Eviction notice Archives | Eviction Lawyers South Africa

Level 3 evictions and the eviction process

By | COVID 19, Evictions, Rental Housing Act

What is permitted under adjusted Alert Level 2 – oops! Level 3

Evictions under lockdown level 3 South Africa

With COVID-19 cases again on the increase, the government announced a return to Level 2 on 31 May. Fortunately for the hospitality industry and the liquor industry, the alcohol ban was not reintroduced, but this week, with new infections still rising and a “third wave” officially underway, government rapidly moved the country back to Alert Level 3. Curfew has been brought forward to 10pm, and hospitality outlets, which are still allowed to serve alcohol, must close by 9pm. Off-sales are restricted to Monday-Thursday, 10am to 6pm. But the rules regarding Alert Level 3 evictions are basically the same as they have been throughout Alert Levels 1-3. 

Evictions under Alert Level 3

As before, the aim is to protect vulnerable tenants. In the words of the 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.” Landlords may apply for an eviction order, but it will be suspended or “stayed” “until after the lapse or termination of the national state of disaster unless the court is of the opinion that it is not just or equitable to suspend or stay the order.” 

If the landlord does need to evict a tenant, they must have regard for: 

  • The need for everyone to have a place of residence and services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons
  • The impact of the disaster on the parties
  • Whether affected persons will have immediate access to an alternative place of residence and basic services
  • Whether adequate measures are in place to protect the health of any person in the process of a relocation
  • The occupier’s behaviour, e.g. if they are causing harm to others
  • The steps the landlord has taken to make alternative arrangements of payment of rent to preclude the need for relocation
  • Other considerations as described in the gazette

Rental housing 

The national state of disaster and its documentation stresses the importance of fair practice, strengthening the provisions of the Rental Housing Act 1999. The following conduct is deemed unfair practice:

  • The termination of services in circumstances where:
  • the landlord has failed to provide reasonable notice and an opportunity to make representations
  • the landlord has failed, reasonably and in good faith, to make the necessary arrangements including to reach an agreement regarding alternative payment arrangements, where applicable
  • no provision has been made for the ongoing provision of basic services during the national state of disaster
  • Imposition of a penalty for the late payment of rental where the default is caused by the disaster 
  • Failure of either party (landlord or tenant) to engage reasonably with the other to “cater for the exigencies of the disaster”
  • Any other conduct that prejudices the ongoing occupancy or the health of any person or the ability to comply with the applicable restrictions on movement 

For a full list of regulations, see sacoronavirus.co.za

The eviction process

Although the eviction order may be stayed under after the national state of disaster lapses, you may apply to the court for an eviction order. 

If a tenant is in breach of the lease agreement, you must follow these steps. You must not physically remove the tenant or their possessions, change the locks, or disconnect water or electricity. Doing so is a criminal offence and you could find yourself in court…for the wrong reason! The process is as follows:

  1. Serve notice to the tenant of the breach, giving them a defined period of time to rectify the breach. This will be determined by the terms of the lease, or if not specified it will be 20 working days, in accordance with the Consumer Protection Act (CPA).
  2. If the breach is not rectified, you can terminate the lease contract.
  3. You then give notice to your tenant of your intention to evict them through the courts.
  4. You apply to court to have a “tenant eviction order” issued to the tenant.
  5. The court issues the “tenant eviction order” to the tenant and the municipality whose jurisdiction the property is in, 14 days before the court hearing.
  6. The court hearing takes place. The tenant is entitled to offer a valid defence.
  7. If there is a valid defence, a trial date is set. If there is no valid defence, a “warrant of eviction” is issued to the sheriff. This authorises the sheriff to remove the tenant’s possessions from the premises.
  8. A trial begins or the court sheriff removes the tenant’s possessions from the premises.

Note that only a sheriff may remove the tenant’s possessions. Even if you succeed in securing an eviction order, you do not have the authority to remove their belongings yourself.

Legal advice is strongly recommended

While you can notify your tenant of your intention to cancel the lease without seeking legal advice, it’s a good idea to work with an eviction attorney from the beginning of the process. If the breach is not remedied and you pursue the matter through the courts, it will be reassuring to know that you have followed due process every step of the way. You don’t want your case to be thrown out on a technicality you have overlooked. Rental housing legislation is complex and, particularly in the current situation, rapidly changing. You need to be sure you are in compliance with the law and, more importantly, your tenants are treated fairly, especially in the context of COVID-19.

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.

Joburg pensioners sleep on street after being thrown out of flats

By | COVID 19, Eviction news, Eviction notice, Eviction orders, Homeless

(Photo: Bheki Simelane)

Edith Sihube, 73, points to her neighbours, where her belongings were being kept safe while she and her ailing husband looked after the rest. The Sihubes were evicted after illegally occupying a property since 2017.

A number of pensioners spent several nights out on the street last week after the City of Johannesburg ordered their eviction from a block of flats they had been illegally occupying since 2016.

Several elderly pensioners had to sleep on the street last week after they were evicted from the Fleurhof flats in Soweto they had called home for almost four years.

On Tuesday 25 August the sheriff along with the infamous Red Ants arrived at the flats and evicted about 100 people including pensioners and children. This, according to residents, was the second time the Red Ants had descended on the area in recent weeks, with an earlier eviction taking place on 12 August.

Illegal residents of Fleurhof flats, including many pensioners, spent at least one night on the street to protect what was left of their belongings after members of the Red Ants security evicted them. (Photo: Bheki Simelane)

“The operations were carried out by the sheriff of the court after the developer obtained the eviction order,” said City of Johannesburg spokesperson Nthatisi Modingoane.

“The first operation on 12 August had to be called off after there was a fatality, which is being investigated by the Independent Police Directorate (IPID). The second operation had to be undertaken to enforce the court order and make room for the units to be handed over to government for allocation of rightful beneficiaries.”

Members of the Red Ants Security play soccer on the property’s football pitch a day after they evicted illegal occupants. (Photo: Bheki Simelane)

According to the developer’s website, Fleurhof is a 440ha privately owned property in the process of being developed in partnership with the City of Johannesburg and is set to be one of the largest integrated housing developments in Gauteng. On completion, it will provide housing for an estimated 83,000 people.

Following the 12 August evictions, Human Settlements Minister Lindiwe Sisulu condemned illegal land invasions and said they were perpetrated by people who occupied the flats to strongarm the department to provide them with RDP houses on a preferential basis.

Edith Sihube, 73, told Daily Maverick that she had never had a problem since her arrival in the area in 2017. Sihube was in her house with her ailing husband and family when the Red Ants struck.

“They said nothing except to throw our belongings out,” she said.

Sihube’s ill husband was thrown out of bed, and pleas from Sihube to spare him were ignored. “They don’t want to hear anything, it’s impossible to reason with them,” she said.

Sihube said it was appalling that the very government that they have been voting for over the years was throwing them out on the street.

“When they want you to vote for them they take you to the polling stations, even when you are sick, but this is what we get in return.”

Tshidi Madisakwana, a Meadowlands Community Forum leader, who is also listed as the first respondent in the court order authorising the evictions, said the evictees had nowhere else to go as most had called the place home for almost four years, and some had children enrolled in schools in the area.

“This is a government that doesn’t care,” said Madisakwana.

Residents said they illegally occupied the flats in 2016, and that authorities had not removed them then because they wanted their votes.

“Now they feel it’s the ideal moment, one they think won’t influence our voting patterns. This government has no shame,” said Madisakwana.

Several of the people Daily Maverick spoke to said they were in possession of government C-forms. These forms are an indication that the person had applied for government housing and is on a waiting list. But many don’t believe such a list actually exists.

Said Madisakwana: “Many of those people are from Meadowlands. They have been patiently waiting for houses, but told they are not next in line despite being in possession of C-forms and some having registered in 1996.

“Now that they have thrown the people out, where do they expect them to go, because they have nowhere else to go?” asked Madisakwana.

Many residents stayed up the whole night looking after what was left of their belongings, claiming that several items had been stolen during their eviction.

Shadrack Moabi, 76, who suffers from malignant hypertension, said he arrived in the area in 2017 and had never had a problem until he was thrown out.

“They said nothing. They just tossed out my belongings,” said Moabi.

Moabi’s bed and TV were missing after the eviction, he said.

“Authorities promised us houses; instead, the little that we have is being stolen from us. How would that make you feel?” asked Moabi.

Another eviction victim, 73-year-old Francina Tabola, who also arrived in the area in 2017, said she no longer cared about voting for anyone after supporting the ANC all her life.

“What do I have to show for that, except for a meagre grant? My wish was to die in my own house.”

Tabola said a number of her possessions were stolen during the eviction, including blankets, a phone, a TV and an electric kettle.

“Can this government please come and help us. Why are my things missing?” she asked. When Tabola, who suffers from high blood pressure, spoke to Daily Maverick she had not eaten in 24 hours.

Asked why the flats had remained empty for so long, the City’s Modingoane said the site was still under development and had not yet been handed over to the government for allocation.

Asked where the people evicted should go, Modingoane said, “A court order does not put conditions on the developer. Illegal occupation is a crime and should not be seen as means to be rewarded.”

Modingoane said the eviction did not flout lockdown regulations as “different levels of lockdown come with a different set of rules. The court… take these regulations into account. A competent court of law arrived at a decision to grant an eviction order which got enforced by the sheriff of the court.”

Reprinted from Daily Maverick

Some links added by SD Law

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

Further Reading:

Can a landlord evict you without 30 day notice?

By | Eviction notice

Eviction notice 30 days

Can a landlord evict you without a 30 day notice?

A frequently asked question by landlords and tenants alike is whether a landlord can evict a tenant without a 30 day notice?

The short answer is: no; but it depends.

To elaborate:

One cannot evict anyone without proper legal notification.

This means that one must notify a tenant in writing of any intention to evict them.

This notice needs to be delivered to the tenant, usually at the property.

The manner of service of the notice matters.

We recommend that you serve a legal notification by at least registered mail to the property, and hand deliver to the tenant at the property, with a witness.

If the tenant refuses to accept the notice, or is not at the property at the time of hand delivery, then once can affix the notice to the boundary gate, or front door.

Take a photograph of this, and depose to a service affidavit to this effect, with the witness also confirming this, by means of a confirmatory affidavit.

This can be done at the local South African police station, law firm, or with any duly authorised South African commissioner of oaths.

These delivery tactics will ensure you generate sufficient evidence of delivery.

There can be no question regarding giving proper notice.

Some times a landlord will WhatsApp or email the notice; this is not sufficient in our opinion.

If one goes to court to get an eviction order, a Judge/Magistrate wants to see evidence that an owner/landlord has notified the occupier/tenant of their intention to effect.

While an occupier may acknowledge receipt of notices send electronically, it has been our experience that courts want more than this.

If you do not give proper notice, and launch a court application, you may get to court, and have your matter dismissed because you failed to properly attend to this important pre-court step.

This will waste a lot of time and money.

Since eviction applications involve constitutional rights to adequate housing, a fundamental right, courts are conservative when ordering any infringement of this right.

At the very least, they want to see that the pre court procedures have been followed.

No Judge will order an eviction, if an occupier has not been adequately notified of circumstances negatively affecting their rights to housing.

Different circumstances require different notice periods, but in general, one needs to give 30 days notice before approaching court.

It is insufficient to just send a notice, which is essentially a letter, wait for the time to expire, and then remove the occupier yourself.

At the end of the notice period, that is the time to apply to court for a court order.

You will need the help of an experienced eviction lawyer to do this.

The process is too technical, and if one tries to do it oneself, one will make mistakes that will cost even more time and money.

The eviction process, post notification stage, involves drafting and serving various affidavits, and approaching court on at least two occasions; more if the matter is opposed.

In our next article we will discuss the difference between an unopposed and an opposed eviction.

In conclusion, one cannot evict without a 30 day notice. If you try do this, you may act illegally, and may face serious negative legal consequences.

Email Simon at sdippenaar@sdlaw.co.za for more about what to do and not do to successfully navigate the eviction process.

Further reading