1. Section 4 of the Prevention of Illegal Evictions From and Unlawful Occupation of Land Act (No 19 of 1998) read together with Section 26 of the Constitution of the Republic of South Africa, 1996 and the common law remedy of mandament van spolie are easily the most important laws for millions of South African who, under the current lockdown regime, are in occupation of houses and properties that they do not own.
2. The above reality dawned on me when I was briefed as Counsel to render legal assistance to foreign residents of an entire block of flats in the centre of Johannesburg when the administrators and owners of the flats by means of self-help decided to embark on a rampage removing access gates and doors for tenants who failed to pay their rentals for the month of May 2020. The reality of the matter being that those same tenants will not be able to pay rentals for the months of June 2020 and furthermore for a number of months still to come.
3. This article therefore is an extract from the heads of arguments I have drafted in preparation for court and while the matter remains sub iudicae no reference shall be made herein to names of actual persons or places. The decision to publish this arises from the demonstrable importance of the issues under discussion.
4. In reaction to the landlord and administrators decision what we have placed before the court is an application for grant of an interdict in the form of a remedy known as the mandament van spolie as it was known in the common law.
5. What ought to be pointed out is the fact that the property in question is home and provides housing to the hundreds of foreign nationals and their families living there. This includes minor children, women and even households headed by women and children.
6. The facts above bring to the fore the provisions of section 26 and 28 of the Constitution of the Republic of South Africa as well as the procedure set out in Section 4 of Act 19 of 1998. It is, we asserted, the best interests of these children as called for in Section 28 of the Constitution which renders our application the more particularly urgent.
7. Furthermore, it is Applicants’ and the children’s right to housing as guaranteed by section 26 of the Constitution read together with the common law remedy of spoliation as furthermore codified in Section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Lands Act which forms the basis of our application.
8. The matter is capable of being summarily resolved on the papers before the court since there are no material disputes of facts at least on that which is essential for the court to consider before granting spoliatory relief as prayed for.
9. The requirement for spoliatory relief are settled. See decision in Yeko –v- Qana 1973 (4) SA 735 (A). All that Applicant need to show is that:
   • He was in peaceful and undisturbed possession or control of the property in question.
   • That the Respondent has disturbed the peaceful and undisturbed possession of the property.
   • That the Respondent’s conduct was unlawful.

PEACEFUL AND UNDISTURBED POSSESSION.

10. The First Requirement stated in the Yeko –v- Qana decision cited above is that the Applicant must have been in peaceful and undisturbed possession or control of the property in question.
11. What this entails is that the applicant must have had durable occupation of the property prior to spoliation. By durable is simply meant that they had established their possession and control to the exclusion of others immediately prior to the conduct complained of.
12. Most of the Applicants had stayed at the property for many years prior to the lockdown regulations and had leased the premises for durations ranging from two years with the longest staying tenant having been there for the past eleven years. Many can thus say they have known no other home for at least the past two years other than the flat in question. On that score alone the Applicant have always had control and use of the property in question which satisfies the first requirement for spoliation as enumerated in the Yeko –v- Qana decision.
13. In view of the history of their occupation of the property, the application is therefore a matter in which Applicant wishes to remain in control of the property until such control is properly terminated by and in terms of the law. Under the common law, the Applicants in such cases are said to be exercising their ius possessionis.

RESPONDENT DISTURBED PEACEFUL AND UNDISTURBED CONTROL.

14. The second requirement in Yeko –v- Qana is that the Respondent must have interfered with Applicant’s peaceful control.
15. By disturbing the possession and control, all that the law requires is that the respondent embarked on any conduct that is adverse to the enjoyment of peaceful exercise of control. This includes any conduct that physically puts the Applicant’s occupation at the mercy of the Respondent. In gated complexes, this will include deactivation of access devices, the locking of gates and removal of doors, the locking of doors or any such conduct as may have the effect of rendering continued peaceful occupation impossible.

DISPOSSESSION MUST HAVE BEEN UNLAWFUL.

16. By its very nature, a mandament van spolie order is a common law remedy aimed at protecting and restoring peaceful resolution of disputes. Whenever a party, by unlawful means, disturbs possession, the court should react by summarily restoring peaceful possession without investigating the merits or otherwise of each of the parties' claim to the property in question. It therefore matters not whatever defense or justification the Respondent may have in acting in the manner complained of. For as long as the threatened despoliation is not sanctioned by the court and carried out by the Sheriff of the Court, the conduct remains unlawful for spoliatory purposes and susceptible to summary interference by the court.
17. All Applicant requires is that the court directs the Respondent to summarily restore peaceful and undisturbed possession of the residential property to them.
18. Wepener in Shanika Investments 85 (Pty) Ltd –v- The City of Johannesburg Case No 8187 / 2018 (South Gauteng Division at page 8) wrote as follows on the question of unlawfulness of deprivations of this nature:
    

    “wrongful deprivation in this context means deprivation against the will of the person and without resort to legal process.
    
    A person cannot under the colour of right dispossess another and that is what the Respondent in this case did, because by so doing he takes the law into his own hands and this is something the court cannot and will not permit.”

19. In Allisto Crete (Pty) Ltd vs Dickens 1953 (2) SA 644 (SR), the court held in the context of spoliatory relief that:
    

    “wrongfulness in the context means nothing more than without any special legal right to oust the person from possession.”

20. Demonstrably, therefore, any despoliation by the Respondent will be unlawful within the definition ascribed to that concept in the case law cited above for as long as the deprivation was against the will of the person and without resort to legal process as per the case law above.
21. What this therefore means is that whenever despoliation or eviction is carried out without resort to legal process and more specifically without following the procedure provided for in Section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (No 19 of 1998), then whether or not the tenants have paid their rentals or otherwise complied with the terms of their lease agreement ceases to matter, at least for purposes of the application.

THE QUESTION OF COSTS OF SUIT.

22. Dealing with the issue of costs in SOLID BUILD CONTRACTORS CC –v- JOHANNES PETRUS JACOBS & Others (Case No 229 / 2017 (Free State Division, Bloemfontein), SNELLENBURG AJ referred to the old decision in IN RE ALLUVIA CREEK LTD 1929 CPD 532 at 535 where the following pertinent point was made:
    

    An order is asked for that he pays the costs between attorney and client. Now sometimes such an order is given because of something in the conduct of a party which the court considers should be punished, malice, misleading the court and things like that, but I think the order may also be granted without any reflection upon the party where the proceedings are vexatious, and by vexatious I mean where they have the effect of being vexatious, although the intent may not have been that they should be vexatious. There are people who enter into litigation with the most upright purpose and a most firm belief in the justice of their cause, and yet whose proceedings may be regarded as vexatious when they put the other side to unnecessary trouble and expense which the other side ought not to bear.

23. Demonstrably, the conduct of any landlord that takes the law into their hands as per the above has the effect of putting the other side (the tenant) to unnecessary trouble and expense which the other side ought not to bear.
24. And for that reason, it is vexatious and deserves punishment through a special order as to costs in favour of the applicant.
25. AND FINALLY, despite the challenging and unprecedented times we find ourselves in, the law does have a remedy. There has always been a remedy way before our time.

Seek competent legal advice and guidance to protect your home and dignity under the current lockdown regime.

By Counsel: Adv I Mureriwa.
Advocate of the Superior Courts of South Africa
Attorney of the Superior Courts of Zimbabwe
+27 71 151 9000
advmureriwa@yahoo.com
PRETORIA.