Roman law provides us with no definition of possession. Paul,[18] following Labeo, merely points out that the term possessio is derived from 'seat' or 'position'. However, Ulpian[19] states that possession has nothing in common with ownership. This is quite a sweeping statement,[20] but the difference between ownership and possession is clearly illustrated by the protection of possession by means of the possessory remedies and the procedural aspects thereof. Special remedies, the interdicta, were created by the praetor to protect possession as such. There were three authentic possessory interdicts, the interdicta uti possidetis, utrubi and unde vi.[21] The interdictum undi vi can be considered as the earliest root of the mandament van spolie because it only concerned the restoration of possession (lost by means of violence). The remedy was not available in cases of mere disturbances of possession.[22] The reasoning behind the Roman approach to the protection of possession is explained by the remark of the emperor Marcus Aurelius[23] that violence (vis) not only implies physical violence, but that it is also present when someone dispossesses another without the intervention of the legal process. It concerns the situation where someone who professes to be entitled to the possession of a thing takes the law into his own hands (acts as his own judge)[24] by disturbing or dispossessing the possessor. Proceduraly, therefore, a distinction was made between the preceding possessory suit (iudicium possessorium) and the subsequent petitory suit (iudicium petitorium). Possession must first be restored. During the possessory suit, when the possessory remedy is applied, the judge does not consider the merits of the case and the rights of the parties. He merely deals with the de facto issue of possession and the disturbance or deprivation thereof. The unsuccessful party in the possessory suit can thereafter enforce his rights in the petitory suit. The successful party of the possessory suit would then be the defendant, who might in the end lose his possession. In this sense, the possessory remedy sometimes provides only temporary relief. During the petitory suit other remedies such as actions (for example the rei vindicatio) are instituted and the plaintiff had to prove his title, what we nowadays refer to as rights. In the case of the rei vindicatio, for instance, the plaintiff had to prove ownership and that he was entitled to the possession because the defendant's possession was unlawful.[25] The possessory remedies of Roman law were received into Western European law since the late eleventh century, but during the reception period before the codification movement in Europe, several other possessory remedies came into existence.[26]

In Roman-Dutch law three possessory remedies were in use during the seventeenth and eighteenth centuries. They were the mandament van complainte, the mandament van maintenue and the mandament van spolie. These remedies were received in the Netherlands from France.[27] The mandament van spolie emerged in Canon law with the creation of the so called 'condictio ex canone redintegranda' in the glosses of the Decretum Gratiani.[28] In later centuries this remedy was also received into secular law as the remedy of rintgrande in France[29] and as the actio spolii in Germany.[30] As far as the application of the possessory remedies in general is concerned, the Roman doctrine of the separation of the possessory and petitory suits was received in the law of civil procedure in Canon law and in the European ius commune. The underlying principle of the mandament van spolie was spoliatus ante omnia restituendus est: the spoliated person must be reinstated in possession before anything else (before an evaluation of the merits of the dispute) because the spoliator took the law into his own hands.[31]

In Roman-Dutch law three possessory remedies were in use during the seventeenth and eighteenth centuries. They were the mandament van complainte, the mandament van maintenue and the mandament van spolie. These remedies were received in the Netherlands from France.[27] The mandament van spolie emerged in Canon law with the creation of the so called 'condictio ex canone redintegranda' in the glosses of the Decretum Gratiani.[28] In later centuries this remedy was also received into secular law as the remedy of rintgrande in France[29] and as the actio spolii in Germany.[30] As far as the application of the possessory remedies in general is concerned, the Roman doctrine of the separation of the possessory and petitory suits was received in the law of civil procedure in Canon law and in the European ius commune. The underlying principle of the mandament van spolie was spoliatus ante omnia restituendus est: the spoliated person must be reinstated in possession before anything else (before an evaluation of the merits of the dispute) because the spoliator took the law into his own hands.[31]

In Roman-Dutch law three possessory remedies were in use during the seventeenth and eighteenth centuries. They were the mandament van complainte, the mandament van maintenue and the mandament van spolie. These remedies were received in the Netherlands from France.[27] The mandament van spolie emerged in Canon law with the creation of the so called 'condictio ex canone redintegranda' in the glosses of the Decretum Gratiani.[28] In later centuries this remedy was also received into secular law as the remedy of rintgrande in France[29] and as the actio spolii in Germany.[30] As far as the application of the possessory remedies in general is concerned, the Roman doctrine of the separation of the possessory and petitory suits was received in the law of civil procedure in Canon law and in the European ius commune. The underlying principle of the mandament van spolie was spoliatus ante omnia restituendus est: the spoliated person must be reinstated in possession before anything else (before an evaluation of the merits of the dispute) because the spoliator took the law into his own hands.[31]

It is generally accepted that in Roman law only corporeals were initially regarded as things (res) in the eyes of the law and capable of possession, but at an early stage, presumably during the late Republican period, the existence of incorporeal things were recognized.[32] Gaius, in his Institutiones[33] provides us with his tripartite division of law into things, persons and actions. He then distinguishes between corporeal things (res corporales) and incorporeal things (res incorporales).[34] The same approach was followed by Justinian in the Corpus Iuris Civilis.[35] Both also mention that the interdicts protect possession and quasi-possession.[36] Corporeal things are things that can be touched. Incorporeals are things that exist merely in law, such as a usufruct and obligations,[37] what we today regard as examples of real and personal rights. Thomas refers to this abstraction that rights can function as things or objects as 'a laudable feat of abstraction and rationalisation'.[38] Whereas Ulpian merely suggests that the interdictum uti possidetis should be extended to usufructuaries,[39] he states it as a fact that usufructuaries are protected by the interdictum unde vi and refers to their relationship in respect of the thing as quasi possessio.[40] The Roman doctrine of the quasi possessio of incorporeal things was eventually received into Canon law and the ius commune. In Canon law the possessory protection of quasi possessio (also referred to as possessio iuris) was extended far beyond the scope of usufruct.[41] Our Roman-Dutch authors such as Hugo de Groot,[42] Dionysius van der Keessel,[43] Johannes Voet,[44] Simon van Leeuwen[45] and Ulric Huber[46] were similarly acquainted with the notion of incorporeals and the possessory protection thereof. For instance, to prevent a person from exercising a servitutal right was regarded as spoliation and in such a case the mandament van spolie could be applied for.

In the late nineteenth and early twentieth century there were a few cases concerning the restitution of possession where the court seemed to apply the mandament van complainte, but also mentioned spoliation and the maxim spoliatus ante omnia restituendus est at the same time. However, these decisions are extremely vague and confusing as it is not clear exactly which possessory remedy was applied.[48] By now it has, however, been settled that the mandament van spolie is the only Roman-Dutch mandament that has survived and that complainte and maintenue have fallen into desuetude. Hahlo and Kahn[49] remark as follows: 'It is remarkable that it is this remedy (mandament van spolie) which was not much used in Roman-Dutch law, has become the basis of the protection of possession in modern law.' As far as the origin of the modern mandament van spolie is concerned, Curlewis J in Muller v Muller[50] made the following observation: 'Now it is quite clear that, though our spoliation order has its roots in Roman law, it is really derived from Canon law... We have to do then with the Canon law and with a mandament van spolie as obtained in the old Dutch courts....' English law has never been applied in respect of the mandament van spolie.[51] Possession can also be protected by other remedies, such as interdicts and delictual actions,[52] but these cannot be considered as possessory remedies in the true sense of the word, because in such cases the rights of the parties have to be proved. The mandament van spolie is the only Studia UBB seria Jurisprudentia http://studia.law.ubbcluj.ro/articol/580 4 of 18 true possessory remedy in South African law where the applicant only needs to prove that he was in possession and that he was despoiled (unlawfully dispossessed).[53] The court does not concern itself with the merits of the case, as explained above. True possessory remedies for mere disturbance of or interference with possession, as had existed in our common law are unknown in South African law.[54] In such cases the parties must resort to an interdict. The mandament is therefore a unique and, maybe for some, a peculiar remedy of South African law. When applying the mandament van spolie, the courts have mentioned that the purpose of the principle spoliatus ante onnia restituendus est is to prevent people from taking the law into their own hands. This led A.J. van der Walt in the 1980s to regard the mandament van spolie not as a possessory remedy, but rather as to a general remedy that protects the public order against disturbances of the peace. It is for this reason, according to him, that the mandament van spolie, apart from its other peculiarities, also protects quasi-possession.

The South African courts have a long tradition of protecting quasi-possession by means of the mandament van spolie.[66] As already pointed out,[67] although quasi-possession concerns the possession of rights, the mandament van spolie does not have a catch-all function to protect the so-called quasi-possession of all rights. In earlier case law and authorities cited there a superficial reading might suggest that a wide approach is followed in this regard. For instance, in Nienaber v Stuckey[68] the court referred to the locus classicus, Nino Bonino v De Lange, where the court remarked that 'spoliation is any illicit deprivation... of a legal right'. The Court also cited the Dutch author, Wassenaar, who states that the spoliation remedy is available in the case of deprivation of 'eenige gerechtigheden' (all rights). However, this is not correct. Of particular importance here is the fact that specific performance of a personal right (contractual right) cannot be enforced with the mandament van spolie. For instance, where a lessor refuses to deliver the object of the lease to the lessee, the mandament is not the appropriate remedy to enforce the lease. The lessee should have recourse to the contractual remedy. In such a case it is also clear that the lessee did not have possession in the first place. A seller, likewise, cannot force the buyer to pay the outstanding amount of the price with the mandament.[69] As mentioned above,[70] the rights that are protected basically are rights of use of a corporeal thing. These can be what is referred to as "servitutal rights" such as a right of way or a right to draw water, or it can incorporate so-called "incidents of possession" where someone who is in possession of premises also has access to services such as electricity, water supply and telecommunication. It is important to note that the use can either exist in terms of a professed real right (such as a servitude), or a contractual (personal) right such as a lease.

1. What are the requirements for and main characteristics of the Roman possessory interdict