselves. A party who skips due process can find themselves liable under a mandament van spolie to undo their actions and also pay their victim’s legal costs (aside from any other civil or criminal penalties that might apply).

There is conflicting case law as to whether the court can order the spoliator to restore possession of an item in its original state. It will be cold comfort to someone whose home has been illegally destroyed, to be returned a pile of rubble.

In order to succeed, the victim of a spoliation must approach the court for a mandament of spolie without delay – generally within days. She must prove two things, firstly that she was in peaceful and undisturbed possession of the thing concerned, and secondly that the spoliator wrongfully (that is, without due legal process or consent) deprived her of the thing. If these two elements are proven, then the court has no discretion and must grant the mandament of spolie. This can have results which seem unfair, as even a thief has access to this remedy if the elements can be proven. The court will also have no regard to the big picture, and who is ultimately in the right or in the wrong. Thus a landlord who, in desperation, changed the locks to premises for which a tenant has persistently refused to pay rental, causing the bank holding a bond on the property to threaten to foreclose, may find herself forking out money for new locks for the tenant, as well as the tenant’s legal costs.

Counter-spoliation is allowed. This means that one is entitled to help oneself immediately after a spoliation. For example, if a thief grabs your cell phone and you reach out and grab it back, the thief cannot secure a mandament van spolie against you.