The
law tries to keep the status quo in place while disputes are being resolved. For example,
a motor vehicle technician or panel beater may possess a vehicle that he or she has fixed
until the services and parts have been paid for. So also, a spouse going through a divorce
or domestic partner dispute may keep possession of household items until the court orders
otherwise.
A person, whose
physical possession of an asset is disturbed, may apply for a Spoliation Order forcing
another person to return the asset. This right to protection of possession is so
strong that it can even be used against the owner of the asset.
Recently four
judges of the Cape High Court confirmed that Spoliation may be used to protect the rights
of a director /shareholder to return to the company office where the other directors had
denied him access. Our firm was involved in that matter and can report that
the success of that initial application and appeal lay a solid foundation for the director
to be paid out later by his former colleagues. He was also successful with various
cost orders.
In Masema (Pty) Ltd
and Others versus PP Mkhari and others, a farming matter concerning R9 000 000 worth of
oranges, the respondents tried to prevent a Spoliation Order by filing an opposing
affidavit of 100 pages long. It was all to no avail and they were ordered to restore
possession and pay the Applicants costs on a punitive scale. |
