The development of the application of the spoliation remedy with specific reference to the protection of 𝘘𝘶𝘢𝘴𝘪-possession of water and electricity supply

Abstract

This mini-dissertation will focus on a unique remedy found in property law. The spoliation remedy (𝘮𝘢𝘯𝘥𝘢𝘮𝘦𝘯𝘵 𝘷𝘢𝘯 𝘴𝘱𝘰𝘭𝘪𝘦) is defined as a robust and speedy remedy aimed at restoring the factual possession of property.¹ Its function is to restore possession that was lost as a result of unlawful self-help, such as the complete deprivation of possession or where there has been substantial interference with possession or the physical exercise of property that one has the intention to own.² Courts are not supposed to investigate the merits of the case because the rights of the parties are not taken into account.³ This means, in simple terms, that the merit for the possession of a thing should not play a role in the court restoring the status quo ante. The applicant should only prove that there was peaceful and undisturbed possession of a thing and that such possession was spoliated or unlawfully dispossessed.⁴ The other function of the spoliation remedy is to maintain peace and discourage persons from taking the law into their own hands.⁵ Therefore, the aim is to prevent anarchy.⁶

The application of this remedy was previously limited to the protection of possession of corporeal things. However, over time, especially due to the recognition of metaphysics by the law or the science of things beyond what is physical, the protection of possession was extended to incorporeals.⁷ Since then, its application has been extensively contested and fraught with inconsistencies.⁸ It was held that because rights cannot be possessed, the holder of the right had a quasi-possession of the right when he exercised such rights.⁹ However, there was uncertainty in relation to which quasi-possession rights are protectable under the spoliation remedy. This confusion came about as a result of the court’s judgment in 𝘕𝘪𝘯𝘰 𝘉𝘰𝘯𝘪𝘯𝘰 𝘷 𝘋𝘦 𝘓𝘢𝘯𝘨𝘦 that ‘spoliation is any illicit deprivation of the rights of possession whether in regard to movable or immovable property or in regard to a legal right’.¹º This judgment suggested that a wide approach should be followed in spoliation proceedings.¹¹ This confusion was cleared up in 𝘍𝘪𝘳𝘴𝘵𝘳𝘢𝘯𝘥 𝘓𝘵𝘥 𝘵/𝘢 𝘙𝘢𝘯𝘥 𝘔𝘦𝘳𝘤𝘩𝘢𝘯𝘵 𝘉𝘢𝘯𝘬 𝘢𝘯𝘥 𝘈𝘯𝘰𝘵𝘩𝘦𝘳 𝘷 𝘚𝘤𝘩𝘰𝘭𝘵𝘻 𝘕𝘖 𝘢𝘯𝘥 𝘖𝘵𝘩𝘦𝘳𝘴 (𝘍𝘪𝘳𝘴𝘵𝘳𝘢𝘯𝘥), where the court held that the quasi-possession of rights protected by the spoliation remedy is the 𝘨𝘦𝘣𝘳𝘶𝘪𝘬𝘴𝘳𝘦𝘨, known as the right of use, and should be an incident of possession or control of the property.¹² These rights comprise servitutal rights such as a right of way or an incident of possession where a person in possession of the property also has access to water and electricity.¹³