The Mandament Van Spolie (MVS), also known as the Spoliation Application, has been described as a remedy aimed at preventing individuals from taking the law into their own hands if they have been dispossessed of their items.
The MVS is a common law remedy aimed at restoring possession of property to a possessor who has been unlawfully deprived of possession. It is important to note that the MVS remedy is not concerned with the question of ownership, rather, it is more concerned with restoring the status quo (i.e. To return parties to positions they were in before the spoliation took place).
The remedy enables those who have been unlawfully dispossessed to approach the courts to make an order compelling a party, who is in unlawful possession, to immediately restore the property in question to the rightful possessor.
As previously noted, the MVS is concerned with restoring possession and is not aimed at resolving ownership disputes. In Scoop Industries (Pty) Ltd v Langlaagte Estate and GM Co 1948 (1) SA 91 (W), the court held that in order to succeed with the MVS, the Applicant needs to allege and prove the following factors:
- That he was in possession of the item and;
- That he has been wrongfully deprived of possession and against his wish.
Thus, the Applicant must show that prior to the spoliation, he had free and undisturbed possession of the property. Furthermore, an Applicant intending to rely on this remedy has to act within reasonable time.
The courts have held that if you delay the application for more than a year, special circumstances would have to exist to justify the delay as the MVS is a somewhat “speedy remedy.”
However, if an application does not succeed on the basis of urgency, all is not lost, as the parties can seek refuge in a rei vindicatio remedy, which is aimed at restoring a property/item to the rightful owner.
So, if someone takes your property by force or unlawfully, you must not delay in approaching attorneys who will assist in moving the MVS application. And here at HL Legal Inc., our offices are ready to assist you with any and all of your spoliation applications!
