What is a spoliation order?

What is a spoliation order?

A spoliation application, also known as a “true possessory remedy”, is used to restore lost possession of movable, immovable, corporeal and incorporeal property, where possession has been unlawfully deprived. A spoliation application is often instituted on an urgent basis.

What is spoliation in property law?

It is a settled law that if a landlord unlawfully deprives a tenant of electricity or water supply at a residential property, this constitutes spoliation, or unlawful dispossession.

How do I get a spoliation order?

The requirements that have to be met for a successful reliance on the spoliation remedy are as follows:

1. Peaceful and undisturbed control of a thing must have been enjoyed by the applicant (spoliatus);
2. The control of the applicant must have been disturbed by the respondent (spoliator) in an unlawful.

Is a spoliation order appealable?

Thus, a spoliation order is indeed appealable.

What does the term spoliation mean?

Spoliation, in a legal context, is any act that renders potential evidence invalid, either intentionally or through negligence. In the case of a document, for example, destroying, altering or hiding it would all be considered spoliation if the document were relevant to current litigation.

Who can use Mandament Van spolie?

For the mandament van spolie to apply, two requirements must be satisfied:

• the dispossessed person must prove actual dispossession, and;
• dispossession must be unlawful, meaning it was not done in the absence of consent, a court order or authorising legislation.

What is the purpose of spoliation remedy?

The mandament van spolie, or ‘spoliation order’ is a common-law remedy. Its purpose is to promote the rule of law and to serve as a shield against cases of ‘self-help’, where parties take the law into their own hands and exercise ‘power’, which they do not have (www.ee.co.za, 3-12-2020).

What is an ex parte spoliation order?

Property Law: Landlords and Tenants – Alert Level 1 and the New Eviction Rules. This would be by way of an “ex parte spoliation order”, i.e. without the landlord having any right to be heard, although the landlord can ask for an urgent hearing on 24 hours’ notice.

Is spoliation a cause of action?

The torts of intentional and negligent spoliation of evidence are not recognized as independent causes of action against a direct party. They apply only to nonparties to the litigation.

What is a spoliation order or mandament van spolie?

The remedy for such deprivation is a spoliation order or, by another name, the mandament van spolie. When it comes to the dispossession of a party’s right of possession of movable or immovable property, South Africa’s law on spoliation orders is long settled.

Is Masinda entitled to a spoliation order after Eskom disconnected her property?

The Court was called upon to decide whether Masinda was entitled to a spoliation order after Eskom had disconnected the supply of electricity to Masinda’s immovable property. In this case Masinda obtained a final order from the High Court directing Eskom to reconnect the electricity supply to her property.

How to justify a spoliation order?

The SCA held that in order to justify a spoliation order in the case of an incorporeal right, the right must be of such a nature that it vests in the person in possession of the property (water, electricity, right of way, as the case may be) as an incident of their possession such as rights bestowed by servitudes, registration or statute.

What is spoliation inference?

The theory behind spoliation inference is that when a party has destroyed evidence, it shows that the party had consciousness of guilt or other reasons to avoid evidence.