PP Smit Attorneys

It often happens that a tenant, for whatever reason, refuses, neglects or is unable to pay rent and falls into arrears. A landlord, frustrated with the tenant and the legal eviction process, may be tempted to find ways to get rid of the tenant. Cutting off water and electricity, changing locks, and using intimidation tactics are just some of the examples being used by landlords to dispossess a tenant.

The tenant, however, is protected by law and has a right to undisturbed use and enjoyment of the property for the duration of the lease agreement. When a situation arises that disturbs this use and enjoyment, a tenant may approach the court for a spoliation order, otherwise known as a mandament van spolie, to restore his possession and/or use of the property. This article briefly explains the application and what needs to be proved by the tenant for the successful application of a spoliation order.

The history and basis of a mandament van spolie

South African property law is rooted in Roman and Roman-Dutch law. A distinction is drawn between ownership and possession, and different remedies exist to protect these rights. Ownership is seen as a real right and an owner can protect their right to property by the rei vindicatio action. The right to property, on the other hand, is the right to possess and use the thing and not a right to the thing itself, which is attributed to the owner of the thing. Only certain rights are protected, and they include servitutal rights (e.g. right of way or access to water) and contractual rights found in lease agreements (e.g. rights to electricity, water, and telecommunications).

When an application is made, the court’s focus should not be directed at the merits of the case – it is not relevant at the time who the owner of the property is. The only factor that the court needs to establish is whether the applicant had possession and use of the property or thing and that their right to possess the property or use thereof was unlawfully interfered with (spoliated).

The protection of specific performance (contractual right) cannot be enforced by using a spoliation application. For example, a lessee cannot use a spoliation application if the lessor refuses to hand over the keys to the lessee before occupation takes place, or if a tenant refuses to vacate a property after it is sold and a new tenant needs to take occupation. In these instances, the party will have to find recourse in contractual remedies or the eviction process.

The application process and implications of a spoliation order

A mandament van spolie is a remedy to restore possession and is usually brought on an ex parte urgent basis. Ex parte means that you do not have to give notice of the application to the other party before it is heard by the court. Its objective is to restore the possession of the applicant to the status it had before spoliation took place.

The applicant will bring an application on notice or ex parte, and then an interim order with a return date (rule nisi) will be issued. The applicant must satisfy two requirements: that they were in peaceful, undisturbed possession and use of the property and that they were unlawfully deprived of that possession. The applicant will file a founding affidavit to set out the facts and establish the requirements. After an interim order is granted, the landlord is ordered to restore possession to the tenant. The Sheriff of the Court can be instructed to assist the applicant if the landlord still refuses to restore possession to the tenant. The landlord may file an answering affidavit and on the return date (rule nisi) the landlord will have the opportunity to prove that he legally took possession. The spoliation order is final; however, it can be taken on appeal.

A landlord must be weary of tactics that will make him guilty of taking the law into his own hands. A spoliation order is not often refused, and the court may order that the landlord pay the costs of the application. The tenant may also lawfully refuse to pay rent while he is unlawfully deprived of the use and enjoyment of the property.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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Carla Cloete

Partner | Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the PP Smit team as a professional assistant.

Carien Hamman

Attorney & Notary | LLB

Carien grew up and matriculated in the picturesque town of Ceres, whereafter she furthered her studies at the University of Stellenbosch and obtained her LLB degree in 2015. She completed her articles at VanderSpuy Cape Town in 2017 and stayed on as an associate litigant after being admitted as an attorney during early 2018. Carien loves the countryside and thus ventured back to Ceres where she joined Joubert Van Vuuren Inc. for a year. However, when she was presented with the opportunity to enjoy both the country- and the seaside, she couldn’t resist and joined PP Smit Attorneys at the beginning of 2022 as an avid litigator. When she is not at the office, Carien enjoys long walks, wine tasting, and exploring the area with her family and friends.

Harmann Potgieter

Attorney | LLB | NQF 7

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with PP Smit Attorneys as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Andre van der Walt

Partner | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys, and not too long after that, he grabbed the opportunity to work at PP Smit Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Jandré Smith

Partner | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director of the firm, where he practices in the Litigation department. Jandré additionally joined the partnership of PP Smit Attorneys during the same year. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Richard Phillips

Partner | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity he joined the partnership of PP Smit Attorneys during 2006. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Johann Maree

Partner | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he moved to Vredenburg and joined Swemmer & Levin, where after he joined the partnership of PP Smit Attorneys during 2006.. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Pieter Smit

Partner | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking.

Jan Fourie

Partner |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. In 2004, he also joined the partnership of PP Smit Attorneys.

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners.