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September 17, 2016

Spoliation – when a landlord takes the law into his own hands, at his peril


It is a reality that when faced with a tenant who falls into 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.
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 and the Landlord will be liable for the tenant's legal costs of the Spoliation 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.

The following cases will demonstrate the repercussions of a Landlord taking the law into his own hands:

Locking Out
NTSHWAQELA & OTHERS v CHAIRMAN, WESTERN CAPE REGIONAL SERVICES COUNCIL, & OTHERS 1998(3) 218 CPD. The applicants had lived illegally in shacks on some land. The police and the Council tried to move the applicants to a township and mounted a removal operation. The applicants launched a Spoliation Application, alleging that they were illegally deprived of the undisturbed use and enjoyment of the land in question. The Court found that all the applicants had to prove was that they were in possession of the land and ordered that they be returned to the sites in question and that they be restored to the position they were in prior to their removal. The respondents were ordered to pay the costs of the applicants herein, and effectively, had to re-build their shacks. 

Cutting Off Electricity Supply
NAIDOO v MOODLEY 1982 (4) 82 TPD. The Landlord gave the tenant notice terminating the lease. Summons was issued, however, the parties settled the matter agreeing that the tenant would vacate the property on 1 April 1981. Tenant did not vacate and was again sued for ejectment. On 9 May 1981 the Landlord cut off the electricity supply. The tenant successfully applied for a Spoliation Order against the Landlord. The Court found that the use of electricity was an incident of occupation and that by cutting off the electricity the Landlord had substantially interfered with the tenant's occupation. The Landlord was ordered to restore the electricity supply and pay the tenant's costs of the application.


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