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Chapter 5 - COURTS AND COURT CASES
What is a spoliation order?
A person who owns or is using something which is then taken away from them can go to court to get the item returned quickly. They can ask the court for a spoliation order, also called a 'mandament van spolie'. So, it is order from the court that an item of property be returned to its owner immediately. It is a useful remedy because it can provide someone in an urgent situation with immediate relief. However, applying to the magistrate’s court for a spoliation order can be quite a complicated process. It will be necessary to get an attorney to help you do this.
Who can apply for a spoliation order?
Anyone who was in possession of something that was taken from them can apply for the order.
What must you show the magistrate to get a spoliation order?
- You must show the magistrate that what was taken away is in the area of the magistrate's court where you are applying for the order. For example, if someone takes your oxen from your home in Queenstown and goes to Peddie with them, you must go to the magistrate in Peddie and ask for them back.
- You must show the magistrate that you were the possessor (the person using what was taken).
- You must show the magistrate that you were using the thing peacefully and undisturbed. For example, the oxen were grazing on your own land and were not causing any harm or damage to anyone else or their property.
- You must tell the magistrate the name and address of the person or people who disturbed your possession.
- You must show the magistrate that your possession was taken away from you with force or without your consent.
- You must show the magistrate that it is possible for the other person to replace your possession (it does not have to be the original item).
- You must show that you took steps to restore your possessions as soon as possible. The magistrate will want to know what you did since your possession was disturbed.
Examples of situations where a spoliation order can be granted
1. My bicycle was stolen. Two weeks later I see someone using a bicycle which I think is mine. I ask him to return it, but he refuses, saying that the bicycle is his. I can go to the police and make a complaint of theft. I can also make a case in court to get my bicycle back. But I cannot just go and take it back as this would be taking the law into my own hands. The courts must decide who the real owner of the bicycle is. I cannot decide by myself.
2. I rent a house. The owner forces me out and changes the lock on the door so I cannot go back in. I go to court that same day and ask for a spoliation order. If I am successful, the magistrate will order that I be allowed back into the house immediately. If the owner wishes to get me out he must make a proper case in the court and he must get a court order.
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