The mandament van spolie (spoliation) is available only in cases where the deprivation of possession is illicit.

In McGregor v Selborne Park Body Corporate and Others (AR224/2020) [2021] ZAKZPHC 87, the court had to decide whether the mandament van spolie remedy was available to McGregor in circumstances where his access, and the use of an electronic booking system utilised for renting his residential units, was deactivated by the first respondent for failing to pay his arrear levies.

McGregor rented certain units in Selborne Park Golf Estate (the estate) at Pennington on the KwaZulu-Natal South Coast. The estate issued access codes or pin numbers to either guests or contractors wanting access to the estate.

One of the conduct rules was that an owner needed the consent of the trustees to let a unit to someone who was not an owner and that when granting such approval, the Trustees may prescribe any reasonable condition to the grant of such approval and the Trustees may withdraw such approval in the event of any breach of any condition prescribed in terms of this Conduct Rule.

The estate later passed a resolution to the effect that unit owners who were in arrears with their levies would only be granted consent to let their units out on condition that they had paid the outstanding arrear levies. Furthermore, those unit owners who were in arrears would have their access cards deactivated and would be required to sign at the main gate in order to gain access into the estate and would be required to use the intercom system to get to their units.

When McGregor fell into arrears with his levies for the units he owned, the trustees deactivated the electronic booking system.

McGregor contended that he was despoiled as a result of his failure to pay outstanding levies.   The court found that it was “trite that the relationship between the appellant and the respondents has its foundation in contract and is therefore contractual in nature. The issue that needs consideration in this appeal as I understand the appellant’s case is not about the estate’s conduct rules but about the legality of the trustee’s resolution that his access and use of the system was deactivated as a result of his failure to pay outstanding levies”. The court referred to two cases:

Innes CJ in Nino Bonino v De Lange 1906 TS 120 at 122 defined spoliationas ‘any illicit depravation of another of the right of possession which he has, whether in regard to movable or immovable property or even in regard to a legal right’. Leach JA in Eskom Holdings SOC Limited v Masinda [2019] ZASCA 98; 2019 (5) SA 386 (SCA) para 8.said the following in regard to the spoliation remedy:

‘The mandament van spolie (spoliation) is a remedy of ancient origin, based upon the fundamental principle that persons should not be permitted to take the law into their own hands to seize property in the possession of others without their consent. Spoliation provides a remedy in such a situation by requiring the status quo preceding the dispossession to be restored by returning the property ‘as a preliminary to any enquiry or investigation into the merits of the dispute’ as to which of the parties is entitled to possession.’

The court found that even if one were to accept that the appellant was despoiled of access to the portal system it could not be said that it was wrongful. Rights to access and use of the portal system were contractual in nature and did not avail him the remedy of spoliation.