Rule of law, the mandament van spolie and the missed opportunity : to some thoughts arising from Ngqukumba v Minister of Safety and Security

• Author: Thulani Nkosi
• DOI: 10.10520/EJC-c6c00e938
• Published date: 01 January 2016
• Date: 01 January 2016
• Record Number: sapr1_v31_n1_a9
• Pages: 157-177

157

ARTICLE

RULE OF LAW, THE MANDAMENT VAN SPOLIE

AND THE MISSED OPPORTUNITY: TO SOME

THOUGHTS ARISING FROM NGQUKUMBA V

MINISTER OF SAFETY AND SECURITY

Thulani Nkosi*

ABSTRACT

The mandament van spolie as a legal remedy is well entrenched in our legal system. So

entrenched is this remedy its requirements have crystallised and become well known. It

is also beyond doubt that the remedy operates against organs of state where they have

wrongfully deprived people of possession. What has always been an interesting debate

in our law is whether the true object of the remedy is the protection of possession or the

discouragement of self-help. On the back of a recent Constitutional Court judgment, this

article revisits this old debate and argues that it appears as if in our current constitutional

era the mandament van spolie is, rst and foremost, compliant with the Constitution. The

article further argues that there are serious problems of justication if the mandament van

spolie is seen only as a remedy which protects possession because in that context courts

may very well be compelled to protect the possession of those despoiled possessors who

are in law not entitled to possession. This may happen even against the possession of lawful

possessors or express prohibition of statutory provisions denouncing possession on the part

of the despoiled. This situation would be untenable. To that end this article argues that there

is merit in viewing the mandament van spolie as a remedy aimed at curbing self-help. The

article continues to argue and shows how the remedy vindicates the rule of law by obliging

organs of state, the South African Police Service in particular, to always act within the law.

The recent Constitutional Court case is further praised for showing how the common law and

statute law can coexist in harmony. However, the judgment is criticised for having missed

an opportunity to consider if the mandament van spolie was in need of development taking

into account the clear interests society has in the law not protecting ill-gotten possession as

well as the need not to discourage and undermine the efforts of law enforcement agencies

in ghting criminal activities.

* BA LLB LLM. Practicing Attorney, Associate Lecturer, Law Clinic, University of the Witwatersrand.

I wish to thank Wits Law Clinic candidate attorney Neo Mahlako for research assistance in the

preparation of this article and my colleague Prof. Peter Jordi for a useful exchange of views we had

during the writing of this article. I am also grateful for the comments received from the reviewers of

the journal. All views and shortcomings are my own.

https://doi.org/10.25159/2219-6412/2653

ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 31 | Number 1 | 2016 | pp. 157–177

158

Nkosi Rule of Law, the Mandament van Spolie and the Missed Opportunity

1. INTRODUCTION

Our law has a long and rich history of disciplining organs of state, the executive in

particular, against engaging in acts of self-help. Self-help is repugnant to the rule of

law for the chaos, vigilantism and anarchy it causes and it is for this reason that courts

discourage it.1 This was the case long before the advent of the Constitution and the

emergence of the principle of legality as we know it, which enjoins all organs of state to

act through the law and perform only those acts and functions properly conferred upon

them by the law.2

Before the advent of constitutionalism one of the ways in which executive excesses

were curbed was through the application of the mandament van spolie. The principles

relating to the application of the mandament van spolie have crystallised over time and

become well known. The known principles are to the effect that a litigant seeking to

rely on the remedy afforded by the mandament van spolie is required to satisfy only

two requirements: peaceful or undisturbed possession of the thing forming the subject

matter of the mandament van spolie and an act of unlawful deprivation of possession

on the part of the spoliator.3 Once these two requirements have been met the number of

available defences to the spoliator are very limited indeed.4 The spoliator, for example,

cannot challenge the lawfulness of the despoiled possessor’s possession. Put differently,

it is not required of the litigant invoking the mandament van spolie to prove lawful

possession.5 The lawfulness of the despoiled possessor’s possession is irrelevant as the

despoiled possessor has to be restored to possession before the merits or the rights of

the parties can be argued.6 This principle was aptly expressed in Administrator, Cape v

Ntshwaqelo in the following terms: ‘the rights or wrongs of the [despoiled possessor’s]

possession, and the difculties which the [spoliator] faced, have no bearing on the

question whether a spoliation order should [be] granted’.7

It is clear therefore that on the known principles of the mandament van spolie the

lawfulness of the despoiled possessor’s possession receives no regard at all. The refusal

of the law to consider the lawfulness of the despoiled possessor’s possession meant that

the ambit of the protection afforded by the mandament van spolie was never only limited

to lawful possessions or lawful possessors, but also included unlawful possessors who

1 Chief Lesapo v North West Agricultural Bank [2000] 1 SA 409 (CC) para 22.

2 See AAA Investments v Micro Finance Regulatory Council [2007] 1 SA 343 (CC) para 68; Minister of

Health v New Clicks South Africa (Pty) Ltd [2006] 2 SA 311 (CC) para 613.

3 See Nino-Bonino v De Lange [1906] T.S 120122; Zulu v Ministry of Works, KwaZulu Natal [1992] 1

SA 182 (D).

4 See Ntshwaqela v Chairman, Western Cape Regional Services Council [1988] 3 SA 218 (C) 226A;

Muller v Muller [1915] TPD 31.

5 Nienaber v Stucky [1946] A.D 1049 1053.

6 Greyling v Estate Pretorius [1947] 3 SA 514 (W) 516.

7 [1990] 1 SA 705 (A) 718B.