If someone gets something of theirs stolen, they might be tempted to go take it back, by force if necessary. However, that would be considered illegal and would put your belongings back into the hands of the thief.
Mandament van Spolie
The Mandament van Spolie is an extraordinary, quick and robust remedy for the restoration of possession. Its purpose is to restore possession to the person who was deprived, and is based on the principle that no man should take the law into his own hands.
Since the object is to restore possession to the applicant, the court will not consider any defences based on the respondent’s rights of ownership. Therefore, neither the applicant nor the respondent need to prove ownership. Only the requirements listed below need to be proven. Based on this unique characteristic of the Mandament van Spolie this remedy can be used by a thief or any other person without the right of ownership. The Mandament van Spolie is a final order and is appealable. The respondent, however, may continue with other proceedings if he is the owner.
The requirements for this remedy were set out in two important decisions that are still relevant in this regard, namely Nino Bonino v De Lange 1906(T) and Yeko v Qana 1973(A).
The spoliation remedy is aimed at preserving peace and order in the community. People cannot be permitted to circumvent the remedy by contract. Parties to a contract cannot agree that one of them will be permitted to take property from the other without proper legal procedure.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
A J van der Walt & G J Pienaar: Introduction to property law, 5th edition, pp 218-223.