There is a very good reason why they say that “possession is 9/10ths of the law” as the concepts of possession and ownership are entirely distinct and are treated very differently in our law. Just because you are the owner of a thing, this does not mean that you are entitled to possession of a thing.
The mandament van spolie (also known as the spoliation remedy, or the mandament) is an ancient remedy available to any person who is ‘dispossessed’ unlawfully (meaning that something in his or her possession has been taken away from him/her) without a court order, or authorizing legislation for the dispossession, or without the possessor’s consent. This remedy focuses on protecting possession and does not protect ownership at all. Very basically, there are (generally speaking) two requirements that a dispossessed person needs to prove in order to succeed in court:
- Showing that there was actual dispossession (i.e. that the person was actually in possession of the object at the time of dispossession) and
- That that dispossession was unlawful (i.e. it was not done with consent, a court order or authorizing legislation).
It is a “summary remedy”, which looks at one the issues listed above, and not at the issue of who the owner is, or who in law is entitled to possess the thing. For example, a thief who steals your car, and then in turn is dealt a taste of his own medicine when you (or your vehicle tracker company) track it down and take it back, can apply to court for an order that you return the car to him, based on the mandament – because the thief was dispossessed of the car against his wishes, without a court order and without authorizing legislation. The owner could, however, claim the car back from the thief on the basis of another legal remedy based on ownership, called the rei vindicatio. The owner is not without a right to claim the return of the car, but he can’t physically take it back without a court order (or consent, or legislation authorizing him to do so), because to do so would be unlawful.
This may seem absolutely absurd – how on earth can the law protect a thief from having to return stolen goods to the owner? The answer lies in the reason that the mandament exists in our law. Courts frown on people taking the law into their own hands and doing anything against another person’s wishes without a court order or authorizing legislation (like, for example, cutting off electricity and water to a leased property or taking back possession of something that was taken from you). The purpose of the mandament is to maintain order in society, and to prevent any unauthorized “grabbing” by any person, even the owner of the thing.
Application to Landlord/Tenant situation
A person who has been unlawfully dispossessed can apply to court to have the thing returned to him/her, even if that person is not the owner. The mandament thus sometimes causes frustration to landlords, who attempt to pressure tenants into paying their arrears by depriving those tenants of some element of the use and occupation of the property. Common examples include landlords removing doors/gates, moving new tenants into the same property or a part thereof, cutting of the electricity/water supply, or other services like internet, DSTV, etc, or even simply throwing the tenant out on the pavement (lock, stock and barrel). All of these actions (if done without a court order, and without the consent of the tenant or authorizing legislation) are unlawful and the tenant can apply to court for an order that he/she be immediately restored to the property (i.e. left back in) or that whatever other infringement the landlord has devised immediately cease. This often happens where the tenant is in arrears.
Justification for existence of mandament
Our law developed to protect tenants from this kind of ‘dispossession’ of their rights of use and enjoyment of the property so that society doesn’t descend into chaos – we don’t have landlords cutting off and tenants disputing the cut offs – rather the court authorizes the cut off in advance and in doing so upholds both the landlords and tenant’s rights simultaneously.
By applying the mandament van spolie against any person who may have unlawfully deprived another person or possession or quasi-possession (even against an owner), judges and magistrates are attempting to preserve order and peace in society and restore any person who has been unlawfully dispossessed to possession of the property (whether such possession is lawful or not).
The forgotten requirement – protection of possessory or quasi-possessory rights
The question is how far the mandament goes, in relation to non-paying tenants who are claiming that they have been unlawfully dispossessed of some or other aspect of their right of occupation of a property. Does it (or should it) protect non-paying tenants, who agree contractually (freely and voluntarily) to pay their rent and utilities, and then refuse or fail to?
A legal debate is presently raging amongst legal practitioners (and the judges and magistrates that they appear before) in terms of the third, seemingly tacit (and often forgotten or ignored) requirement for the mandament to apply. In a relatively famous case (Impala Water Users Association v Lourens NO and Others) the court said the following:
‘The mandament van spolie does not have a ‘catch-all function’ to protect the quasi-possessio of all kinds of rights irrespective of their nature. In cases such as where a purported servitude is concerned the mandament is obviously the appropriate remedy, but not where contractual rights are in dispute or specific performance of contractual obligations is claimed: Its purpose is the protection of quasi-possessio of certain rights. It follows that the nature of the professed right, even if it need not be proved, must be determined or the right characterised to establish whether its quasi-possessio is deserving of protection by the mandement. Kleyn seeks to limit the rights concerned to ‘gebruiksregte’ such as rights of way, a right of access through a gate or the right to affix a nameplate to a wall regardless of whether the alleged right is real or personal. That explains why possession of ‘mere’ personal rights (or their exercise) is not protected by the mandament. The right held in quasi-possessio must be a ‘gebruiksreg’ or an incident of the possession or control of the property’.
The paragraph quoted above explains the third requirement – that the right that the person deprived is seeking to protect not be only a “mere personal right”, but is something more – i.e. it must be a statutory right (as it was on the facts of the Impala Water Users case) or a real or limited real right to the possession or control of the property. The next relevant question is then whether “mere personal rights” to the use and enjoyment of the property (such as those that arise from unregistered lease agreements) are capable of protection by the mandament, or whether they must rather be protected by invoking the provisions of the lease.
Can a person “possess” water and does the mandament protect it?
In the Bon Quelle case the court confirmed that a person’s right to services, specifically water usage, at a property, is considered to be an incident of the use and possession of the property (called “quasi-possession”) and therefore is protected by the mandament. This reasoning was taken a step further in the Impala Water Users case, where (with reference to the Telkom case) the court inferred that any right to the use and enjoyment of a premises, even if arising from a lease (which, if not registered, would normally only create “mere personal rights”) is protected by the mandament. It thus appears that even “mere personal” rights to use and enjoyment of a property, created by unregistered lease, will qualify for protection by the mandament. Additionally, in Joyce Ntombela and Another v Baramall (Pty) Ltd (case number 07/13808 in the South Gauteng High Court on 4 July 2007) (the Ntomebela case”), the court found that although in most cases the court will protect the supply of electricity and water to a property as an incident of the use and possession of that property and thus protected by the mandament, this is not ipso facto the case. To the extent that such a supply is not an incident of the use and possession of the property, it will not be protected by the mandament. However, each case must be decided on its own facts.
Can a person “possess” electricity and does the mandament protect it?
Similarly, the Naidoo and Fronman cases held that because the electrical installations formed part of the premises of which the tenant had control, the supply of electricity to the premises was closely enough connected to the premises to equate dispossession of the electrical supply to the dispossession of the use and occupation of the premises.
Can a person “possess” telephone/internet access and does the mandament protect it?
However, the above cases dealing with electricity and water can be distinguished by for instance the Telkom case, wherein the case found that because the services (in this case the internet service) were controlled off-site from the property in question, and the supply of services (or rather the termination thereof) did not affect the tenant’s use and enjoyment of the property, there was not a strong enough link between the property and the services to allow the tenant to apply for a spoliation order against the landlord. The court thus found that the service in question (internet services) was not protected by the mandament. The right to the supply of this service was a mere personal right that arose from the lease contract and could only be enforced through the lease and not through the mandament. This creates an important precedent for the proposition that a landlord is able to lawfully disconnect some types of services supplied to tenanted properties without a court order, such as internet or telephone services, and other services that are “mere personal rights” that arise only from the lease agreement, provided that they are not the kinds of services (like water and electricity) that affect the tenant’s use and enjoyment of the property. In the Ntombela case, the court found that the person spoliated had not proven that the right to the supply of services was an incident of the use and possession of the property and so the court did not permit the protection of that supply by the mandament. The court concluded in the Ntombela case that it was lawful for the landlord to terminate the service supply in terms of the lease, because:
“In the present case the terms of the contract between the parties regarding the supply of the electricity service are clear and unambiguous and there is no good reason why the court should not uphold the agreement between the parties in these circumstances.”.
A Fresh (and Critically Overdue) Approach
Up until now, based on the case law quoted above, most judgments have confirmed that all disconnections of water and electricity services to a tenant by the landlord is an unlawful eviction. The authors hereof, however, are of the view that there is an argument to be made that in certain circumstances, a landlord disconnecting a tenant’s services is not an unlawful spoliation of a tenant’s possession, and would like to challenge the automatic assumption by the courts that water/electricity disconnections to tenanted buildings are always unlawful, on the following grounds:
- Reciprocity of performance in lease agreements -if a tenant does not comply (by not paying), a landlord does not have to comply (by supplying electricity/water)
It is trite law that a tenant is obliged to effect rental and utility payments as set out in the lease. There is precedent to the effect that the landlord does not have a reciprocal duty to provide full possession of the property to the tenant if the tenant is in breach of the lease agreement and his/her obligations. It is our view that this precedent can be extended to provide that a landlord of a non-paying tenant does not have to continue to supply municipal services to a non-paying tenant and the property on the basis of the contractual principle of reciprocity.
- A landlord is obliged by law to mitigate his damages – and continuing to supply electricity/water to a non-paying tenant contravenes this principle
When a tenant breaches a lease agreement, it is the obligation of the landlord to mitigate his or her damages as much as possible. With electricity and water consumption charges always ultimately being for the landlord’s account, this obligation is doubly important. For this reason, the mandament should not protect the disconnection of electricity and water supply to a property, because it conflicts with the landlord’s duty to mitigate his damages in terms of the lease.
- Constitutional considerations
The Constitution guarantees the right of access to water, and not to water itself. This has been interpreted to mean that the state (and not private landlords) must provide access to water (and not necessarily free water) where the state has the financial resources to do so. There is no constitutional protection of electricity supply. Furthermore, the Constitutional Court has said that it is not the responsibility of private landlords to shoulder the state’s burden to provide accommodation to those who cannot afford it – it is the state’s responsibility. Seeing that there are no guaranteed rights to water, or electricity for that matter, and further that it is not a private landlord’s responsibility to provide housing (and/or services supplied thereto) to persons who cannot afford it, it is arguable that the mandament should not protect the supply of electricity and water to a property, because it is the state (who can chose to provide free services to the tenants at that property, if it so choses, perhaps on some kind of application basis) and not the landlord who has any duty to provide those services to the tenants. Thus although it is certainly true that the supply of electricity and water to a property increases its value and certainly supplements the tenant’s use and occupation of the property – and whilst we recognize that living in a property as a tenant without these services is inconvenient and that it does not allow a tenant to do all of the ‘normal’ things with the property that he/she would be able to do if it were serviced – this does not mean that the tenant’s use and occupation of the property (which right to use and occupation is by no means complete or absolute in our law and is limited in law by many other things, such as zoning laws, health and safety laws, etc.) should not be understood as being inherently limited by the bounds of the lease – i.e. if you agree to pay your rent/utilities and you fail to do so, your rent/utilities can be taken away from you. This would (in our view) be an entirely justifiable limitation of the tenant’s rights of use and occupation – if the court decided that the mandament did not protect the tenant from disconnection by the landlord of utilities for non-payment.
- Residential v Business properties – and the right not to be evicted from your home without a court order
Section 26 of the Constitution guarantees that no person may be evicted from their home without a court order, and the context in which it appears in section 26 makes it clear that this right only applies to individuals in the context of their right to housing.
Although it is recognized that certain non-individuals (juristic persons, like companies or trusts, etc.) are entitled to the rights in the bill of rights in certain limited situations, this does not detract from the obvious conclusion that there must be a stricter test applied to the facts of the case where the tenant is residential than where the tenant is a business – because a business cannot normally be the bearer of constitutional rights to water, or to housing, whereas a residential tenant bears those rights. It is thus submitted that businesses (who are not normally bearers of constitutional rights, to water, or housing, and certainly not to electricity) should not be protected by the mandament against the disconnection by the landlord of utility supply for the reasons listed above. To the extent that a court finds that residential tenants continue to be protected by the mandament, it is our submission that this should not extend to business tenants.
A few words of warning in attempting a disconnection:
The application of the arguments above does not apply to each and every landlord-tenant relationship and it is imperative to get proper legal advice before attempting this argument in court. Specifically, before a landlord attempts a disconnection, an attorney would need to consider whether the disconnection could be lawful and if so, how to go about the disconnection (whether to for instance provide the tenant with a breach letter, demanding payment and threatening disconnection before attending to the disconnection). Sometimes an attorney would advise that just to be safe, it may be advisable to apply to court to allow the disconnection (a court-sanction disconnection).
In all cases whereby a disconnection is a possibility, one needs to consider the following: –
- Although the disconnection may be lawful, if the judge or magistrate considers the disconnection to be purely an attempt at an illegal eviction instead of an attempt at mitigating damages suffered, an order may be granted against a landlord. There are always risks involved and none more so than in an attempt to disconnect a tenant’s services because as outlined above, the views in relation to the disconnection of a tenant’s services are very different among the legal fraternity;
- A spoliation application may be heard and granted in a magistrates’ court chambers meaning that the landlord has no opportunity to bring the above or any other argument against the granting of the order. Further, once a spoliation order is granted against a landlord, which can happen within a few hours or days, usually a cost order is awarded against the landlord to cover the legal fees incurred by the tenant. These legal costs can range from R20 000.00 to R80 000.00;
- Any disconnection, whether lawful or not, may jeopardise any eviction application which is under way or in the pipe-lines and a magistrate or judge may consider the fact that the tenant has been disconnected in the eviction judgment and decide to give the occupant more time in order to vacate the property or understand the disconnection sa part of a pattern of abuse by the landlord; and
The issue of whether landlords can cut off electricity/water supply to a tenanted property is contentious and legally complex, and each case must be considered on its own facts. Although the majority of judgments that have been reported over the years give the reader the impression that a landlord is never entitled to cut off without a court order, there are strong legal and practical reasons why a court should consider interpreting the third requirement for the mandament (that the right not be a “mere personal right” to service supply) with fresh eyes, through the prism of the Constitution, with the ultimate aim of affording landlords better protection from non-paying tenants by finding that the mandament does not protect the right to the supply of electricity/water at a leased property and that such rights should rather be enforced by the tenant through the lease.
 Yeko v Qana 1973 (4) SA 735 (A) 739 D-G.
 (087/2003)  ZASCA 15; 2008 (2) SA 495 (SCA  2 All SA 476 (SCA) (26 March 2004).
 Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 509 (A).
 (92/2002)  ZASCA 35 (31 March 2003).
 Naidoo v Moodley 1982 (4) SA 82 T.
 Fronman v Herbmore Timber and Hardware (Pty) Ltd 1984 (3) SA 609 (W).
 Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA).
 Firstrand Ltd t/a Rand Merchant Bank v Scholtz NO 2008 (2) SA 503 (SCA); Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA).
 Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others (CCT1/00)  ZACC 12; 2000 (10) BCLR 1079 ; 2001 (1) SA 545 (CC) (25 August 2000)