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Eviction Archives | Eviction Lawyers South Africa

Social Justice Groups call on Government to reinstate eviction ban

By | Eviction news, Eviction notice, Evictions, Lease Agreement, Rent, Rental Housing Act

Lobby group Ndifuna Ukwazi said that even though level 3 regulations provided a prohibition on evictions, it was limited.

The Red Ants (foreground) confront residents of the Lakeview informal settlement near Ennerdale on 21 April 2020 after they were evicted by by the City of Joburg. Picture: Sethembiso Zulu/EWN

CAPE TOWN – Forty social justice organisations have written to government to reinstate the blanket ban on evictions.

When lockdown level 5 regulations were implemented, the Justice Minister stated that all evictions and execution of attachment orders would be suspended.

However, the prohibition on evictions has been reduced under lockdown level 3.

The organisations believe that housing is a vital component of the public healthcare response to the coronavirus pandemic.

Lobby group Ndifuna Ukwazi said that access to housing was critically important when people needed to self-quarantine or self-isolate.

The group’s Mandisa Shandu said that even though level 3 regulations provided a prohibition on evictions, it was limited.

“The courts are now empowered to grant eviction orders and to grant the execution of those evictions if it’s deemed just and equitable to do so.”

In the letter, the groups said that easing the eviction ban was unreasonable as infections were set to increase, specifically in hotspot areas.

They’re also calling for a full moratorium on evictions and demolitions of homes for the duration of the national state of disaster.

Reprinted from EWN on 4 June 2020. Original links retained. Additional links by SD Law.

We are eviction lawyers in Cape Town and Johannesburg.  We act for both landlords and tenants and uphold the rights of each to a fair and satisfactory tenancy. In these uncertain times, we appeal to everyone to act with empathy and compassion. If you are worried about your tenancy or your tenants, contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email   sdippenaar@sdlaw.co.za.

Further reading:

Court clears city on informal settlement evictions amid lockdown

Is it legal to evict anyone during lockdown? No, say legal experts

Ramaphosa called on to stop forced removal of ‘occupiers’ during lockdown

Evictions: When is a shack occupied and when is it not?

By | Eviction news, Eviction notice, Eviction orders, Evictions

The battle to find out which criteria are used by the City of Cape Town

Sisanda Nyanga stands around her belongings after her home was demolished and removed from Empolweni last month. Archive photo: Brenton Geach

When is a shack occupied and when is it unoccupied? The question is important because the law says that shacks which are occupied cannot be demolished without an eviction order. It is especially important in lockdown, when evictions are expressly forbidden. Yet it is surprisingly difficult to find out exactly what criteria are used by the authorities to decide.

On 28 March, following calls from civil society, Justice Minister Ronald Lamola announced that there would be a moratorium on evictions during the lockdown period.

But on 11 April, the City of Cape Town’s Law Enforcement officers demolished some 30 shacks in Empolweni. When our reporter arrived on the scene after the demolitions had taken place, he saw beds, paraffin stoves, blankets and other personal belongings strewn around, suggesting that people had been living in the shacks.

At the time, Mayco Member for Human Settlements Malusi Booi said this was not an eviction. He said the court had granted the City an order (in 2018) to remove “unoccupied and unfinished structures in line with the provisions of the law and based on advice from legal professionals”.

“These structures were illegally erected on City-owned land. Land invasions are illegal,” he said.

A few days later, GroundUp saw rebuilt structures which people were using for shelter being destroyed by the Anti Land Invasion Unit (ALIU) and City law enforcement.

In response to the City’s actions, the Legal Resources Centre brought an application before the Western Cape High Court on behalf of 49 families affected by the ALIU’s actions, arguing that this action was an effective eviction, and contrary to the lockdown’s no evictions rule.

In an affidavit, Jason Buchener, Senior Field Officer in the ALIU, confirmed that the City had demolished 42 structures at Empolweni on 9 April and 56 on 11 April. “All of the structures which were dismantled by the contractor were vacant” and “contained no possessions”, he said.

Buchener also described what he called a “staged” occupation, in which people were placing furniture inside structures while the ALIU was in the process of tearing them down.

“One could see that nobody occupied the structures [n]or that it constituted a home. We also saw people carrying items of furniture and placing it in structures while we were present at the property.”

In his affidavit, Empolweni resident Nkuthazo Habile claimed that he and his family had lived on the site since November 2019, when they were forced to leave rented accommodation in nearby Makhaza. According to Habile, most of the 49 households that went to court had moved onto the land in March 2020, though some did move after the lockdown commenced.

The Prevention of Illegal Evictions Act defines a building or structure as “any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter”. An unlawful occupier is “a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land”. There is no definition of when a shack is occupied and when it is not.

The Constitutional Court has said that completed structures are likely to be occupied.

In the case of the Lamontville shack-dwellers in eThekwini, KwaZulu-Natal, whose structures were destroyed 24 times by the municipal anti-land invasion unit, Judge Raymond Zondo wrote, in his evaluation of whether these shacks were occupied: “The fact that there were completed structures on the property makes it likely that there were people living in those structures.”

In an attempt to find out how the City of Cape Town distinguishes between occupied and unoccupied shacks, GroundUp asked the City the following questions on 16 April:

  • Is there a standard definition of occupancy used by the City?
  • Is the presence of furniture, but not people, enough to count a structure as unoccupied?
  • Is there an LSM-like test of the kind of furniture present – a mattress isn’t sufficient, but a television is?
  • What definition has the City’s legal department used in its papers in this case?
  • How does Law Enforcement make the distinction between occupied or unoccupied structures when they are engaging in an operation?

In response to these questions, Booi provided the following answer:

“Each case is assessed on merit and also in terms of legal prescripts consonant with the provisions of the Prevention of Illegal Eviction Act. This is what determines the interpretation. To note: This is not an eviction and we act within the parameters of the existing court order and legislation. The case is before the court and the law must take its course. The City asks all stakeholders to respect the legal process that is under way and to give the court space to deal with the matter.”

“In Khayelitsha [Empolweni], the City removed illegally erected unoccupied structures in accordance with an interdict that prohibits further and attempted invasion on the site in question. This was not an eviction in terms of the Prevention of Illegal Evictions Act.”

On 14 April, Judge Brian Hack ruled that 130 people in 49 households should be allowed back onto the land and should have their building materials restored to them. In response, the City interpreted Judge Hack’s relief as being granted for “humanitarian” purposes.

Reprinted  from Ground Up 2020-05-22. Original links retained. Additional links 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 want to know the cost of eviction.

Further reading:

Eviction hearings to continue during Covid-19 epidemic

Court clears city on informal settlement evictions amid lockdown

Police evict migrant squatters from Cape Town’s busy square

Courts must brace for tsunami of rental disputes as lockdown squeezes tenants

By | Eviction news, Eviction notice, Eviction orders, Evictions, Lease Agreement, Rent, Rental Housing Act

The provincial rental housing tribunals and the courts are most likely to be swamped with tenancy-related matters, specifically rental arrears and eviction notices.

The provincial rental housing tribunals and the courts are most likely to be swamped with tenancy-related matters, specifically rental arrears and eviction notices.

Durban – The provincial rental housing tribunals and the courts are most likely to be swamped with tenancy-related matters, specifically rental arrears and eviction notices.

The Organisation of Civic Rights team, faced by a huge volume of tenancy queries, continues to provide advice to tenants during the lockdown period. One of the tenants, a self-employed single mother whose livelihood has been severely disrupted, received a letter from her landlord’s attorney. Should she fail to vacate, the attorney indicated she would be charged a daily rate.

The tenant is contractually bound and therefore liable for the rentals as per her lease contract. Unless her landlord agrees to any proposal she can offer, the landlord may proceed to cancel her lease, which he did. Her lease was lawfully cancelled when she failed to pay the outstanding amount after she was given seven days’ notice to remedy the breach.

As for charging her a daily rate and consequently an exorbitant rental for failing to move out, this is not lawful since she pays rental monthly and not daily. However, once the lease is properly cancelled, the landlord can claim a higher rental as damages but the rental housing tribunal or the court can decide if the landlord is justified.

If the tenant lodges a complaint with the provincial rental housing tribunal, then the tribunal must first determine whether the notice cancelling her lease does not constitute an unfair practice. In addition, the tribunal must decide if the amount claimed is justified.

Only after the tribunal has made a decision, can the landlord start the eviction proceedings. Should the landlord pursue the intended eviction, the process can be lengthy if the tenant decides to defend it.

The amended lockdown regulations in level 4 allows a landlord to approach the court to apply for an eviction order. Once granted, it can only be executed after level 4. It is not possible for courts to merely grant an eviction order since a lengthy process is involved.

Can the tenant rely on the Covid-19 pandemic to justify her failure to pay rental? There are several legal experts in South Africa and abroad who have argued they might be a possibility for commercial tenants to rely on a force majeure clause in the lease as a defence. This would allow the party who is unable to perform his or her or its obligations to have such an obligation suspended or removed. In the absence of a force majeure clause, a party can refer to the common law doctrine of “supervening impossibility of performance”.

A party would rely on this principle if unable to fulfil their obligation due to an unforeseen, unavoidable event. A party would not be able to perform due to “an act of God”. The lease contract ends due to doctrine of “supervening impossibility of performance” since the party or parties are unable to perform their obligations.

It would appear that a force majeure clause and the common law doctrine of supervening impossibility of performance would not provide grounds for residential tenants who fail to pay their rentals and meet other obligations.

Reprinted from IOL.co.za  2020-05-20. Original links retained. Additional links by SD Law.

Simon Dippenaar and Associates Inc. are expert eviction lawyers. We can help you navigate the complex world of lease agreements. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

Eviction notice got you in a panic?

No lease? No problem. Tenants still have rights.

What is the Rental Housing Tribunal?