Case name (full citation)/Legislation:
Builders Depot CC v Testa 2011 (4) SA 486 (GSJ)

Area of law:
Mandament van Spolie: is not available to a builder if property subject to a lien is sold by the sheriff to a third party acting  in good faith.

Brief facts/summary:
The Appellant, Builders Depot, had a builders lien over the property of a Mr. Wu, due to the failure of Mr. Wu to pay for the building work done in respect of the property. The Appellant eventually obtained judgment against Mr. Wu and had the property attached.

The mortgagee, Absa Bank, also obtained judgment against Mr. Wu and had the property attached and thereafter sold by the sheriff in execution of judgment. The locks to the property were consequently changed and the buyer (the Respondent) was thereafter given possession. The Appellant therefore sought a spoliation order against the Respondent on the grounds that as a result of the Respondent taking possession of the property, the Appellant had been deprived of peaceful possession of the property. This application was dismissed and the Appellant appealed to the High Court.

 The appeal was dismissed with costs.

Importance/value:
The court held that a spoliation order could not be  granted against a spoliator who had parted with possession to a bona fide possessor. The Respondent was therefore entitled to the possession as he did not deprive the Appellant of possession unlawfully or wrongfully, and therefore performed no act of spoliation.

If the Respondent’s bona fide possession could not be disturbed via the spoliator, there was no way in which the Appellant could proceed against the third party.

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