Durban Eviction Lawyer Archives | Eviction Lawyers South Africa

Hundreds evicted from buildings in Cape Town city centre

By | Eviction news, Homeless

Reprinted from CapeTownetc.com, by of GroundUp – 2024-01-28

Piles of suitcases, mattresses and items of furniture were strewn across the narrow Commercial Street in Cape Town on Wednesday and Thursday.

Hundreds of people, most of whom are foreign nationals, were evicted from three buildings in the city centre.

The area outside 42 and 44 Commercial Street was in chaos on Wednesday as dozens of South African Police Service (SAPS) officers and immigration officials cordoned off the street where the occupiers remained with their belongings. The occupied buildings are in close proximity to Parliament.

According to Western Cape SAPS spokesperson Malcolm Pojie, more than 100 undocumented people were transported to Epping Immigration Office for verification. ‘All other persons who illegally occupied the building were informed to vacate the premises with immediate effect,’ he said.

The occupiers were reportedly served with eviction notices from March 2023. A court order which was granted on 31 August 2023, stated: ‘The first to 265 respondents are ordered to vacate property situated at 44 to 48 Commercial Street, Cape Town, Western Cape by no later than December 31, 2023.’

The August court order was granted a few days after a fire in one of the buildings that was caused due to an electrical fault.

The court also said that if the occupiers do not vacate, then the sheriff and SAPS are authorised to remove the group with their belongings.

When we arrived on Wednesday, the occupiers — some standing with bags filled with their belongings — had been told to wait outside while officials went into the buildings to remove their belongings.

One of the occupiers, Pearl Myekeni, said she received an eviction notice in March.

Myekeni said they were told that the landlord to whom they were paying rent had apparently not been paying the owner of the building. The owner then terminated the contract. ‘We ended up collecting R26,000 from the tenants, each tenant contributed about R300. I didn’t participate so I was told that I can’t sleep here.’

She said slept at her boyfriend’s house on Wednesday night. Myekeni has been living in the building since September 2022.

She said she has had her belongings packed in boxes since December in anticipation of being evicted.

Another tenant, who did not want to give her name, claimed that ‘more than a thousand’ people were living in the buildings. ‘About four months ago after finding out that the landlords were not paying the owner of these buildings, we got rid of them and we haven’t been paying rent to anyone ever since then.’

Azubuike Kanu, who said he has lived in one of the buildings for more than five years, told GroundUp that he sent his wife and children to live in the Eastern Cape in December in anticipation of the eviction.

‘We were violently taken out of the building [on Wednesday]. We were transported in a truck to Langa Home Affairs to check whether we are here illegally or not. Some were arrested. They drove me to Mowbray and I had to find my own way back here,’ said Kanu.

Kanu spent the night outside on the pavement again on Thursday because he has nowhere else to go.

Cape Town lawyer Junaid Jamat told GroundUp that he is representing 120 of the occupants. ‘We were made aware of the issue last week Friday, but the occupants had no funds for the case to be handled.’ He said by the time the residents had collected funds on Tuesday, it was too late to oppose the eviction in the High Court.

‘Unfortunately, by Wednesday morning the Sheriff and the police were already there evicting the people, so we were too late,’ he said.

GroundUp contacted the Department of Home Affairs for additional information on the arrested immigrants on Wednesday afternoon. No comment was given by the time of publication.

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.

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Students go home

Students can be evicted from res to make way for new intake, SCA rules

By | Eviction news, Evictions, PIE, Student evictions

Reprinted from News24, by Jenni Evans – 2023-07-05

  • The SCA handed down an important ruling relating to whether students can be evicted from university-supplied accommodation. 
  • The judges found that this type of accommodation is finite and students are expected to leave when they have finished studying. 
  • They found that the students came from a home and would have a home to go to, students should yield their rooms to the next intake.

The Supreme Court of Appeal (SCA) ruled on Monday that students can be evicted from university-provided accommodation if they refuse to leave, because they would have a home elsewhere.

The court found on appeal that student accommodation is meant to be temporary to help them get their education, and when they have completed their studies, they must move out for incoming students to get the benefit.

This comes after an application for leave to appeal a ruling made by the Western Cape High Court in favour of 90 students who opposed their evictions from New Market Junction, owned by Stay at South Point properties.

The Cape Peninsula University of Technology (CPUT) in Cape Town contracted Stay at South Point Properties to provide accommodation for the students, and during the Covid-19 pandemic, the students refused to vacate when their exams finished at the end of 2020, ignoring notices to leave.

Eleven students were allowed to remain in their accommodation for the 2021 academic year, but they were asked to move out to alternative accommodation provided by the property company for maintenance and cleaning at the main site. This group also refused to leave.

The property company had security guards remove them on 12 January 2021. The occupants resisted. The property company asked the Western Cape High Court for an eviction order, which was refused because it was not brought under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).

The property company appealed to the SCA, arguing that PIE would not apply in this case because student residences are not the students’ permanent home. They came from a home to go to university, and if they were evicted, they would have a home to go to.

All of the occupants have since left, but the parties agreed that the matter should be settled in law anyway, given the “recurring controversy” around accommodation at CPUT.

In the judgment, the SCA explained that PIE is in line with Section 26 of the Constitution and provides that no one should be evicted from their homes without an order of court made after considering all relevant circumstances.

The bench found that PIE usually involves the occupation of land, but it is also meant to protect against homelessness.

The court found that if the occupation of land does not constitute the home of an occupier, PIE does not apply and if they can’t show they will be rendered homeless, the protection of S26 does not apply.

The judges said the students come from homes to study at the university, and unless otherwise shown, student accommodation does not displace them or replace the homes they came from.

The court found:

And hence, logically, the respondents have homes other than the residence. There is then no basis to seek the protection of PIE. Eviction does not render the students homeless.

They are intended to stay in the accommodation for a “finite time” to help them study at the university, and their student accommodation is meant to be temporary and transitory. 

“Students who are assisted by CPUT with accommodation are well aware that this valuable benefit is of limited duration,” the judges said.

“Those who are fortunate enough to benefit from accommodation provided by CPUT know full well that each and every year, new students come to the university who legitimately look to the university for the very assistance that the respondents enjoyed.

“Equity requires that those who have had the benefit of accommodation should yield to those who have not. And nothing about the position of the respondents suggests that this equitable principle should not continue to apply.

“It [student accommodation] is a residence, of limited duration, for a specific purpose, that is time-bound by the academic year, and that is, for important reasons, subject to rotation.”

The court ruled that PIE does not apply, and the Western Cape High Court’s refusal to grant the eviction order was wrong, so the appeal must be upheld.

However, there is no order for eviction because the respondents have already left.

For help with rental issues

At SD Law, we are a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help both landlords and tenants with rental housing matters, including reaching mutually acceptable agreements regarding rent and other conditions of occupancy. If you need assistance with a dispute or want advice on any aspect of rental housing or landlord–tenant relations, contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za.

Further reading:

Rent control

The history of rent control

By | Lease Agreement, PIE, Rent, Rental Housing Act

Rent control no longer exists, but tenants are still protected  

If you are a tenant, you know that South Africa’s rental housing market is in crisis. Anyone who has tried to find a property to rent in Cape Town recently will tell you they’ve been one of a dozen prospective tenants to view a property in one afternoon, often trailing around multiple properties with the same group of contenders. When they finally find a place they like, they are one of three or four candidates (or more!) to submit an application to rent. Landlords have their pick of tenants, and tenants often wind up bidding for a property – offering more than the advertised rental – just to secure a desirable property. Those with limited budgets struggle to find suitable accommodation, or wind up moving far from friends and family to secure affordable lodgings. It’s not easy for landlords either. Despite the competition for tenancies in Cape Town, in other parts of South Africa it can take months to find tenants. 

The economy is in crisis, and rental arrears are common. Landlord–tenant disputes often wind up in the eviction courts. Rental housing legislation and the Consumer Protection Act give tenants indisputable rights, but rental housing is still a minefield. Landlords also have rights, along with responsibilities. Do they have the right to put up rents, and to what extent? What does the law say about rent control? We look at the rules and regulations governing rent and rent increases in South African law.

What is rent control?

Rent control is a law placing a maximum price, or a “rent ceiling,” on what landlords can charge tenants. Rent controls may sound desirable, from a tenant’s perspective at least, because the ceiling is usually set below market level. But economists agree (a rare occurrence!) that rent controls are destructive. They generally reduce the amount of housing available, even in uncontrolled zones. There is rarely enough supply of rent-controlled properties to meet demand, and excess demand must then be met by noncontrolled properties. This demand pushes rents up in noncontrolled areas, and the average price of rental housing winds up being higher than it would be with no rent controls. The other effect of rent controls is to reduce supply, because landlords unaffected by controls fear the controls might eventually reach them, and don’t put their properties on the rental market. New investment into rental housing is often diverted to other ventures, leading to a deterioration in housing stock. Therefore, while rent control might sound like a good strategy for tenants, it does not result in a healthy rental housing market.

Rent control in South Africa

The place most famous for rent control is New York City. But South Africa also had rent controls in the past. When and why was rent control implemented – and abolished? 

Historically, South Africa passed rent control legislation to protect tenants from exorbitant rent increases and evictions which were a result of the acute housing shortage that existed around the time of the Second World War. Initially, the aim was to provide some security of tenure for existing tenants, along with a limited number of grounds for eviction. Property owners did not appreciate these restrictions and viewed the legislation as an infringement of their common law rights. For example, common law allowed landowners to terminate a month-to-month lease by giving one month’s notice. However, the courts declared that the one-month notice period was to be interpreted as “not later than the first day of the month to be effective for that month”, which meant the actual notice period could be longer than 30 days. Another example was the restriction placed on landowners by the Rent Control Act 80 of 1976 regarding notice to vacate, i.e.:

  • Three months’ notice if the dwelling was required for personal occupation
  • Six months’ notice if required for renovation, giving the tenant the first right to re-occupy the dwelling
  • 12 months’ notice if the landowner  intended to demolish the dwelling

Landowners also had to satisfy the High Court that the demolition or reconstruction was in the public interest and the Minister of Housing had granted permission. 

As a result, landlords campaigned to overturn rent control and these restrictions. Their efforts were broadly successful and rent controls were subsequently limited to dwellings built and first occupied on or before October 20, 1949. Any tenant, regardless of income, who occupied this category of dwelling was “protected” by the provisions of the Rent Control Act. Tenants whose dwelling did not fall into this category, but who were occupants at the time the dwelling was de-controlled, still enjoyed the “protection” of the rent control legislation if their income was within a specific income band.

Eventually, rent control ceased to apply to any dwelling built after 1978-1980 and all dwellings in “white” residential areas were eventually phased out of rent control by the early 1990s.

How is rent governed now? 

Residential leaseholders are no longer “protected” under Rent Control legislation. The Rental Housing Act of 1999 provided a “cooling off” period of three years for tenants who were living in rent-controlled dwellings. On July 31 2003, rent control ceased to exist, enabling landlords to increase rentals without restriction and removing the requirement to apply to a statutory body (the now-defunct Rent Boards) for an increase. 

Self-governing market

The Rental Housing Act does not dictate the rate by which a landlord may increase the rent each year. However, the amount of increase and the frequency with which the increase can occur should be clearly set out in the lease agreement. It is usually one year, and corresponds to the date of lease renewal. The landlord may not attempt to increase the rent during the lease period unless the lease contains a clause permitting it. Furthermore, the landlord may not increase the rent excessively, i.e., above market rates (the rate one can expect to pay for a similar property in the same area). The market has been left to govern itself.

Rents are generally increased by 8-10% per annum. Rental income is not pure profit for a landlord. Property owners bear the operating costs of municipal rates, insurance, maintenance and repairs, and interest rate movements if the property is mortgaged. In the current inflationary environment, landlords have to ensure their annual recalculation maintains their rental at a viable level, while also remaining cognisant of the cost pressures their tenants are facing.  

A balancing act

The abolishment of rent control was welcomed by landlords, but removed an element of financial protection from low-income, previously disadvantaged tenants. The Constitution ensures a right of access to adequate housing and a right to occupy land with legally secure tenure. However, the lack of legislative restrictions on property rents means that some tenants struggle to find suitable affordable rental housing options. As a result, they have been forced to occupy properties that are outside their budget, thus increasing the likelihood of defaulting on their rental payments and, by extension, increasing the chance of eviction. Where there is limited supply of housing stock and excess demand, as in Cape Town, the market tends to push prices up. Most experts agree that rent control is not the solution. But the current housing crisis in South Africa demonstrates there is a severe need for more affordable housing to be available. 

Meanwhile, if you need help

At SD Law, we are a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We can’t change legislation or influence market forces, but we can help both landlords and tenants with rental housing matters, including reaching mutually acceptable agreements regarding rent and other conditions of occupancy. If you need assistance with a dispute or want advice on any aspect of rental housing or landlord–tenant relations, contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za.  

Further reading: