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16 Jul 2019
BY Michael Gradidge

The remedy against taking the law into your own hands

It is a well-established principle of South African law that you may not take the law into your own hands. The remedy formulated to enforce this principle is the mandament van spolie. In its classic formulation, the mandament, or spoliation action, protects against a deprivation of possession otherwise than through a legal process. All a plaintiff need prove is that it was in peaceful and undisturbed possession of property and was deprived of that possession. The merits of the plaintiff’s right to possession and the defendant’s entitlement to reclaim possession are immaterial. Even a thief’s possession will be protected if it was peaceful and undisturbed.

Over time, the mandament has come to be used to protect quasi-possession of incorporeal rights too. A holder of a right has quasi-possession of it when they have exercised it. An example of this would be where a claimant claims the reconnection of their water and electricity supply after they have been cut.

Care must be taken, however, not to push the limits of the mandament too far. South African law is clear that the mandament is not a remedy for settling contractual disputes. Accordingly, it cannot be used to seek repossession when the giving of possession is an obligation in terms of a contract. In other words, it cannot be used to seek specific performance of a contractual right.

Telkom v Xsinet (Pty) Ltd involved the supply by Telkom of electronic impulses to Xzinet’s premises, thereby providing the telephone and bandwidth systems used by it to conduct its business as an internet service provider. Telkom alleged that Xsinet was indebted to it in relation to another service and disconnected the supply of all of its services. The Supreme Court of Appeal found that the right to receive Telkom’s communication services was a mere personal right and that the order sought by Xsinet was to compel specific performance of a contractual right in order to resolve a contractual dispute. The court also relied on the settled principle that the use of the right must be an incident of occupation of the premises and found that the use of Telkom’s services was not. The court did not, however, explain what is meant by an “incident of possession of the property”.

In the recent case of Eskom Holdings SOC Limited v Masinda, the Supreme Court of Appeal reiterated that the mandament does not have a “catch-all” function to protect the quasi-possession of all kinds of rights irrespective of their nature. It is only certain rights that are protected. The court went on to elucidate on the meaning of its previous finding that the right must be an incident of the possession of the property, explaining that the right must be a right of use of such a nature that it vests in the person in possession of the property as an incident of their possession. Rights bestowed by servitude, registration or statute are obvious examples. On the other hand, purely personal rights that arise out of contract and don’t attach to the property, are insufficient to ground a claim under the mandament.

The court went on to say that previous cases that may have held that the mere supply of water or electricity to a property is in itself an incident of the possession of the property to which it is delivered, must be regarded as having been wrongly decided.

In the Eskom case, the facts were that Ms Masinda owned an immoveable property in Tsolo in the Eastern Cape. She paid a contractor, who she understood to be Eskom’s agent, to connect her house to Eskom’s national grid and to install a prepaid meter. It transpired that the connection and installation was in fact illegal and after an inspection, Eskom cut off Ms Masinda’s electricity supply. Ms Masinda took Eskom to court claiming, on the basis of the mandament van spolie, the reconnection of her electricity.

The Supreme Court of Appeal found that Ms Masinda had not shown that the supply of electricity to her property was an incident of her possession. She simply relied on the existence of the supply. The court found that this was not enough to ground a claim under the mandament. Importantly, the court also found that her right to electricity was merely a personal right flowing from the purchase by her of prepaid vouchers. As such, her claim was one of specific performance under the contract she entered into when she purchased her vouchers. In the circumstances, the court refused to order Eskom to reconnect Ms Masinda to the national grid.

Accordingly, while the mandament van spolie was once thought to be the answer to claims for the reconnection of water and electricity supply, and the spoliation of any right, it no longer is. The Supreme Court of Appeal has been clear on what rights the mandament will protect and what it will not protect. More is needed than mere personal or contractual rights.