Impossible no more: The demise of the common law defence of impossibility for spoliation

May 1st, 2017

By Nicholas Mgedeza

Mandament van spolie (spoliation) has been the possessory remedy and inherently emanates from common law. In essence the law of spoliation has not yet been codified in our legal jurisprudence. The rationale behind the remedy of spoliation is to avert chaotic backdrop wherein the members of society take the law into their hands without resorting to the recourse of law. Notably, this will culminate into a lawless and chaotic society. In this article, I make the legal analysis of what spoliation is and succinctly lay out the common law defences that are countenanced by common law. Inherently, this article utterly focuses on the defence of impossibility and I make an analysis on whether this common law defence in particular is still a tenable defence in our jurisprudence.

Concept of spoliation

In Mdlulwa and Another v Gwija and Others 1992 (3) SA 776 (Tk), the court held at 777 B – C that the requirements for the spoliation order are that:

‘(a) that the applicant was in possession of the property; and

(b) that the respondent wrongfully deprived him thereof without his consent.’

In the matter of Van Rhyn and Others NNO v Fleurbaix Farm (Pty) Ltd 2013 (5) SA 521 (WCC) the court held that: ‘The mandament van spolie is directed at restoring possession to a party which has been unlawfully dispossessed. It is a robust remedy directed at restoring the status quo ante, irrespective of the merits of any underlying contest concerning entitlement to possession of the object or right in issue; peaceful and undisturbed possession of the thing concerned and the unlawful despoilment thereof are all that an applicant for a mandament van spolie has to show. (Deprivation is unlawful if it takes place without due process of law, or without a special legal right to oust the possessor). The underlying principle is expressed in the maxim “spoliatus ante omnia restituendus est”. The fundamental purpose of the remedy is to serve as a tool for promoting the rule of law and as a disincentive against self-help. It is available both in respect of the dispossession of corporeal property and incorporeal property. In the case of incorporeal property it is the possession of the right concerned that is affected – a concept described as “quasi-possession” to distinguish it from physical possession. The manifestation of the dispossession of the right in such a case will always entail the taking away of an externally demonstrable incidence, such as a use, arising from or bound up in the right concerned.’

The main objective is to restore the unlawfully deprived possession, irrespective of the nature of possession, for example, the thief can use spoliation remedy to restore unlawfully deprived possession. (See Zozi v Minister of Police and Others (ECM) (unreported case no CA&R 12/2014, EC/MTHA/RC 269/13, 19-4-2014) (Laing AG)).

Common law defences

The respondent or the party against whom a spoliation order has been launched can gainsay or oppose the application by raising justifications that are prescribed by common law. However, there are defences that are intolerable in law, to wit, the spoliator –

  • believed in good faith and that he or she acted in good faith;
  • that he or she acted lawfully;
  • that the possession of the article was not illicit;
  • that the spoliator has a ius possidendi with respect to the article;
  • that the spoliator is the proprietor of the article.

In principle, the following defences can be used by the respondent in order to mitigate against the application for spoliation, lapse of time, factual denial, impossibility of restoration, counter-spoliation and exception spolii.

Common law defence of impossibility

The defence of impossibility applies in two situations –

  • where the spoliated article has been destroyed, irreparably damaged or lost; and
  • where a third party has acquired possession of the article.

Ideally, if the restitution is objectively impossible, the spoliation should not be granted and the applicant should rely on delictual claim for damages. Malan v Dippenaar 1969 (2) SA 59 (O), Administrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) at 720 G – H, the court stated: ‘In the context of the mandamant van spolie, impossibility is a question of fact, and where it is contended that an order should not be granted because it cannot be complied with, it must be shown that compliance is impossible on the facts.’

Through the doctrine of effectiveness, the courts are not supposed to make orders that are moot and academic (Barclays National Bank Ltd v Thompson 1985 (3) SA 778 (A)). Where the restoration is impossible, the courts cannot coerce the respondent to do something, which is practically impossible. In Rikhotso v Northcliff Ceramics (Pty) Ltd and Others 1997 (1) SA 526 (W) at 535 A – B, Nugent J emphatically held that: ‘In my view, the weight of authority supports the proposition that a spoliation order cannot be granted if the property in issue has ceased to exist. It is a remedy for the restoration of possession, not for the making of reparation.’ Notably, by construing the Rikhotso judgment, it literally implies that the spoliation remedy is used solely for restoration, not for substitution of the property or article. Ideally it sets the precedent that if the property or the article is obliterated, the applicant must utilise other legal remedies except spoliation. One cannot overlook that since the inception of the Constitution common law is developing rapidly. Section 8(3)(a) and (b) of the Constitution unequivocally provides that: ‘(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court –

(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

(b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1)’ (my italics).

Furthermore, s 39(2) of the Constitution provides that: ‘When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’ (my italics).

Prior to the political transition, there were some decisions wherein the courts ordered that the destroyed or an alienated property can be replaced through the spoliation order. As the matter of illustration, the matter of Zinman v Miller 1956 (3) SA 8 (T) Rumpff J held at 11 A – C that: ‘There seems to be no doubt that the mandament van spolie not only envisaged the return of possession, but also a restoration.’ Furthermore, in the matter of Fredericks and Another v Stellenbosch Divisional Council 1977 (3) SA 113 (C), the two applicants were both labourers in the building industry and both lived near the Old Paarl Road, Kraaifontein, in the Division of Stellenbosch. The respondent was the Divisional Council of Stellenbosch. The applicant alleged in his affidavit that he was married, had two children and lived with his family as a squatter for some two years near the Old Paarl Road. He said that his house was built of sheets of corrugated iron which he bought for R 50 and erected himself. On 14 February both he and his wife left the house together, locked the door and went off to work. On his return from work that evening at 7:00 pm he found that his house had been demolished during the course of the day by the use of heavy machinery. The demolition was carried out by employees of the respondent council who removed the corrugated iron in a truck. Diemont J (as he then was) held at para 117H: ‘In my view the granting of this order should create no practical problems. If the original sheets of corrugated iron cannot be found or if they have been so damaged by the bulldozer that they cannot now be used there is no reason why other sheets of iron of similar size and quality should not be used.’ In the post-constitutional era, this position was rejuvenated in the landmark judgment of Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others 2007 (6) SA 511 (SCA), wherein approximately one hundred people were removed from their homes on a vacant piece of land in Garsfontein, a suburb of Pretoria. They approached the High Court where common law spoliation order and the peremptory eviction proceedings were not pursued. In the process of removal, the materials used in the construction of their dwellings had been destroyed, with the result that they could not be restored to the possession of their homes. The High Court, following Rikhotso, held that because of this destruction, it could not order restoration under the mandament van spolie. The matter subsequently was referred to the Supreme Court of Appeal wherein the court stated the following at paras 25 – 28: ‘It is correct … that the rule of law is a founding value of the Constitution. This would suggest that constitutional development of the common law might make it appropriate to adapt the mandament to include reconstituted restoration in cases of destruction. … The occupiers must therefore get their shelters back. Placing them on the list for emergency Grootboom assistance will not attain the simultaneously constitutional and individual objectives that re-construction of their shelters will achieve. The respondents should, jointly and severally, be ordered to reconstruct them. And, since the materials belonging to the occupiers have been destroyed, they should be replaced with materials that afford habitable shelters. But because the occupiers are avowedly unlawful occupiers, who are vulnerable to a properly obtained eviction order under [Prevention of Illegal Eviction], the structures to be erected must be capable of being dismantled.’


It is conspicuous from the aforementioned legal authorities that there is conflict of decision pertaining to construction and application of the defence of impossibility. Through the principle of stare decisis, I have no doubt in mind that that the case of Tswelopele overwhelms all other decisions, inclusive of the conflicting decisions, and accordingly one can undoubtedly assert that the common law defence of impossibility has been developed to cater for the replacement of the destroyed or alienated property. Furthermore, it vitiates the confusion that has been created by the conflicting decision. The overall inference I can draw pertaining to common law defence of impossibility is that it has been supplemented by the development of the common law and one cannot out right assert impossibility as an absolute defence to the spoliation application. I am of the view that due to the fact that the court can order the replacement or the supersession of the property or the article, the defence of impossibility does not hold water in our jurisprudence and is explicitly redundant and obsolete. For legal practitioners, judiciary, academics and legal advisers, it is essential that they conscientise themselves with this developments in our jurisprudence as they will be able to impart it to their external clients.


The common law defence of impossibility has been developed by the courts to countenance the court to order the replacing of the destroyed or alienated item. The practical implication thereof is that the defence of impossibility is moot point in the current jurisprudence. In essence, the common law defence of impossibility is no longer rigorous as it was before because of the aforementioned development in our jurisprudence.

Nicholas Mgedeza BProc (Unisa) Advanced Corporate and Security Law (Unisa) Certificate in Commercial Law (BLA) Certificate in Mediation (LEAD) is an attorney at the state attorney in Pretoria.

This article was first published in De Rebus in 2017 (May) DR 36.