Category

Appeal of an eviction order

Jun 09
0

Extended notice period in an eviction

By | Appeal of an eviction order, Eviction law case summaries, PIE, Tenants

What is a reasonable notice period?

Renting a property is intrinsically insecure, compared to home ownership. Regardless of the compliance of the tenant, circumstances may arise where a property owner needs to occupy their property and evict the tenant. However, for the tenant the property may represent a permanent home, and being forced to relocate to another property could be disruptive to family life. Is there a tension between property rights and constitutional values under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (“PIE”)? Is there a case for an extended notice period to vacate in some circumstances, on the grounds of reasonableness and human decency?

A recent case brought before the Western Cape High Court concerns an opposed eviction application that hinges on this issue. The property owner seeks to remove a tenant and their family from a residential property. The application is technically valid as the fixed-term lease has expired, and the landlord wishes to allow their daughter to occupy the property. The tenant does not contest these facts. They argue not that they should be entitled to indefinite occupation but rather being forced to move out of their home will not be just and equitable as it will have an impact on their minor children. They also cite the good faith in which they entered into the lease.

Background

The tenant, who has two children who are settled and thriving at a nearby school, took occupation of the property in August 2023 under a 12-month lease managed by the landlord’s agent. The tenant was assured at that time that the lease would be renewable and they had a reasonable expectation of long-term occupation. They therefore sold the family home to relocate.

When the property owner later refused to renew the lease and sought eviction, the tenant opposed the application. They did not request or expect to remain permanently but requested a deferred eviction date that would allow their children to complete the school year and give the family time to secure stable, suitable alternative accommodation.

Legal basis of the request for an extended notice period

The core of the tenant’s position is rooted in Section 4 of the PIE Act, which requires courts to consider “all relevant circumstances” before granting eviction, including the rights of minor children. The tenant argues the court should be sensitive to the context and support a deferred eviction, although there is no legal entitlement to stay. In a previous case the High Court deferred eviction, even where rental arrears were due, because a child’s schooling would have been disrupted. The tenant in the current case is not in default of rental payments and argues their children’s education is similarly tied to the family’s residence at the property.

Misrepresentation by the landlord’s agent

Another key point in the tenant’s argument is alleged misrepresentation by the landlord’s agent during lease negotiations. The tenant was assured that long-term rental was normal and an “option to renew” clause was included in the lease. Relying on these assurances, the tenant sold their prior residence, a life-altering decision that significantly increased the stakes.

Although the lease contained a standard “entire agreement” clause, the tenant argues that this should not preclude the court from considering broader contextual facts. The landlord has relied on adherence to the formal eviction process, but this is in conflict with the just and equitable factor mandated by PIE.

The impact on minor children

Perhaps the most compelling argument by the tenant lies in child-centred justice. The tenant’s children are enrolled in nearby schools and the family’s continued residence at the property is essential to maintaining the children’s schooling placement and emotional stability.

The tenant seeks a deferral of eviction until mid-December 2025, aligned with the school calendar. This request is both limited and proportionate. A mid-year move would cause emotional distress and educational disruption to the children, which is exactly what PIE seeks to prevent.

Good faith improvements and financial contributions

A further layer of the just and equitable factor arises from the improvements made by the tenant to the property, totalling approximately R120,000, materially enhancing the property’s functionality. These improvements were approved by the landlord’s agent and undertaken in the belief that the lease would be renewed.

The landlord argues that these improvements are theirs to retain without compensation. The tenant believes this position is unjust, especially because the improvements were made in good faith and add lasting value. They point out that no reasonable tenant would invest six months’ worth of rental income into a property if they only intended a short-term stay.

The broader housing context

In considering what is “just and equitable,” courts take into consideration the broader socio-economic environment. The tenant points to Cape Town’s highly competitive housing market, where access to affordable family housing near good schools is increasingly limited. The tenant is willing to pay a rental increase of 10% to compensate for the extended stay, demonstrating good faith and willingness to offset any perceived financial prejudice.

The limits of ownership and landlord’s moral obligations 

This case raises critical questions about the limits of ownership and the moral obligations landlords have when it comes to eviction. The tenant does not challenge legal title; they seek a humane and proportionate application of the law, recognising the realities of schooling, family stability and good-faith reliance.

PIE was enacted to protect the vulnerable from unlawful eviction. This matter illustrates the delicate balance courts must strike between ownership and occupancy, contract and equity, law and justice. The tenant’s reasonable request for a deferred eviction is grounded in established jurisprudence and supported by facts. It should serve as a reminder that legal disputes involving family homes demand more than technical compliance – they require compassion and consideration. 

This case is still before the High Court. We’ll report on the outcome when it is concluded.

For further information

Eviction lawyers SD Law can answer your questions about rental housing rights and advise you on eviction procedure if it becomes necessary. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za. Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban working hard to help landlords and tenants maintain healthy working relationships.  

Further reading:

Oct 18
0

Court won’t allow eviction of ‘unlawful occupants’ at old age home

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

Reprinted from TimesLIVE, by Rorisang Kgosana – 2024-10-17

The City of Johannesburg’s leave to appeal a high court judgment that denied an urgent eviction order to remove unlawful occupants from a retirement village was refused by the Johannesburg High Court as the law it was challenging was “unappealable”.

The 183-unit complex, aimed at SASSA beneficiaries older than 63 who entered into a lease agreement with the city, was now home to younger people and their children as over the years people would move in with their elderly relatives while some would remain in the unit even after the relative passed on, a resident told TimesLIVE.

The centre is now exposed to petty crime while facilities and units are dilapidated and remain unmaintained by the city.

In his judgment, judge Stuart Wilson, who had presided over the initial urgent matter, said the application was unappealable as it challenged section 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act. The provision permits only urgent eviction when there is a “real and imminent danger of substantial injury to people or property” by an unlawful occupier.

“Orders under section 5 of PIE are interim in nature. They are granted or refused ‘pending the outcome of proceedings for a final eviction order’. Their interlocutory nature naturally raises the question of whether and to what extent decisions under section 5 are appealable,” said Wilson.

He said the decision to refuse a section 5 eviction order does not prevent the application from seeking relief under section 4 of the act, and the unlawful occupier will remain at the property until the proceedings are finalised.

“Accordingly, it seems to me that the refusal of relief under section 5 is not appealable. To hold otherwise would open the door to undesirable piecemeal litigation. Every refusal of relief under section 5 could, in principle, spawn an appeal, which would have to be addressed in parallel with, or before, the applicant’s entitlement to final relief under section 4 is considered.

“To permit the fractional disposal of eviction applications under PIE in this way would lengthen and complicate PIE proceedings, which are often already factually and legally complex matters, especially where poor and vulnerable people allege that they would face homelessness on eviction.”

He said the city had no reasonable prospect of convincing a court of an appeal that he was wrong in his judgment when he decided that section 5 requires it to link those it seeks to evict with “real and imminent danger of substantial injury to people or property”.

“Mr Nhutsve, who appeared for the city, advanced no alternative reading of section 5, which would permit the city to evict individuals or groups of people who had not been linked to a ‘real and imminent danger of substantial injury to people or property’. In the absence of such a reading, there can be no success on appeal,” said Wilson.

He said the city admits it wants to evict people who provide care to lawful residents of the complex, which those residents cannot do without.

It was on that basis that Wilson found that the relief sought would “endanger the safety and wellbeing of the very people the city says it wishes to protect”.

The city also raised issues of the hearing, arguing that it did not get a fair hearing as its counsel, Nhutsve, was not allowed to present his prepared speech to the court but was instead required to answer the court’s questions about whether the facts on the papers justified the relief sought.

“The city did not produce a transcript in support of its claims. Mr Nhutsve was accordingly constrained to advance his complaints about the fairness of the hearing from memory … I do not recognise Mr Nhutsve’s recollection of the hearing. The hearing lasted for about an hour, about 45 of which consisted of an exchange between me and Mr Nhutsve about the papers and the relief sought. The exchange was robust but respectful. I listened carefully to Mr Nhutsve’s submission, and had due regard to them in my judgment.”

Wilson said the city’s complaints about the way he conducted the hearing do not have a bearing on the correctness of his decision. In addition, Mr Nhutsve could not point out any submissions that he failed to make due to being interrupted.

“It was for these reasons that I refused the city’s application for leave to appeal.”

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an urgent eviction matter.

Further reading:

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: