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May 07, 2015

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?
  1. 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.
  2. You must show the magistrate that you were the possessor (the person using what was taken).
  3. 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.
  4. You must tell the magistrate the name and address of the person or people who disturbed your possession.
  5. You must show the magistrate that your possession was taken away from you with force or without your consent.
  6. 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).
  7. 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.