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98 S. African L.J. 36 (1981)
Spoliation Proceedings and the 'Grubby-Handed' Possessor

handle is hein.journals/soaf98 and id is 46 raw text is: 36 THE SOUTH AFRICAN LAW JOURNAL recognized what is best described as a quasi-election (Contract 385-8). A comparison of the facts of Stewart Wrightson's case with those in Margo's case shows marked similarities. The employee in Stewart Wrightson's case thought that the contract which had existed had been brought to an end and that there was therefore no contract in existence (Contract 386-7). He did not realize that the contract still existed but that he had an opportunity to bring it to an end (ibid). The seller in Margo's case thought, with good reason (the purchaser had told him what his (the purchaser's) interpretation was), that there had been no consensus and that there was therefore no contract. The employee in Stewart Wrightson's case acted in a way which showed that he considered the contract to be no longer in force (Contract 386). The seller in Margo's case showed that he considered that there had never been a contract. (His attorney wrote to the purchaser on 18 January 1980 telling him so in the clearest terms: 713D-E.) In both cases it was found later that there was in fact a contract (in Margo's case one suspensively conditioned) in existence at the relevant time. Hence in Margo's case, on the asssumption that the purchaser's conduct indicated a repudiation of the contract, it is suggested, with respect, that the court should have treated the seller as if he had elected to cancel the contract and had done so. A J KERR SPOLIATION PROCEEDINGS AND THE 'GRUBBY-HANDED' POSSESSOR Possibly the most controversial aspect of the law relating to spoliation proceedings is the position of an unlawful possessor of property, for example, a thief who is dispossessed by the true owner. As the law stands, it appears that the court will come to the assistance of the deprived possessor (Yeko v Qana 1973 (4) SA 735 (A) at 739G-H). The latter must of necessity establish what is hereafter referred to as the two prerequisites, viz (a) that he was in peaceful and undisturbed possession of the property, and (b) that he was unlawfully, and without his consent, deprived of possession by the respondent (Nino Bonino v De Lange 1906 TS 120 at 122; Sillo v Naud 1929 AD 21 at 26; Nienaber v Stuckey 1946 AD 1049; Yeko v Qana (supra) at 739D-E). The origin of spoliation proceedings (spolie) is to be found in early medieval canon law (Decr Grat 3.1.3 and C 18 de restit spol). The raison d'etre for the remedy was to restrain persons from taking the law into their own hands and to induce them to submit the matter to the jurisdiction of the court (inter alios, Voet 41.2.16). The remedy was largely punitive in that the spoliator, irrespective of the

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