There has been a cycle of unprecedented events occurring since the start of the Covid-19 pandemic, one which has resulted in many people losing their jobs, and often placing them under intense financial strain. Unfortunately, in some cases this has led to creditors taking the law into their own hands by repossessing or depriving debtors of goods or services.
The process of depriving a person of goods or services without having followed due process is known as spoliation.
How does the spoliation law protect you?
It is important for you to know what to do when you are deprived of your possessions, or services such as your access to water or electricity where you reside. In terms of the law surrounding spoliation, it is not necessary to determine whether you are the true owner of the goods being dispossessed or that you have a legal right to possess them, as long as you were in peaceful and undisturbed possession of the items or services concerned.
A good example, however ridiculous sounding, is that of a thief riding around on a bicycle that he stole a month back. If the owner somehow manages to locate the thief and forcefully takes back his bicycle without going through the police or through the courts, the thief would likely be successful with a spoliation application asking that his possession of the bicycle be returned. It would then be up to the owner to follow the various legal processes afforded to him in order to regain possession of his bicycle.
Dispossession must be handled lawfully through the courts
In terms of South African law, it is pivotal that these forms of dispossession are handled through courts for lawful assistance to occur. It is always advised to acquire the assistance of legal professionals to set out the facts and put them before the court as coherently and as efficiently as possible to ensure your rights are being protected efficiently and adequately.
A letter of demand is a good first step
Legal professionals must also remember that a letter of demand is often encouraged before taking effective steps to issue a spoliation application, however this is not a general obligation.
Spoliation is used to prevent people taking the law into their own hands
Spoliation is known as a “true possessory remedy” which is used to restore any possession of movables, immovables or rights. This remedy is used to prevent “self-help”, essentially where anyone would want to take the law into their own hands, this was stated in the case of Ivanov v North West Gambling Board and Others 2012 (6) SA 67 (SCA).
Speak to a legal expert
For more assistance with spoliation-related matters, speak to our Litigation and Dispute Resolution attorneys at Abrahams & Gross Attorneys. We can assist with all matters related to dispossession and spoliation.
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The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.