VAN DEN BERG & ANOR V LANG 2010 (2) ZLR 469 (H)

Flynote

Property and real rights - spoliation order - application for - defences to - length of time taken to bring application - relevance of - applicant not in possession - complete defence

Headnote

The applicants had at some stage occupied and operated mining sites owned by the respondent. The facts did not show clearly on what basis they did so; there appeared to be some sort of partnership or tribute agreement. A dispute arose between the parties and the respondent took possession of the sites. The applicants sought a spoliation order; the respondent averred, in answer, that the applicants had abandoned the sites and that as owner he was entitled to re-take possession. He also argued that the applicants were not entitled to bring a spoliation application several months after the event; they should have acted immediately.

Held, that although, depending on its length, the period of delay may not per se constitute a bar to the grant of a spoliation order, it could well be a relevant factor in deciding whether the dispossession had been consented to.

Held, further, that a respondent may, as a general rule, raise only two defences in spoliation proceedings:

• (a) the applicant was not in the peaceful and undisturbed possession of the thing in question at the time of deprivation; or
• (b) the respondent has not committed spoliation.

With regard to the first defence, the respondent may prove that the applicant did not exercise the measure of physical control which was necessary to acquire or retain possession or that the intention to derive a benefit from holding the thing was absent. Regarding the second defence, the respondent may, for instance, prove that his act of dispossessing the applicant was in fact not unlawful, in that it amounted to counter-spoliation or was justified in terms of some statutory enactment or took place with the consent of the applicant. The applicants did nothing to rebut the averment that they had abandoned the sites, so the defence must succeed.