Landlord locked you out or cut off
your electricity?
You need bring a ‘spoliation’
application to get possession restored.
The good news is that most
Magistrates’ Courts will help you for free. If you need help, speak to your
local Clerk of the Court.
“A person
who owns or is using something which is then taken away from them can go to
court to get the item returned quickly. They can ask the court for a spoliation
order, also called a 'mandament van spolie'. So, it is an order from the court
that an item of property [or use of a property] be returned to its owner
immediately. It is a useful remedy because it can provide someone in an urgent
situation with immediate relief”.
Who can apply for a spoliation order?
Anyone who was in possession of something that was
taken from them can apply for the order.
What must you show the magistrate to get a
spoliation order?
- You
must show the magistrate that what was taken away is in the area of the
magistrate's court where you are applying for the order. For example, if
someone takes your oxen from your home in Queenstown and goes to Peddie
with them, you must go to the magistrate in Peddie and ask for them back.
- You
must show the magistrate that you were the possessor (the person using
what was taken).
- You
must show the magistrate that you were using the thing peacefully and
undisturbed. For example, the oxen were grazing on your own land and were
not causing any harm or damage to anyone else or their property.
- You
must tell the magistrate the name and address of the person or people who
disturbed your possession.
- You
must show the magistrate that your possession was taken away from you with
force or without your consent.
- You
must show the magistrate that it is possible for the other person to
replace your possession (it does not have to be the original item).
- You
must show that you took steps to restore your possessions as soon as
possible. The magistrate will want to know what you did since your
possession was disturbed.
