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Spoliation Orders and Tenant’s Rights in South Africa

Although cutting your tenant’s electricity or changing their locks may seem like a good idea at the time, it is in fact a bad idea and automatically puts you, as a landlord, in the wrong.

Spoliation Orders and Tenant’s Rights in South Africa

South African Law requires that landlords that are in dispute with their tenants must approach the courts for assistance and cannot take matters into their own hands.

No matter how strong a landlord’s case, if they remove their tenant’s access to their leased premises without a court order, they face having to restore possession to the tenant via a “spoliation order”.

All that will count in the eyes of the court is how the landlord dispossessed the tenant, not whether they are the owner nor whether they have any legal right to possession.

spoliation orders in south africa

How to Obtain Spoliation Orders

To succeed in obtaining a spoliation order, all a tenant must prove is:

  1. That they were in "peaceful and undisturbed possession", and
  2. That they were "unlawfully deprived of that possession".
    1. The critical question however is whether the tenant consented – freely and genuinely – to the dispossession.
    2. If so, the dispossession was lawful. However, if not, it was unlawful and therefore spoliation "may take place in numerous unlawful ways. It may be unlawful because it was by force, or by threat of force, or by stealth, deceit or theft" – or simply without consent.

Below is a Practical Example

  • A beauty salon owner was locked in dispute with her landlord over their method of billing electricity.
  • Her landlord first responded by cutting the premises electricity and then to changing the locks.
  • After attempting, without success, to resolve the dispute, the tenant applied for a spoliation order.
  • The landlord did not dispute that the applicant was in possession of the premises. They also did not dispute that he had dispossessed her with neither consent nor a court order. Instead, the landlord argued that the tenant’s application was not urgent and that it should have been heard in the magistrate’s court and not in the High Court, and that it was really not about spoliation but rather about the tenant trying to enforce her rights in terms of the lease.

However, the court rejected all these contentions and held that the landlord had committed two separate acts of spoliation –

  1. The first when the landlord disconnected the electricity supply and therefore denied the tenant use of her premises – “a limitation of her rights as a possessor” and
  2. The second when the landlord changed the locks to the premises and therefore dispossessed her entirely.

Resulting in the landlord paying all costs, immediately restoring possession of the leased premises to the tenant, and immediately re-connecting the electricity.

Van Deventer & Van Deventer Incorporated – Attorneys in South Africa

Many disputes between landlords and tenant have risen due to the uncertainty caused by the national lockdown in South Africa. With careful negotiation supported by our legal professionals, disputes can easily be avoided.

Please feel free to contact our attorneys in Cape Town and Johannesburg with any additional questions that were not answered in this article.

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