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 email@example.com.