In terms of the law, the Landlord enjoys a special protection assisting in the collection of arrear rental from tenants, which is called the “LANDLORD’S HYPOTHEC”. Any action taken in the collection of arrear rental is based upon this protection. The hypothec allows the Landlord to sell the movable goods of the tenant (and in certain instances movables of a third party) which are on the leased premises, if the tenant fails to pay the rent.

The hypothec exists from the date of the tenant’s occupation of the leased premises, but becomes legally enforceable once a Court Order is obtained. Therefore, prior to a Court Order being obtained, the tenant is free to remove the movable goods from the premises at any time. The Landlord may also bring the hypothec into effect by interdicting the tenant from removing goods from the premises. Thus included in an arrear rental Summons is an Automatic Rent Interdict. Service of this Summons on the tenant brings the hypothec into effect. However, if the tenant removes goods, even after service of the summons, the hypothec basically becomes unenforceable, as until it is perfected by means of a Court Order, the hypothec ceases to exist once the movables are removed from the leased premises. The tenant will have committed an offence in removing the movables, but in reality there is no relief for the Landlord. The police will not get involved, as they consider this to be a civil matter.

There is a way to avoid this situation. Section 32 of the Magistrate Courts’ Act empowers the Landlord to attach and simultaneously remove the tenant’s movables from the leased premises in security of rent. In effect, the Sheriff serves the Summons and attaches and removes the tenant’s movable goods to the value of the arrear rental plus costs. The Sheriff pending finalisation of the action then stores the movables. This obviously secures the rental and costs and also acts as an incentive for the tenant to make payment of the arrear rental immediately, as he will want his movables back.

Section 32 requires a formal application to Court supported by and affidavit from the Landlord, or the Landlord’s agent, in which, the deponent must state under oath:

• The amount of the rent which is due and in arrears in regard to the premises;
• That despite written notice demanding payment of rental within 7 days of delivery to the tenant either by registered post, or by hand, such arrear rental remains unpaid; OR
• That he believes that the tenant may abscond in order to avoid paying the rental due.

It must be noted that Section 32 can be quite an expensive procedure as the storage costs of the movables add up very quickly. Depending on the results required, these two procedures, Summons (with an interdict) and Section 32 removal, can be used in combination, or one can simply proceed on Summons alone.

It is a reality that when faced with a tenant, who is in arrears, some Landlords consider taking the law into their own hands, for example by either locking the tenant out of the property or cutting off the electricity or water supply to the property. This can be an expensive course of action for the Landlord.

The Landlord has a duty to allow the tenant undisturbed use and enjoyment of the leased premises for the duration of the lease. Should the Landlord breach this duty, the tenant has the right to apply to Court, for a SPOLIATION order. This means that the Court will order that occupation of the property be restored to the tenant and the Landlord will be liable for the tenant’s legal costs of the Spoliation Application, which can be quite substantial. The law also provides that where a tenant is unlawfully deprived of his use and enjoyment of the premises in this manner, he is not required to pay rental during the relevant period.

The following cases will demonstrate the repercussions of a Landlord taking the law into his own hands:

• Locking Out NTSHWAQELA & OTHERS v CHAIRMAN, WESTERN CAPE REGIONAL SERVICES COUNCIL, & OTHERS 1998(3) 218 CPD The applicants had lived illegally in shacks on some land. The police and the Council to move the applicants to a township mounted a removal operation. The applicants launched a Spoliation Application, alleging that they were illegally deprived of the undisturbed use and enjoyment of the land in question. The Court found that all the applicants had to prove was that they were in possession of the land and ordered that they be returned to the sites in question and that they be restored to the position they were in prior to their removal. The respondents were ordered to pay the costs of the applicants herein, and effectively, had to re-build their shacks.
• Cutting Off Electricity Supply NAIDOO v MOODLEY 1982 (4) 82 TPDLandlord gave tenant notice terminating the lease. Summons was issued, however, the parties settled the matter agreeing that the tenant would vacate the property on 1 April 1981. Tenant did not vacate and was again sued for ejectment. On 9 May 1981 the Landlord cut off the electricity supply. The tenant successfully applied for a Spoliation Order against the Landlord. The Court found that the use of electricity was an incident of occupation and that by cutting off the electricity the Landlord had substantially interfered with the tenant’s occupation. The Landlord was ordered to restore the electricity supply and pay the tenant’s costs of the application.

Flow chart of the procedure involved when taking legal action against a tenant.

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