Spoliation is a situation where a person is deprived of possession, partial possession or co-possession of movable or immovable property. The possession referred to does not necessarily have to be legal possession.
A re-occurring example of this deprivation we are regularly faced with is, where a lease agreement has been cancelled and as a result of this, continued occupation of the property would be illegal. The owner of the property might feel entitled to regain possession of the property by utilising a wide range of, sometimes very creative means, other than obtaining a court order. The means referred to can take on various forms; it can be disconnecting of electricity supply to the property, removing some of the doors, changing the locks to the property, etc. One of the most dangerous of these would be to allow another person or persons to take occupation of the property together with the illegal occupants. The property owner might be under the impression that she is acting lawfully. This impression of acting legally is often supported by other frustrated landowners on online forums and so forth. It is indeed the case that an owner has a very strong right to the property, but forcefully regaining the right of occupation of the property may only be done when this is ordered by a court. According to section 26 of the Constitution, no person may be evicted without a court ordering to do so. In order for any society to function properly, it is crucial for citizens not to take the law into their own hands.
A person may only be deprived of possession by a court order. This is to ensure that all the circumstances of the case are brought before a competent court in order to make an order that would be just and equitable. If a person has been deprived of possession (spoliated), he can approach a court with a spoliation application. These applications can very often be heard on an urgent basis. Should the court be satisfied that the person has been in possession of property and has been deprived of that possession without a court order, the court will grant an order to place the person back in possession of the property. The order will usually include a cost order. If done in the High Court on an urgent basis the person who deprived the other of possession can easily be ordered to pay legal costs to the possessor in the excess of R25 000.00, this after placing the person back in possession of the property.
The effect would be that the illegal occupant would be given back the premises, the owner would be liable for legal costs and even worse, leaving the illegal occupant with a sense of entitlement to the premises. This typically leads to extended, opposed and accordingly costly evictions. The most effective, and cost effective way to have an illegal occupant removed from a premises is without a doubt a legal eviction done by specialist attorneys. Therefore, act legally and within the ambit of the law. Taking the law into your own hands is not the right route to follow and could be the difference between a successful eviction and a horrid property law experience. As always #happyrenting.