ONE CANNOT TAKE THE LAW INTO YOUR OWN HANDS

TO ALL ESTEEMED BUSINESS PARTNERS

Number

02/2017
It is trite law that one may not take the law into your own hands.  It often occurs that a tenant breaches the provisions of the lease agreement and the landlord prevents such tenant from possession by replacing the locks, alleging that the tenant's occupation was illegal.
 
In the recent judgement of Taddese and Others v Peer NO and Others (5250/2016) 2016 ZAKZDHC26 (4 August 2016) (case attached for ease of reference) the mandament of spolie (an application to restore possession that has been unlawfully disturbed) was again placed under the spot light.
 
In this judgement the court held as follows:  
 
"It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable.  If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute."
 
The requirements for a successful spoliatory relief are as follows:
  • that the applicant was in peaceful and undisturbed possession of the disputed premises; and
  • that the applicant was deprived of possession without consent or recourse to law.
The mere fact that an applicant's possession was wrongful or illegal, is irrelevant as the bottom line is one cannot take the law into your own hands.
 
Conclusion
 
When the two requirements referred to supra are proved, possession will be restored without any enquiry being made into the legal rights of the parties to possession.
 
For any queries please contact our property law division at the details below:

Allen West
Tel: 012 425 3549
awest@macrobert.co.za

Daleen Loubser
Tel: 012 425 3489
dloubser@macrobert.co.za

Disclaimer: This newsflash is for general information only and should not be used as legal or professional advice. No liability can be accepted for any errors or omissions, nor for any loss or damage arising from reliance and any information therein