How to obtain a spoliation order

August 3rd, 2017, Published in Articles: Vector

 

Spoliation is the wrongful deprivation of another’s right of possession. The mandament van spolie, or “spoliation order” is a common-law remedy. Its purpose is to promote the rule of law and to serve as a shield against cases of “self-help”, where parties take the law into their own hands and exercise “power” which they do not have.

Armed with the requirements of the mandament van spolie, in the context of the Joint Building Contracts Committee (JBCC) standard building agreement, we consider how one goes about successfully attaining a spoliation order.

An interesting starting point is the Gauteng High Court’s judgment in Arise General Construction vs. South African National Parks, 2016. Here, the court determined whether a contractor could use the mandament van spolie to regain access to the site.

The contractor had to build student accommodation but was 18 months past the completion date. Notwithstanding the employer’s repeated indulgences, the contractor failed to comply with its contractual obligations to meet the extended completion date.

Following the prescribed termination requirements in the JBCC, the employer terminated the contract due to the contractor’s failure to complete the work timeously. In keeping with the contractual requirements, the contractor was instructed to vacate the site with immediate effect. At this point, the contractor instituted proceedings and relied on the mandament van spolie as a mechanism to regain access to site.

The contractor’s mandamus application was unsuccessful as the contractor failed to satisfy the relevant requirements, namely that it must prove that it had possession, or quasi-possession, of the site and that it was unlawfully disposed of such possession.

The contractor’s application was flawed. The employer had complied with the contractual requirements in the events leading up to the termination of the contract. This fact was not disputed by the contractor and, as such, the employer’s contractual right to ask the contractor to vacate the site could not be deemed unlawful.

This case was not one where self-help was exercised by the employer. It was a case of a contractor attempting to circumvent its default and the lawful consequences of the termination by seeking the protection of the court.

This provides for an interesting comparison to the Western Cape High Court case of Top Assist 24 trading as Form Work Construction versus George Cremer, 2015, where the contractor was granted a mandament van spolie. The unique distinction between the two cases was the manner in which the employer complied with the procedural requirements of the JBCC standard form contract. In this case, the employer failed to terminate the contract lawfully. Instead, it used its position to persuade the contractor’s foreman and site manager to hand over the keys to site. This allowed the employer to lock out the contractor. This mistake proved costly as the court held this to be unlawful.

It is crucial for the employer and contractor to note that the courts frown upon parties who engage in self-help and those who use the mandamus application to circumvent contractual obligations. Instead, follow your contractual rights under the contract and terminate the contract in accordance with the prescribed methods. In the context of the JBCC standard form contract, where a contract is terminated by the employer, the contractor “shall vacate the works and the site”. Where this termination is lawful, the contractor must vacate the site with immediate effect. An attempt to use the court to evade this consequence will be denied.

Nikita Lalla and Ricardo Pillay, Dentons South Africa

 

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