The issue in this scenario is whether the mandament van spolie can be used in circumstances where there is dispossession of incorporeals. South African law is a mixed system thus, a mixture between civil law in the form of Roman Dutch law and English Common law. In terms of South African law, a clear distinction is made between possession and ownership. Ownership is seen as a real right in respect of a thing, in actual fact it is the strongest real right providing the owner with the fullest entitlements with regard to the thing and it is protected by an action rei vindicatio.1 On the other hand, Badenhorst et al2 is of the view that possession is in the first place a factual relationship of control over a thing, but whether it is also a real right concerns an old age debate which still remains clouded in confusion. Nevertheless, this essay focuses on the protection of quasi-possession by the mandament van spolie, which is the only possessory remedy in the true sense of the word in South African law. In Roman law, the possession of incorporeals was protected by possessory interdicts and precisely the possession of the right of a usufructuary was known as quasi-possession. In Roman Dutch law, the notion of quasi-possession was made use of to grant a mandament van spolie to a person who was prevented from exercising a servitudal right.3 South African courts also have a tradition of protecting interference with the quasi-possession of incorporeals with the mandament van spolie. Essentially, an act of spoliation is considered to occur when the holder of a servitudal right is prevented from exercising such right.4 Accordingly, the mandament is used to protect different kinds of servitudes as well as the right to the supply of electricity or water.5 However, since not all rights lend themselves to quasi-possession, the mandament does not serve a catch all function in the sense that it can be used to enforce any contractual, delictual or real right.6 A number of spoliation cases concerning the protection of quasi-possession required proof of the existence of the professed right in order to succeed with the mandament. This conflict with the speedy nature of the mandament since the court is not supposed to adjudicate on the merits of the case, namely the rights of the parties.7 The purpose of the mandament van spolie is to restore possession that was lost as a result of spoliation.8 The court tries to establish whether there was possession (or quasi-possession) and whether the possessor was unlawfully dispossessed. In spoliation proceedings, all that need be established by the applicant on a balance of probabilities is that he was in peaceful and undisturbed possession of a thing; and that he was unlawfully deprived of that thing.9 Upon establishing these two elements of the mandament, the property must be returned, even to a person who has no rights to it. Rights and remedies must be determined later, with due process of law. Notably, Voet remarked that even a thief can bring spoliation proceedings.10 Furthermore, any form of duress or unlawful interference with a person’s will is enough to ground a spoliation application. This is because the remedy is meant to guard against any deprivation without consent. In Nino Bonino v De Lange11 the Transvaal Supreme Court expressed this principle that it is a fundamental principle that no man is allowed to take the law into his own hands. This implies that no-one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether moveable or immovable. The law lays down certain requirements before a person is deemed to be a possessor in order the consequences to realize. There must be the corpus or physical element and the animus or mental element. Both are necessary for factual or bare possession to exist. According to Mostert and Pope12 physical control must be sufficient and effective while the mental attitude must be appropriate to the factual context. This is confirmed in the case of De Beer v Zimbali Estate Management Association (Pty) Ltd13 where the Court held that an estate agent had no interest in the estate thus she could not establish sufficient and effective physical control. It is however important to note that the applicability of the mandament van spolie to incorporeals has been subject to debates. Application of the law to the facts
In the case of Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi,14 the Court stated that possession and spoliation of the alleged right must be proved. In the case of a servitude, possession lies in the use of the servitude over some time and that this replaces the physical possession of a corporeal. With regard to our scenario, the students were dispossessed of water, electricity, internet and other sanitation services. Water and Sanitation services claim
In terms of proving the mandament to reclaim possession of water, there are a few things that need to be discussed in order to ascertain whether it was possible to use this remedy. In an unreported case of Zolani v Catchcart Transitional Local Council,15 the applicant relied on the mandament van spolie in order to have his water supply reconnected. As discussed earlier, one has to prove that he was in possession of the thing and that he was illicitly despoiled from such possession.16 It is not necessary that the applicant show a right to possession since the mandament is concerned with factual possession. In the aforementioned case, the applicant failed to prove possession of the thing therefore he failed in his application as the first requirement of the mandament was not met. Also the second requirement was found short as the Council was legally empowered to disconnect the water supply either by virtue of the relevant provision in the municipal ordinance. Moreover, in a discussion relating to the restoration of possession of water in the case of Zulu v Minister of Works, Kwazulu,17 Van der Walt argues that it is difficult if not impossible to make such a claim. His argument being that the water of which the applicant used to have control is no longer there and any water which might be made available to him would not be the same water which he used to have or of which he was deprived.18 In this perspective, it is even better to regard water in terms of its supply and not in individual quantities, which forms part of the applicant’s physical control of the water pipes.19 Thus, we are looking at an idea that the use of which depends upon the pipes and the water supplied by them.20 In his view, spoliation and restoration of services such as water and electricity create a very problematic aspect of the application of the mandament van spolie and that it will always be influenced by policy considerations.21 It is common that the mandament van spolie cannot be used where there is a contractual use of water.22 However, it can only be possible if the use of the water is incidental to the possession of a corporeal. In this context, the students’ occupation of the digs implies that the use of water flows from that possession they had. Incidents of possession, a form of quasi-possession can also be used to explain why the reclaiming of possession could be successful. To me the cutting off of water supply services was unlawful. The disconnection of water services can only be lawful if it is found to be fair and equitable. Some scholarly views note that there must be a reasonable notice of intention to discontinue water services.23 Discontinuing water services also means the cutting off of sanitation services. This therefore cannot be a reasonable step to take as the well-being of students is threatened. Electricity claim
With regard to electricity, the cases of Naidoo v Moodley24 and Froman v Herbmore Timber & Hardware25can be more illustrative. The facts were almost similar in both cases. In Naidoo the lessee was entitled to electricity services and in the Froman the lessee was entitled to electricity and water. In the Naidoo case the phrase ‘incident of occupation’ was made use of by the Judge when he referred to the use of electricity. On the contrary, in Froman he stated that there is no reason why an incorporeal right, such as the one we are dealing with in this question, should not form the subject of spoliation proceedings.26 In both cases, the opposition counsel argued that the services cannot be reinstated because the claim was emanating from a contract. The Court rejected these arguments on the basis that the possession a right lies in the use of the right. This therefore implies that the exercise of the right is closely connected to the corporeal thing that the loss of the right actually amounts to an interference with the possession of the thing itself. Now if we go back to the requirements of a claim of mandament van spolie, we see that there must be interference therefore this qualifies the claim. Refuse Removal
One would argue that the students can reclaim this service as it is closely related to their occupation of the premises. This service would fall under incidents of occupation. It is something they require to keep the premises clean and habitable. Given the speedy nature of the mandament, it is clear that the refuse removal service is one of the basic needs of the students. A healthy environment is essential for the wellbeing of the students. Therefore they can use the mandament van spolie to reclaim this service. MultiChoice account and Telkom services
The leading case here is Telkom SA Ltd v Xsinet (Pty) Ltd.27 In this case the Court held that the services provided by Telkom were not incidents of occupation and that Telkom was not considered as having interfered with Xsinet’s possession because they did not enter the premises in order to effect the disconnection. If we are to use this precedent, then the students cannot reclaim possession of telecommunication services. Current position is governed by the Telkom judgment. They will only claim if this judgment is overridden by new precedents. It is clear from this case that when the services were disconnected, there was no interference with the student’s possession. Although this judgment has been attacked by scholars, it is the only precedent that we have therefore we should make use of it. On the issue of the MultiChoice account, this service provider usually send warning messages to its subscribers if they are to make any termination of services stemming from nonpayment. This shows that there will be a contract between a subscriber and the service provider. Looking at the characteristic of mandament that it does not apply in circumstances where contracts are present, the students cannot use the mandament van spolie to claim the restoration of this service. This contract was entered between Peltier Junction developer and the MultiChoice Company. Therefore, possession is flowing from a contract. Analysis and Development of the law
It is clear that electricity and water are the most basic needs for the livelihood of the students. This will lead us to argue that the mandament is the most appropriate remedy for them to reclaim such possession they had at first. Looking at the elements of possession, the students had the mental attitude and they had the intention to benefit from these facilities. Although we cannot ascertain physical control with regard to the facilities in question, it goes without saying that their physical control comes into being by virtue of their occupation into the building.28 As pointed out earlier, if we can only prove that the students were in possession of the servitude right peacefully and they were undisturbed until they were deprived without a notice or a court order, then we can see the applicability of the mandament sufficing. In this case, the students were in peaceful use of the facilities until they were deprived unlawfully. Their use and enjoyment of water and electricity was curtailed therefore they are justified to make use of the mandament. In line with the arguments raised above, reclaiming possession of water by the students would succeed. However, this area of law needs to be revisited in order to develop this common law remedy. The mandament van spolie need to be inclined with the Constitution.29 From the discussion made above, the mandament can be made use of without invoking the Bill of Rights. If the Constitution is the law of the land, we have to also align the remedy with it. For instance, it is difficult in this case to make use of s27 (1) (b) of the Constitution which reads that everyone has the right to have access to sufficient food and water. It will be easy for an applicant to rely on both the mandament van spolie and the relevant sections in the Bill of Rights to reclaim possession of their lost rights. Moreover, it seems self-contradictory to claim that the mandament van spolie does not operate in circumstances where contractual obligations are present because at the same time it is common that when applying the mandament, the courts are not concerned with the facts/merits of each case. From this point of view, when we tend to scrutinize and point out that a contractual obligation is present hence we say the mandament does not apply, we will be actually looking at the facts or the merits of the case then we qualify whether this remedy applies. Therefore, one would argue that the courts are turning a blind eye on the issue that the mandament also require us to treat each case basing on its merits. Conclusion
To conclude, the mandament van spolie as a possessory remedy is regarded offering only temporary relief and it is not aimed at the restoration of rights. The law has now extended it to apply to reclaiming possession of incorporeals. It is however important to note that the mandament van spolie cannot be used in situations where contractual obligations are present. In the scenario discussed above, it is clear that the students can use this remedy to restore their previous positions. They can use this remedy to claim electricity, water and other sanitation services. If we are to make use of the Telkom judgment, they cannot reclaim internet and telecommunication services because the service providers did not enter the premises to disconnect. Be that as it may, this common law remedy needs to be developed in a way that it can take account of rights of people at the same time it must consider each case by its facts.
AJ van der Walt Law of Property: Casebook for Students 5 ed (2002) Juta: Cape Town. D Kleyn The Protection of quasi possession in South African law (2013) SUBB J 142. H Mostert et al (eds.) The Principles of Property in South Africa (2010) Oxford University Press. P Badenhorst et al Silberberg and Schoeman’s The Law of Property 4 ed (2004) Lexis Nexis: Butterworths. ST Coleridge Not a Drop to Drink: Disconnection of water services for non-payment and the right to access to water (2004) 20 SAJHR. Table of cases
Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 1 SA 508 (A). De Beer v Zimbali Estate Management Association (Pty) Ltd 2007 (3) SA 254 (N). Froman v Herbmore Timber & Hardware 1984 3 SA 609 (W).
Naidoo v Moodley 1982 4 SA 82 (T).
Nino Bonino v Delange 1906 TS 120.
Telkom SA Ltd v Xsinet (Pty) 2003 (5) SA 309 (SCA).
Zolani v Catchcart Transitional Local Council Case 71/98, ECPD (6 February 1998). Zulu v Minister of Works, Kwazulu 1992 (1) SA 181 (D).