The South African Supreme Court of Appeal
("SCA") recently handed down two
judgments which provide some interesting insights into the
interpretation and limits of the spoliation remedy.
What does "spoliation" mean?
A spoliation application, also known as a "true possessory
remedy", is used to restore lost possession of movable,
immovable, corporeal and incorporeal property, where possession has
been unlawfully deprived.
A spoliation application is often instituted on an urgent basis.
To be successful, the application depends on the applicant proving
(on a balance of probabilities) that:
- they were in peaceful and undisturbed possession of the
property; and
- the respondent (the spoliator) unlawfully deprived them of
possession (committed a spoliation).
