REI VINDICATIO VERSUS SPOLIATION
REI VINDICATIO VERSUS SPOLIATION
When would one need to seek a Spoliation Application or Rei Vindicatio Application in the South African Courts?
When a person finds themselves in situations such as:
Being unlawfully locked out of your rented residence, unlawful disconnection of your electricity or water;
Unlawfully losing the possession of your movable property which you are the lawful owner through the unlawful conduct of another or third party, for example, loss of your vehicle, loss of access to money in your accounts, loss of access to services or control of mail or server data;
Unlawfully losing the possession of your immovable property which you are the lawful owner through the unlawful conduct of another or third party, for example, loss of access to your estate, residential or commercial property;
In cases such as the above, there are legal common law remedies available which are known as Spoliation and Rei Vindicatio. We shall explain in more detail below and in which cases each remedy is to be used.
SPOLIATION
The definition of maxim spoliatus ante omnia restituendus est hereinafter known as (“mandament van spolie or Spoliation”) in our law is a common law remedy. “An action will thus lies, at the suit of anyone who has been deprived of possession, against anyone who has been guilty of that act of dispossession, even though he or she may in fact be the true owner. The court will not consider a plea of ownership until the spoliation has been set aside with all its consequences and the position reduced to the status quo before the spoliation.”
Examples of situations arising from the common law remedy of Mandament van spolie or Spoliation are situations wherein a landowner unlawfully takes the law into their own hands, no one is permitted to dispossess another forcibly or wrongfully by taking the law into their own hands.
Examples could be as follows: by disconnecting a tenants electricity or water or changing the locks which provide the tenant access to the property, all in an attempt to force payment for outstanding rental amounts on the rented immovable property.
A spoliation application can be applied for to Court by the tenant and the tenant may merely prove that the tenant’s possession of the leased property was unduly interfered with or disturbed, by proving 2 (two) requirements such as that they were in the peaceful and undisturbed possession, and, which they conceded to, and; that they were unlawfully deprived of such possession.
The effect of a spoliation order is that possession or services must be restored back to the former status thereby forcing the landowner to re-instate the water and electricity supply back to the tenant, however, this is not always the case nor should the remedy be presumed to be a sure. Each matter shall always be determinable based on the merits of it’s own case.
The entire process of spoliation is usually dealt with on an urgent basis and as such normally completed within a few days.
In the case of Blendrite (Pty) Ltd and Another v Moonisami and Another (Case no 227/2020) [2021] ZASCA 77 (10 June 2021). “The Supreme Court of Appeal traced the origins of spoliatory relief. The mandament van spolie requires only the factual proof of prior possession and the unlawful deprivation of possession, in other words without agreement or recourse to law. It is aimed at preventing self-help”
REI VINDICATIO
Rei Vindicatio is also aimed at the recovery of lost possession, but this remedy must not be confused with Spoliation.
Rei vindicatio is a legal action that allows the rightful owner of a property to reclaim possession of that property from someone who is unlawfully possessing or detaining it. The claimant (plaintiff) must prove that they have the right of ownership over the specific property in question, and that the defendant is wrongfully possessing it. Rei vindicatio is typically used when there is a dispute regarding ownership rights, and the plaintiff seeks to regain possession of the property rather than seeking compensation for damages.
In the case of an immovable property whereby the rightful owner wants to return the possession of the property to himself, the Rei Vindicatio takes the form of an eviction application
There are more defences that can be raised against a rei vindicatio application and generally the applications are much more detailed and time consuming than that of a spoliation application.
In closing, the above has highlighted the differences between a Spoliation remedy and Rei Vindicatio remedy.
As mentioned above, each case should be assessed based on its own merits and its not always a clean cut case to use one of the above remedies. Contact our offices for legal assistance in your personal matter if it relates to the above.