Category

Tenants

Jul 31
0

Illegal eviction practices – understanding and combating them

By | Evictions, Tenants

Know your rights as a tenant

Feeling at the mercy of commercial landlords while searching for rental properties? You’re not alone. Especially in the fiercely competitive rental markets like the Western Cape, landlords may take undue advantage. However, as a tenant, you must remember that the law offers considerable protection. Knowing your rights and the responsibilities of the landlords can safeguard you from illegal eviction practices. Tenants have rights, and landlords have responsibilities (though they also have rights, and tenants also have responsibilities). Of course, ultimately the party with ownership status has more influence over the fate of the property than the party that rents it. But that does not mean a landlord can take the law into their own hands. The vast majority of landlords are honest and respectful of their tenants. After all, it’s a commercial relationship that works best when all parties are satisfied with their interaction. However, it does happen that a landlord occasionally ignores legal requirements and abuses their position. If you find yourself facing an illegal eviction, what are your rights and what can you do about it?

For a concise current guide to what counts as an illegal eviction in South Africa, what landlords may not do, and what to do immediately if you are locked out or forced from the property, see our practical illegal-eviction guide.

Quick answer: what to do if you are locked out or forced out

If a landlord changes the locks, removes belongings, cuts essential services, blocks access, or uses threats to force a tenant out without a court order, treat it as urgent. Keep evidence, avoid retaliating, get legal advice quickly, and identify the correct route: if possession or access has already been taken, an urgent mandament van spolie application may be needed to restore access; if the issue is an unfair rental-housing practice, harassment, intimidation, or a deposit/service dispute, the Rental Housing Tribunal may also be relevant. A Tribunal complaint is not a substitute for urgent court relief where a tenant has been locked out of the home.

What constitutes illegal eviction in South Africa?

Tenants may only be evicted from a property by means of a court order. Any eviction other than one authorised by a court is illegal.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE) contains specific regulations that govern the eviction process. Any action that contravenes these regulations is deemed to be an illegal eviction and the courts take this very seriously. But what might an illegal eviction look like? What are some of the things a landlord might do that are in breach of the law?

Common illegal eviction tactics used by landlords

All of the activities below are illegal, but unfortunately they do occur. If you experience any of these behaviours, keep a record of the incident and the date and time. We’ll say more about how to deal with these practices below.

Lockouts: Landlords may not change locks, deny tenants access to their homes or unlawfully dispossess them from the property to force them out. This is illegal and is a violation of the tenant’s rights to the property. The tenant’s rights continue to be in force even if they are in arrears with rental payments.

Utility disconnections: Cutting off essential services like water, electricity, or gas is strictly prohibited without following the proper legal channels.

Verbal or threatening behaviour: A landlord cannot verbally or physically force a tenant to leave their home without obtaining a court order for eviction.

Harassment: Continually disturbing or harassing tenants with the intention of making their living conditions unbearable is illegal and tenants have the right to seek a protection order against their landlord if this happens.

Seeking a legal solution: the spoliation order

If any of these actions lead to dispossession, i.e., being removed from the home, depending on the circumstances tenants may bring an urgent application to court and ask for a “spoliation order”. Spoliation means “the wrongful deprivation of another’s right of possession”. If the Magistrate is satisfied that the tenant has been unlawfully dispossessed without the landlord following the necessary legal procedure, an order will be granted for possession to be reinstated.

If the landlord attempts to evict a tenant illegally, they could face a heavy fine or be required to pay damages to the tenant. In the worst case scenario the landlord could potentially wind up in jail, facing serious criminal charges.

Your rights as a tenant – safeguards against illegal eviction

The provisions of the Rental Housing Act are clear on the rights of tenants. The tenant’s rights against the landlord include the right not to have:

  • Their person or home searched
  • Their property searched
  • Their possessions seized, unless the landlord has first obtained an order of court

A written lease cancellation or eviction notice must first be served by the sheriff on the tenant. This notice has to offer the tenant a minimum of one month to vacate the property. A court date is then set and a deadline given for filing an opposing affidavit, if the tenant wants to oppose the eviction. A landlord cannot evict a tenant without going through this correct procedure.

Dealing with illegal eviction practices – a step-by-step guide

If you are being harassed or victimised by your landlord, you are not helpless. Legal recourse is available. But you must not respond with equally unlawful behaviour. Instead, stay calm and be methodical in your approach.

Document everything: Keep a record of all communication and incidents related to the eviction, including notices received, dates, times, and any evidence of harassment or illegal actions.

Seek legal advice: Consult with a qualified attorney to understand your rights and the legal avenues available to you.

Lodge a complaint: Report any illegal eviction practices to the Rental Housing Tribunal, Department of Human Settlements, or your local municipality. They can provide guidance and resolve disputes.

Court intervention: If none of the above gives satisfactory results, consider applying for an urgent interdict at your local court to protect your rights and prevent the eviction until a proper court hearing takes place.

Illegal eviction practices are a violation of tenant rights and can cause significant distress. Don’t panic. Know your rights and understand the legal process. This will enable you to deal effectively with the situation.

For further information

If you are being subjected to illegal eviction practices, our specialist eviction lawyers can help. Simon Dippenaar & Associates, Inc. helps landlords and tenants maintain healthy working relationships but, when necessary, we can assist with eviction, ensuring it is effected legally and ethically. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you think you are being treated unfairly or unlawfully by your landlord.

Further reading:

Jul 27
0

Evicted families take “eco-friendly” property developer to court

By | ESTA, Tenants

Reprinted from GroundUp, by Kimberly Mutandiro – 2023-07-26

  • In 2022 the homes of 15 families on Tilly’s Farm in Mogale City were unlawfully demolished by Dutch-South African property company MaxxLiving.
  • People living on the farm claimed land tenure rights and the company was ordered to build them brick houses within 90 days.
  • But a year later, the families are still in temporary structures.
  • Lawyers for Human Rights has applied for a ruling that the developer is in contempt of court. The matter has been reserved.
  • MaxxLiving says it will build the houses but gives no timeframe.

Last year GroundUp reported how the homes of 15 families living on Tilly’s Farm in the Mogale City Municipality had been unlawfully demolished by Dutch-South African property company MaxxLiving.

They took the developer to court, claiming land tenure rights under the Extension of Security of Tenure Act (ESTA). In July 2022, the Land Claims Court ordered MaxxLiving to build them brick houses within 90 days.

Lawyers for Human Rights (LHR) had to launch an urgent application in the Land Claims Court (Johannesburg) to compel the developer to provide temporary homes in the meantime.

The families still live in those temporary structures. A total of R100,000 compensation, which the court ordered to be paid by 30 September 2022, was only paid in November 2022. The families say the amount, which was shared by 25 households, was too small to make up for their damaged possessions.

They are sharing just one chemical toilet. They have one water tank, but it runs dry and is sometimes not refilled for a week.

The families say the water tank they depend on is not refilled for a week sometimes

The first toilet provided by MaxxLiving on the left is full. A second toilet was added, shared by about 25 people

“To think that we once had warm homes. They should just build our homes,” said Violet Moloto, who has lived on the farm since 1995.

This is the second winter the residents are enduring since their houses were bulldozed.

Moloto said all her possessions were taken from her at the time of the demolition, and the R4,000 she received in compensation was far too little.

Because they have no electricity, the families have now built additional shacks, where they cook and warm themselves as winter bites.

Wilson Kgatla said his chickens had been killed during the demolition. “The fact that they are taking a long time to build is making the pain even worse.”

“I have no family and the house which was demolished was all I had,” said Wilson Sehlako, who has lived on Tilly’s Farm since 1989. “All l wish is for my house to be built.”

Lerato Katla, who grew up on the farm, says the nine members of her family are crammed into two shacks. The temporary accommodation can be seen behind her.

Contempt of court proceedings

David Dickinson of LHR said the property developer had argued that it had no money at present to build the homes, but had failed to provide proof of this. He said the developer had assets which could be sold.

The families first launched a contempt of court application in August 2022, and Justice Brian Spilg gave the developer until November 2022 to build the houses.

On 18 July 2023, the families went back to court, asking that the property developer be found in contempt of court. Judgment has been reserved.

Tilly’s farm families say they are struggling since their lives were disrupted and their homes bulldozed.

Margaret Makgomola, the first applicant in the case and a resident since 1988, says she has been left feeling broken. As the former preschool teacher at the old farm’s crèche, she’d hoped to open her own crèche at the site.

“The developer promised to leave the crèche standing,” she said.

But the crèche was also demolished. Makgomola sometimes visits the ruins; for her it was much more than just a crèche. Now she has fixed her hopes on at least getting a house as ordered by the court.

Her temporary shack is too small and her possessions are becoming ruined standing out in the open.

“We feel unsafe, because the property developers just do as they please. It’s as if they are above the law and we would be lucky if they even build the houses,” says Makgomola.

Margaret Makgomola, the first applicant in the case and a resident since 1988, says she has been left feeling broken.

Development forges ahead

On 18 July the residents protested outside MaxxLiving premises while the contempt of court hearing was being held in the Land Claims Court.

In a memorandum addressed to Arthur Bezuidenhout, director of MaxxLiving, they complained: “You have made excuses and excuses that you do not have money to rebuild our homes, but we can see with our own eyes that you continue to build luxury homes on the site where our homes once stood.”

MaxxLiving’s flagship “innovative modular wooden, off-grid and CO2-friendly property development” has forged ahead, with a total of 11 new homes and foundations for more, according to court papers.

Bezuidenhout told GroundUp he is committed to building homes for the Tilly’s Farm families and that the residents would still get homes, but he could not give a timeframe.

He said bad publicity had damaged on the project, causing cash constraints.

“We are from the Netherlands, and we are a Dutch-based company aiming to fix with innovative solutions a housing problem in South Africa.”

“We are building homes in wood. It allows us to build fast, with quality and it allows us to build model homes. The purpose of this development is to showcase how we can build quality homes with wood, better than brick and mortar.”

He said the company had engaged with the Minister of Human Settlements.

He said his good intentions had been misunderstood by the families who refused to move to land he had offered them.

“We are against RDP homes and informal settlements. Our model is the future of social homes if the government joins in,” he said.

The MaxxLiving flagship development in Mogale City

Groundup has been awaiting comment from Mogale City Municipality since Monday.

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 tenants’ rights or landlords’ responsibilities.

Further reading:

May 11
0

Rental Housing Tribunal: Complaints, Process and Eviction Limits

By | Rental Housing Act, Rental Housing Tribunal, Tenants

The Rental Housing Tribunal is there to help

The housing crisis in South Africa has led to a shortage of affordable housing options, resulting in many individuals living in overcrowded or unsafe conditions. This has also created challenges for landlords who struggle to find suitable tenants. To address some of these issues, the Rental Housing Act was passed in 1999. However, many people are still not aware of their tenant rights, concerned instead about their responsibilities. 

Tenants have a lot of obligations, dictated by the lease agreement. First and foremost, they have a duty to pay rent at a set time every month. They also have a responsibility to keep the property in good order and report any breakages or other problems to the landlord. They must abide by the terms of the lease agreement; only use the property for its intended purpose (e.g., not use a residential property for commercial purposes); and not breach any other conditions of occupancy (e.g., keeping pets if not permitted). It’s easy to think the landlord has all the rights and the tenant has all the responsibilities. But tenants also have rights, and the law is very clear on the recourse available to tenants should the landlord violate those rights.

Quick answer: what is the Rental Housing Tribunal?

The Rental Housing Tribunal is a free provincial dispute-resolution forum for residential rental disputes between landlords and tenants. It can deal with unfair practices such as failure to maintain the property, unfair deductions from a deposit, unlawful lockouts, interruption of services, unfair notices, harassment, and disputes about rights and obligations under the Rental Housing Act. It is useful where a tenant or landlord needs a formal complaint route, but it is not a substitute for urgent court relief where access to the home has already been taken away.

Official sources: the Rental Housing Act 50 of 1999, the national Rental Housing Tribunal guide, and the relevant provincial Tribunal service. Western Cape users can use the official Rental Housing Tribunal service page.

Tenants’ rights

The tenant has the right to a property that is habitable and in good condition. Unacceptable living conditions, such as overcrowding or hygiene issues, are a breach of tenant rights. A habitable property means the landlord maintains the property and makes repairs when necessary. The landlord may not disconnect essential services, even if the rent has not been paid. The tenant also has a right to receipts or statements with regard to payments made, i.e., for rent and utilities, etc. The tenant has the right to not be discriminated against, on the grounds of race, sex, sexual preference, religion, etc. The tenant has the right not to be unlawfully evicted, i.e., without the correct legal process having been followed. The landlord may not change the locks or seize the tenant’s possessions, or put belongings out on the street. 

The landlord also may not increase the rent by an unfair amount or outside the time period indicated in the lease. For example, most leases allow for a set percentage increase on the renewal of the lease, usually at the annual anniversary. The landlord may not arbitrarily increase the rent without adhering to those conditions. And lastly, at the end of the tenancy, the tenant has a right to the return of the deposit, after deductions for any damages.

What to do if the landlord violates these rights

In the first instance, we always advise landlords and tenants to talk to each other. Most issues can be resolved by good communication, and many disputes are the result of misunderstanding or poor communication. So if you find your rights have been or are being violated, try to initiate a conversation with your landlord to resolve the matter. If they are not open to dialogue, or if a frank discussion doesn’t clear things up, further channels are available.

Role of Rental Housing Tribunal

The function of the Rental Housing Tribunal is dispute settlement between tenants and landlords. The service is free to both parties and is supported by the Department of Human Settlements. The Tribunal’s role is to:

  • Harmonise relationships between landlords and tenants in the rental housing sector
  • Resolve disputes that arise due to unfair practices
  • Inform landlords and tenants about their rights and obligations in terms of the Rental Housing Act
  • Make recommendations to relevant stakeholders

Can the Rental Housing Tribunal make an eviction order?

The Rental Housing Tribunal can help resolve unfair-practice disputes between landlords and tenants in residential rental housing. It can investigate complaints, refer matters to mediation, hold hearings, and make rulings. A Tribunal ruling may be enforceable as an order of the magistrates’ court, but that does not make the Tribunal an eviction court. If a landlord wants to remove a tenant from their home, they must obtain an eviction order from a competent court. The Tribunal can deal with many rental disputes, but it should not be confused with the court process required for eviction.

How to lodge a complaint with the Rental Housing Tribunal

Anyone can lodge a complaint with the Rental Housing Tribunal and there is no need for legal representation. Complaint forms can be found on the Human Settlements website. Documents should be lodged with the Tribunal, including a copy of the lease and ID document, and any supporting documentation (rental statements, letters of request for repairs, etc.). The Tribunal will review the complaint to determine if there is a legitimate dispute. While waiting for the Tribunal’s ruling, the landlord may not commence eviction proceedings, the tenant must continue to pay rent, and the landlord must continue to maintain the property. 

If the Tribunal determines the complaint is genuine, it will attempt to resolve the dispute through mediation. If mediation is unsuccessful, the next step is arbitration (i.e., a hearing designed to resolve disputes), which both landlord and tenant must attend. The Tribunal’s ruling at the hearing is binding on both parties. Failure by either party to abide by the Tribunal’s ruling may result in criminal proceedings. A ruling by the Rental Housing Tribunal is considered an order of the Magistrate’s Court. As such, it can be appealed in the High Court.

Before lodging a complaint, prepare the file: keep the lease, proof of rent and deposit payments, inspection records, photographs, notices, WhatsApp or email messages, invoices, receipts, and a short timeline of what happened. Deposit disputes should also be read with our guide to rental deposit return. If the complaint involves a lockout, removed belongings, threats, or services being cut to force a tenant out, also read our guide to illegal eviction practices, because urgent court relief may be needed in addition to a Tribunal complaint.

Rental Housing Tribunal ruling vs eviction order

IssueRental Housing TribunalEviction court
Main purposeResolves unfair-practice disputes in residential rentalsDecides whether a person may be lawfully evicted
Who can use itTenants, landlords, groups, or interest groups with an unfair-practice complaintA landlord, owner, person in charge, or other applicant with grounds for eviction
Common examplesRepairs, deposits, unfair notices, lockouts, service issues, unlawful seizure of possessionsRemoval from occupation after the court considers the relevant circumstances
Legal effectA Tribunal ruling may be enforced as a magistrates’ court orderThe eviction order itself authorises lawful removal through the proper process
Key limitThe Tribunal does not replace the eviction courtThe court process is required before a person can be evicted from their home

Court vs. Tribunal

There are a few instances in which a court of law can be used to solve a complaint rather than the Tribunal. If the tenant is in rental arrears, the landlord may go to court to claim the amount owed, but only if unfair practice is not involved. If the landlord has grounds for eviction, they must go to court for an eviction order. The Tribunal’s powers do not extend to granting an order to evict a tenant. For all issues involving a breach of tenant rights, the Rental Housing Tribunal is the appropriate vehicle for resolution.

Why the distinction matters

The Rental Housing Act 50 of 1999 creates the Rental Housing Tribunal framework and allows complaints about unfair practices in residential rental housing. Section 26 of the Constitution says no one may be evicted from their home without an order of court made after considering all the relevant circumstances. The PIE Act also regulates eviction procedures where it applies. This means a Tribunal complaint may be the right route for an unfair rental practice, but a landlord still needs the correct court order before eviction can take place.

Rental Housing Tribunal and eviction orders: frequently asked questions

Can the Rental Housing Tribunal evict a tenant?

No. The Tribunal can deal with unfair-practice complaints in residential rental housing, but it is not the court that grants an eviction order. Eviction from a home requires an order of court.

Is a Rental Housing Tribunal ruling a court order?

A Tribunal ruling may be deemed an order of the magistrates’ court for enforcement purposes. That does not make every Tribunal ruling an eviction order, and it does not replace the court process required for eviction.

When should a tenant complain to the Rental Housing Tribunal?

A tenant may complain where the dispute concerns an unfair practice in a residential rental, such as an unlawful lockout, failure to maintain the property, unfair notice, deposit dispute, unlawful seizure of possessions, or interruption of services.

Where do eviction orders come from?

Eviction orders come from a competent court. The court must consider the relevant circumstances before granting an order, and PIE Act procedures may apply where the occupation falls within that Act.

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban, helping both landlords and tenants with rental housing matters. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on any aspect of rental housing or landlord–tenant relations.

Further reading: