The group occupying land in Makhaza plan to oppose their eviction in court on 9 September
Shack dwellers at Mpukwini informal settlement in Khayelitsha are preparing to square off with the municipality in court next month. They want the eviction order against them scrapped and the City of Cape Town to build them houses on the land.
About two weeks ago, the City’s anti-land invasion unit and law enforcement members demolished shacks belonging to residents who occupied the land in Makhaza. Residents at the time protested as their building materials were confiscated by officials.
Since then, many residents have rebuilt their homes on the land. The City has an urgent interim eviction order against anyone illegally occupying the land, but the occupiers are raising money for transport to collect some of their building materials from the City’s depot.
Mayco Member for Human Settlements Malusi Booi said that the City was “considering its options” on how to deal with the occupiers. Booi added that if the occupiers wanted to challenge their eviction, they needed to “show cause, if any” as to why the final order should not be granted on 9 September.
But community leader Bandile Kona said they were there to stay. “We don’t want to go anywhere else. We will stay here until the City of Cape Town builds RDP houses for us here.”
He said they were not concerned with the lack of basic services. “I had no other option but to rebuild because I had no place to stay and keep my belongings,” he said.
Samela Mene moved to Mpukwini from Island informal settlement, after her shack flooded during heavy rains. She said life was better at Mpukwini because it was closer to public transport and a crèche for her child.
Mene shares her small shack with her elderly mother and her children aged seven and three. “I’m waiting for the court to make a ruling on our occupation before I extend my shack so it can accommodate my whole family,” she said.
Another resident, Lelethu Mvumvu, whose shack was among those demolished, now squats in a shack with two relatives and their four children at Mpukwini. “I still struggle to raise the R500 that I must pay to law enforcement to get my building materials back,” she said.
On Saturday, an official who only identified himself as Gautanu from the Anti-Land Invasion Unit visited the settlement to warn resident against building more shacks.
“If you build more shacks, your belongings and building materials will be taken away to the scrap yard,” he told residents in the presence of GroundUp. “Whenever there is a new structure, we will take it away along with the furniture. The judge told you not to build more shacks,” he said.
Whether you have managed rental properties for years or are a new landlord, sooner or later you are going to face the scenario every property owner dreads: the tenant from hell. Horror stories abound about dead animals, fixtures yanked from their fitments, and even (look away now) excreta smeared on walls – a last protest action before eviction. Fortunately these stories make the news due to their sensational nature but are not typical. Far more common is simple failure to pay rent or damage caused to property. The associated loss of income from this misconduct and an unlettable property while repairs are done can cause property owners to lose sleep.
If your dream tenant has turned into your worst nightmare, what actions are available to you and how do you ensure you remain compliant with rental housing legislation while protecting your asset and your interests?
Tactics of the nightmare tenant
While non-payment of rent is not the only behaviour that makes a tenant difficult or undesirable, it is usually the first indication that there is a problem, and often accompanies other unsavoury conduct. There are several tactics a tenant might use to avoid paying rent. It’s important not to fall for them.
Paying partial rent: A tenant may pay a portion of the rent owed. While they may promise to pay the balance the following month along with that month’s full rent, this is a warning sign and you are unwise to accept it. If you accept partial rent one month, you cannot begin the eviction procedure. The tenant has thus bought time, and in all likelihood will not pay in full the next month. You could reach the end of the lease with a large number of overdue rent payments, but you have forfeited your grounds for eviction. Don’t, whatever the sob story, accept partial payments.
Paying in cash: This is a tricky one because there is still a portion of South African society that is unbanked. The problem with cash is that it is untraceable and therefore if you take your tenant to court they may claim to have made rental payments they did not make, and you cannot prove otherwise. It is easy to produce a fake receipt. You need to be able to show a record of payments made and clear evidence of the months when rent was not paid. If the tenant does not have a bank account, there are electronic alternatives such as Paypal or other e-wallet services. If cash is the only option, give them a receipt that you both sign at the time and keep a copy for yourself.
The hardship story: Some tenants will ask for more time to pay rent, accompanied by a tale of woe designed to gain your sympathy. While their situation may be genuine, it is very hard to verify. However much compassion you have for their misfortune, you are not a bank or a charity. If they need a loan, they must approach family, friends, or financial institutions. If the tenant is a friend, this may feel like tough love, but it will make things easier for both of you in the long run.
The maintenance ruse: A tenant may claim that a property is uninhabitable or in need of maintenance, and withhold rent until the “fault” is addressed. Make sure your lease specifies how maintenance requests are to be made (in writing is best), and then acknowledge every maintenance request, track progress in a system, and provide the tenant with updates. If you respond in a timely manner to written requests for maintenance, the tenant has no grounds for withholding rent.
Prevention is better than cure
Legislation provides landlords with the means to remove nightmare tenants. We cover that in a separate post. But it is better to avoid them in the first place. Tenant screening is a critical aspect of property management and taking shortcuts at this stage may cost you dearly later. Credit checks will tell you about past solvency but they don’t reveal anything about the character of the applicant. Reference checks can be faked, so it’s important to screen the tenant personally and carefully.
Here are some tips to ensure your tenant verification is legitimate:
Always ask to see their original ID. Photocopies can be forged.
Verify their employment history. When contacting an employer, call the main office line listed on a website (not a cell phone). If this is not available – some tradespeople work from cell phone numbers as they are moving around all day but are still bona fide employers – ask them to send you an email from their company email as proof of legitimacy.
Call past landlords. Ask questions such as “can you confirm how much rent the tenant is paying?” This will help determine whether they are a genuine landlord or a friend. If possible, contact the landlord two or three tenancies past. The existing landlords may be keen to get rid of the tenant, and therefore give a good reference! Previous landlords may be more honest since they have no interest in the situation.
Reference check all adults who will be living in the property, not just the person signing the lease. At the risk of being politically incorrect, it does happen that a woman signs the lease because she is a low-risk tenant but her partner has a history of undesirable behaviour. Be sure to ask the main tenant how many people in total will occupy the property and what their names are. You don’t want your two-bedroom flat turned into a commune.
Keep a record of your property conditions and tenant interactions. Conduct regular inspections. We mentioned that non-payment of rent is not the only feature of nightmare tenants. Failure to maintain the property in a reasonable condition is also the source of much landlord misery. Frequent inspections will keep the tenants on their toes; it is much easier to keep a place in good order than to undertake a massive clean-up every three months. It will also allow you to spot potential breaches of the lease, e.g. evidence of animals when the lease explicitly forbids pets. If you fail to visit the property regularly you may actually encourage property damage because your tenants aren’t being held accountable.
You don’t have to go it alone
If you want to avoid renting to tenants from hell in future, we can help you screen prospective tenants and draw up a lease contract. Eviction lawyers are now in Johannesburg, Pretoria and Durban, as well as Cape Town. So wherever your property is located, we can help you find your dream tenant and avoid a nightmare.
Officers of the court must ensure evictions are carried out in a humane manner and in accordance with the law – which they have failed to do on a number of occasions.
The brutal demolition of homes along the Jukskei River in Alexandra, Johannesburg is by no means an isolated example. In many evictions, the sheriff of the court effects forceful and violent removals of occupiers with the help of the Red Ants Security Relocation and Eviction Services (Red Ants) and the SAPS.
On 22 October 2018, 159 people living in a building on Marshall Street, Johannesburg were evicted by the sheriff, SAPS and private security guards. Most of the people evicted were informally employed as street vendors, domestic workers and taxi drivers. During the eviction, their personal belongings were destroyed, windows were broken, and their lives halted.
A two-plate stove was thrown out of a window on the second floor, a refrigerator was left broken on the stairs of the third floor and its door on the second, food items were left to rot on the floor, and kitchen stands and televisions were damaged.
The occupiers of this building were given no notice that they were about to be evicted. Evidence from the sheriff’s returns of service indicates that between 2016 and 2017, the sheriff was directed on more than one occasion to erect notice boards to inform the occupants of the building about the proceedings. Each of the returns stated that the door to the property was locked, including to the Marshall Street building which has three entrances and was home to more than 100 people. This puts in question whether the sheriff attempted to serve the notice or whether he was negligent in executing the court orders.
The Constitution grants everyone the right to equality, dignity, privacy, freedom and security, and adequate housing. The legal framework protects people from being evicted from their homes without an order of court made after considering all the relevant circumstances. An eviction is only lawful if alternative accommodation is provided to people who would be rendered homeless. If a court finds an eviction order appropriate, the presiding officer may instruct a sheriff to execute it.
A sheriff is an unbiased individual appointed by the minister of justice as an officer of the court with the power to serve court documents, including notices, summons, warrants and court orders, including orders of eviction. The role of the sheriff is inextricably linked to the outcomes of eviction court proceedings. When serving a notice of motion and further processes, the sheriff must inform the occupiers of the nature of their matter in a language they will understand, including their right to present their personal circumstances to the court.
Personal circumstances include information such as the number of women and children who occupy the property, their right to housing and whether they will be rendered homeless by an eviction order. By law, the sheriff must notify anyone with an interest or who may be affected by the outcome of an eviction. Serving notice affords people the opportunity to respond to the allegations against them. This is the only way that people are made aware of pending proceedings and are able to take action to avoid displacement.
As an officer of the court, the sheriff is required by law to treat everyone with dignity and respect, including ensuring that belongings are not destroyed during an eviction. The sheriff, the Red Ants and the SAPS often use violence, intimidation and unjustified threats against occupiers.
Although an eviction requires that the occupiers vacate the property, the sheriff and his entourage acted unlawfully when they used violence and force to remove the occupiers from their homes in Marshall Street. The police opened fire on the occupiers when they attempted to collect their belongings and they were assaulted by private security guards. Because this eviction took place in the morning after some had left for work or school, and before others returned home from night shifts, the occupiers were unable to salvage any of their personal belongings. They were left with the food in their stomachs and clothes on their backs.
Had the sheriff affected proper service in terms of the court order, the occupiers would have had the opportunity to exercise their rights by representing themselves, seeking legal advice, or taking steps to defend their homes. They could have set their personal circumstances before the court and would have been given the right to alternative accommodation.
The process sheriff was negligent in fulfilling his duty to inform the residents of their pending eviction, which made the process illegal. The sheriff, private security and SAPS should be held accountable for the violation of the rights of these occupiers, and of occupiers in other cases where the sheriff has gone as far as to evict the wrong people and damaged their belongings and livelihoods in the process.
No one, including the sheriff, is above the law. Evictions are demeaning and so officers of the court must ensure they are carried out in a humane manner and in accordance with the law.
Facing an eviction is difficult enough; helplessly watching your life and personal belongings destroyed compounds that difficulty and is a deplorable violation of the humanity of the most vulnerable. The sheriff has a duty to uphold justice and to ensure the police and private security understand their obligations to operate lawfully in any court-ordered matter.
As lawyers acting on behalf of marginalised groups in eviction matters, and as members of the public, we all have a role to uphold the rule of law and to hold duty bearers to account. Misconduct can be reported to the Board for Sheriffs. DM (emphasis by SDLAW*)
Tshepo Skosana is a candidate attorney at the Socio-Economic Rights Institute (SERI)