9. The Protection of Quasi-Possession in South African Law

The South African legal system is uncodified and from a comparative law \nperspective it is usually classified as a “mixed legal system”, meaning a mixture between \nRomano-Germanic law (in the form of Roman-Dutch law) and English common law. \nProperty law is deeply rooted in Roman and Roman-Dutch law and a sharp distinction is \ndrawn between ownership and possession and the protection of these two institutions. This \ncontribution focuses on the protection of quasi-possession namely the possession of rights. \nOnly certain rights can be possessed in South African law. These are rights of use such as \nservitutal rights and so-called incidents of possession (for example the access to water and \nelectricity in terms of a contract such as a contract of letting and hiring). \nThere is only one possessory remedy in South African law, the mandament van spolie \n(spoliation order or actio spolii). This remedy originated in 9th century Canon Law and it \nprotects possession against spoliation (the unlawful deprivation of possession of a thing or an \nalleged right). In accordance with the Roman, Canon law and Roman-Dutch tradition, when \napplying the mandament the court is not supposed to investigate the merits of the case (the \nactual rights of the parties). The Court only establishes whether there was possession of the \nalleged right (the exercise of actions usually associated with the right) and whether there was \nspoliation. Recently, however, the South African Supreme Court of Appeal started to focus on \nthe actual rights (real or personal) of the parties involved. It is submitted that this approach is \nincorrect and that the same results could have been achieved if the Court had followed the \ntraditional Roman and Roman-Dutch approach.