Rule of Law, the Mandament van Spolie and the Missed Opportunity: Some Thoughts Arising from Ngqukumba v Minister of Safety and Security

Abstract

The mandament van spolie as a legal remedy is well entrenched in our legal system. So entrenched is this remedy its requirements have crystallised and become well known. It is also beyond doubt that the remedy operates against organs of state where they wrongfully have deprived people of possession. What has always been an interesting debate in our law is whether the true object of the remedy is the protection of possession or the discouragement of self-help. On the back of a recent Constitutional Court judgment this article revisits this old debate and argues that it appears as if in our current constitutional era the mandament van spolie is, first and foremost, compliant with the Constitution. The article further argues that there are serious problems of justification if the mandament van spolie is seen only as a remedy which protects possession because in that context courts may very well be compelled to protect the possession of those despoiled possessors who are in law not entitled to possession. This may happen even against the possession of lawful possessors or may express prohibition of statutory provisions denouncing possession on the part of the despoiled. This situation would be untenable. To that end this article argues that there is merit in viewing the mandament van spolie as a remedy aimed at curbing self-help. The article continues to argue and to show how the remedy vindicates the rule of law by obliging organs of state, the South African Police Service in particular, to always act within the law. The recent Constitutional Court case is further praised for showing how the common law and statute law can coexist in harmony. However the judgment is criticised for having missed an opportunity to consider if the mandament van spolie was in need of development taking into account the interests of society and the efforts of law enforcement agencies in fighting criminal activities.