Taking the Law into Your Own Hands - Eviction
Property @ Bowring have Landlords as their clients, and whilst this article falls under the realm of real estate, the main objective of this article is to educate our Landlords to understand the spoliation process, and the repercussions of any illegal evictions.
Property @ Bowring can direct you to Experienced Legal Professionals
It is a reality that when faced with a tenant who is in arrears, some Landlords consider taking the law into their own hands, for example by either locking the tenant out of the property or cutting off the electricity or water supply to the property. This can be an expensive course of action for the Landlord.
Landlords are not allowed to resort to creative ways to get rid of their tenants – by doing so they only create ammunition for the tenants to delay the eviction process, which costs more time and money.
Changing locks, removing the doors, sending intimidating “heavies”, cutting electricity etc are illegal. Landlords do certainly have the right to get rid of a troublesome tenant, however, they must do so through the correct legal court process.
The Landlord has a duty to allow the tenant undisturbed use and enjoyment of the leased premises for the duration of the lease. Should the Landlord breach this duty, the tenant has the right to apply to Court for a SPOLIATION order. This means that the Court will order that occupation of the property be restored to the tenant.
For example, I rent a house. The owner forces me out and changes the locks on the doors so I cannot go back in. I go to court that same day and ask for a spoliation order. If I am successful, the magistrate will order that I be allowed back into the house immediately. If the owner wishes to get me out, he must make a proper case in the court and he must get a court order to evict me.
A spoliation order is very seldom refused. The court will also order the landlord to pay the costs of the application, which can be quite substantial.
The law also provides that where a tenant is unlawfully deprived of his use and enjoyment of the premises in this manner, he is not required to pay rental during the relevant period.
Explanation of Spoliation (Mandament van Spolie)
Spoliation is the wrongful deprivation of another’s right of possession. It may relate to movable or immovable property or even a legal right. It is not available to enforce a contractual obligation.
The Mandament van Spolie is an extraordinary, quick and robust remedy for the restoration of possession.
Its objective is to restore the status quo ante (return possession to the person who was deprived), and is based on the principle that no man should take the law into his own hands.
Since the objective is to restore possession to the applicant, the court will not consider any defences based on the respondent’s rights of ownership. Therefore, neither the applicant nor the respondent need to prove ownership. Only the requirements listed below need to be proven.
The Mandament van Spolie is a final order and is appealable. The respondent, however, may continue with other proceedings if he is the owner.
Spoliation is usually brought by way of application and by the nature of it is often brought on an urgent basis.
Legal Requirement to Apply for a Spoliation Order
The tenant must satisfy two requirements:
- that he was in peaceful/undisturbed possession of the property;
- and he was unlawfully deprived of possession
The Process of Obtaining a Spoliation Order
Immediately that the tenant is evicted, he goes to his nearest Magistrate’s Court, and asks for a spoliation order.
It is highly recommended that the tenant go prepared with his written spoliation application and founding affidavit in order to save time, especially in the event that the application is urgent (eg, the tenant has been thrown out of his house and has nowhere to sleep).
Sample Templates
IN THE MAGISTRATE'S COURT FOR THE MAGISTERIAL DISTRICT OF ???
Held at ???
In the matter between:
Case Number:
Full name of applicant
AND
Full name of respondent
SPOLIATION APPLICATION
BE PLEASED TO TAKE NOTICE that an application will be made before this Honourable Court on (DATE will be given by the court) at 09H00 am or so soon as the matter may be heard for an order in the following terms:
- That this application be heard as an urgent application and that any forms and time frames of services as provided for in the rules be and are hereby dispensed with and condoned
-
That a Rule Nisi* do hereby issue calling upon the Respondents to show cause before this honourable court on (DATE) why an order in the following terms should not be made final:
That the Respondent be ordered to place the applicant back in the immediate and undisturbed possession of (details of residence), and that in the event of failure by the respondents to do so, authorising the sheriff to unlock the premises and place the Applicant in possession thereof.
- That paragraph 2.1 above should hereby operate as an interim relief with immediate effect:
- The Respondents shall within 5 days after service of this order file their Notice of intention to Oppose;
- And within 10 days after filing their Notice of intention to Oppose, file their Answering affidavits;
- The aforesaid date may be anticipated by the respondents upon 24 hours notice to the applicant.
- Costs of the application.
BE PLEASED TO TAKE FURTHER NOTICE that the affidavit of (FULL NAME OF APPLICANT) attached hereto, will be used in support hereof.
BE PLEASED TO TAKE NOTICE FURTHER that the Applicant has appointed the following address or email address at which the applicant will accept notice and service of all process in these proceedings.
BE PLEASED TO TAKE FURTHER NOTICE that the Respondent is called upon to appear before the (NAME) Magistrate Court, on AT 09h00 to give reasons why this order should not be made a final one
DATED :
PLACE:
NAME AND ADDRESS (OR EMAIL ADRDESS)
* Rule Nisi - A rule nisi is an order granted ex parte directed to a particular person or persons calling on them to appear in court on a certain fixed date to show cause why the rule should not be made absolute. (An ex parte decision is one decided by a judge without requiring all of the parties to the dispute to be present)
IN THE MAGISTRATE'S COURT FOR THE MAGISTERIAL DISTRICT OF ???
Held at ???
In the matter between: Case Number:
Full name of applicant APPLICANT
AND
Full name of respondent
FOUNDING AFFIDAVIT – FULL NAME OF APPLICANT
I, the undersigned,
Full name of applicant
Do hereby make oath and state that:
- I am an adult male/female living at :
- I am employed by:
- The contents of this affidavit are true and correct and are within my personal knowledge unless indicated otherwise
Background
- Give a detailed background to the situation, and attach any supporting documentation you have eg lease agreements, proof of payments, letters, etc.
Cause of Action
- Give a detailed account of the events leading up to your illegal eviction, and explain why the eviction is illegal.
Conclusion
- Discuss the consequences of the eviction and the people it has affected.
- Wherefore I respectfully pray that for the reasons set out in this affidavit, that this Honourable Court grant the relief as prayed for in my Spoliation Application.
Deponent
Thus signed and sworn to in compliance with the provisions of regulation R.1258 of 21 July 1972 (as amended) before me (a commissioner of Oaths duly designated in terms of the provisions of regulation R.2477 of 16 November 1984) at (WHERE) on this ________________________by the deponent who acknowledges that he/she knows and understands the contents hereof and has no objection to taking the prescribed oath.
DATED at (WHERE) on this the th day of 20
______________________
FULL NAME OF APPLICANT
After sending his notice of intention to oppose, the Landlord would then have 10 days to submit his Answering affidavit, wherein he would have to explain why he believed his eviction actions to be legal. (The landlord would have a difficult time explaining why he evicted a tenant without a court order).
On the date given by the court (and mentioned in the spoliation application), the tenant and the landlord would face the magistrate, who will decide whether or not to make the spoliation a final order, in which case the tenant would remain safely in his rental accommodation until such time as the landlord brought about a correct legal eviction procedure.
The Bad News for the Landlord
The bad news for the landlord is that a Spoliation order would in all probability be granted against him because he evicted his tenant illegally.
NOW, he has two cases to attend to.
- He has to fight the spoliation application brought against him by his tenant (a case he will in all likelihood lose and pay any costs).
- He how has to start from the beginning, where he should have started in the first place, with the correct eviction process according to PIE (The Prevention of illegal Eviction and Unlawful Occupation Act (PIE) sets out the steps a landlord must follow)
The following link explains the correct legal eviction process: http://www.bowringproperty.co.za/the-eviction-process
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).