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eviction process 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:

Urgent evictions South Africa

Urgent eviction order – why and how you might secure one

By | Eviction notice, Evictions, PIE, Tenants

Your tenant is causing havoc – how do you secure an urgent eviction order?

Under the current alert level of the Disaster Management Act (Adjusted Alert Level 4), eviction orders can be applied for and granted but not implemented. They must be “stayed”, or suspended, until either the Disaster Management Act is withdrawn or such time as the government announces otherwise. However, there are exceptions. An eviction order can be effected if it is just and equitable to do so. In some circumstances, an eviction is urgently required.  What is the process for securing an urgent eviction order? 

Determining “just and equitable”

We’ve covered the rules that currently apply to evictions in detail in a recent blog post. Here’s a reminder. A landlord wishing to evict a tenant 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

“Harm or threat”

A normal eviction takes between six and 12 weeks to finalise. An urgent eviction can be requested in instances where the landlord can prove there is a danger of imminent harm or threat to the property if the tenant is not evicted immediately. This harm or damage may not be to the landlord or the property itself; there can be the risk of damage to any person or property, as long as the harm has commercial value. For example, the harm could impact on neighbours or the communal area in a sectional title unit. 

A question of balance

In considering an application for an urgent eviction order, the judge will consider the likely hardship to the property owner (or any other affected person) versus the likely hardship to the unlawful occupier. The landlord will have to prove to the court that there is no other effective remedy available. A court will not issue an urgent eviction order lightly and all other possible solutions must be explored and exhausted before making the application. An urgent eviction order is a last resort. 

An urgent eviction application, like a normal eviction application, can be brought in both the High Court and the Magistrate’s Court. The Constitutional Court has upheld the constitutionality of urgent evictions but has cautioned against the abuse of tenants. Any landlord seeking an urgent eviction must comply with all elements of the law before proceeding with the application.

For further information

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you need to apply for an urgent eviction order, or just want advice on lease agreements or other aspects of 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: