The ManicaPost
Trust Maanda
Post Correspondent
SPOLIATION proceedings or mandament van spolie, are court proceedings to restore possession of a thing to a person from whom it has been dispossessed wrongfully or forcibly, against his or her consent.
The intention is to discourage resort to self-help.
Noone should forcibly or wrongfully dispossess another of his or her property, without their consent.
If he or she dispossesses, the court will summarily, before any enquiry into the merits of the dispute, order restoration of status qouante, the position before the dispossession.
The essence of the mandament van spolie is the restoration to the possessor, before all else, of unlawfully deprived possession.
The person must be restored to possession before all else.
The spoliation order prevents the taking of possession in any way other than in terms of the law. Its philosophy is that noone should resort to self-help to obtain or regain possession.
A person, even without a right to possession of a thing, may not be dispossessed of it unlawfully.
If he is dispossessed wrongfully, he can obtain a court order to have the possession restored to him.
Whether or not he or she has a right to the possession is irrelevant; that will be enquired into after restoration of possession.
What a dispossessed person needs to allege and prove in court is that he or she was in peaceful and undisturbed possession of the thing; and that they were wrongfully or forcibly dispossessed of it without their consent.
Once that has been proved, they are entitled to have the status quo ante restored.
The court will insist on the principle that a person in possession of property, however unlawful his possession may be, cannot be interfered with in his or her possession, except by the due process of law, and where he or she is so interfered with, the court will restrain such interference, pending any legal action against him or her by the one who argues against the legality of his or her possession.
That the possessor’s possession was illegal does not suffice as a defence in spoliation claims.
If a person occupies property without the consent of the owner, the owner cannot forcibly eject the occupier.
The fact that the occupier would have no legal right to occupy the property, and would have no defence to proceedings for ejectment, does not mean that the owner should dispense with the legal proceedings for ejectment. Due process must be followed.
If a shelter is not built on legal land, or is not built in terms of an approved plan, its demolition without due process will be an act of spoliation, and the court can order restoration of the illegal dwelling pending enquiry into the legality of the shelter.
Arbitrary evictions are unconstitutional.
That the occupation by the occupier is criminal and punishable does not make any difference to the illegality of the demolisher’s conduct.
Spoliation proceedings also apply between joint possessors.
Where one of the joint possessors of a thing wrongfully takes exclusive possession of that thing, an action for spoliation will lie at the instance of the despoiled possessor, in the same way as if the despoiled possessor had enjoyed exclusive possession.
Where a spouse wrongfully takes with him or her property jointly possessed by the couple, the spouse may bring an action for restoration of the thing dispossessed.
A spouse who moves out of the matrimonial property on separation or desertion, leaving the other spouse in sole and exclusive occupation, and returns to forcibly occupy, and unlawfully gains entry into the matrimonial home, disturbs the other spouses’ exclusive possession by their return.
Even if they would have returned as a rightful owner to assume and enjoy their rights as a joint owner of the property, their conduct is an act of despoiling.
In spoliation proceedings, the fact that a person has rights as owner of the property is irrelevant.
Similarly, a person despoiled cannot forcibly return to possession as he or she cannot assert their rights by their own act of despoiling.
Spoliation proceedings are designed to stop the resort to force in order to assert the rights of possession.
Where one has a court order, they must get the messenger of court, an officer of the law, to assist them in the attainment of their rights.
Personal enforcement of a court order is an act of spoliation.
Self- help is inimical to the rule of law.
It is the law of the jungle.
Mandament van spolie is meant to preserve public order by making persons refrain from taking the law into their own hands, and inducing them to follow due process.
Trust Maanda is a legal practitioner and a partner at Maunga, Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
