Introduction

Often legal practitioners are approached by clients who suffer from an act of spoliation. By definition, an act of spoliation occurs when a person is deprived of goods/assets without due legal procedure having been followed. These acts can occur in rental agreements, purchase agreements, credit agreements, construction agreements and other types of legal and quasi-legal relationships between parties. A few examples are:

• Exchanges barring trade or possession of assets by reason of some alleged improper conduct;
• An evicted tenant without notice of due legal procedure, loss of shelter and who risk being exposed to elements;
• Seller repossessing an item from buyer;
• Unlawful possessor(s) of a thing;
• Employer/Owner taking possession of items on a construction site (construction agreements), where the Contractor or another is in peaceful and undisturbed possession of items or exercise a lien over items in lieu of payments due and owing.
• Creditors executing against debtors in various forms without following due legal process;
• Attachment of property by a Sheriff/third party in the absence of an Order of Court;
• Employers removing items in possession of employees to enforce certain policies/procedures.
• Any other unlawful deprivation of goods/things/property where the perpetrator took the law into their own hands.

The mandament of spolie (mechanism for relief) is brought by way of application or action proceedings, but mostly through application proceedings due to its inherent nature (dubbed as inherently urgent by some practitioners). A spoliation application is a substantive application accompanied by a founding affidavit, annexures and other evidence in support thereof. The applicant has to allege and prove that (a) it was in undisturbed and peaceful possession of the good(s)/thing and (b) unlawful deprivation of such possession by the respondent. It must further be alleged that (c) the respondent (d) dispossessed the applicant of the thing; and (e) did so unlawfully. Relief is framed upon these allegations which deserve further technical legal elaboration.

Firstly, the applicant need not have a legal right to have been in possession of the (dis)possessed property. The respondent's rights are equally irrelevant, except in cases where goods are seized by law enforcement under authority of statute. Whilst the merits of the application should be framed with care, your client should have documentary, videographic, photographic or audible evidence to show that it was in undisturbed and peaceful possession of the goods i.e. payment of security personnel to guard the thing(s). If, for example your client was dispossessed of buildings, containers or leased premises, pictures should be taken of locksmiths changing the locks and/or video and sound recordings of third parties being questioned by your client in anticipation of or during the act of spoliation. Whilst it might be tempting to be present in anticipation of or during an act of spoliation being committed or threatened to be committed against your client, you should rather instruct your client to gather the necessary evidence. Often clients may be unwilling to follow your instructions during and shortly after the act is committed. You should advise your client on the process. If your client has taken too long to give instructions, you should advise on the risks and loss of further time that might ensue. If your client fails to carry out your instructions or listen to your advice regarding the time and manner of process to be followed, it would be prudent not to act, withdraw from the matter and direct your client to another legal practitioner who might be willing to help. This is to ensure that you do not get blamed or blasted for your client's own indecisiveness on the one hand and delays which can be caused by legal practitioners preferred by your client, on the other hand. Each circumstance has its own challenges, depending on whether you instruct or work with other acting legal practitioners/correspondents for your client.

Procedural challenges

From the outset, the Notice of Motion should be drafted with appropriate, detailed and precise relief in mind. Any non-compliance by the respondent should be anticipated in formulating the relief, for example: what should happen if the respondent does not hand over the goods? If you seek an order for costs against the respondent, it should be framed in the Notice of Motion and be justified in the affidavit in support of the Notice of Motion. You may further attach more than one confirmatory affidavit in support of the founding affidavit.

Ensure that you grant the respondent enough time (minimum prescribed time) after service of the application papers to respond in accordance with the prescribed period as envisaged in Court Rules. Take note that, if you take too long to serve the application on the respondent after occurrence of the act of spoliation, you may forfeit urgency and the application will have to be brought in the ordinary course. If you persist in bringing the urgent application late, the application will be dismissed and will have to be enrolled again in the ordinary course. Your client could lose valuable time and incur unnecessary costs. Always take note of local decisions in a Court regarding urgency prior to initiating urgent proceedings. When approached by your client, consider the following dates:

• (a) when the act of spoliation occured;
• (b) when your client consults with you; and
• (c) when the papers will be effectively served upon the respondent. 

Whilst there may be various disputes of fact between the parties as to what may or may not have happened at the time of spoliation, very few points raised by the respondent on lawfulness of possession or the nature of the applicant would be dispositive of the matter. It is the procedural and evidentiary burdens that are paramount to your client's case.

If the Rules of Court require a legal practitioner to file specific procedural papers to bring videographic or audible evidence to the attention of the court during the hearing, always ensure that you have followed the correct process. In certain cases, if the relief sought in the Notice of Motion is too broadly formulated, unspecific or not detailed enough to the satisfaction of the Court, your detailing and precision for formulating the relief may be found in photographic and videographic evidence. Courts will exercise a discretion in granting the relief and may request further information from the legal representative to make ends meet with the applicant. Ensure you have followed the steps to produce certain evidence before the Court, ensure they are presented properly and in relevance to the questions posed by the presiding Judge.

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