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:

Prescribed charges

By | Electricity, Tenants

How long are you liable for municipal charges?

If you own a property, you are responsible for payment of certain charges to your municipality. If you are a tenant, you may pay your own utility costs or you may have an “all-in” rent, in which the landlord accommodates the cost of electricity, water and sewerage, etc., within the rental amount, and they pay the municipality directly. The property owner must always pay the property rates. What happens if you fail to pay the municipal charges you are liable for, either as owner or occupier? Is there a statute of limitations on debt to the municipality? The answer is complicated. In this context, the law refers to “prescribed charges”.

What does “prescribed” mean? 

A charge is prescribed when the law considers the debt too old for the creditor to enforce collection. A creditor can still demand payment of prescribed charges and include them on an invoice, but the defence of prescription may be used by the debtor to avoid payment. 

The National Credit Act 34 of 2005 (read with the National Credit Amendments Act 19 of 2014) makes it unlawful for a municipality to invoice a consumer for prescribed charges, or to collect them.

When do municipal charges prescribe?

The prescription of municipal charges is covered by the Prescription Act, Act 68 of 1969, read with current case law. In South Africa, refuse, rates and sewerage charges prescribe after a period of 30 years. However, water and electricity charges prescribe after a period of just three years. Water and electricity can easily be disconnected by the municipality for non-payment, unlike refuse collection or sewerage, which may explain the shorter prescription period.

Principles of prescription of municipal charges 

There is a mild anomaly in the way the prescription period is set for municipal charges. Debts generally fall due when the customer (the debtor) receives the invoice. The prescription period theoretically starts running when the debt falls due. However, we have all experienced times when our municipal bills arrive later than usual. In this case, prescription starts running when the knowledge of the claim should reasonably have come to the creditor’s attention. In plain English, if the municipality fails to invoice consumers for an extended period, then prescription starts when it reasonably ought to have done so, and not when the invoices were eventually despatched. 

Prescription is “interrupted” and the prescription period restarts if a consumer has admitted liability for the charge unambiguously and unequivocally. This can be problematic if a consumer signs an acknowledgement of debt for charges under dispute, to procure a payment plan or arrange for reconnection of services which were terminated due to non-payment. 

Payment of a prescribed charge and interruption of prescription

Once an amount has been paid, it cannot prescribe. Even if you made the payment in ignorance of this condition and in error, you cannot claim a reversal of the prescribed amount, or a refund of the amount paid. If a municipality has summonsed a consumer for an unpaid amount, this amount does not prescribe. 

Part payment of a debt, or acknowledgement of part of a debt, can interrupt the prescription period for the whole debt. This is sometimes an issue when a municipality sends out invoices based on estimated readings for an extended period of time. If a consumer either pays or admits liability for the charges raised on estimated readings, and the municipality then reconciles the consumer’s account with the actual readings and raises further charges, the new charges cannot prescribe.

Do you need further information? 

Prescription should not arise if you pay your bills on time. If you think you have been invoiced inaccurately or unfairly, relying on the prescription period is not the most appropriate way to avoid paying a charge you believe is unfair. If the charge is for water or electricity, you are likely to be disconnected. If the charge is for rates, refuse or sewerage, 30 years is a long time to be in dispute with the council! 

If you have any questions about your bill, speak to your municipality in the first instance. If you are in financial difficulty and are unable to pay your bill, it will usually agree to arrange a payment plan, but it’s important to make contact as early as possible and not as a last resort.

If you have done this and are still in dispute, SD Law can help. We are a firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships and we can also resolve matters with municipalities. Contact one of our attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with any property issues.

Further reading:

Single mother faces eviction threat after 30 years in family home

By | Eviction news, Evictions, Tenants

Shanaaz Dyason, 40, claims that the City of Cape Town is attempting to remove her from the house she has lived in for the past 30 years.

Reprinted from iol.co.za, by Marsha Dean – 2024-10-05

The property, located on Fir Tree Road, originally belonged to her parents, who were forcefully removed by the Apartheid government and relocated to flats in Lavender Hill.

In 1994, the family was permitted to return to their home, and since then, Dyason has resided there with her three children and grandchild.

Dyason has faced ongoing issues regarding the transfer of the house into her name for the past 14 years.

“When my parents got divorced, they both moved out of the house and went their separate ways. My mother and I then went to the rent office, and we explained that I still live in the house. They said the tenancy would be transferred over to me as I was of age,” she explained.

However, in 2010, Dyason received an eviction order, which threatened to send her back to Lavender Hill. The City offered her a one-bedroom flat in Plumstead, but she refused.

Later, she was taken to court, where the judge ruled that she was not illegal and was indeed eligible for the house, instructing the City to sign a lease with her.

“I signed a lease, but a couple of years later, the house is still not in my name. It’s been 14 years, and until today, nothing has been resolved,” Dyason lamented.

“My water keeps getting cut off, and I have to pay over R3000 just to have it reconnected, which consumes all the SASSA money meant for my children. I am paying R2300 a month for electricity to cover housing debt. Since the lease is not in my name, I cannot sort anything out. Every month, I go to the municipality, and they say the hold-up is with the rent office.”

Desperately, she stated, “I am at my wits’ end and don’t know what to do anymore. I have already lost my job because every month I need to stay out to go to the rent office and submit new papers.”

In response, Councillor Carl Pophaim, the Mayco Member for Human Settlements, stated, “The City can confirm that no eviction application is underway as alleged.

“The tenancy was allocated to Shanaaz Dyason, and she signed a lease agreement with the City on 21 September 2023. We encourage Mrs Dyason to visit her nearest City housing office to complete all the documentation needed to take ownership of the property.”

However, the City claims that the property address matter has been resolved and that the resident should visit her housing office as soon as possible.


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: