Tag Archives: law

CAN SOMEBODY TAKE THE LAW INTO HIS/HER OWN HANDS?

a1_bThe mandament van spolie is a summary remedy, usually issued upon urgent application, aimed at restoring control of property to the applicant from whom it was taken through unlawful self-help, without investigating the merits of the parties’ rights to control.

From the definition above it is evident that this remedy is unique, because it is not used to protect rights at all. The mandament van spolie is a unique remedy aimed at undoing the results of the taking of property by means of self-help. The idea is that people should enforce and protect their property rights by legal means and procedure, and not by self-help and force, because self-help eventually results in chaos and anarchy. For this reason it is usually said that this remedy is based upon the principle that nobody is allowed to take the law into his/her own hands. Due to its aim of restoring peace and order and discouraging self-help, the spoliation remedy does not investigate the merits of any of the parties’ interest in the property and neither of the parties is allowed to raise the question of rights. The court is simply concerned with the factual investigation, namely whether there is proof of existing control and proof of unlawful spoliation of that control. If there was in fact existing control and unlawful spoliation the court will order the spoliator to restore the spoliated control to the applicant immediately, regardless of whether that control was in fact unlawful or even legal.

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. The requirements for this remedy were set out in two classic decisions that are still the most important authorities in this regard, namely Nino Bonino v De Lange 1906(T) and Yeko v Qana 1973(A).

1. Proof that the applicant was in peaceful and undisturbed control of the property. The first requirement means that the applicant had control over the property in question. For purposes of the spoliation remedy this control must have existed “peacefully and undisturbed” for a period long enough, and in a manner stable enough, to qualify any unlawful disturbance of the peace. The requirement that the control must have been peaceful and undisturbed does not refer to its legal merits, but simply to the fact that it must have been relatively stable and enduring. If not, there can hardly be a question of disturbance of the situation.

2. Proof that the respondent took or destroyed that control by means of unlawful self-help or spoliation. The second requirement for the spoliation remedy is that the existing peaceful and undisturbed control must have been unlawfully spoliated by the respondent.

One can, therefore, safely say that possession is 90% of the law. The reason for this is that spoliation is not permitted in our law. The person must use the legal processes at his disposal and cannot take the law into his own hands.

References:

  • A J van der Walt & G J Pienaar: Introduction to property law, 5th edition, pg 218-223.

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)

COMMON LAW MARRIAGE IN SOUTH AFRICA

A4_BIn South African law there is no such thing as a common law marriage. People simply believe that living together with another person for a continuous period of time establishes legal rights and duties between them. This is a common misunderstanding especially with young adults.

The only way to be protected in our law is to enter into a universal partnership agreement. Such an agreement clarifies the rights and duties of the partners. The agreement will determine what would happen to property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned. Only a valid marriage is enforceable against third parties. It is important to note that partners can sometimes be jointly and severally liable if they acted within the scope of the partnership. An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal. If there is no agreement on the dissolution of a universal partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership.

To prove the existence of such a partnership it must be shown that:

  • The aim of the partnership was to make profit.
  • Both parties must have contributed to the enterprise.
  • The partnership must operate to benefit both parties.
  • The contract between the parties must be legitimate.
  • There must be valid consent.
  • There is an intention to create a legally binding agreement.

Where there is no express agreement, a tacit agreement may be proved if it is found that it is more probable than not that such an agreement had been reached between the parties at the time of cohabitation.

Because the existence of a universal partnership is somewhat difficult to prove, and it may not be a claim that you wish to have to make or defend, it is advisable to consider entering into a contract that spells out how property should be dealt with on termination of the relationship by death or otherwise. Such a contract would provide some certainty for cohabitees regarding the division of assets and settlements of liability on termination of the relationship.

Some of the consequences of the absence of a legal ground between parties in such relationships are:

  • No exemption from donations tax in respect of donations between them.
  • Cohabitees do not benefit from the laws relating to the exemption from estate duty of bequests to spouses.
  • There is no reciprocal obligation of maintenance.
  • Cohabitee is not a recognised claimant if his/her partner dies intestate.
  • There is no right to property or assets that belong to cohabitee.
  • There is no reciprocal duty to contribute to household necessities.

The Domestic Partnerships Bill of 2008 is still in its formulation stage and it remains to be seen how it is to be implemented. In the current constitutional dispensation it is unlikely that a partner will be left in despair, taking into account the Domestic Partnerships Bill.

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).