Spoliation: the remedy afforded by a spoliation order is to put a stop to the unlawful taking of the law into one’s own hands. Two factors are requisites to found a claim for an order for restitution of possession on an allegation of spoliation. The first is that applicant was in possession of the property and, the second is that he had been wrongfully deprived of that possession against his wish. Fizzy Investments CC v Collins NO and others: In re: Collins NO and others v Fizzy Investments In May 2012, the applicant and respondents entered into a lease agreement in terms of which the applicant rented restaurant premises from the respondents. The respondents wished to cancel the agreement, leading to a dispute which was referred to arbitration. A consent award was signed by the parties’ representatives and the arbitrator. The terms of the award were that the agreement be cancelled and an order for the ejectment of the applicant from the premises be made. The applicant was subsequently evicted from the premises. It therefore brought an urgent application seeking, inter alia, an order that the respondents be directed to restore possession to the applicant of the property. Essentially, the applicant sought a spoliation order and orders restraining and interdicting the respondents. Held that the reason for the recognition of the remedy afforded by a spoliation order is to put a stop to the unlawful taking of the law into one’s own hands. Two factors are requisites to found a claim for an order for restitution of possession on an allegation of spoliation. The first is that applicant was in possession of the property and, the second is that he had been wrongfully deprived of that possession against his wish. There must be clear proof of possession and of the illicit deprivation before an order should be granted. The issue was whether or not the applicant had complied with the requirements of a mandament van spolie. Although a mandament van spolie or a spoliation order is the final order, in the present matter it is sought pendente lite. In this case, the applicant could neither contend that it was in peaceful and undisturbed possession of the property nor that the deprivation of the possession by the respondents was unlawful. The deprivation or the dispossession has to be without the other party’s consent or without due legal process. In the present matter, it was common cause between the parties that dispossession occurred in circumstances where there was a court order. The Court agreed with the respondents that the applicant’s version that its legal representative had no authority to sign the consent agreement was so inherently improbable that it should be rejected outright. Finding that the applicant had not shown any basis upon which it was entitled to remain in occupation of the premises, the Court refused the spoliation order. As far as interdictory relief was concerned, the Court refused that relief too. The applicant had failed to establish any right to the relief sought.
Posted on: Tue, 10 Jun 2014 15:30:21 +0000