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.
