Rental Housing Tribunal and Spoliation Orders in South Africa

The Powers of the Rental Housing Tribunal to issue Spoliation Orders

The unlawful deprivation of possession, whether through eviction, lockout, or interference with use, remains a recurring issue in landlord-tenant relationships. One of the most powerful remedies available in South African law to address such conduct is the mandament van spolie.

The mandament van spolie is a possessory remedy with roots in Roman and Roman-Dutch law. Its fundamental purpose is to restore the status quo ante (“the state of affairs that existed previously”), where a person has been unlawfully dispossessed of property, without enquiring into the merits of the underlying rights of the parties.

The Latin legal maxim spoliatus ante omnia restituendus est (“the despoiled person must be restored before all else”), is the foundation of the mandament van spolie. The remedy gives effect to the principle that no person may take the law into their own hands. In practical terms, it serves to discourage self-help and uphold the rule of law.

It is trite that in order to succeed in a spoliation application, an applicant must prove two essential elements:

1. Peaceful and undisturbed possession of the property in question; and
2. Unlawful deprivation of that possession.

Importantly, the lawfulness of the applicant’s possession is irrelevant. Even an unlawful occupier may obtain spoliation relief if dispossessed without due process.

The Rental Housing Tribunal: Statutory Framework

The power to grant a mandament van spolie traditionaly falls within the jurisdiction of the High Court and Magistrates’ Courts, where it is often sought on an urgent basis.

The Rental Housing Tribunal (“RHT”), established in terms of the Rental Housing Act 50 of 1999 (“the Act”), is a cost-effective and accessible alternative forum for addressing unfair practices in the rental housing sector,

An “unfair practice” is broadly defined and includes conduct that unreasonably prejudices the rights or interests of a tenant or landlord, for example unlawful lockouts, disconnection of electricity or water, and/or denial of access to leased premises.

In terms of section 13 of the Act, the Tribunal has, among other things, the authority to:

1. Investigate complaints relating to unfair practices;
2. Conduct hearings; and
3. Issue rulings that are deemed to be orders of a Magistrates’ Court.

Furthermore, the Act specifically grants the RHT the power to issue spoliation orders, which may include orders compelling a landlord to immediately restore possession to a tenant.

In terms of section 16(g) of the Act, any person who refuses to comply with any ruling of the RHT will be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years or to both such fine and such imprisonment.

While section 13(12A) of the Rental Housing Amendment Act 35 of 2014 intends to amend the Act in order to grant the RHT the power to rescind or vary its own rulings, its effective date is yet to be proclaimed.

This means that where a landlord, for example, is subject to a ruling issued by the RHT, and is unable to comply with it for any reason, he or she would be required to approach the High Court to have the ruling reviewed and set aside.

In these circumstances, landlords must be particularly mindful that any form of self-help may expose them to significant legal risk, including binding RHT rulings and potential criminal liability for non-compliance. The absence of a fully operative mechanism for the RHT to rescind or vary its own rulings creates a clear legal lacuna, which places an additional burden on affected parties to seek relief from the High Court. Therefore, the safest course for landlords remains strict adherence to lawful procedures and a cautious, legally compliant approach in all dealings with tenants.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.