Abstract

In Tenox Management Consulting Inc v Scania South Africa (Pty) Ltd [2022] ZAGPJHC 737, the lessee of trucks refused to return them to the lessor after the lessee committed a breach of contract. The lessor then remotely deactivated the trucks without a court order, as per its agreement with the lessee in the event of a breach. The lessee subsequently instituted the mandament van spolie (‘mandament’) against the lessor to restore the trucks to the lessee in an operational state. The court ruled in favour of the lessee by holding that the lessor’s conduct amounted to unlawful spoliation. The decision raises several points worthy of investigation, namely: the type of ‘possession’ needed for the mandament (specifically whether the lessee has possession for purposes of this remedy); the legal-political function of possession (which concerns the rationale for possessory protection under the mandament); whether parties may agree that one could spoliate or dispossess the other (via remote deactivation) in an extra-judicial manner; whether the prohibition of co-possession applies in our law and whether it excludes the mandament as between lessees and lessors; the difference between lease and agency; and, finally, the intention needed for the mandament. A doctrinal and constitutional analysis reveals that the decision is, for the most part, to be welcomed.