Abstract:
The South African legal system is uncodified and from a comparative law
perspective it is usually classified as a “mixed legal system”, meaning a mixture between
Romano-Germanic law (in the form of Roman-Dutch law) and English common law.
Property law is deeply rooted in Roman and Roman-Dutch law and a sharp distinction is
drawn between ownership and possession and the protection of these two institutions. This
contribution focuses on the protection of quasi-possession namely the possession of rights.
Only certain rights can be possessed in South African law. These are rights of use such as
servitutal rights and so-called incidents of possession (for example the access to water and
electricity in terms of a contract such as a contract of letting and hiring).
There is only one possessory remedy in South African law, the mandament van spolie
(spoliation order or actio spolii). This remedy originated in 9th century Canon Law and it
protects possession against spoliation (the unlawful deprivation of possession of a thing or an
alleged right). In accordance with the Roman, Canon law and Roman-Dutch tradition, when
applying the mandament the court is not supposed to investigate the merits of the case (the
actual rights of the parties). The Court only establishes whether there was possession of the
alleged right (the exercise of actions usually associated with the right) and whether there was
spoliation. Recently, however, the South African Supreme Court of Appeal started to focus on
the actual rights (real or personal) of the parties involved. It is submitted that this approach is
incorrect and that the same results could have been achieved if the Court had followed the
traditional Roman and Roman-Dutch approach.
