South Africans have a legal remedy called “mandament van spolie”, which they can use if they are illegally evicted.

The legal tool focuses on restoring possession, but it does not pronounce on the lawfulness of the possession or deal with the merits of a dispute.

A mandament van spolie order urgently restores undisturbed possession unconditionally when someone is unlawfully disposed of something, but it cannot be reshaped into a merits-based enquiry.

It is a summary remedy designed to restore factual possession to a person who has been unlawfully dispossessed, without regard to the merits of the underlying dispute, the lawfulness of the occupation, or the contractual rights of the parties.

The court retains a narrow discretion at the periphery of its application to structure the manner of restoration in a way that avoids immediate and irreparable hardship, particularly to children, a Western Cape High Court judge explained.

The court dealt with an illegal eviction of four people from a Cape Town property. While ordering that the four must immediately be allowed to move back, the court made it clear that this legal tool does not legitimise self-help.

“It merely ensures that the restoration of possession, which must occur, is implemented in a manner consonant with the constitutional values of dignity, care, and humanity,” the court said.

It is now up to the property owners who illegally evicted the four to follow the legal route to ensure their eviction after proving that their occupation of the property is illegal.

The occupants (applicants) said they were illegally kicked out of the property on New Year’s Day, as the owners (respondents) had decided to move back.

The property at the centre of this application comprises a main building with a garage and an outhouse. The respondents had returned from overseas a few months earlier. Their position was that they have two children and could not afford to live in a guest house any longer.

They returned to the property on January 1 with the assistance of the police. The applicants and the other occupants were removed from the premises. The respondents contend that they left voluntarily, but the court noted that the circumstances, including the presence of SAPS and the fact that several occupants fled or sought refuge on the roof, strongly suggest that the departure was not voluntary.

No eviction order existed at the time, and the dispossession was therefore, on the face of it, unlawful, the court said.

The respondents have raised concerns regarding the number of persons who resided with the applicants and the condition of the property. “These matters fall outside the scope of the mandament. The remedy is concerned solely with restoring factual possession as it existed immediately before the dispossession,” the court said.

It commented that the courts may not regulate the terms of occupation, limit the number of persons who may reside with the applicants, or impose conditions relating to the use of the property. Any concerns regarding overcrowding, damage to the property, or breach of lease must be addressed through the appropriate eviction or civil processes.

“The mandament van spolie remains one of the law’s most unyielding remedies. It is deliberately narrow, concerned not with fairness, nor with the merits of occupation, nor with the equities between the parties. It is not a remedy about who deserves to be in the house, nor about who has children, nor about who has nowhere else to go,” the court said.

“It is, instead, the legal system’s firewall against self-help, the mechanism by which the rule of law insists that unlawful acts would not be tolerated,” the court said.

zelda.venter@inl.co.za

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