Month: July 2022

Spoliation

Posted by nnlaw on July 26, 2022 with 0 Comment

SPOLIATION ORDER

The law is there to maintain a check and balance in our systems as well as the manner in which we interact with one another. The law is there to prevent individuals from taking the law into their own hands and exercising instant justice. A spoliation order also known as a mandamus van spolie prevents individuals from doing just that. A mandamus van spolie is obtained by way of a court application, and in the event that the matter is urgent the application is made on an urgent basis.

An application for a spoliation order is done so as to restore possession of property where one has been unlawfully/illegally deprived of the property. With this type of application one need not prove that they are the legal owner of the property. An application of this nature takes into account the possession of the property.

To be granted such an application the applicant in the matter will have to prove to the court the following:

That prior to being dispossessed of the property they were in peaceful and undisturbed possession of the property in question; and
That they were unlawfully deprived of possession of the property by the respondent in the matter.

While it may be the natural response to take matters into your own hands, the Courts in such cases tend to deter the public from taking the law into their own hands and encourages the public to use the proper channels that may be available to them to get their property. There are quite a number of remedies that are available to one in the event that they want to regain possession of their property an example being a mandatory interdict amongst other available remedies. A mandatory interdict, if granted compels the respondent to perform certain acts to ensure the property is returned.

Our team of Legal Practitioners is ready to assist parties that have been unlawfully dispossessed of property of that would like to get their property back after a certain state of affairs has taken place.

This article is for general information purposes only-seek legal advice from a lawyer.

Anti-dissipation Interdict

Posted by nnlaw on July 26, 2022 with 0 Comment

ANTI-DISSIPATION INTERDICT

This is a form of an interdict (injunction) that bars the respondent in a case from freely dealing with assets that they may own personally or jointly or they possess at the time that a case is instituted. It is of importance to note that this case does not give the petitioner any preferred rights over those assets that are in question.

In the decided case of Karimakwenda v Bushu & Ors HH 156/04 it was held that:

“the purpose of an anti-dissipatory interdict is to stop a respondent from dissipating his/her/its property to frustrate the satisfaction of a judgement that the applicant hopes to obtain against the respondent…..The right that the applicant therefore needs to establish in an anti-dissipatory interdict is that he will be entitled to obtain satisfaction of his judgement against the property that the respondent is dissipating”

An anti-dissipation interdict translates to a prohibitory interdict and the requirements are as were listed in the decided case of Mine Mills Trading (Private) Limited & Ors v NJZ Resources (HK) Limited SC 392/13

Prima facie right despite the right being capable of dispute;
There is an infringement of rights or that the infringement of one’s rights is imminent;
That one will suffer irreparable harm if the sought relief is not granted by the court;
That there is no other satisfactory remedy under the law;
That the balance of convenience favours the granting of the application the said interdict.

When an interdict is issued, it may not be to prevent the respondent in the case from losing control of his assets but rather to prevent him from keeping them locked away so that the applicant cannot access them. The purpose of making an application for such an interdict is to stop a respondent in their tracks where they are evidenced to be acting in a manner that is unfair and seeks to prevent the execution of the applicant’s case by interfering with the property in question.

Anti-dissipation interdicts are used by the public to ensure that when judgements on the pending litigation are passed they are not a brutum fulman (a mere empty threat or the judgement does not benefit the applicant because of one reason or the other. For example, it can be that the property being disputed over has been sold or damaged). An application for such an interdict is usually done on an urgent basis.

This article is for general information purposes only. Contact a Lawyer for advice and guidance.

Interdicts

Posted by nnlaw on July 26, 2022 with 0 Comment

INTERDICT

An interdict is a directive that forbids or restrains someone from carrying out a certain action or directs(compels) them to do a specific action to correct a wrongdoing for which they bear responsibility. It can also be said to be an order of the court that forbids or compels a party or parties to either restrain from performing a certain act/s or compels them to perform a certain act/s. In other jurisdictions an interdict may be referred to as an injuction.

THE CLASSES OF INTERDICTS

Interdicts are classified into two broad categories namely the;

Final interdict or ;
Temporary interdict

A temporary interdict is usually sought by a party that has instituted legal proceedings and is an order that is granted to protect the applicant’s rights while waiting for the resolution /conclusion/outcome of the pending legal action or potential (anticipated) legal action. A final interdict on the other hand is an order that provides a permanent solution to a certain state of illegal affairs it may also be said to be an order that ensures a long-lasting conclusion to a certain illegal situation.

TYPES OF INTERDICTS

Prohibitory Interdict – This is an interdict that prohibits the respondent in the application from acting unlawfully.
Mandatory Interdict – This is an interdict which orders someone to act accordingly (lawfully) to remedy a wrongful state of affairs for which he/she/it is responsible.
Restitutory Interdict – This is an interdict which orders that the wrongdoer restores possession of property to a person who is unlawfully deprived of his/her/its property.

FACTORS TAKEN INTO ACCOUNT FOR A SUCCESSFUL APPLICATION

Applicant in an application for a final interdict must satisfy the following requirements;

That he/she has a clear right;
That there is an actual infringement or reasonable foreseeable harm(reasonable apprehension of injury);
That there is no other satisfactory remedy by which he/she/it can be protected.

Applicant in an application for a temporary or interlocutory interdict must satisfy the following;

A right which is prima facie established but despite such establishment the right is subject to doubt, hence can be challenged; There must be irreparable injury (harm);
The balance of convenience favours the granting of interim relief to the applicant;
That there is no other satisfactory remedy in terms of the law.

Such relief (Interdict) can be sought by means of a:

Court application;
Ex parte chamber application (this application is done in the event that the matter is urgent and the applicant does not have the luxury of going through the normal process(court application) as they will suffer greatly in the event that they are to do so)

There are numerous instances that would require that one applies for an interdict some of the scenarios are listed below-

One’s spouse has started selling matrimonial property without the consent of the other spouse / pending the finalization of divorce proceedings.
In the event that a beneficiary to an estate intends to sell estate property prior to the finalization of the estate and such party has no authority to dispose of the property (such intention may be evidenced by the party advertising the property and meeting potential buyers).
To prevent your business partner/shareholder from disposing of company assets before the finalization of litigation that if before the court.
To prevent a party from trespassing or hunting on one’s land (where the party is not permitted to do so).
Parties to a transaction agree that some funds be kept in trust for a certain reason. The trustee of the said funds then fails to release such funds when called upon. In such an instance one may make an application for a mandatory interdict.

The above cited examples do not begin to scratch the surface when it comes to instances where one can make an application for an interdict but serve to give the public insight in to some scenarios where such relief can be sought.

In the event that you would like to make an application for an interdict or have been served with such an application and would like to oppose such application get in touch for assistance.

The article is for general information purposes only–seek legal advice from your Lawyer.