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eviction order Archives | Eviction Lawyers South Africa

Jan 30
0

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.

Further reading:

Jul 21
1
Serving an eviction notice

Serving an eviction notice

By | Eviction notice, Evictions, PIE

How to serve an eviction notice legally and properly

Are you a landlord? If so, we hope your tenancies are fruitful and trouble free. We hope you have amicable relationships with your tenants. Unfortunately, we know that isn’t always the case. Sometimes there is a breach of the lease agreement that, for whatever reason, is not remedied within the designated time frame and it is necessary to start eviction proceedings. When this happens, you need to understand and follow the legal requirements and procedures involved in serving eviction notices to tenants. If you take the right steps, your eviction notice will be legally valid. This is a guide to serving an eviction notice correctly.

Legal grounds for eviction

Before serving an eviction notice, you must have valid legal grounds for an eviction. The court will only grant an eviction order if:

  • You are the owner of the land/property
  • The person occupying your property is an unlawful occupier 
  • You have reasonable grounds to evict the occupier

Before resorting to eviction, you must have given your tenant notice of the breach of the lease agreement and sufficient time (as stipulated by law) to remedy the breach. This article is about the eviction order itself; for more information on the full process see Legal reasons for eviction and How to evict a tenant.

The court will take into account whether there is alternative accommodation available. The Prevention Of Illegal Eviction And Unlawful Occupation Of Land Act (PIE) defines an “illegal occupier” as a person who occupies land without the express or tacit consent of the owner or person in charge of the land, or without any right in law to occupy such land. 

PIE also recognises the concept of “unlawful occupiers”, which refers to occupants who occupy land or property with the consent of the owner or person in charge, but their occupation is in contravention of a law or agreement.

Eviction notice

An eviction notice is a formal written document you as the landlord provide to the tenant, informing them they must vacate the property. It is legal notice that you are starting eviction proceedings and should include, among others, the date when the notice is issued, the tenant’s name and contact details, the address of the property, and the grounds for the eviction, such as non-payment of rent, violation of lease terms, illegal activities, or expiration of lease. Avoid language that may be interpreted as threatening or discriminatory. Be concise and specific in your notice. A qualified eviction specialist can ensure your eviction notice is legally sound.

Serve the eviction notice personally

In South Africa, eviction notices must be served personally on the tenant or other adult residing on the property. When serving the notice: 

  • Choose an appropriate time to serve the notice (when the occupant is likely to be available)
  • Make sure the tenant acknowledges receipt of the notice (by signing and dating a copy, or having a witness present at the service)
  • Keep a copy of the notice and the proof of service for your records (it will be used for the eviction application)

Alternative methods of serving the notice

If you are unable to serve the eviction notice personally, you may use alternative methods, such as:

  • Registered mail
  • WhatsApp
  • Email 
  • Attaching the notice to the property’s main entrance

The lease agreement should indicate how legal notices need to be served. However, it is always advisable to have proof of receipt (signed acknowledgement, two ticks on WhatsApp, read receipt on email, etc.) to avoid any potential disputes. 

Allow adequate time for compliance

After serving the eviction notice, the tenant is entitled to a reasonable period to either remedy the situation or vacate the premises. The notice should specify the period allowed and will vary depending on the grounds for the eviction. It’s advisable to seek legal assistance or consult a qualified eviction specialist to determine the appropriate time frame.

Institute legal proceedings

If the tenant fails to comply with the eviction notice within the specified time, you may institute legal proceedings, i.e., apply for an eviction order. Consult with an attorney or eviction specialist to initiate the eviction process correctly. They will guide you through the necessary steps, including filing an eviction application in court, and will represent you during the legal proceedings.

You must serve the eviction notice correctly for the eviction order to be granted by the court. By following the steps outlined above, you can ensure your eviction notice is legally valid, giving you a solid foundation for instituting legal proceedings if necessary. 

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 but, when it is necessary, we can assist with eviction, ensuring it is effected legally and ethically. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with an eviction or a breach of a lease agreement. 

Further reading:

Jul 20
6
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: