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.

When a debt prescribes (lapses)

You may have been on the receiving end of a threat from a debt collector or law firm, demanding that you pay a debt, which goes back years.

The Prescription Act provides that the basic period of prescription is 30 years in respect of any ‘judgement of debt’ and 3 years for any ‘other debt’.

The effect is that in the case of any other debt, where no payment has been made for a period of 3 years, the debt has ‘prescribed’. This means that the debt has been completely extinguished and does not have to be paid.

Prescription is ‘interrupted’ by the issue of summons (before the three years are up) or by any express or tacit acknowledgement of liability by the debtor (such as a payment of any amount towards the debt, within the three years).

So some advice: if a debt collector calls or writes to you to claim payment of a debt that is older than 3 years (and you have not paid anything in the past three years, or admitted liability in that time, or the creditor hasn’t sued you) claim prescription and refuse to pay.

CCTV in a public change room

A client asked me:

My son belongs to Durban surf lifesaving club and they have 2 cameras in the boys’ locker room. Is this legal? He does not want to change in front of them and sometimes moves them and then gets into trouble. Please can you just give me a quick view of the law on this?

In South Africa, the right to privacy is protected both in terms of our common law and in section 14 of the Constitution.

Do companies (like Woolworths) have the right to install CCTV cameras in their shopping areas, or does this infringe on people’s rights?

In a recent High Court decision, involving Woolworths, a woman successfully sued Woolworths for damages, when she was stopped and her bag was examined (without justification) in full view of other shoppers, after a security officer at Woolworths saw what he thought was suspicious activity on the CCTV camera.

In the UK, companies need to display a sign indicating that surveillance cameras are in operation.

In SA, it seems that the general sentiment is that people don’t have a real issue relating to using CCTV when the cameras provide additional protection in public spaces against the extremely high levels of crime.

It’s very different when it comes to private places.

In certain locations, such as a public changing room, a person has a legitimate expectation of privacy. Whilst the lifesaving club has presumably installed the cameras to prevent theft, it is highly likely that the right of privacy outweighs the right of the club to conduct surveillance in a non-working environment.

In my opinion, the use of CCTV in a change room would constitute a breach of the son’s constitutional right to privacy.

It is one thing to erect a sign, giving notice to shoppers that they are under CCTV surveillance. Being informed is a key aspect to avoiding allegations of invading privacy. It is an entirely different thing to give such notice in a change room. In that environment, users have a legitimate expectation of privacy.

E-mail usage policy

Every employee has a responsibility to maintain your company’s image and to use emails in a productive manner and to avoid placing your company at risk.

To do so, you really should have an email usage policy in place, so that your employees understand that all messages distributed via your email system, even personal emails, are the property of your company. They must have no expectation of privacy in anything that they create, store, send or receive on your email system and that their emails can be monitored without prior notification, if you deem this necessary. If there is evidence that your employees are not adhering to the guidelines set out in the policy, your company reserves the right to take disciplinary action, including steps that may lead to an employee’s termination and/or legal action.

Email is a business communication tool and users are obliged to use this tool in a responsible, effective and lawful manner. Although by its nature, email seems to be less formal than other written communication, the same laws apply. Therefore, it is important that users are aware of the legal risks of emails that contain confidential or commercially sensitive information, or that may contain, defamatory, offensive, racist or obscene remarks, when you and employee can be held liable.

There are other risks: an email message may legally bind your company, contractually, in certain instances, without the proper authority being obtained, internally; email messages can carry computer viruses. If your employee sends an attachment that contains a virus, your company and the employee can be held liable; by opening emails and attachments from an unknown sender your employee may introduce a virus into the company’s  computer operations.

The policy would require the employee to use your email system for nothing other than legitimate business purposes. Therefore, the sending of personal emails, chain letters, junk mail, and jokes is prohibited.

Employees must only send emails that have content that could be displayed on a public notice board. If emails cannot be displayed publicly in their current state, they must consider rephrasing them, using other means of communication, or protecting information by using a password.

These are some of the issues that you should cover in an email user policy. Contact me if you need help in putting one together.

FLISP assists first-time homeowners and homebuyers

If you are a first-time homebuyer, did you know that you may qualify for a subsidy to buy your first home and save thousands over the period of the loan, by reducing the monthly repayments? The benefit also applies to homeowners who have already taken transfer.

What is FLISP ASSISTANCE?

Finance Linked Individual Subsidy Programme - FLISP

FLISP is the drive by the Department of Human Settlements to provide a subsidy to allow aspiring home owners to purchase a home, supporting your application to a bank for finance to buy your own home.

If you earn too little to qualify for mortgage finance to buy your own home, or you earn too much to qualify for the Government’s free basic house under their RDP Housing Subsidy Scheme, you may apply for the FLISP subsidy.

The once-off FLISP subsidy amount ranges between R20 000 and R87 000, depending on monthly income. The less you earn, the higher the subsidy. FLISP may be used for the following: - Buy an existing, new or old, residential property; Buy a vacant serviced residential-stand; or Build a residential property.

To qualify for the FLISP subsidy, you must meet certain criteria determined by the Department as well as the banks. It is available to all first-time residential homeowners (who have already taken transfer) or homebuyers (whose home loan has been approved by your bank) who earn between R3501 and R15000 a month.

The price of a property that can be financed through FLISP is determined by the joint household income, of not more than R15k per month.

Check out their website to find out more.