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Eviction attorney Archives | Eviction Lawyers South Africa

How to oppose eviction South Africa

Opposed eviction

By | Evictions, Lease Agreement, PIE, Tenants

What is the difference between an unopposed and opposed eviction?

 

We’ve written a lot about the eviction process. In describing the procedure, we say, “If there is a valid defence, then a trial date is set. If there is no valid defence, a ‘warrant of eviction’ is issued to the sheriff giving authorisation for the sheriff to remove the tenant’s possessions from the premises.” If the tenant offers a valid defence, the matter is considered an “opposed eviction”. If there is no defence, the eviction is “unopposed” and proceeds straight to the court order and the removal of the tenant’s belongings from the property. But what constitutes a valid defence and why might a tenant oppose an eviction?

The right to housing vs. the right to ownership

In South Africa the right to housing is a constitutional right of every individual as per section 26 of the Constitution. But sometimes this right of the tenant comes into conflict with the landlord’s constitutional right to ownership, which is entrenched in section 25.

With a residential property lease, once there is a breach of contract, the landlord is entitled to give notice, cancel the lease and evict the defaulting tenant. If the landlord has given written notice of the intention to cancel the lease and the notice period has expired (minimum one calendar month) with no payment from the tenant, eviction proceedings can begin. If the lease is cancelled for any other breach, that must also be rectified within the notice period, but non-payment of rent is the most common.

Due process to oppose an eviction

The landlord then applies to court in terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE). The landlord and the tenant have several rights and responsibilities when it comes to eviction applications and the process can be technical. The application is made up of a notice (S4(1) notice) supported by an affidavit. 

Once a notice of cancellation/eviction has been sent and the notice period has expired, the court process may begin, through the service of an eviction application by the Sheriff. The respondent will then have 10 days to oppose by filing and serve his Notice of Intention to Oppose. Regardless, an ex-parte application is brought before the court to request permission to continue to the final hearing. The court will then grant the eviction and the Sheriff can evict the unlawful occupier in terms of the order.

Going to trial

If the matter is opposed it moves to trial. Before a court can grant an eviction it has to consider all the relevant circumstances and be in a position to rule that the eviction is just and equitable. The court hears the arguments of both landlord and tenant. This is done through affidavits. The owner of the property approaches the court on the basis of ownership and the unlawful occupation. It is the tenant’s responsibility to then raise special circumstances to defend their case. The court will take into consideration the rights of any elderly occupants, children, disabled persons and households headed by women when granting the eviction. 

Term of occupancy

The tenant’s length of occupation is a key factor in the court’s decision. In terms of section 4 of PIE, if the tenant has occupied the property for less than six months, the court must appraise “all relevant circumstances…” before making an order. However, if the term of occupancy has been longer than six months, there is an additional requirement on the court. It must determine “whether land (or alternative accommodation) has been or can reasonably be made available … for the relocation”. If the eviction is lawful and the tenancy has been in place for more than six months, the lack of alternative accommodation constitutes a reasonable defence. The government has a duty to provide all citizens with housing and the tenant must have access to alternative housing. If not, the eviction cannot be granted. The eviction will have been successfully opposed.

Need help with an opposed eviction?

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you need advice on lease agreements, need to oppose an eviction or deal with a tenant’s defence, or any other aspects of landlord-tenant relations, contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

Call for moratorium on court magistrates granting eviction orders

By | COVID 19, Evicting a family member, Eviction news, Eviction orders

Reprinted from IOL, by Mthuthuzeli Ntseku – 2021-06-23

Non-profit organisation Ndifuna Ukwazi calls for moratorium on eviction orders

Non-profit organisation Ndifuna Ukwazi said evictions under alert level 3 remained prohibited unless a court ordered otherwise. File picture: Henk Kruger/African News agency (ANA)

Cape Town – The Ukubavimba Foundation has called on Minister of Justice and Correctional Services, Ronald Lamola, to place a moratorium on court magistrates granting eviction orders.
This as a family of six from Atlantis is facing possible eviction after a family member got an eviction order to throw them out of the house they have been occupying for 35 years.

Speaking on behalf of the family, activist Verona October said the family had been living in the house since birth, but now their aunt wanted to evict them.

“The sheriff was recently at the family home, and we want to know what this eviction is based on. Earlier this year the aunt got people to rent the house, and now she wants to evict the family. They haven’t received a letter of eviction, but we are aware of her intention to get them evicted. The family has been living in their late grandfather’s house since birth, and they know no other home but this one,” she said.

Foundation activist Deon Carelse said it was a constitutional matter, adding that evictions increased homelessness.

“Minister Lamola is in charge of the courts, and with the judges that under his authority he can bar them from signing these eviction orders. Our Constitution tells us that there should be adequate housing for all, and that is a basic human right. For a court judge to grant an eviction order is unconstitutional.

“Currently we are under alert level 3, and with the national lockdown it is unconstitutional to evict a person. These evictions, whether private or farm evictions, are unlawful and unjust. An eviction order to be granted by a court does not do justice to the evicted families; it is inhumane, especially at this time of the year,” said Carelse.

Non-profit organisation Ndifuna Ukwazi said evictions under alert level 3 remained prohibited unless a court ordered otherwise.

“This means the sheriff cannot physically remove you from your home until the State of Disaster ends, unless the court specifically orders that it is just and equitable for the eviction to be carried out before then,” the organisation said.

It said courts must always consider all factors, including the reason for an eviction, evictees’ personal circumstances, especially the elderly, children and people with specific needs, and whether alternative accommodation was available.


For further information

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you are seeking an eviction, we will make sure you meet the court’s requirements. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

SABC News exposé on land eviction yields positive results

By | Eviction news, Eviction orders, Evictions, Farm evictions

The Department of Land Reform has successfully managed to acquire permanent accommodation for 12 families who were evicted by the owner of a farm near Ventersdorp in the North West.

The group – comprising of 51 members, including 20 children –  with all their belongings were evicted almost two months ago, and were forced to spend two nights on the street.

They are currently being accommodated in a community hall at Tshing township in Ventersdorp.

The plight of the families was exposed by SABC News two months ago. Since then, both national and provincial government authorities have intervened.

Efforts to secure permanent accommodation for them, seems to have yielded positive results.

The Department of Land Reform has managed to purchase a 205 hectare farm in Hartebeesfontein near Klerksdorp worth R1.4 million.

The Department’s Director for Tenure and Reforms, Richard Sebolai, explains: “We have identified a property by the name of Hartebeesfontein, it’s in extend of 205 hectares. We have already finalised all the processes of acquiring this property. We have signed sale agreements, we have submitted your guarantees to the conveyers who have been appointed by the owner of the property. Our branch special land use management have already drawn a plan which actually shows where the settlement is going to be.”

The provincial human settlements department is also on board. Its Chief Director, Tshepo Phetlhu, says they are assisting the affected families by building them temporary houses.

“We looked at our programme and we said let us assist the 12 families that are evicted through a programme called the emergency housing programme. To that end we then appointed service providers to do same, which as we speak the service providers are on site. They started to construct houses and we are hoping that they will conclude soon.”

Commitment to providing basic services

Matlosana Local Municipality Ward councillor, Mathapelo Seitisho, says her municipality will provide basic services to those relocated.

“We will just provide our community with water, sanitation and also electricity, because we are still using the temporary structures. Where there is a need for permanent structures, we will also be there,” says Seitisho.

Spokesperson for the evicted workers is 54-year-old, Julius Moeketsi.

He has expressed their gratitude for the intervention.

“I am very happy because that is what we really needed, as our living conditions in that hall are very bad particularly during this winter period.”

Government officials are optimistic that the relocation of these families will be completed late next month.

Reprinted from SABCNEWS (emphasis by SD Law*)

 

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 need advice on the eviction process or if you are facing unlawful eviction.

Further reading: