Picture the following scenario:
X and Y enter into a purchase agreement in terms of which X purchases a motor vehicle from Y for the agreed purchase price of R 60 000.00. They agree that the purchase price will be paid in monthly instalments of R 10 000.00 and after the purchase price had been paid in full, the vehicle would be transferred into X’s name. They further agree that X would immediately, upon signature of the agreement, take possession of the vehicle.
After signature of the agreement X takes the keys and drives off with the vehicle. Y never hears from X again and X never makes any payments to Y. One year later, Y stops at a shopping centre and notices the motor vehicle parked outside. Y breaks into the vehicle and drives home with the vehicle, it is after all his vehicle.
The question: was Y entitled to take the steps he did so as to reclaim his rightful property? The answer is a loud and resounding NO!
In this scenario X would be entitled to approach the Court to obtain a spoliation order against Y so as to restore his possession of the vehicle. In the matter of Nino Bonino v De Lange 1906 TS 122, the Court held that spoliation is any wrongful dispossession of someone’s right of possession of property or of a legal right. The legal remedy of a spoliation order, also known as the “mandament van spolie” is premised on the principle that no one may take the law into their own hands so as to obtain or regain possession.
To obtain a spoliation order an applicant must prove the following:
(a) that he was in peaceful and undisturbed possession of the property and
(b) that he was wrongfully dispossessed of the property without his consent.
In the matter of Van Rhyn and Others NNO v Fleurbaix Farm (PTY) Ltd 2013 (5) SA 521 (WCC) the court held that “the Mandament van spolie is directed at restoring possession to a party which has been unlawfully dispossessed. It is a robust remedy directed at restoring the status quo ante, irrespective of the merits of any underlying contest concerning entitlement to possession of the object or right in issue; peaceful and undisturbed possession of the thing concerned and the unlawful despoilment thereof are all that an applicant for a mandament van spolie has to show. Deprivation is unlawful if it takes place without due process of law, or without a special legal right to oust the possessor.”
Therefore, if the applicant succeeds with the application, the respondent must restore the status quo ante, meaning to restore the property in the state it was in before the spoliation. This makes provision therefore that, apart from returning the dispossessed property, the respondent may also be ordered to restore the property to its former condition, if the property was damaged.
It thus follows that the true legal ownership of the property is wholly irrelevant, as the purpose of the remedy is to restore a person’s free and undisturbed possession of property, irrespective of who the rightful owner of the property is.
Consequently if X were to approach the Court, a spoliation order would in all likelihood be granted wherein Y would be ordered to return the vehicle to X and to pay the costs that X had to incur in obtaining the order. The court may also order that the Sheriff or the South African Police Service assist X in reclaiming the vehicle.
Consequently, where a person (Y) claims that another person (X) is in unlawful possession of his property, he must use the legal remedies available to him to claim back said property. He may under no circumstance take the law into his own hands and forcibly and without consent reclaim his property. In light hereof, one must not lose sight of the fact that Y is the registered owner of the vehicle and as such and after the granting of a spoliation order, Y would be wise to consult with an attorney so as to discuss the legal remedies available to ensure the return of his vehicle.
Written by : Ilette Pilon (BA Law; LL.B)