What is spoliation and what is itSs purpose?

  • Spoliation is the wrongful deprivation of another’s right of possession.
  • The aim of spoliation is to prevent parties from taking the law into their own hands and the cause of possession is irrelevant [See Ivanov v North West Gambling Board & Others 2012 (6) SA 67 SCA].

Scenario: the landlord changed the keys of a cottage to prevent the tenant from having access, because the tenant failed to pay rent. The tenant can approach the court for a spoliation order as the landlord is not allowed to take the law into their own hands, but to rather approach the court for relief.

Spoliation requirements:

  1. Peaceful and undisturbed possession [See Kgosana & Another v Otto 1991 (2) SA 113 (W)]
  • The Applicant (disposed party) does not need to have a legal right to posses the possession.
  • Also, the cause for the Applicant’s possession is irrelevant.
  1. Unlawful deprivation of the possession [See Lau v Real Time Investments 165 CC (GP)].
  • The question asked here is whether or not the Applicant consented, freely and genuinely to the dispossession, if not, it was unlawful.

Spoliation orders are often sought by a way of application proceedings as opposed to the action proceedings, due to the urgency of such matters.



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