Category

Appeal of an eviction order

Apr 03
0
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:

Oct 19
0

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.

According to BLAs, Moalusi alerted the Mosidis in 2019 that he had bought the home from Demake and intended to either reside in it or make developments. This came as a surprise as the home was considered a family dwelling and was never for sale.
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:

Sep 26
0
Rights and Wrongs

Top court finds eviction of woman who has been in house since 1947 is lawful

By | Appeal of an eviction order, ESTA, Eviction news, PIE

Reprinted from Times Live, by Ernest Mabuza – 2022-09-21

The Constitutional Court has ruled the eviction of an 85-year-old woman from a property given to her by a Somerset West businessman is not unlawful.

Clara Phillips has been living in the house since she was 11. She started living on the property in 1947, when the property formed part of a larger farm. She lives in the house with her disabled son.

The property is situated about 500m from Willem Grobler’s home in Somerset West. Grobler bought the property at a public auction because he wanted his elderly parents to reside in it.

The property was registered in Grobler’s name in September 2008 but his wishes to accommodate his parents in it have not yet been realised.

After purchasing the house, Grobler met Phillips on three occasions and told her he required her to vacate the property.

Grobler was prepared to pay towards her relocation or, at his cost, provide alternative accommodation for her. Phillips did not accept Grobler’s proposals, stating she was not prepared to move from the property.

When the eviction proceedings were before the magistrate’s court, Phillips alleged the previous owner had given her a lifelong right of occupation.

The magistrate’s court said the alleged lifelong right of occupation was invalid and unenforceable against Grobler as it was not registered against the title deed. The court granted an order of eviction against Phillips.

Phillips appealed to the full court of the Western Cape High Court.

In that court, not only did Phillips invoke the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act but also relied on a new and alternative ground of appeal, namely that she was an occupier in terms of the provisions of the Extension of Security of Tenure Act.

The high court upheld her appeal and this led to Grobler appealing to the Supreme Court of Appeal (SCA).

In its judgment last year, the SCA rejected the defence raised by Phillips that she had a right of lifelong habitation and was a lawful occupier. However, it said it was not just and equitable to order an eviction in the matter and dismissed Grobler’s appeal.

In its judgment on Tuesday, the Constitutional Court said an unlawful occupier such as Phillips does not have a right to refuse to be evicted on the basis that she prefers or wishes to remain on the property she is occupying unlawfully.

“The Constitution does not give Mrs Phillips the right to choose exactly where in Somerset West she wants to live,” justice Zukisa Tshiqi wrote in a unanimous judgment.

Tshiqi said the fact that Grobler had repeatedly made offers of alternative accommodation to Phillips should not be taken as creating any obligation to offer alternative accommodation.

Tshiqi said it was an important consideration that an eviction order in these circumstances will not render Phillips homeless.

“The offer advanced by Mr Grobler stands. If it is made an order of court, it will essentially mean Mrs Phillips will only be required to relocate from one home to another in the same immediate community within Somerset West.”

In the order, the court said Grobler is directed to purchase a two-bedroom home in good condition, and it must be within a radius of 5km from where Phillips currently resides. The order said Phillips will have a right to live in that house for the rest of her life.

The court said if Phillips and her son do not take occupation of the dwelling within six months from the date of registration of the dwelling in the name of Grobler, they are directed to vacate the premises. Failing this, the sheriff of the court is directed to evict them from the premises.

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: