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south africa Archives | Eviction Lawyers South Africa

Arial view of Marikana settlement in Cape Town.

Marikana settlement – Landmark judgement appealed

By | Evictions

Marikana settlement near Cape Town International Airport.

 

A landmark judgement in the Western Cape at the end of August this year dismissed an application to evict occupants from the so-called Marikana settlement near the Cape Town International Airport and ordered the City of Cape Town to negotiate a purchase price to buy the land or expropriate the land instead. Copper Moon Trading, the owner of Erf 149, Phillipi, has now appealed to have these rulings overturned.

 

It is asking for the State to either purchase the property at its market-related value, as determined by an arbitrator, or pay Copper Moon damages to the same value. Alternatively, Copper Moon is seeking to have the occupiers evicted and for these costs to be borne by the State.

 

Marikana settlement

 

The City of Cape Town has applied for leave to appeal.

Simon Dippenaar & Associates with the assistance of Adv Ralph Kujawa, acting pro bono on behalf of the approximately 10 000 unlawful occupants of Erf 149, part of the Marikana settlement, has called on the Court to refuse the appeal with costs. A costs order in favour of indigent litigants is not unprecedented and has been supported in previous judgements to encourage attorneys to take on more pro bono work. It also sends a strong message to applicants that they could have costs awarded against them even if their opponents are not incurring legal costs.

 

“The State has not provided alternative housing plans and the eviction of so many people would create a humanitarian disaster. This is unacceptable in a constitutional democracy such as ours where, in terms of the Constitution, the Government is required to protect the property rights of its citizens and to provide housing. Eviction is not only unrealistic, it is unthinkable,” says Simon Dippenaar. “We have to strike a balance between the constitutional rights of the property owners and the occupiers.”

 

Dippenaar and Kujawa, who officially went on record at the Constitutional Court at the end of October, are championing the human right to housing and protection for the most vulnerable in society, including the Marikana residents.

 

The case forces government to face up to the plight of the homeless and highlights the extreme poverty and desperation of many South Africans. An estimated 60 000 people have been living on the 40-hectare Marikana land since 2013. They have nowhere else to go.

 

 

About Simon Dippenaar & Associates

Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

 

Simon’s dedication, diplomacy and compassionate approach extend from Family Law to each of his fields of expertise and have earned him a reputation for cracking cases where his competitors have failed. His associates are appointed for their skills specific to their areas of practice.

 

Simon is committed to serving his community and the less fortunate, increasing access to justice by making legal expertise available to deserving cases. He is on record in one of South Africa’s biggest mass eviction cases in Marikana, representing, pro bono, the unlawful occupiers and their constitutional right to adequate housing.

 

Learn more about Simon Dippenaar

Lease Agreement Template South Africa

Need to move back into your property? Free Lease Agreement Template

By | Lease Agreement | No Comments

Lease Agreement Template South Africa

You have rented out your property but now, for whatever reason, you wish to return and take up occupancy. Are you within your rights as the property owner to remove the tenant, and what do you do if they refuse to vacate?

 

What to do if you want to move back into your property while your tenant still has occupancy

There are two issues to consider. Firstly, your tenant is the current lawful inhabitant and you want to serve a notice to quit, so that you can resume occupancy. The process for this is straightforward. Secondly, what if the tenant refuses to leave, despite due legal process of eviction having been followed? This is a different and more complicated scenario. Let’s look at each in turn.

 

Lawful eviction

To some extent, your rights as landlord depend on what is in the lease agreement. (We’ve written before about the importance of having a written lease. See Tips for a happier tenancy and The Consumer Protection Act and rental agreements.) Under PIE, your tenant is protected against illegal eviction. The Consumer Protection Act (CPA) provides a further layer of protection. In terms of the CPA a tenant is protected for the full term of the lease if there is no material breach on their part. The landlord can cancel the lease if there is a material breach of contract by giving 20 business days’ notice of the breach; but the landlord must give the tenant the opportunity to remedy the breach. Provided they do so, you don’t have the right to evict the tenant and move back in until the end of the contract.

However, when drawing up the lease, it is permissible to include a clause allowing the landlord to cancel the lease, with two months’ notice, if the landlord elects to sell the property or move back in. If the tenant agrees to this clause and signs the contract, then there does not need to be a material breach for the landlord to give notice of eviction, nor is the landlord in breach of any aspect of the tenant’s rights. Without this clause, the tenant is protected upon the sale of the property and the sale can have no impact on the tenant’s right to hold the lease until it expires.

So if you are drawing up a lease agreement for a new tenant and you think you may wish to sell the property in future or resume occupancy for your own purposes, it’s probably wise to include a clause of this nature. But what if you have existing tenants and you have legally given them notice to quit the property, within the terms of the lease and the CPA (perhaps there has been an unremedied breach), and they won’t budge? This is a different situation altogether. What can you do?

 

Unlawful occupancy

At this stage the tenant becomes an unlawful occupier. If you have cancelled the lease lawfully you are entitled to move back into your property, even if the unlawful occupier remains on the premises – effectively cohabiting (whether you would want to do this or not is a different matter). The situation can deteriorate and may result in unpleasant consequences for the landlord, even if there is no misconduct. A tenant with nowhere else to go may behave in a desperate manner, even laying charges of theft, harassment or intimidation against the landlord. Or they may insist the landlord find them alternative accommodation. However, it is not the landlord’s responsibility to re-house the tenant, and this has been tested in the courts.

In Blue Moonlight Properties v Occupiers of Saratoga Avenue, the court found that the property owners’ rights, under the Constitution, should be balanced with those of the occupiers, and ruled that the landowners’ right to equality would be infringed if the state were to burden them with providing alternative accommodation without compensation.

This ruling notwithstanding, if you are in this trying situation, it is not enough to know you are in the right, legally. You may need professional help to reclaim your property. You certainly don’t want to find yourself defending an unsubstantiated accusation of harassment, nor do you want to be share your home indefinitely with someone you didn’t invite.

 

We can help with evictions and your lease agreement

SD Law & Associates are experts in property law and we have vast experience of helping landlords and tenants alike reach satisfactory resolution on a wide range of property disputes, including evictions. Let us help you today with your eviction dispute and lease agreement. Contact Simon on 087 550 2740 or email sdippenaar@sdlaw.co.za.

 

Lease Agreement – Free Download

Lease Agreement Template – Click here (Right click to save PDF)

 

Recommended reading

Original article taken from SDLaw.co.za

Expropriation Bill South Africa

Expropriation Bill 2015 – Compensation, The Vexed Question

By | Expropriation Bill

Last week we looked at the Expropriation Bill 2015 and what it means for property owners. In the second part of this article we deal with an aspect beset by controversy – compensation: how much and when.

Expropriation Bill South Africa

 

How is compensation determined?

What is ‘just and equitable’? How and when will compensation be paid?

It’s worth noting that one of the better features of the 2015 bill, compared to the 2008 version, is that compensation is decided by the courts, not by the state.

Issues affecting the amount of compensation to be paid are:

  • Current use of the property
  • History
  • Market value
  • The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement to the property
  • Purpose of the acquisition

 

An expert, unbiased opinion might be useful at this stage – property and its value, apart from being a financial transaction, can arouse strong emotions.

You should be aware of some factors the authority will ignore when determining compensation:

  • The fact that the property has been taken without the consent of the expropriated owner/right-holder
  • Any special suitability or usefulness of the property, if it is unlikely that the property could have been purchased on the open market for that specific stated purpose
  • Any improvements made to the property resulting in illegal use are not included in the valuation
  • Improvements made after the notice of expropriation was served (unless an agreement has been reached prior to expropriation)
  • Anything that was done with the aim of claiming compensation

 

What to do when you receive notice of expropriation

If you are the owner or holder of an unregistered right, you should respond to the notice of expropriation within a 20-day period (which can be extended), whether or not you agree to the expropriation or the amount of compensation payable.

If you claim an amount of compensation and this is rejected by the authority, the authority has to propose a ‘just and equitable’ amount, detailing how this amount has been calculated and what is included. In this situation, you will need to provide supporting documentation within 20 days of delivery of the statement indicating the amount claimed.

If an agreement is not reached at this stage and you don’t institute legal proceedings, it is assumed that you have accepted the offer. If you are entitled to compensation, 80% must be paid to you on the date the authority takes possession of the property.

 

Mortgaged property and rates

If there is a mortgage or a deed of sale on your property, the appropriate amounts are paid by the authority to the bond-holder or buyer. If you cannot reach agreement with the bond-holder/buyer, then the matter will be decided in a court application.

Property rates and other charges are paid by the authority from the compensation. (The municipal manager is responsible for ensuring that the information regarding outstanding charges is forwarded to the authority.)

Under certain circumstances, it may be necessary for compensation to be deposited with the Master of the High Court – for example if the property was a bequest to people unknown to the parties involved, or if the address of the payee cannot be provided.

 

Extenuating circumstances

Your property may be expropriated on a temporary basis – in the event of a disaster, for example. ‘Temporary’ means a period not longer than 12 months (this may be extended by court order) and some of the provisions of the bill are waived. Compensation is payable.

If, for any reason, the property is no longer needed – perhaps the reason for the expropriation is no longer in the public interest – it can be withdrawn, in which case there is provision for recompensing the owner.

 

The way forward

Does the bill infringe the Constitution on issues such as property rights and the removal of the ‘willing-buyer, willing-seller’ approach? The bill seems to relate not only to land, but to shares, intellectual property and, indeed, moveable property. Are we heading for a Zimbabwe-style land grab or are we protected, at least to an extent, by our Constitution?

As mentioned in the first part of this article, there has been a great deal of discussion around the Expropriation Bill, mostly relating to the constitutionality of the powers given to the minister and state organs to expropriate property either for ‘public purposes’ or ‘in the public interest’.

The debate is likely to continue until the pertinent points have been addressed and clarified, probably in the Constitutional Court, and there are calls from the DA, AgriForum, and the Institute of Race Relations for further discussion.

 

Help is at hand

Meantime, if you are faced with a possible expropriation, we strongly advise you to read the bill/act and prepare to take legal advice. This is a potential minefield, but with the right approach you could save yourself time, money AND heartache. Contact Simon today on 087 550 2740 or email sdippenaar@sdlaw.co.za