You are asleep on a freezing cold night with your child when you hear a racket.
You are suddenly surrounded by big men you do not know and they drag you out of your house. Your furniture and precious possessions are thrown out. It turns out that you are being evicted by your landlord’s henchmen because you have failed to pay your rent. This is a very common scenario in South Africa, and many have been kicked out of their own homes.
Is there a solution to their problem?
The truth is that we cannot take the law into our own hands. Assuming that we are the landlord, we cannot evict tenants off of our property simply because their rent has not been paid. The Protection From Illegal Evictions Act protects these people, and the law does not take kindly to those who evict these individuals on their own terms, especially when children and the elderly are involved. No one can take back something that is in your possession without a court order, even if you are in arrears.
The good news for a victim who has been evicted without a court order is that there is an immediate remedy. A spoliation order can be obtained urgently at a Magistrates’ Court. The victim need not use an attorney and this process is practically cost free. A spoliation order can be used to regain the property which has been taken away from you. This order is, in essence, an order from the court ordering that an item of property be returned immediately.
This remedy applies to many circumstances, not only fixed property. The same order would apply to a credit provider who repossesses your car without a court order.
Although one may empathise with the landlords who desperately trying to collect their rent, one must remember that it is against the law to evict a tenant without a court order. We simply cannot take the law into our own hands.
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