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PROPERTY CASES: Sections 4-10Section 4 - Possession
Nino Bonino v De Lange 1906 TS 120
REQ. FOR MVS: UNLAWFUL DEPRIVATION OF POSSESSION
Facts: Appeal from HC refusing a MVS – applicant alleges he was
unlawfully deprived of possession of billiard room
Judgment:
Innes CJ
- Fundamental principle: No man is allowed to take law into his own
hands – no one is allowed to dispossess another forcibly or
wrongfully and against his consent (movable or immovable)
o If he does so, court will restore status quo ante
- Leyser: “spoliation is any illicit deprivation of another of the right of
possession, in regard to im/movable property or in regard to a legal
right – violence/fraud not an essential element = deprivation must
be against consent + illicit”
- Respondent deprived applicant to prevent breaches of law which
took place in the rom = should have informed police
o His intention was to take advantage – on his own behalf and
for his own protection – of the clause in the lease
- Condition in lease: “Should the part of the other part fail to pay rent
by due date – and should it remain unpaid for 6 days/ should he fail
to pay/fail to carry out terms and conditions of lease – then lessor
shall have right to immediately cancel agreement and prevent other
party from having access
o If applicant (lessee) did not object + consent to what was
done = no spoliation
o Lessee claims no conditions broken = consistently objected
o This condition allows parties to take the law into their own
hands – only courts allowed to dispossess = lessor allowed
himself to be the judge of whether a breach of contract has
been committed = contract which goes against public
policy (court cannot recognize)
o If lessor had come to court to show that conditions of contract
have been broken, then court could have remedied =
ejectment or temporary edict
If he takes the law into his own hands and deprives another of
the possession of property, which the possessor rightly held until
that time, the order of restitutio be issued.
,Smith J
- Judging from the facts, there can be no doubt that grave breaches
of conditions of lease committed = respondent could have lost his
license, so he had no choice must to dispossess
- This is a case of spoliation = law will not allow a man to take the law
into his own hands + to take possession of a property from
somebody who thinks has a claim to that property + who does not
consent = must enforce his rights through the court
- Clause 18 cannot affect the rights of the parties = it is an
agreement between two parties that one of them may be permitted
to do what the law does not allow him to do = contrary to public
policy
Telkom SA Ltd v Xsinet 2003 (5) SA 309 (SCA)
This is an important case involving ‘possession’ of an incorporeal. The judgment states that the
mandament van spolie can protect certain rights where quasi-possession, in the form of continuous
use thereof, can be demonstrated. It was found nevertheless that continuous use of an internet
connection does not constitute quasi-possession. The ruling is viewed with skepticism in De Beer v
Zimbali and Wille’s p.459, particularly because it attempts to drive a wedge between use of water or
electricity supply, and use of an internet connection. Prof Mostert suggests that the fact that there is
no distinction between these situations might mean that the ratio of this case would extend to all cases
of quasi-possession, in effect meaning that the mandament doesn’t extend to incorporeals at all. The
SCA seems to consider itself to be drawing a distinction between these cases, though, and Yekiso J in
Le Riche apparently didn’t think such a precedent had been established. Prof Mostert also criticizes
the reasoning of the court because it uses physical criteria to argue that there was no quasi-
possession, in effect begging the question against the respondent. This case also illustrates the
invariable difficulties which arise when applying the mandament to quasi-possession of a contractual
right; it becomes hard to demarcate the proprietary and contractual realms.
FACTS
Xsinet (the respondent) is an internet service provider. It was supplied by Telkom (the appellant) with
the telephone and bandwidth system necessary to conduct its business. When a payment dispute arose
between the parties, the appellant remotely cut off the respondent’s connection. The respondent
applied to the Cape Provincial Division for an urgent spoliation order, which was granted. Telkom
now brings the matter on appeal to the present court.
LEGAL QUESTION
Can use of an internet connection constitute quasi-possession thereof?
REASONING
The respondent argues that it has demonstrated its quasi-possession of the right to internet
connectivity by making continuous thereof. The court a quo accepted this, and its granting of the
spoliation order is in line with certain judgments which held that interference with the supply of water
and electricity to certain premises amount to interference with the possession of the premises
themselves. But this is erroneous, for the mere fact that Xsinet happened to use the internet
connection at its premises does not make for an incident of possession analogous to the use of water
,or electricity. While Xsinet may have been in physical possession of the telephone lines, modems, and
so on which facilitated the internet connection, there is no suggestion that Telkom’s remote
disconnection interfered in any way with Xsinet’s physical possession of these items; it is artificial
and illogical to conclude that Xsinet’s use of the modems and so on gave it ‘possession’ of the
connection of its corporeal property to Telkom’s system. All that can be said is that Xsinet had a
personal right ex contractu to receive Telkom’s services, but this has never been allowed under the
mandament van spolie and there is no authority to extend the scope of the mandament.
ANSWER TO LEGAL QUESTION
No, not ordinarily.
OUTCOME
The appeal is allowed with costs; the spoliation order given by the court a quo is set aside.
First Rand Ltd t/a Rand Merchant Bank v Scholtz 2008 (2) SA 503 (SCA)
The SCA today found that certain farmers making use of the Lower Blyde River Pipeline Network
were not entitled to have delivery of water to them though the pipeline restored after their
contracts with the Blyde River Water Utility Company for the conveyance of water came to an end.
2.
The appellants appealed against the order of the Transvaal Provincial Division that they restore the
supply of water to the farmers through the pipeline after the pipeline leading to the properties of the
farmers was cut-off after midnight on 31 December 2004 when the contracts for the conveyance of
water expired.
In upholding the appeal the SCA held that the farmers were deprived only of their possession of
an expired contractual right and that this dispossession did not entitle them to the immediate
restoration of the position they had been in when their supply of water through the pipeline was
terminated
- Crucial to identify the right allegedly despoiled = mandament van spolie does not necessarily
protect all rights.
- It is clear that not all incorporeals, or rights, are per se subject to protection under the remedy
o Therefore, with regard to servitudal rights, the nature of the right must be
characterised – and the exercise thereof proven – in order to establish quasi-possessio
that can be protected in terms of the remedy
“The mandement van spolie does not have a ‘catch-all function’ to protect the quasi possessio of
all kinds of rights irrespective of their nature. In cases such as where a purported servitude is
concerned the mandement is obviously the appropriate remedy, but not where contractual rights
are in dispute or specific performance of contractual obligations is claimed: its purpose is the
protection of quasi possessio of certain rights. It follows that the nature of the professed right, even
if it need not be proved, must be determined or the right characterized to establish whether
its quasi possessio is deserving of protection by the mandement. Kleyn seeks to limit the rights
concerned to ‘gebruiksregte’ such as rights of way, a right of access through a gate or the right to
affix a name plate to a wall regardless of whether the alleged right is real or personal. That explains
, why possession of ‘mere’ personal rights (or their exercise) is not protected by the mandement. The
right held in quasi possessio must be a ‘gebruiksreg’ or an incident of the possession or control of
the property.”
-
Tswelopele Non-Profit Organisation v City of Tshwane 2007 (6) SA 511
(SCA)
CONSTUTIONAL REMEDY INSTEAD OF MVS
Occupiers of a vacant piece of land in Garsfontein were evicted from their homes and their homes
demolished by the nature conservation division of the Tshwane Metropolitan Municipality, the
immigration control office of the Department of Home Affairs and the South African Police Services.
On behalf of the occupiers, the Tswelopele Non-Profit Organisation applied for restoration of
possession of the homes to the occupiers in terms of the mandament van spolie and for provision of
temporary shelter to the desolate occupiers in terms of their rights under sections 25 and 26(3) of the
Constitution.
- The High Court relied on Rikhotso v Northcliff Ceramics = held that the mandament was
appropriate only for restoration of possession and not for reparation of the property
SCA tried to rectify the supposed anomaly concerning the appropriate field of application of the
mandament van spolie = HELD that in order for the mandament van spolie to apply in cases where
reconstruction of destroyed property had to occur using replacement materials, the remedy would
have to be stretched beyond its normal field of application.
- Mandament is not available in instances were substitute materials are required in order to
restore the status quo ante. = mandament was not available in instances where different
materials had to be used to restore the status quo ante
o Common law remedy was denied because it was contended that the remedy is not
available in instances where the property was destroyed and substitute materials
are required in order to restore possession of the property.
Rather, a constitutional remedy was created so as to ensure that adequate
effect was given to the constitutional rights of the occupiers as a result of
non-compliance with PIE
If the property was destroyed, the mandament was not a suitable remedial option
Relief: Decided instead to create a constitutional remedy to provide the type of relief, which
according to the court, the mandament was unable to do in the particular instance.
o Stressed that a development of the nature required in order for the mandament to be
applicable in these instances would amount to forcing the common law – specifically
the common law remedies – to perform a constitutional function.
o Considered the rights that were infringed and emphasised that the warrant against
unauthorised eviction; the occupiers’ right to personal security; the right to privacy
and the occupiers’ property rights had all been interfered with in this case. The court
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