“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 possession 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 inquiry or investigation into the merits of the dispute.”
These words of Innes CJ in the 1996 case of Nino Bonino v de Lange have stood the test of time to become the backbone of the remedy of spoliation in our jurisdiction. It is a clear indication of how the law frowns upon anarchy even in the law of property. This means that even a squatter should be considered as being in peaceful possession of the area he is squatting on and due process must be followed to remove him, which may be a proper eviction order against him. It is imperative to first visit the interesting dynamics between possession and ownership. One can be in possession of a property that they do not own yet one can also own something but not necessarily possess it. Possession is about the physical control and mental intention to control. A distinction can also be made between the right of possession and the right to possession. A potential squatter who intends to occupy a piece of land does not have the right to possession. However once a squatter is in possession of a piece of land, he or she has the right of possession which is protected under the law.
The right of possession can only be interfered with through due process of the law, failing which one can apply for a spoliation order. In Sillo v Naude “unlawful” was defined to mean dispossession without the party in possession of the property’s consent or without due legal process. Once you are in possession of a thing and it is taken away from you without your consent, the spoliation remedy is available.
Spoliation by its nature as a remedy protects possession and it does not allow the court to delve into the merits of the matter. This means that when considering a spoliation action in its purest form, the lawfulness of the possession should not enter the arena for debate. The maxim of spoliatus ante omnia restituendes est dictates this remedy and it is interpreted to mean that the applicant’s control of the property must be restored at once without considering whether their possession was criminal, illegal or unlawful.
For one to succeed in a spoliation two requirements have to be satisfied and these are, the applicant in peaceful and undisturbed possession of the thing and was he forcibly or unlawfully dispossessed.
Some have argued that the spoliation doctrine protects criminals and illegal acts as it allows people with dirty hands to rush to the courts seeking its assistance in circumstances they are guilty of lack of probity or honesty. The argument is easily killed off because the spoliation remedy is there to ensure peace and to safeguard law and order in the community. This spoliation order is usually a temporary remedy done through a speedy action. The court first restores parties to their original position before spoliation and then the respondent can then claim his right to possession or ownership in another suit.
This subsequent suit is through the rei vindicatio and under it one can then prove that he/she is the owner of the thing, the thing exists and is identifiable and the defendant is still in control. It is then the duty of the courts to adjudicate on who is guilty and who is not or who has the absolute right to property and who does not.
In conclusion the message is clear, and it is that, in the law of property due process should be followed through the proper litigation channels. Citizens should not take the law into their own hands. Landlords should not lock their tenants doors upon a default in payment of rentals
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