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eviction attorney Johannesburg Archives | Page 6 of 28 | Eviction Lawyers South Africa

Jun 19
1
Bad husband

Can I be evicted from the farm I have been living on for decades?

By | ESTA, Farm evictions

The text below is the answer to a question posed by a reader to GroundUp – 2024-06-12

The short answer

As a person living on a farm, you may be covered by the Extension of Security of Tenure Act of 1997.

The whole question

Dear Athalie

I have lived on a farm in Stellenbosch with my grandmother and uncle for 31 years. They have both passed on now. Last week I was given an eviction letter. Other people living on the farm got them too – even ones who used to work on the farm.

The long answer

No one in South Africa can be evicted without a court order. A new owner cannot evict you without a court order and the court must find that the eviction is fair and just before granting an eviction order.

As a person living on a farm, you are covered by the Extension of Security of Tenure Act of 1997 (ESTA) if you do not earn more than R5,000 a month and you are not a labour tenant.

The organisation PASSOP points out that under ESTA you have special rights if you are a long-term occupier. If you are older than 60 and have lived on the farm for ten years, you can stay on the farm for the rest of your life. The only way that you can be evicted is if you do not honour agreements that you have made with the owners, or if you do something seriously wrong. An eviction is only lawful if there is an eviction order from a court, and the eviction must also be just and equitable.

If you are younger than 60, but have lived on the farm since before 4 February 1997 (when the new Constitution came into effect), and you have done nothing wrong, the court will not grant an eviction order unless there is alternative accommodation available where you can enjoy the same quality of life. As you have lived on the farm for 31 years, that protection would apply to you.

ESTA protects farm dwellers against unfair evictions and sets out how disputes over rights to the land can be resolved with mediation, arbitration or the courts. The decisions that the courts make must strike a balance between the constitutional right of a person to a home and the rights of the landowner.

The Constitutional Court emphasized in a 2016 case, that security of tenure and provision of adequate housing must be at the centre of the eviction process in terms of ESTA.

If the new owner wants you all to leave, these are the procedures he must follow:

  • He must give you a notice that if you do not vacate the premises within two months of the notice, he will go to court for an eviction order. (The owner is not allowed to remove you by physical force or by blocking access to the property.)

  • He must send a copy of this notice letter to the local authority and the provincial office of the Department of Land Affairs, to warn the municipality and the Department that they might need to make arrangements for alternative accommodation for you, and for mediation, if this is possible.

  • The application for eviction through ESTA must be brought either to the Land Claims Court or to the Magistrate’s Court.

In an ESTA application for eviction, the court will look at the following questions to decide whether it is just and fair to evict you:

  • Was the original agreement between the occupier and the owner fair?

  • How did the parties conduct themselves?

  • How much is each party going to suffer if this eviction happens or does not happen?

  • Did you expect to stay on the land for a longer period?

  • Are there valid grounds for evicting you?

In the court enquiry, you have the right to have another person or a lawyer there to help you state your case. After the enquiry, if the eviction order is granted, the owners must inform you of their decision in writing, and remind you that you have the right to take the matter to court if you disagree with the outcome of the enquiry.

The eviction order also has to be sent to the Land Claims Court to be confirmed before it can be enforced.

If you need help and advice, you could contact the following organisations:

3 Hans Strijdom Avenue Lane

Tulbagh Centre Building (Room 413)

Cape Town 8001

Office Telephone: 0214182838

Office E-mail: office@passop.co.za

Link to Programme: Security of Farm Workers Project

Telephone number:  021 424 8561

Physical address:

4th floor, Vunani Chambers,

33 Church Street,

City Centre,

Cape Town

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 13
0

City pushes on with plans for eviction of Salt River Market traders

By | Eviction news, Evictions

Reprinted from iol.co.za, by Zolani Sinxo – 2024-05-12

Cape Town – The City of Cape Town is continuing with its plans to evict historic Salt River Market traders who, for decades, have used the venue to not only sell their goods but also to share cultural experiences with customers and residents.

The City recently filed an urgent court application to evict the last remaining tenants who refuse to leave the market.

The once popular market, which was filled with colour, now tells the tale of its decline, with only about four stalls left.

The dispute comes after the City told the traders that the site was earmarked for social housing.

Igshaan Higgins, an activist lawyer who has been vocal on the matter, said the eviction process could have been avoided if the City followed through on its commitment to explore relocating the traders to a suitable trading location.

“Unfortunately, the City opted for an urgent High Court application against financially disadvantaged traders who are unable to adequately defend themselves.

“These traders now face the burden of covering the City’s legal costs, regardless of their decision to contest the matter.

“Many of these individuals have operated businesses at the Salt River Market for over half a century, with their staff now facing unemployment,” said Higgins.

“It is my hope that the City will keep its expensive and overzealous lawyers at bay while trying to find an amicable solution through negotiation and/or mediation.”

Human settlements Mayco member Carl Pophaim said the City was releasing inner city land for affordable housing on an accelerated basis, and Salt River Market was one of various municipal-owned properties in central Cape Town — with a yield of over 3 500 units — that had already been released to social housing developers, including Pine Road, Dillon Lane, and Pickwick in Woodstock, and the Maitland Mews development.

“In line with our agenda to build a City of Hope by enabling much more social housing in well-located areas, the Salt River Market development will include 300 social housing units,” Popham said.

“It will also include a public square, alongside a community hall, anchor retail shops, and convenience retail (such as a hairdresser, laundry, etc) that will create many opportunities for small businesses. The development proposal pays special attention to the historical context of this site,” said Pophaim.

He said development was planned to accommodate the remaining four historical fresh produce sellers.

“The City has held extensive engagements with all the traders on the site, resulting in most of the remaining commercial traders agreeing to relocate on a voluntary basis,” said Popham.

“The land was released by the City council to the successful developer in July 2022, with construction set to start soon in July 2024.

“This is, however, being delayed by only four remaining traders who have, since 2019, been earning an income by trading illegally on the site without a lease agreement at Salt River Market and who do not trade in fresh produce or associated goods.

“Despite ample notice of the City’s intention to release the site for social housing development, these four traders have continued to make commercial gains without even paying for the water and electricity they consume on site.”

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 02
0

A brazen case of a hijacked building

By | hijacking, PIE, Student evictions

Students protected as illegal “landlord” evicted

Eviction is never pleasant, regardless of just cause. It usually means someone losing their home, even if their occupation of that home is technically unlawful. People who erect shacks on land that is not their own can be forgiven…or at least understood…when they genuinely have nowhere else to go. But sometimes an eviction is not only justified but entirely deserved. A recent case that came before the Gauteng High Court reveals just how brazen a building hijacker can be. The case is astonishing for the sheer audacity of the respondent. Fortunately, the law prevailed. Furthermore, it protected a large number of innocent students who were offered tenancies under false pretences.

Caretaker turned landlord

A property-owning company owns a property in Tshwane. They are the applicant – the party bringing the case to court. The respondent, or defendant, is an individual who was formerly employed by the applicant as a caretaker of the property. He was permitted to occupy the property to carry out his duties, but his employment has now been terminated. With absolutely no mandate from the property owner, this former caretaker concluded an accreditation agreement with a third party so the property could be accredited as private student accommodation. When the applicant learned of this, they obtained an order stopping the respondent from leasing out units and from collecting rent or permitting people who are not in occupation of the property to enter the property and take up occupation. The respondent was specifically forbidden from acting on behalf of the applicant for any purpose. Nonetheless, the respondent continued to rent rooms to students. Occupant numbers rose from 17 to 50, and by early March 2024 there were approximately 200 students in residence!

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE)

When PIE is mentioned, it is usually in the context of stopping an eviction. However, the Act also exists to stop unlawful occupation, and the applicant in this case believed (with good reason) that the respondent’s occupation of the property was unlawful. Furthermore, the respondent, acting as landlord, was collecting rental income to which he had no entitlement. The applicant went to court seeking an eviction order under PIE and an urgent interim eviction order under section 5(1) of the Act. Because eviction proceedings can take some time, the applicant was concerned to rectify a chaotic and potentially dangerous situation quickly. Section 5(1)  states:

(1) …the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of that land pending the outcome of proceedings for a final order, and the court may grant such an order if it is satisfied that- (a) there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land; (b) the likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted; and (c) there is no other effective remedy available.

In the application for the urgent eviction order, the applicant argued that unless the respondent was evicted on an urgent basis the hijacking of the property would continue. Given that unlawful landlords rarely have the best interests of the property or the tenants in mind, and are not known for maintaining properties in good order, the likelihood of injury or damage to person or property was high. 

Fate of the students in the hijacked building

However, the tenants had occupied the building in good faith and were living there while pursuing their studies. There have been many stories in the press of hijacked buildings being cleared by relocation and eviction services such as the Red Ants, who may restore the building to the rightful owner but also make tenants homeless in the process. Fortunately, in this case the applicant informed the students of the pending dispute and confirmed that the application to court would not affect their occupation of the property. The university has been furnished with a copy of the court order and the applicant intends to seek accreditation with the university once the fraudulent accreditation granted to the first respondent has been cancelled. At that point leases will be normalised. Students were advised not to make any further payments to the respondent and to alert the applicant to any attempt to extort money from them by threats. In yet further confirmation of his brashness, the respondent physically prevented delivery of these letters to the property.

A happy ending

The court found that the requirements in section 5(1) of the Act were met. There is a real and imminent danger of damage to the property and harm to the bona fide students who are at the property to pursue their studies, and the hardship to the applicant and the occupiers far exceeds the potential harm to the respondent, who has no right to occupation. The respondent has invaded the applicant’s property and the applicant is in danger of losing the use of his own property to the detriment of their lawful business and to the detriment of the university students. The property is also undergoing maintenance that is incomplete and construction work may pose a danger to students. The right to occupation initially granted to the respondent was limited and linked to his employment as a caretaker. He did not have permission to rent out rooms or to use the property for business purposes on his own behalf of on behalf of anybody else. The applicant has a right to the use and enjoyment of the building. The property company is entitled to protect its property from damage and to regularise its relationship with the university, using the property to earn income by providing legitimate accommodation to genuine students.

The respondent was ordered to vacate the property within 48 hours of service of the eviction  order.

For further information

Landlords sometimes need legal help with troublesome tenants. Tenants may also have mitigating circumstances that make an eviction case complex. But this particular case was cut and dried. The respondent blatantly abused his initial right of occupancy as caretaker and disregarded the law in offering accommodation to students with accreditation gained under false pretences. The urgent eviction order was granted without dispute. If you have issues with property hijacking, we can help. Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za

Further reading: