By Maike Gohl, Senior Associate and Anja van Wijk, Senior Associate
Introduction
This article discusses the possible repercussions of landlords that undertake “self-help” evictions when it comes to removing occupants from their properties. Self-help evictions are attempts at removing anybody from a property without the necessary court order, and are also called unlawful evictions.
What are self-help evictions?
Every possessor of property, whether that person is occupying the property lawfully or not, has the constitutional right not be deprived of such property against their will, unless such deprivation is sanctioned by an order of court. Any attempt to circumvent the court’s authority, whether directly or indirectly, can be considered to be a self-help eviction and is unlawful.
Why do people resort to self-help?
Considering costly legal fees, the somewhat socialistic nature of the legislation which governs evictions and the delays involved in litigation, while the occupants remain on the property without paying rental, it is unsurprising that some landlords attempt to take the law into their own hands by infringing on the occupant’s right to possession of that property. This is often done before a court order has been obtained to remove the occupant from the property lawfully.
Attempts at self-help eviction also flow from an emotional response to an exceptionally frustrating situation where the relationship between landlord and occupant is extremely strained.
Any attempt at a self-help eviction may merely put the landlord in a much worse situation. Bearing in mind the amount of information freely available to occupants on the internet, self-help evictions are rarely ever successful. It is inevitable that the occupant shall be made aware of their rights against a Landlord who acts unlawfully and is perfectly able to immediately seek relief against such Landlords.
Consequences of self-help evictions
Once any attempt has been made to remove the occupant from the property, whether it be taking off of doors, cutting electricity or water, harassment, moving yourself as the Landlord or other occupants into the property, it is fairly easy, quick and inexpensive for an occupant to remedy this situation and force the Landlord to give full and undisturbed occupation back to the occupant.
An urgent application for spoliation is brought against the Landlord by the occupant themselves or by their legal representative and such an application shall in all likelihood be granted. This remedy can take a day or two to be granted, (the Landlord need not even be notified of this application being brought) and once granted, the Landlord shall be forced to return full possession to the occupant.
If represented, this shall also mean that the Landlord is liable for the occupant’s legal fees, which can range from anywhere between R15 000.00 to about R60 000.00. Not only that, once lawful eviction proceedings do commence the occupant shall feel more empowered and the occupant tends to fight the eviction application with more vigour than they would have, had the spoliation not occurred.
Lawful eviction proceedings
Eventually, when a formal eviction application is brought in court, all relevant facts must be brought to the court’s attention, which includes any and all attempts by the Landlord to unlawfully evict the occupants. Courts do not look kindly upon persons who take the law into their own hands and if severe enough, the court may consider that the occupant’s personal situation is grave enough and Landlord’s actions were severe enough to validate a refusal in granting the eviction, based on justness and equitability.
Should the eviction be granted, the court may decide to provide the occupant more time to vacate the property (for instance by providing the occupant 2-3 months to vacate the property as opposed to the more common period of 1 month) and/or may refuse to grant the Landlord their legal fees.
Furthermore, once the Rental Housing Amendment Act, 35 of 2014, comes into operation, a person undertaking a self-help eviction may be guilty of a criminal offence, which may result in a fine or up to two years’ imprisonment.
Conclusion
Although a self-help eviction may seem like the easiest and cheapest route, in the long-run it may lead to dire consequences which would only cause more financial prejudice and encumber the property further. It would ultimately be inadvisable to allow an occupant to win the first battle when there is still a war to be fought and in fighting such a war, it is advisable to have an experienced and competent legal team leading the charge for you.
