DISTRIBUTED BY VERITAS TRUST Tel: [263] [4] 794478 Fax & Messages [263] [4] 793592 E-mail: veritas@mango.zw Veritas makes every effort to ensure the provision of reliable information, but cannot take legal responsibility for information supplied. Judgment No. SC 36/18 Civil Appeal No. SC 279/16 application, and conversely, if an application was brought within the period of one year after interruption of the possession, special circumstances would have to be present before relief could be refused merely on the ground of excessive’ delay. In the present matter the delay of eight months before the petition was launched is not so gross, nor had it such selfdefeating consequences, that, on this ground alone, relief should be refused to the applicant. Price, in his work, referred to above, states: “It has been held that failure to take immediate action will estop the applicant from successfully claiming a spoliation order; he will be left to his remedy by action”. I cannot adopt this statement of the law without careful qualification. The learned author, Price, quotes as his authority the case of Otto v Viljoen and Others, (1885) 4 S.A.R. (Barber and McFadgne Reports 45), and De Villiers v Holloway, (1902) 12 C.T.R 566 at p. 569. The case of Otto v Viljoen and Others, is authority for no more than the self-evident proposition that a settlement between the party allegedly spoliated and the spoliator, precludes the party whose possession has been interrupted from seeking a spoliation order after the settlement was arrived at. De Villiers v Holloway is more instructive. In this matter MAASDORP, J., considered the effect of delay in bringing an application for a mandament of spolie and he framed the argument for the view that a possessor loses his right to seek an order due to an inordinate delay in the following terms: “It is said that having lain by so long it must be taken that he acquiesced in what had been done by the respondent to such an extent as to deprive the conduct of the respondent of the character of forcible spoliation”. After considering the facts the learned Judge concludes: “therefore, the mere fact that the applicant did not press forward legal proceedings immediately was not such an acquiescence in what had been done by the respondent as to deprive the applicant of the right of now asking the court to put him in the position he would have been in had he not been deprived of peaceable possession by the respondent”. I adopt this approach. It is conceivable that the delay of an applicant to bring his petition either confirms or displays a state of mind in which the applicant acquiesced in the alleged disturbance of his possession, and, in such an event, I am satisfied that he would not be entitled to a mandament of spolie. The delay in the present application cannot, in my view, by any means be interpreted as acquiescence in the alleged spoliation.” 8