WHAT IS A SPOLIATION ORDER?

A person who owns or is using something that is then taken away from them can go to court to get the item returned quickly. They can ask the court for a spoliation order, also called a ‘mandament van spolie’. So, it is an order from the court that an item of property be returned to the person who had peaceful possession of it. It is a useful remedy because it can provide someone in an urgent situation with immediate relief. However, applying to the magistrate’s court for a spoliation order can be quite a complicated process. It will be necessary to get an attorney to help you do this.

WHO CAN APPLY FOR A SPOLIATION ORDER?

There are two requirements for a spoliation order:

• The applicant must have had peaceful possession of the property. It is not a requirement for the applicant to have been the owner of the property, the applicant only has to show that they had peaceful possession.
• That the peaceful possession was unlawfully (without a legal reason) disturbed. It could have been taken away with force or without the applicant’s consent.

WHAT MUST YOU SHOW THE MAGISTRATE TO GET A SPOLIATION ORDER?

• You must show the magistrate that what was taken away is in the area of the Magistrate’s Court where you are applying for the order. For example, if someone takes your oxen from your home in Queenstown and goes to Peddie with them, you must go to the magistrate in Peddie and ask for them back.
• You must tell the magistrate the name and address of the person or people who disturbed your possession.
• You must show the magistrate that it is possible for the other person to replace your possession (it does not have to be the original item).
• You must show that you took steps to restore your possessions as soon as possible. The magistrate will want to know what you did since your possession was disturbed.

SITUATIONS WHERE A SPOLIATION ORDER CAN BE GRANTED

MY BICYCLE WAS STOLEN
Two weeks later I see someone using a bicycle which I think is mine. I ask him to return it, but he refuses, saying that the bicycle is his. I can go to the police and make a complaint of theft. I can also go to court and ask for a Spoliation Order to get my bicycle back. But I cannot just go and take it back as this would be taking the law into my own hands. The courts must decide who the real owner of the bicycle is.

I RENT A HOUSE
The owner forces me out and changes the lock on the door so I cannot go back in. I go to court that same day and ask for a spoliation order. If I am successful, the magistrate will order that I be allowed back into the house immediately. If the owner wishes to get me out he must make a proper case in the court and he must get a court order.