Spoliation of Incorporeals

An analysis of recent case law in comparison with established principles

Research questionAnalyse the latest trends in spoliation casesdealing with quasi-possession ofincorporeals, especially with regard to thesupply of water.

Possession

Theoretical disputeIs it a factual enquiry or a form of right (real or otherwise)? Essentially an academic argument onlyIus possessionis – right of controlIus possidendi – entitlement to demand control

Spoliation ‘unlawful or wrongful deprivation of

possession’

Mandament van spolie Show possession

Show that dispossession was unlawful

No examination of the merits

Spoliation of incorporeals Doctrine of quasi-possession Referred to in common law Introduced in our courts in Nino Bonino and

Nienaber v Stuckey Key case is Bon Quelle 1989 AD Applicant must prove exercise of actions

normally associated with the right

High Court cases Zulu v Minister of Works, KZN 1992 D Plaatjie v Olivier 1993 O Zolani v Cathcart Transitional Local Council

1999 E Le Riche v PSP Properties CC 2005 C

SCA cases - facts

Impala case

First Rand case

Water distribution board locks sluices after a payment dispute

The Water Act of 1998 s59(3) gave them this power

Bank financed pipeline, and supply pursuant to agreement expiring 31 December 2004

On 1 December 2005 they stopped the flow at remote pump stations

SCA cases - findings Impala case First Rand caseThe right was sourced in statute, and was an incident of the properties in question

The payment dispute was the subject of other litigation

Appeal dismissed

Distinction between the right to supply and the means of supply

Amounted to contractual claim – not enforceable under the mandament

Appeal upheld

Comments Water User Association (statutory) v private company Difference between right to supply and means of

supply Scrutiny of right v examination of merits Relevance of ‘incident of property’ No substantial new trends, mainly restatement of

established principles Conclusions from different cases somewhat

conflicted

Further research

Telkom v Xsinet 2003 SCAContract interface

Supply of consumables

Incident of property

Distinction between broadband and electricity/water