The protection of quasi-possession in South African law

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.