Family law attorneys frequently deal with messy divorces. In some divorce matters, one of the spouses can act irrational by depriving his/her spouse from possession of movable assets and even access to the communal home pending finalisation of the divorce.
It often happens that a wife comes home from shopping and finds her house keys can no longer open the front door… Her husband changed the locks and denies her access. What should she do?

Her relief is found by way of Mandament van Spolie or also known as a Spoliation Application. This principle sets out that no person is allowed to take the law into their own hands and that no person may forcibly deprive someone of their movable or immovable property without his consent.

[1] This means that the court will give the person whose property has been wrongfully taken from him, back to him.

According to Ntshoeu v Smith[2] and Law of South Africa (LAWSA)[3] there are four instances when a spoliation order will be applicable where:

1. A person’s possession over movable or immovable property has been unlawfully taken away from him, either a part thereof or as a whole.
2. Where a person, who is a co-possessor of shared movable or immovable property has been unlawfully taken away, by a fellow co-possessor.
3. Where the servitutal right or quasi-possession of a person is unlawfully taken from a person or;
4. Where the incorporeal right or quasi-possession of a person is unlawfully taken from a person.

Of utmost importance in these proceedings is the fact that ownership is not relevant to be successful with a spoliation application. The applicant must alledge and prove that he/she was in peaceful and undisturbed possession of the property or right and that same has been unlawfully deprived. Actual physical possession and not the right to possession is protected. The claim to relief under the mandament van spolie arises solely from deprivation of possession without following legal procedure.

In order for the applicant to obtain a spoliation order from court, the applicant only needs to prove two things. The first being that he had undisturbed possession of the thing (property) and the second, that he was forcibly or unlawfully deprived of the thing (property).[4] If an Applicant is successful in proving undisturbed possession of the thing (property) and that he/she was forcibly or unlawfully deprived of the thing (property) the Court will grant the spoliation order without taking into consideration who is entitiled by law to be in posession of the thing^[5]

It is however advisable to rather consult with an attorney before you consider denying a possessor access to a thing or right.

Bibliography

Case Law

Greyling v Estate Pretorius 1947 (3) SA 514 (W)

Ntshoeu v Smith (CA&R107/16) [2017] ZANCHC 30 (11 April 2017)

Zulu v Minister of Works, KwaZulu and Others 1992 (1) SA 181 (D)

Literature

Peté et al Civil Procedure A Practical Guide 3^rd ed (Oxford University Press Southern Africa (Pty) Ltd Cape Town 2016)

Law of South Africa (LAWSA) Vol 27