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Eviction law case summaries

How to defend against eviction

Eviction – how to defend against eviction by your landlord

By | Appeal of an eviction order, Eviction notice, Evictions, Rental Housing Act

You are not helpless – you can defend yourself

Your home should be your castle, or at least your sanctuary. It is where you feel safe, even when the world outside your door is battering you. It is where you share happy – and sad – times with your family. What happens when your home is threatened, when your landlord warns you they are about to serve you with an eviction order? How do you defend against eviction? Just as your landlord must follow a defined procedure, there is also a process you can follow to fight the eviction.

Eviction procedure

Firstly, the eviction procedure is a lengthy process that gives you ample opportunity to put things right before the landlord goes to court to secure an eviction order. With a residential property lease, once there is a breach of contract, for example non-payment of rent (the most common reason for eviction), the landlord is entitled to give notice of their intention to cancel the lease and evict you. When you receive this notice you have a period of time in which you can rectify the breach, i.e., pay the rent arrears. If you are in financial difficulties and are unable to pay all the rent owed, we recommend you talk to your landlord and try to negotiate a payment plan. Most landlords are reasonable and good communication is the solution to many problems. However, If the landlord has given this written notice and the notice period has expired and you have made no payment, eviction proceedings can begin. If the lease is cancelled for any other breach, that must also be rectified within the notice period.

Once a notice of cancellation has been sent and the notice period has expired, the court process may begin, through the service of summons by the Sheriff. You then have 10 days to defend the summons by filing and serving a Notice of Intention to Defend. 

Trial

If the matter is opposed it moves to trial. Before a court can grant an eviction it has to consider all the relevant circumstances. It needs to be convinced that the eviction is just and equitable. The court will hear your arguments and those of the landlord, via affidavits. If you are in breach of your lease and you have not rectified the breach, i.e., if the landlord’s intention to evict you is lawful, it is up to you to raise special circumstances to defend your case. The court will take into consideration the rights of any elderly occupants, children, disabled persons and households headed by women when granting the eviction.

It is vital that you attend your court hearing. If you do not appear in court, your eviction will be considered unopposed and you will not be able to defend against eviction, even if you have filed a Notice of Intention to Oppose.

Grounds for defending against eviction

If you believe the eviction is unlawful – your landlord does not have a good reason to evict you – then you must oppose the eviction and give evidence as to why you believe the action is unlawful. For example, provide proof of payment for your rent. Even if your payment was late, if you rectified the breach within the specified time frame your landlord does not have grounds to evict you.

If the eviction is lawful, but eviction would negatively impact your health or wellbeing due to personal circumstances, you can defend against eviction on these grounds. For example, you may have mental health issues or you may be undergoing treatment for illness and the disruption of moving would be deleterious to your health. Or you may have no alternative accommodation and you need government-provided Emergency Alternative Accommodation. You can oppose your eviction for this reason. 

In both of these cases, if you are successful in opposing your eviction, it is likely the outcome will be a stay of the eviction order, to grant you more time to find alternative accommodation (or until your health improves if your opposition is on health grounds). If you are in breach of your tenancy agreement and the eviction is lawful, the judge is unlikely to simply rule against the landlord and in your favour. There is more likely to be some accommodation of your circumstances, as our Constitution guarantees everyone the right to housing.

Legal representation

You have the right to be represented by an attorney, and it’s a good idea to exercise that right, as a skilled lawyer has experience and knowledge of the judicial system you do not have. Eviction is a civil matter, and the state will not provide a lawyer automatically if you cannot afford one. However, you can request a postponement from the judge so you can find legal representation. You may seek assistance from Legal Aid or a university law clinic.

Legal costs

If you defend against eviction and you lose your case, you may be liable for your landlord’s legal costs. In practice, the court is unlikely to order you to pay costs if you are on a low income and have a valid reason for opposing the eviction.

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an opposed eviction or any advice on the eviction process.

Further reading:

Lobby challenges eviction of 101-year-old woman

By | Appeal of an eviction order, Evicting a family member, Eviction news, PIE

Reprinted from Sowetan Live, by Penwell Dlamini – 2022-10-17

A civil society group has filed an urgent application in the Johannesburg High Court to challenge the eviction of a 101-year-old woman from a house in Meadowlands, Soweto.

On October 5, Kenaope Mosidi was evicted from the house where she lived with her granddaughter Patricia Mosidi. A video of a frail Mosidi leaving the home was shared on social media with the public expressing outrage. Patricia took care of Mosidi as all her children are now deceased.

The man who evicted the family was Jacob Moalusi who said he bought the house from Mosidi’s other granddaughter Kedibone Demake.

He told the SABC that Mosidi’s grandchildren brought her from Rustenburg where she has a home just to use her so that they cannot lose the house.

Lawyers For Black People (BLA), an organisation which aims to protect the human rights of the marginalised, wants Mosidi and her family to return to her home, arguing that the eviction was unlawful.

In the court papers lawyers said Mosidi and her family had been [living on] the property since 2017 and their eviction was done without an eviction order.

“The eviction was not in terms of any law or court order. The manner in which the persons concerned were evicted, treated and assaulted was in and itself unlawful. The first respondent and his people conducted such unlawful and illegal evictions without having regard to the rights of women and children as promulgated under the Constitution of the Republic of SA Act 108 of 1996,” the lawyers argued in the papers.

BLA argued that Moalusi did not provide any written notice ordering the Mosidi family to vacate.

“In this instance there was no valid court order to evict and remove the occupiers, thus making the eviction completely unlawful and unconstitutional in all respects of law and against the principles of natural justice,” the lawyers argued.

“The first respondent more importantly conducted the eviction without the assistance of the sheriff who is by law entrusted with the responsibility to execute and enforce court order, thug giving more clarity on the undoubtable fact that the eviction was unlawful and unconstitutional,” BLA said.

BLA further described the eviction as inhumane.

It argued that even if Moalusi was entitled to evict the family, the court would still not sanction the execution until it is satisfied that the occupiers of the house would not be left homeless.


For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you are concerned about unlawful eviction or if you need advice on the eviction process.

Further reading:

When can someone be removed from public land without a court order?

By | Eviction news, Eviction orders, PIE

 Reprinted from GroundUp, by Geoffrey Allsop – 2022-09-22

Since the Covid pandemic began, occupations of public land by destitute people have increased in various parts of the country. Below, we explain what the law currently says about when the government can lawfully remove people from public land and under what circumstances.

The Constitution

The Constitution states that no one can be evicted from their “home” or have their “home” demolished without an order of court.

This means that someone who has established a “home” on public land (whether lawfully or unlawfully) has a constitutional right to not be evicted or removed until a court has made an order that authorises the eviction to take place.

It also means they have a constitutional right to insist that any structures they have erected on the occupied land, which qualify as a “home”, cannot be demolished or removed until a court makes an order allowing this to occur. For example: if someone erects a shack on public land, and that shack is their “home”, the shack cannot be demolished without a court order.

If the government (or a private person) evicts someone or demolish their home – without first obtaining a court order – they are acting unlawfully.

Prevention of Illegal Eviction Act

The Prevention of Illegal Evictions Act (PIE) is the main law that gives effect to the constitutional right of everyone not to be arbitrarily evicted from their “home” and not to have their “home” demolished without a court order. It also regulates the process that the government must follow before it can lawfully evict people from public land.

According to PIE, the government can only evict someone from a “home” they have created on public land after the High Court or Magistrates Court makes an order allowing the eviction to take place. PIE also allows the court to make an order authorising the government to demolish or remove any structures built on the land. This could include structures which qualify as a “home”, such as a shack or a tent.

PIE, however, also states a court can set whatever conditions it thinks will be “reasonable” regarding the demolition or removal of structures erected on the land. This could include, for example, an order requiring the government to return any materials used to build a shack to occupiers after their eviction.

The PIE Act must always be complied with before anyone can lawfully be evicted from any “home” that they have established on public land. It does not matter whether their “home” was established lawfully or unlawfully. In both cases, the PIE Act must be followed. If the Act is not complied with, any eviction or demolition will be unlawful.

The PIE Act also states that a court can only make an order which authorises an eviction, or the demolition of a “home” on public land, when two main requirements are met. Firstly, it must be shown that it would “just and equitable” to allow the eviction. Secondly, it must be in the “public interest” to evict the occupiers from public land.

To determine whether these two requirements are met, the PIE Act states that the court must consider “all relevant factors”. These factors include

  • the needs and rights of the elderly, children and disabled people on the land;
  • the health and safety of the people occupying the land and the general public;
  • the circumstances which caused occupiers to occupy the public land in the first place and the period of time that they have lived on the land; and
  • the availability of other suitable accommodation or land for them, should they be evicted.

The PIE Act also contains several requirements designed to ensure that anyone evicted from a “home” they have built on public land are given a proper opportunity to argue why an order authorising their eviction, or the demolition of their home, should not be made by a court.

For example, the PIE Act requires, among other things: that anyone who may be evicted must be given 14 days notice of eviction proceedings, must be informed of the basis for their proposed eviction and advised of their right to oppose the case in person or to request that a lawyer from Legal Aid be appointed, if they cannot afford to pay a private lawyer.

When does the PIE Act apply?

The PIE Act will only apply when the government (or a private person) wants to evict or remove someone from land or property that the occupier regards as their “home”. When the property is not their “home”, the requirements in the PIE Act will usually not apply.

This means that if someone occupies public land but it is not their “home”, they can be removed without a court order. It also means that any structures they erect which do not qualify as a “home” could be demolished or removed without a court order.

However, neither the Constitution nor the PIE Act defines what will constitute a “home”. But, the PIE Act does provide a definition of what will constitute a “building or structure”. This definition states that a “building or structure” will include “a hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter.”

The building or structure must still constitute a “home” before it becomes necessary for the government to obtain a court order under PIE to evict people from public land.

The courts have not provided a comprehensive test to determine when a structure will constitute a “home” for purposes of the PIE Act. However, the courts have found that a structure will usually qualify as a “home” when it has these characteristics

  • the structure provides a shelter from the elements or functions as a dwelling for human habitation;
  • the structure is the primary residence of the person who occupies it;
  • the structure is regularly or permanently occupied by the person who lives in it.

This means, for example, that a temporary holiday home will not constitute a “home” in terms of the PIE Act. This is because a holiday home is not someone’s primary residence and is not occupied by them on a permanent basis. Similarly, the Supreme Court of Appeal has ruled that when a structure is erected and taken down each day, it will not constitute a “home” under the PIE Act. For example: when people erect makeshift structures out of cardboard each day and then take the structures down and put them up again, the structure will not be a “home” (this decision by the Supreme Court of Appeal has however been heavily criticised).

The courts have also held that, depending on the circumstances, a structure need not be occupied for a long time before it becomes a person’s “home”. For example, in one case, the Western Cape High Court found that a structure which had only been occupied by homeless people for 24 to 48 hours was their “home” and that they could not be evicted without a court order in terms of the PIE Act.

In another recent case, the Western Cape High Court has held that when there is any doubt about whether a structure constitutes a “home”, the authorities should presume that the structure is occupied and amounts to a “home” in terms of the PIE Act. This means that unless there is a clear basis to conclude that the structure is not a “home”, the authorities should first obtain a court order before demolishing the structure or removing people.

Where the authorities have removed people from public land, they have often argued that it was not required to comply with the PIE Act because the structures on the public land were not “homes”. The government has usually argued the structures were not “homes” because they were not yet completed, were unoccupied or were not the occupiers’ primary residence. Generally, the government has not had much success with these arguments in court.

Nevertheless, the definition of what constitutes a “home” for purposes of the PIE Act is constantly changing. It is likely that the courts will develop other tests to determine when a structure will constitute a “home” for purposes of the Act.

Counter spoliation

The defence of “counter spoliation” says that when someone unlawfully interferes with the possession of someone else’s property, the wronged person can take the law into their own hands (when certain requirements are met).

For example: when a landlord tries to unlawfully lock a shop owner out of their shop, the shop owner could take the law into their hands and break the locks provided that this is done immediately.

In several cases, the government has argued that it is entitled to remove people from public land without obtaining a court order, based on counter-spoliation. This is because an unlawful occupation of government land constitutes an interference with the government’s possession of the occupied public property. Provided the government acts instantly to prevent occupation, it could be possible for it to rely on counter-spoliation to remove people from the land without a court order.

This is according to a recent High Court judgment where the City of Cape Town removed various people from government land in Khayelitsha, and demolished various structures they erected, without first obtaining a court order in terms of PIE. After the occupiers challenged the City’s decision to remove them from the land without a court order under PIE, the City relied on the defence of counter-spoliation.

According to the High Court judgment, counter-spoliation is not necessarily inconsistent with the constitutional right of everyone not to be arbitrarily evicted from their home, or have their home demolished, without a court order in terms of the PIE Act.

But, the court did say that counter-spoliation must be used immediately to apply. Counter-spoliation should also only apply in limited circumstances. This is because counter-spoliation has the potential to violate the rights of people not to be evicted from their home without a court order.

The court found that in this case counter-spoliation could not be used by the City as a basis to remove the occupiers without a court order.

This was because the structures had already been erected before the City took steps to demolish them and remove the people. This meant that the City did not act instantly and could not rely on counter-spoliation.

But, even where the government does successfully use counter-spoliation to remove people from public land without a court order, the government still has a duty to provide emergency housing or accommodation to people who are removed. Where counter-spoliation cannot be used, and someone establishes a “home” on public land, then a court order in terms of the PIE Act must be obtained before they can lawfully be removed from the land.

The author is an attorney of the high court.


For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you have questions about your right of occupation or if you need advice on the eviction process.

Further reading: