SPOLIATION ORDER

The law is there to maintain a check and balance in our systems as well as the manner in which we interact with one another. The law is there to prevent individuals from taking the law into their own hands and exercising instant justice. A spoliation order also known as a mandamus van spolie prevents individuals from doing just that. A mandamus van spolie is obtained by way of a court application, and in the event that the matter is urgent the application is made on an urgent basis.

An application for a spoliation order is done so as to restore possession of property where one has been unlawfully/illegally deprived of the property. With this type of application one need not prove that they are the legal owner of the property. An application of this nature takes into account the possession of the property.

To be granted such an application the applicant in the matter will have to prove to the court the following:

• That prior to being dispossessed of the property they were in peaceful and undisturbed possession of the property in question; and
• That they were unlawfully deprived of possession of the property by the respondent in the matter.

While it may be the natural response to take matters into your own hands, the Courts in such cases tend to deter the public from taking the law into their own hands and encourages the public to use the proper channels that may be available to them to get their property. There are quite a number of remedies that are available to one in the event that they want to regain possession of their property an example being a mandatory interdict amongst other available remedies. A mandatory interdict, if granted compels the respondent to perform certain acts to ensure the property is returned.

Our team of Legal Practitioners is ready to assist parties that have been unlawfully dispossessed of property of that would like to get their property back after a certain state of affairs has taken place.

This article is for general information purposes only-seek legal advice from a lawyer.

ANTI-DISSIPATION INTERDICT

This is a form of an interdict (injunction) that bars the respondent in a case from freely dealing with assets that they may own personally or jointly or they possess at the time that a case is instituted. It is of importance to note that this case does not give the petitioner any preferred rights over those assets that are in question.

In the decided case of Karimakwenda v Bushu & Ors HH 156/04 it was held that:

“the purpose of an anti-dissipatory interdict is to stop a respondent from dissipating his/her/its property to frustrate the satisfaction of a judgement that the applicant hopes to obtain against the respondent…..The right that the applicant therefore needs to establish in an anti-dissipatory interdict is that he will be entitled to obtain satisfaction of his judgement against the property that the respondent is dissipating”

An anti-dissipation interdict translates to a prohibitory interdict and the requirements are as were listed in the decided case of Mine Mills Trading (Private) Limited & Ors v NJZ Resources (HK) Limited SC 392/13

• Prima facie right despite the right being capable of dispute;
• There is an infringement of rights or that the infringement of one’s rights is imminent;
• That one will suffer irreparable harm if the sought relief is not granted by the court;
• That there is no other satisfactory remedy under the law;
• That the balance of convenience favours the granting of the application the said interdict.

When an interdict is issued, it may not be to prevent the respondent in the case from losing control of his assets but rather to prevent him from keeping them locked away so that the applicant cannot access them. The purpose of making an application for such an interdict is to stop a respondent in their tracks where they are evidenced to be acting in a manner that is unfair and seeks to prevent the execution of the applicant’s case by interfering with the property in question.

Anti-dissipation interdicts are used by the public to ensure that when judgements on the pending litigation are passed they are not a brutum fulman (a mere empty threat or the judgement does not benefit the applicant because of one reason or the other. For example, it can be that the property being disputed over has been sold or damaged). An application for such an interdict is usually done on an urgent basis.

This article is for general information purposes only. Contact a Lawyer for advice and guidance.