“A few months ago, my vehicle was stolen, and I reported a case of theft at the SAPS. Just as I thought all was lost and that my vehicle will never be returned to me, I saw an unknown man driving my vehicle. I followed the man and obtained his residential address. I thereafter returned with my spare key of my car and took my vehicle back. I was now served with court documents in terms of which the unknown man lodged an application to retake possession of my vehicle. How is this possible?”
Mandament of spolie is a legal principle in terms of which possession of a certain item is protected. It is important to distinguish between physical possession and the right to possession.
With a Mandament of spolie, one’s physical possession is protected and not the right to possession. The claim under the mandament arises solely from deprivation of possession otherwise than through legal procedure.
Possession for the purposes of the mandament, is not possession in the strict juridical sense and it is sufficing if the holding was with the intention of securing some benefit for the applicant i.e. right of retention when services were rendered to the vehicle.
The fact that the applicant’s (the one who lodges the application) possession is wrongful, or illegal, is irrelevant and further the reason why the applicant has possession of the item is also irrelevant. It is further irrelevant that the respondent has a stronger right or claim to the possession of the item.
Jurisdiction (i.e. which court can be approached to deal with such an application) is determined by the value of the item so spoliated.
The applicant must allege and prove that he/she was in peaceful and undisturbed possession of the property and that this possession was unlawfully deprived by the respondent.
Unlawfully deprived will entail that the item or property was removed by the respondent without a valid court order (undue legal process) and without the consent by the Defendant, to remove the property.
Such an application must further be brought within a reasonable time to have possession restored otherwise the application might be refused on the basis that it lacks urgency.
When considering the question mentioned above, the correct procedure to follow by the consultant was to institute action against the unknown man, by way of a rei vindication action to obtain a court order to retake possession of his vehicle. The action taken by the consultant was arbiter and as such unlawful, which caused that the unknown man could retake possession of the vehicle by way of a mandament of spolie application.
It is advisable to have an attorney available to consult with before taking any drastic steps to retake possession of your vehicle under the circumstances.
- Amler’s Precedents of Pleadings, Ninth Edition, Harms, page 340 - 342