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Eviction attorney cape Town Archives | Page 2 of 19 | Eviction Lawyers South Africa

Jan 13
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Communicare wins eviction case against Ruyterwacht tenants in rent arrears of R1.6 million

By | Eviction news, Evictions

Reprinted from iol.com, by Mwangi Githahu – 2022-12-01

Cape Town – Social housing giant Communicare has welcomed a judgment in the Western Cape High Court in a case it brought against several tenants of its Sakabula apartment complex in Ruyterwacht over R1.6 million in rent arrears.

The Communicare-owned entity, Goodfind Properties, succeeded in getting the court to evict the tenants who opposed the case, but in his ruling Judge Derek Wille granted the evicted tenants two extra months to vacate the premises.

Communicare chief operating officer Makhosi Kubheka said they relied on tenants honouring their rental agreements, but when the tenants failed to do so, Communicare was left with no option but to let the law take its course.

“This was the last resort after we tried to negotiate the settlement of their arrears. It is unfortunate that it has to end this way. It is not fair, however, to our legal and paying tenants when they have to foot the bill for those who don’t pay,” Kubheka said.

Before the court for determination were nine opposed applications for the eviction of different tenants from the apartments managed by Goodfind Properties, a company fully owned by Communicare.

Judge Wille said he heard all the applications together as directed by the judge president as the factual issues were all very similar in nature, while the legal issues were all identical.

The court had to determine whether Goodfind made a case for the evictions and, if so, on what date the evictions should be carried out, considering among other things the personal circumstances of the tenants who were the respondents in the case.

Judge Wille said Goodfind asked the tenants to bring their rental arrears up to date but that in each case the tenants had failed to respond to Goodfind’s demand letters.

“Despite the leases being cancelled and the respondents having been called upon to vacate the property, they have failed to do so and remain in unlawful occupation.”

The tenants had claimed in their opposition to the evictions that the eviction applications should not be entertained pending the finalisation of a similar matter in another court; that Communicare is an organ of the state and that there is a challenge as to the ownership of the property.

However, the judge said the tenants had put up no primary facts in support of their legal and technical arguments.

He said this was despite the respondents having been invited to detail their personal circumstances and engage with and complete the relevant prescribed questionnaires for processing by the City, which was recorded as the fifth respondent in court papers.

“They all declined to do so. Accordingly the court is left with no information pertaining to the personal circumstances of the various respondents.”

For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you are concerned about unlawful eviction or if you need advice on the eviction process.

Further reading:

Jan 17
0

Eviction rights and wrongs – does PIE apply to a guest house?

By | Evictions, PIE, Tenants

Do your guest house or Airbnb guests have PIE rights?

What happens when guests book into an Airbnb property or a guest house and then refuse to leave?  This happens more often than you might think, especially with Airbnb lets, because the hosts are usually ordinary homeowners with a bit of extra space, which they let out to supplement their income. Airbnb is built on the premise of the “sharing economy”, where people share underused assets for cash. Because most Airbnb hosts are not professional landlords, guests may take advantage of the more relaxed relationship. There are also questions raised about how well Airbnb oversees the whole process of hosting and being a guest. The website airbnbhell.com is a platform for hosts and guests alike to vent about their bad experiences, and there are many. One guest sublet the Airbnb property she was staying in to a film company for a TV commercial shoot! Do Airbnb guests have PIE rights?

Evictions under lockdown

The past two years have been strange and taxing for all of us. We have been living under a national state of disaster, of varying levels, which has impacted on normal policies and procedures. Under Alert Levels 5 and 4, no evictions were permitted. 

The current state of affairs

We are still living under an adjusted Alert Level 1. Though certain restrictions were eased on 31 December 2020, the prohibition against eviction remains. In the words of the Disaster Management Act Regulations: “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.” The Act goes on to cite a range of conditions that must be met in order for an eviction order to be executed.

What does this mean for Airbnb hosts and guest house proprietors?

The alert levels have changed regularly over the past two years, up and down the scale of severity, so it’s not surprising that some guests are taking their hosts for a ride. They claim protection not only under the Disaster Management Act but also under the Prevention of Illegal Eviction Act – PIE.

However, PIE does not apply to guest houses, hostels or Airbnb premises. A case appeared before the Western Cape High Court 10 years ago – Yussuf and Another v Ye Khan Investments CC and Another. Applicants claimed that the premises they occupied constituted a hostel and not a guest house, and they were entitled to protection from eviction.

The judge found for the respondents, saying that the PIE Act “…was passed to provide some protection to squatters and other persons who were occupying land or premises unlawfully and without any leases because they were desperate and had no other form of shelter or home.” A guest house does not qualify for protection in terms of the PIE Act because “…occupants in a guest house are occupying the premises for a fixed period of time with the express consent of the owner or the person in charge of the premises. This is a commercial property, like a hotel, which provides for short-term occupation of persons who are visitors and not to persons who are long-term occupiers of land or property because they have nowhere else to live.” 

Protection for destitute persons

The judge continued, “I also do not accept that there is a difference between a ‘guest house’ and a ‘hostel’ which would render the latter susceptible to the provisions of the Pie Act, but not the former…That is not the purpose of the Act or the Constitution which provides protection to persons who are destitute and have taken refuge in some or other property because they have nowhere to live. The Act cannot be applicable to persons who move into a guest house or hotel.”

Airbnb

Airbnb was founded in 2008 but did not arrive in South Africa until 2010. At the time of the aforementioned judgment,  Airbnb was not a significant player in the accommodation industry and was not mentioned in the case. However, despite being untested in case law, Airbnb functions as a guest house or hotel for its users and is usually chosen as an alternative to these types of traveller accommodation. Therefore, it is hard to imagine an Airbnb guest being treated any differently in law to a guest house or hotel guest.

Get professional help from a leading eviction attorney in Cape Town

If you are an Airbnb host or guest house/hotel proprietor with a guest who has outstayed their reservation, give eviction attorney Simon Dippenaar a call on 086 099 5146. SD Law is law firm in Cape Town with expertise in property matters including rental housing, eviction and conveyancing. We can help you resolve your eviction case swiftly and legally. You can also email Simon at sdippenaar@sdlaw.co.za.

Further reading:

*This is an updated version of an article that first appeared on 05 May, 2021.

Jan 14
0

Man in customary marriage not allowed to evict wife

By | Evicting a family member, Eviction news

Reprinted from iol.com, by Zelda Venter – 2021-12-23

Pretoria – A man who got tired of his “wife” and wanted to evict her from his home got more than he had bargained for after the court ruled that as he was married to her, he could only kick her out of the house if he offered her alternative accommodation – the same as that to which she is now accustomed.

The High Court sitting in Johannesburg turned down the man’s eviction application and found that he was married to the woman by customary law as per the provisions of the Recognition of Customary Marriage Act.

The parties are not identified, as it’s a marriage dispute.

The court had some harsh words for the man, who claimed that the woman had moved in with him as they were still “developing” their love relationship.

He said he, meanwhile, realised it would not work, but she refused to budge.

However, it had emerged from the answers of the woman in her opposition to the eviction order that they were, in fact, married.

The man had paid lobola, but remained mum on this aspect in his application.

When confronted with this by the judge, he reluctantly had to agree that he had paid lobola, but he claimed there was no marriage as the negotiations were not concluded.

The man maintained that the woman was an “unlawful occupier” in his home, as he had since terminated their “love relationship.” As the owner of the property, he said, he could choose who lived there.

The woman, on the other hand, told the court that her family and that of the applicant entered into lobola negotiations. Upon the successful conclusion of the negotiations, an agreement was concluded, reduced to writing and signed by delegates of the two families. It is stipulated that the lobola agreed upon was R50 000.

The family of the applicant paid R40 000, and the remaining amount of R10 000 was due at a later stage.

Following the successful negotiation, the woman said she had moved into the house with her husband, as she regarded them to now be married. He even assisted her in moving her things to his house.

In response, the man admitted that he paid part lobola. He, however, disputed that a valid customary marriage was concluded. He claimed that other formalities dictated by custom still needed to be fulfilled.

He made reference to the fact the woman still needed to be introduced to his family in the Eastern Cape, and that gifts between the two families still needed to be exchanged.

According to the woman, they lived together as husband and wife until the breakdown in their relationship due to infidelity by the applicant. She maintained that she was his wife, and thus, would not budge.

Judge J Thupaatlase said the woman’s defence had to be accepted. “The facts stated in her affidavit are not disputed by the applicant except his feeble attempt to explain them away. He didn’t take the court into his confidence, and in fact, lied to the court about his relationship with the respondent.

“If this court was to accept his version, this will lead to untenable and gross unfairness to the respondent,” the judge said.

He added that the undisputed fact, which was crucial before the court, was the payment of lobola, and the applicant was disingenuous and dishonest.

“He created a totally false state of affairs.”

In ruling that they are legally married in terms of customary law, the judge referred to case law where another court found that a spouse cannot become an “unlawful occupier” in relation to the other spouse in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, as argued by the man.

The judge also referred to an academic publication called The South African Law of Husband and Wife, where the author stated that “even where the husband is the owner of the property occupied by the couple, he has no right, while the marriage is in existence, to eject his wife from it without providing her with suitable alternative accommodation”.

“Acting in accordance with these principles, the applicant (man) can only seek the respondent’s eviction from the matrimonial home against a tender of equally comparable living conditions,” the judge concluded.

In referring to another judgment in a similar case, the judge said that judgment made it clear that a spouse occupying the matrimonial home (the wife, in this instance) may be ejected from the matrimonial home provided that she is offered “suitable alternative accommodation” or “a means of acquiring such suitable accommodation”.

“The applicant, in this case, is not tendering any such accommodation,” the judge said in turning down the eviction application.

SD Law can help

If you are in a customary marriage and are uncertain about your rights, or have any questions about it, Cape Town law firm SD Law can help. Call attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

*This article has also appeared on our sister site, divorceattorneycapetown.co.za