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eviction rights Archives | Eviction Lawyers South Africa

Court showdown over Cape Flats evictions

By | Eviction news, Evictions, Homeless

“We are not here because we want to be here. We are here because we need homes.”

Reprinted from GroundUp, by Mary-Anne Gontsana – 2023-10-16

  • People living in about 110 informal structures and Wendy houses at Cathkin Village informal settlement in Heideveld are facing eviction.
  • They first moved onto the land earmarked for the Western Cape Education Department (WCED) in May 2018 due to the lack of affordable housing options in the community.
  • Their fate will be determined on 24 October when their eviction case is heard in court.

Hundreds of people living on land earmarked for the Western Cape Education Department (WCED) are heading to court later this month to fight their eviction.

There are about 110 informal structures and Wendy houses at the Cathkin Village informal settlement in Heideveld. It is home to hundreds of backyarders who occupied the vacant land in May 2018 due to the lack of affordable housing options in the community.

Residents like Faranaaz Fisher fear being evicted from the area where most of them have lived their whole lives. Fisher said she has been on the housing waiting list for more than 20 years and could no longer live in her mother’s cramped council flat with ten other relatives.

She said that life at the settlement hasn’t been easy because they don’t have basic services and gang violence in the surrounding area is rife.

“We lock this (entrance) gate at 7pm for safety purposes. Everyone here, especially the children, know that they need to be inside by then. We don’t allow nonsense. We try our best to keep this a safe environment from things like drugs and crime. We even have a neighbourhood watch,” she said.

Fisher said that because there was no electricity in the settlement, most residents used car batteries to power small appliances, rechargeable lights, and gas stoves for cooking. “It gets completely dark here at night because we don’t even have a mast light.”

Another resident, Farinaas Lakay, said they only have access to three taps and porta-potties. “The City of Cape Town failed us and has probably forgotten about us,” she said. “We are not here because we want to be here. We are here because we need homes.”

Cathkin Village is fenced off and has two entrance/exit gates. One of the entrances is situated on the side of a block of flats, which according to Lakay, has many shooting incidents.

According to Lakay, most of the residents in the settlement have been on the housing waiting list for decades.

On the eviction order, Lakay said: “We are fighting for houses. We want houses to be built on this land. Our children go to school here, our husbands have jobs here and everything is close by like public transport and clinics. More importantly, most of us are from Heideveld.”

WCED spokesperson Kerry Mauchline told GroundUp that the land was allocated to the department but it is under the custodianship of the Department of Infrastructure.

“The land is illegally invaded. Court action has been initiated to remove the illegal occupants so that the land can be used for education. An eviction order was issued against the illegal occupants. In terms of the eviction order, the City of Cape Town must find alternative accommodation for the occupants,” said Mauchline.

Mayco member for Water and Sanitation Zahid Badroodien said: “The City’s Water and Sanitation Directorate’s Informal Settlement provided three standpipes on a City-owned piece of land on the periphery of the informal settlement, and 109 portable flush toilets. Currently there are no further plans as the land where the informal settlement stands does not belong to the City.”

Junaid Jumat, the lawyer representing the Cathkin occupants, said: “An eviction order had been granted against the residents just before Covid lockdown, and there were dates for when the eviction should’ve taken place, but those dates have since lapsed.” The case has been enrolled again, said Jumat.

Jumat said they want the court to amend the order and change the eviction date.

The matter is expected to be heard in court on 24 October.


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:

RDP house

‘I want to take my last breath in this house’ says Cape farm dweller facing eviction

By | ESTA, Evictions, Farm evictions

Reprinted from capetownetc.com, by Liezl Human of GroundUp – 2023-10-03

Two families on a farm in Vredendal on the West Coast are being evicted from the homes they have occupied for several generations.

Several other tenants also living on Welverdiend Farm have been told to relocate to RDP houses in Vredendal North.

The residents, most of whom have lived on the farm all their life, do not want to move to a township which they say is dangerous and has frequent incidents of crime. They also don’t want to leave the farm because the graves of their parents, siblings, children and other relatives are on the property.

The current owner, Truter Lutz, purchased the farm for commercial agriculture in 2015. He wants the tenants to leave the houses so that his current employees can move in as the farm is about ten kilometres from the nearest urban area. None of the people currently living on the farm are employed by Lutz.

Welverdiend mostly farms fruit, vegetables and nuts for both the local and international market.

In an attempt to secure the families’ tenure, the Department of Agriculture, Land Reform and Rural Development had offered to buy the portion of the farm where they live. However, this offer was not accepted by the new owner. The matter is expected to be heard in the Land Claims court. No court date has been set yet.

According to court papers dated 30 May 2023, seen by GroundUp, the land was ‘free of any encumberments or land claims of any kind’ at the time of purchase.

Meanwhile, Andreas Finana whose family has lived on the farm for many generations says he remembers life there while he was growing up. Finana, now 50, points to a tree nearby where he had carved out his name as a young child.

According to Lutz’s affidavit, Finana was employed at Welverdiend from August 2020 until January 2022, when he was dismissed.

Finana lives with his sister and one of his children. ‘This farm has passed through three hands since my birth,’ he says. ‘I want to take my last breath in this house and be buried up here.’

Finana says they are worried what life would be like if they have to leave the peace that comes with living on a farm. ‘Here I can leave all my doors and windows open. I can leave my laundry outside. I can walk over to that house anytime of the day or night … I feel safe here.’

Elderly couple Anna and Dawid Saal were among the several tenants who received a letter that they needed to relocate to an RDP house. All four of their children were born on the farm. Anna was born on the farm in 1953 and her parents had worked on the farm. Dawid moved to the farm when they got married in the 1970s. Their son was also buried near their home.

Dawid says they struggled to understand what the ‘big words’ in the letter actually meant. Dawid said their son was buried in the graveyard on the farm and he also wants to be buried there.

Thys Beukes, who was a seasonal worker for one of previous farm owners, says he worries about his elderly mother’s health and quality of life should they be successfully evicted. ‘She is too old to move to the place they want us to relocate to. There are murders, rapes, and thievery,’ he says.

Coleen Arnolds, development facilitator at the Surplus People Project — a local organisation helping the farm dwellers — told GroundUp that there was ‘lots of violence’ in Vredendal North and that it would be a major change for this group to be forced to move there.

She said the RDP houses in Vredendal were cramped and didn’t have much space for the farm dwellers’ to sustain themselves by ‘planting vegetables’ like they do on the farm.

We sent several questions to the Department of Agriculture, Land Reform and Rural Development. Officials told GroundUp that they could not comment before the matter is adjudicated in court.

When we contacted the farm owner, Mr Lutz, his legal representative, Steph Grobler responded to GroundUp, which we have published below in full:

“Our client does not intend to answer each and every one of your queries and the same should not be construed as an admission or denial of the same. Our client also reserves the right to respond at a later point in time should our client deem the same to be necessary.

Our client is a commercial farmer and the land in question is zoned for agriculture purposes. The farm was purchased free of any land claims and/or other encumberments. Our client confirms that there are two (2) pending Extension of Security of Tenure Act (ESTA) eviction matters. The respondents are represented by Legal Aid South Africa and have this week filed a notice of appearance confirming the intention to oppose the matters. Our client will continue to follow the lawful process and will continue to engage with all the interested parties in an attempt to find an amicable solution.

It is specifically confirmed that there are no aged persons amongst the respondents or occupiers who enjoy protected status under section 8(4) of the Act. There are certain occupiers who enjoy protected status who have received RDP houses in the local housing project. In terms of the applicable municipal legislation and rules pertaining to subsidies, the recipients/beneficiaries are required to accept the allocation and are to reside in the house in question themselves. It is common cause that a real right in property, which so few of our citizens have the privilege to enjoy, is a stronger right than any personal right that is acquired through the operation of the ESTA Act.

Our client is of the view that the aforementioned persons should relocate peacefully to their allocated houses and take occupation thereof. Our client has attempted to meet with the occupiers to determine how they can be of assistance to relocate them peacefully to their RDP houses. These attempts have to date hereof been futile and met with hostility.

In these instances, the state has fulfilled its section 26 duty, and the beneficiary should accept the allocation and take occupation forthwith. To expect a private landowner to continue to house occupiers when they have alternative accommodation available is prejudicial to the landowner and to the commercial viability of the farm. The intention of ESTA, as it is clear from the preamble, is to provide security of tenure to vulnerable farm workers who do not enjoy access to alternative accommodation. It could never have been the intention of the legislature that persons who have received state grants (again a reference to the law in this regard) should be able to remain on the farm and enjoy possession and occupation of both premises. ESTA speaks to the permanence of residence, as does the applicable rules pertaining to individual housing subsidies/RDP houses.

Our client will continue to follow a lawful process in this regard and will engage with the interested parties including the local municipality in an attempt to find an amicable solution. In the event the parties are unable to find an amicable solution, our client will follow the applicable legal process.”


Facing eviction?

This case is before the courts. It is not for us to comment on whether or not these evictions are lawful. However, if you think you are being subjected to illegal eviction practices, or if you are evicting a tenant lawfully and the eviction is being opposed, our specialist eviction lawyers can help. Simon Dippenaar & Associates, Inc. helps landlords and tenants maintain healthy working relationships but, when necessary, we can assist with eviction, ensuring it is effected legally and ethically and all parties’ rights are respected. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za for assistance with eviction matters.

 

Illegal eviction practices – understanding and combating them

By | Evictions, Tenants

Know your rights as a tenant

Feeling at the mercy of commercial landlords while searching for rental properties? You’re not alone. Especially in the fiercely competitive rental markets like the Western Cape, landlords may take undue advantage. However, as a tenant, you must remember that the law offers considerable protection. Knowing your rights and the responsibilities of the landlords can safeguard you from illegal eviction practices. Tenants have rights, and landlords have responsibilities (though they also have rights, and tenants also have responsibilities). Of course, ultimately the party with ownership status has more influence over the fate of the property than the party that rents it. But that does not mean a landlord can take the law into their own hands. The vast majority of landlords are honest and respectful of their tenants. After all, it’s a commercial relationship that works best when all parties are satisfied with their interaction. However, it does happen that a landlord occasionally ignores legal requirements and abuses their position. If you find yourself facing an illegal eviction, what are your rights and what can you do about it?

What constitutes illegal eviction in South Africa?

Tenants may only be evicted from a property by means of a court order. Any eviction other than one authorised by a court is illegal.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE) contains specific regulations that govern the eviction process. Any action that contravenes these regulations is deemed to be an illegal eviction and the courts take this very seriously. But what might an illegal eviction look like? What are some of the things a landlord might do that are in breach of the law?

Common illegal eviction tactics used by landlords

All of the activities below are illegal, but unfortunately they do occur. If you experience any of these behaviours, keep a record of the incident and the date and time. We’ll say more about how to deal with these practices below.

Lockouts: Landlords may not change locks, deny tenants access to their homes or unlawfully dispossess them from the property to force them out. This is illegal and is a violation of the tenant’s rights to the property. The tenant’s rights continue to be in force even if they are in arrears with rental payments.

Utility disconnections: Cutting off essential services like water, electricity, or gas is strictly prohibited without following the proper legal channels.

Verbal or threatening behaviour: A landlord cannot verbally or physically force a tenant to leave their home without obtaining a court order for eviction.

Harassment: Continually disturbing or harassing tenants with the intention of making their living conditions unbearable is illegal and tenants have the right to seek a protection order against their landlord if this happens.

Seeking a legal solution: the spoliation order

If any of these actions lead to dispossession, i.e., being removed from the home, depending on the circumstances tenants may bring an urgent application to court and ask for a “spoliation order”. Spoliation means “the wrongful deprivation of another’s right of possession”. If the Magistrate is satisfied that the tenant has been unlawfully dispossessed without the landlord following the necessary legal procedure, an order will be granted for possession to be reinstated.

If the landlord attempts to evict a tenant illegally, they could face a heavy fine or be required to pay damages to the tenant. In the worst case scenario the landlord could potentially wind up in jail, facing serious criminal charges.

Your rights as a tenant – safeguards against illegal eviction

The provisions of the Rental Housing Act are clear on the rights of tenants. The tenant’s rights against the landlord include the right not to have:

  • Their person or home searched
  • Their property searched
  • Their possessions seized, unless the landlord has first obtained an order of court

A written lease cancellation or eviction notice must first be served by the sheriff on the tenant. This notice has to offer the tenant a minimum of one month to vacate the property. A court date is then set and a deadline given for filing an opposing affidavit, if the tenant wants to oppose the eviction. A landlord cannot evict a tenant without going through this correct procedure.

Dealing with illegal eviction practices – a step-by-step guide

If you are being harassed or victimised by your landlord, you are not helpless. Legal recourse is available. But you must not respond with equally unlawful behaviour. Instead, stay calm and be methodical in your approach.

Document everything: Keep a record of all communication and incidents related to the eviction, including notices received, dates, times, and any evidence of harassment or illegal actions.

Seek legal advice: Consult with a qualified attorney to understand your rights and the legal avenues available to you.

Lodge a complaint: Report any illegal eviction practices to the Rental Housing Tribunal, Department of Human Settlements, or your local municipality. They can provide guidance and resolve disputes.

Court intervention: If none of the above gives satisfactory results, consider applying for an urgent interdict at your local court to protect your rights and prevent the eviction until a proper court hearing takes place.

Illegal eviction practices are a violation of tenant rights and can cause significant distress. Don’t panic. Know your rights and understand the legal process. This will enable you to deal effectively with the situation.

For further information

If you are being subjected to illegal eviction practices, our specialist eviction lawyers can help. Simon Dippenaar & Associates, Inc. helps landlords and tenants maintain healthy working relationships but, when 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 think you are being treated unfairly or unlawfully by your landlord.

Further reading: