Opposing cynical evictions: The possessory action

• Citation: (2023) 141 SALJ 24
• DOI: https://doi.org/10.47348/SALJ/v141/i1a3
• Published date: 13 February 2024
• Pages: 24-44
• Author: Phillips, J.
• Date: 13 February 2024

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https://doi.org/10.47348/SALJ/v141/i1a3

OPPOSING CYNICAL EVICTIONS: THE

POSSESSORY ACTION*

JEREMY PHILLIPS†

Senior Associat e, Cheadle Thompson & Haysom Inc

ARTHUR VAN COLLER ‡

Associate Profe ssor, Faculty of Law, University of Fort H are

The possessor y action is a relatively unkno wn common-law remedy. It has n ot featured

in the law repor ts for the best par t of the last one hund red years and is gene rally

relegated to a cursor y discussion in most property-l aw textbooks. Its basic formulat ion

is that where on e has been disposse ssed of an item, one is to b e restored in possession,

paid compensatio n and/or paid damages if one ha s a stronger right to p ossess the item

than the dispossesso r. Although it has fallen out of fa shion, there is gro wing interest

in how the possessor y action may be used t o address contempo rary issues. On e such

issue is persist ent and recurr ing cynica l evictions — un lawful evi ctions durin g which

the home struc ture is demolished and destroyed. W hether the possessory a ction is at all

available as a rem edy for cynical evictions is u nclear. This article explore s the history,

nature, and scope of t he possessory ac tion and asks whe ther it can be app ropriately

applied to oppose c ynical evic tions.

Possessor y action – cy nical ev ictions – novel d isseisi n – manda ment van

spolie

I INTRODUCTION

‘In the early hou rs of Frid ay morni ng 31 March 200 6, about one

hundred per sons were evic ted from thei r homes on a vacant pie ce of

land. Oc ials exp elled them f rom the rud imentar y shelters t hey had

erected. The pie ces of plastic and other w aste materia ls they had salvag ed

from sur rounding build ing sites to constr uct their homes were put to the

torch. Many of the ir belongi ngs were destroyed.’1

‘The picture wh ich is conjured up’, Diemont J described, ‘is one of a

ruthless disregard for the rights of these people’.2 He was not, in fact,

referri ng to the 2006 evict ion recounted above, but to an ‘almost ident ical’3

* The rst author would l ike to express his deep t hank s and grat itude to Jul ia

Nojekwa, Cuan D ugmore and Nonzame Tin i, without whose format ive support

this ar ticle would not have been writ ten. Ndiyabu lela.

† BA LLB (Cape Town) LLM (Fort Hare).

‡ BA LLB LLM HDipTax (UJ) L LD (Pretor ia).

1 Tswelopele Non-Pro t Organisation v C ity of Tshwane Metropolitan M unicipality

2007 (6) SA 511 (SCA) (‘Tswelopele’) para 1.

2 Frederick s v Stellenbosch D ivisional Coun cil 1977 (2) SA 113 (C) (‘Fredericks’)

at 617.

3 A J van der Walt ‘Developing the law on u nlawf ul squat ting and s poliation’

(2007) 12 5 SALJ 24 at 29.

(2024) 141 SALJ 24

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OPPOSING CY NICAL EVICTIONS: T HE POSSESSORY ACTION 25

https://doi.org/10.47348/SALJ/v141/i1a3

eviction exac ted by the apartheid government nea rly thir ty year s before,

in the matter of Fredericks v S tellenbosch Divisio nal Council.4

The cases of Frede ricks and Tswelopele, quoted above, exemplify the

archetypa l and notorious c ynica l eviction. A ‘cynical eviction’ — a

term Van der Walt coined — is an unlawf ul eviction where, during the

eviction, the home a nd its composite material s are deliberately destroyed.5

By destroyi ng the home, not only is the indig nity of the unlawf ul eviction

compounded, but the appl ication of the quick-x remedy, the manda ment

van spolie, is tech nical ly precluded.6 The apartheid govern ment regularly

resorted to c ynical evictions a s a means to evict with impunity.7

The practice ha s essentia lly conti nued under the cur rent dispensation

in a manner ‘rem iniscent of apartheid era brutal forced removals’.8 The

courts and academic commentators have collectively condemned c ynical

evictions a s ‘unacceptable’ and ‘ inhumane’.9 However, an appropriate

remedy, generally accepted as such, is yet to be identied or developed.

Legal scholars have not been able to agree on the most appropr iate legal

remedy to addre ss cynical evict ions. The use and possible development of

the manda ment van spolie has been proposed a s a remedy,10 but others have

4 Supra note 2.

5 Van der Walt op cit note 3.

6 A J van der Walt ‘Defe nces in spoli ation proceed ings’ (1985) 102 SALJ 172 

at 179–80.

7 See Chr istina Mur ray & Catherine O’Reg an No Place to Rest: Forced R emovals

and the Law in S outh Africa (1990); The Surplus People Projec t (Laurine Plat zky &

Cheryl Walker) The Surplu s People: Forced Rem ovals in South Afr ica (1985); Gustav

Muller ‘T he legal-h istorica l context of u rban forced ev ictions in S outh Afr ica’

(2013) 19 Fundamina 367; Kris tin Henra rd ‘The inter nal ly displa ced in South

Afric a: The strategy of forced r emovals and apartheid ’ (1996) 32 Jura Falconis 4 91.

8 South Afric an Human Rights C ommission v Th e City of Cape Town [2020] JOL

48218 (WCC) para 1. Al so see South Afr ican Human Ri ghts Commission v T he City

of Cape Town (WCC) un reported ca se no 8631/20 (15 July 2022) par a 1.

9 Tswelopele sup ra note 1 para 8; G overnment of t he Republic of S outh Africa v

Grootboom 2001 (1) SA 46 (CC) para 10; Schub art Park Reside nts’ Association v C ity

of Tshwane Metropolitan Mu nicipality 2013 (1) SA 323 (CC); Z T Boggenpo el ‘Can

the journey a ect the dest ination? A s ingle sy stem of law approach t o propert y

remedies’ (2016) 32 SAJH R 71 at 83; Juanit a Pienaar Land Refor m (2014) 667.

10 M D Blecher in ‘Spoli ation and the d emolition of leg al rig hts’ (1978)

95 SALJ 1 argued that the m andamen t van spolie is a r obust remedy wh ich

according ly aord s the court a w ide discre tion in order ing relie f, includi ng

the use of subst itute mate rial s. Van der Walt, in multi ple article s, includi ng

‘Die fun ksie en besk ryw ing van besit’ (1988) 51 THRHR 276, ‘Naidoo v Moodley

1982 SA 82 T’ (1983) 46 THRHR 237 and ‘Nog eens Naidoo v Moo dley — ’n

repliek’ (1984) 47 THRHR 429, simi larly ar gued that s ubstitute m ateria ls are

available u nder the mandamen t van spolie. However, his ang le of argument is th at

the ‘preserv ation function’ of the man dament van spolie, which s eeks to maintai n

and ensure le gal order — t he chief and foremo st purpose of t he manda ment —

necessar ily impl ies that sub stitute m ateria ls are avai lable under t he manda ment.

After it wa s decided, in Rikhotso v N orthcli Ceramics ( Pty) Ltd 1997 (1) SA 526 (W)

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