Category

Evictions

[Evictions] The sheriff in town: To serve and protect or harm and neglect?

By | Evictions

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.

[Evictions] The sheriff in town: To serve and protect or harm and neglect?

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)

Related reading:

*Simon Dippenaar & Associates is a national based law firm with head offices in Cape Town, now operating in Gauteng and Durban, compromising of eviction lawyers, and property attorneys, specialising in eviction notices, the eviction process for residential, commercial and farm properties across South Africa.

#ConsumerWatch: Landlords, be wary of violating rights when evicting tenants

By | Eviction news, Evictions

Changing the locks, removing the front door to your property, sending “heavies” around to collect outstanding rental or to intimidate tenants into moving, cutting electricity and water, or telling tenants to move temporarily because you want to do urgent maintenance/renovations work are some of the more common strategies employed by landlords to get rid of tenants.

Landlords are not allowed to resort to creative ways to get rid of their tenants - by doing so, they only create ammunition for the tenants to delay the eviction process, which costs more time and money. Picture: African News Agency (ANA)
Landlords are not allowed to resort to creative ways to get rid of their tenants – by doing so, they only create ammunition for the tenants to delay the eviction process, which costs more time and money. Picture: African News Agency (ANA)

Landlords are not allowed to resort to creative ways to get rid of their tenants – by doing so, they only create ammunition for the tenants to delay the eviction process, which costs more time and money. Picture: African News Agency (ANA)

Most of the above are illegal – and will only land you in trouble as a landlord. But while it doesn’t mean that you don’t have a right to get rid of a troublesome tenant and not allow them to live at your expense, it does mean that you need to do so through a legal court process.

In recent weeks, numerous tenants have complained that their landlords were violating their human rights and seemingly getting away with it. The tenants, due to severe financial issues, had fallen behind on their rentals for a month or two, which is likely to put them in breach of their leases, but two wrongs don’t make a right.

B Khumalo, who lives in Honeydew in Johannesburg, wrote that he had arrived home after picking up his daughter from school, only to find the electricity to his unit had been disconnected. When he asked the caretaker, he was told the landlady had been in the complex and disconnected the electricity herself.

“To date, I have not received the court order that granted the landlord and/or Place de Tetre’s body corporate the right to disconnect electricity or any other services. My family has been subjected to inhumane living conditions since March15.

“We have suffered a huge loss in terms of the perishables that needed refrigeration, including my sickly daughter’s medicine that requires the fridge.”

In Pretoria, B Wentworth and his girlfriend are in a rental property in Val de Grace. Both were recently retrenched and fell behind in rent for two months. So on March8, the landlord sent workers to the property, who knocked down the boundary wall.

“When we asked why this was being done, we were told they wanted to build a better wall in about a day, and the old one was unsafe,” Wentworth said.

A week later, when there was still no wall, they asked about the new wall and were told “no rent, no wall’’.

“As a result of this our lives are in danger and items have been stolen out of our yard. We can’t even do our washing because of theft. Basically, we no longer have security lights (these were stolen) and our car is at risk.

“I know we owe money, but surely this must be wrong? Is there anything I can do, and what are my rights?”

Because the tenant owed the landlord just shy of R10200, the landlord knocked down a wall that probably cost around R1000 a metre.

“I know he is not running a charity but even our water has been cut off,” Wentworth says. Cutting off water is unconstitutional – only the council is permitted to do this, and when it does, there has to be a trickle of supply.

Resorting to creative methods to “smoke” out tenants is actually empowering them legally, because it gives tenants ammunition to delay an eviction.

This further strains the relationship, costs more time and money, and breaches numerous laws:

In terms of the Rental Housing Act (RHA), any person who unlawfully shuts off the utilities to a rental property is guilty of an offence and liable to a fine or imprisonment of up to two years, or to both fine and imprisonment.

A tenant may apply for a spoliation order or an interdict (if their electricity or water was cut off by the landlord, not council). Landlords may not cause electricity supply to be interrupted without a court order.

A spoliation order means that your peaceful possession of an item – in this case, a property – has been unduly disrupted. In essence, this is what happens when someone takes the law into their own hands. The court is likely to grant the order that supply be restored – and the landlord would be found in breach of the RHA.

Changing locks, cutting services or making a property inhabitable, as in Wentworth’s case, amounts to constructive eviction, which is illegal in terms of the RHA.

Being late with rent does not automatically mean the tenant is in breach of the lease agreement – the landlord must act in accordance with the terms of the “breach clause”. Typically, this means the tenant must be given written notice of the breach and given time to remedy the breach.

If the tenant doesn’t rectify the breach within a prescribed notice period, the landlord may cancel the lease agreement and give them 20 business days’ notice to vacate. If they don’t vacate and they’ve been given written notice, they may be considered in illegal occupation – and the eviction process can begin.

For landlords, going the legal route is an expense – they’re already out of pocket and now, to get rid of a problem tenant, they need to incur even more costs. Yet, it’s worth bearing in mind that the aim is to secure your asset, often worth millions of rand. And as part of the eviction order, the court might well grant a cost order against the tenant.

* Georgina Crouth is a consumer watchdog with serious bite. Write to her at consumer@inl.co.za, tweet her @georginacrouth and follow her on Facebook.

Source: IOL (emphasis SDLAW Cape Town Eviction Attorneys**)

**Simon Dippenaar & Associates Inc. (SDLAW) is a Cape Town law firm of specialised eviction lawyers with offices in Cape Town and now Gauteng and Kwazulu Natal, representing landlords and tenants locally and further afield. Contact a Cape Town Lawyer on +27 (0) 86 099 5146 or info@sdlaw.co.za, and one of our Cape Town Attorneys will call you right back.

Further reading: