Notice to South Africans: Please visit sacoronavirus.co.za for up to date information on the COVID-19 outbreak.

Tag Archive: eviction order

Evictions in Alert Level 2

What is the state of play regarding evictions?

What does alert level 2 mean for evictions

Hurrah! We made it to Alert Level 2! The drinkers and smokers will be particularly happy, but so will the gym-goers, those with family in another province, everyone who wants to see their friends, and…landlords. Landlords? Not so fast. There is some relaxation of the rules governing the stay of evictions, but humanity and decency are still called for. We look at the Alert Level 2 regulations as they apply to rental housing and eviction.

Can you evict a tenant?

Under Alert Level 3, eviction orders could be applied for and processed but not executed. Whether or not they can be executed now depends on the wording of the order. Some eviction orders were granted in Alert Level 3 with a stay of execution “until the end of Alert Level 3”. These may be executed. But if the wording was such that the order was “stayed until the regulations permit”, it may be necessary to appear in court to enforce the order.

Any eviction granted now, under Alert Level 2, may not be executed until after the national state of disaster has lapsed or has been terminated. The only exception to this is where the court decides it is not just and equitable to suspend the order. This rule extends to the eviction of occupants from and demolition of shacks, following a spate of land invasions and shack demolitions by the City of Cape Town.

Cooperative Governance Minister Nkosazana Dlamini Zuma said, “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.”

Rental arrears

South Africans have suffered considerable economic hardship as a result of the national state of disaster and lockdown, which started in March. Many people have been without income, or on a reduced income, for four months, through no fault of their own. The relief offered by the government assistance scheme, TERS, was subsistence at best. It may have enabled families to put food on the table, but not to pay their rent. Therefore many tenants are now owe rent arrears. Hopefully they are getting back to work under Level 2, but it may take some time to accrue enough income to clear their debts.

Provided the tenant has engaged the landlord in good faith to make arrangements to “cater for the exigences of the disaster”, the courts are very unlikely to grant an eviction order purely on the basis of non-payment of rent.

Furthermore, the regulations have declared unfair the imposition of penalties for late payment where the default had been caused by the lockdown or the state of disaster. At most, landlords may charge interest on late payments.

Ubuntu

The regulations also forbid “any other conduct prejudicing the ongoing occupancy of a place of residence, prejudicing the health of any person or prejudicing the ability of any person to comply with the applicable restrictions on movement that is unreasonable or oppressive having regard to the prevailing circumstances.”

We previously recommended that landlords and tenants alike exercise “commercial ubuntu”, that is, compassion and empathy in the current difficult and unprecedented circumstances. We have urged all parties to keep the lines of communication open and make use of alternative dispute resolution methods, before resorting to the courts. The government’s advice also encourages fairness and equity in dealing with the humanitarian challenges caused the national state of disaster.

Seek advice from a rental housing expert

If, despite the stipulations of the regulations, you have queries or issues regarding tenants or any aspect of rental housing law, or are worried about your current situation, contact Simon on 086 099 5146 or email simon@sdlaw.co.za. We can provide a consultation over the phone or online if preferred. These are stressful times. Don’t let worries about tenant issues add to your anxiety. We can help.

Further reading:

Read More

Housing giant denies illegally evicting Rondebosch tenant

Cape Town – Social housing giant Communicare has dismissed claims that a Rondebosch tenant was unlawfully evicted.

Karabo Makgoane, who lived at the Welverdiend complex, claimed that she was unlawfully evicted by Communicare because the organisation was supposed to give her alternative accommodation.

“I have been living in the Welverdiend flat since 2017. I was retrenched and told the landlord, but he said that under no circumstances would they help me. I was then paying half of my rent until October 2018. I got served a court letter, and my first court appearance was in 2019. I did not have a legal representative.

“On May 2, I was evicted by a magistrate, who said I could leave on November 30 because of my circumstances. I was expecting Communicare to get back to me regarding alternative accommodation, as was requested by the magistrate.

“On November 30 nobody had said anything to me. I stayed because I was expecting Communicare to tell me about alternative accommodation arrangements,” said Makgoane.

Communicare spokesperson Michelle Matthee said the company had tried to accommodate her when she fell into arrears.

“The tenant has considerable arrears, well over R100 000, arising from non-payment of rental. The tenant also did not uphold previous payment agreements. After the court heard the matter, the eviction order was issued on May 21. As is reflected in the court order, Communicare was not instructed to find alternative accommodation for Ms Makgoane.

“The issue with Ms Makgoane began 18 months ago. We eventually had no other option but to hand the issue over to the courts. After a lengthy court process, on February 18, the sheriff of the court carried out an eviction of Ms Makgoane, as ordered by the court,” said Matthee.

Reprinted from the Cape Times – 2020-02-21. Emphasis/links by SD Law.

If you are not sure if your eviction is fair, we can help

We are eviction lawyers in Cape Town and Johannesburg, and we believe the landlord-tenant relationship should be built on trust. We act for both landlords and tenants and uphold the rights of each to a fair and satisfactory tenancy. If you are facing an eviction and you are not sure of your rights, contact Simon at Cape Town Eviction Attorneys on 086 099 5146 or email simon@sdlaw.co.za.

Further reading:

Read More

Red Ants continue to disregard due process of law

Illegal evictions and fatalities are calling cards of Red Ants

At Cape Town eviction lawyers Simon Dippenaar & Associates (SDLAW), we were angered and saddened to learn of recent illegal actions by the Gauteng security company Red Ants. The Red Ants firm specialises in “urban management support services for human settlements”, and was established to counter the influence of large, multinationals who dominate the South African economy. Its mission is “to protect, train, empower, serve and provide food security to our communities”. A noble mission indeed, yet more often than not the Red Ants are the cause of homelessness in those communities rather than providing security, food or otherwise.

Evictions should be lawful and respectful. Rend Ants act illegally.

As eviction attorneys we uphold the rights of property owners under the law, but we also fight for tenants whose rights are threatened or disregarded. We defend the Constitution, and base our law practice on the citizens’ rights bestowed therein. Eviction law has been carefully crafted to protect the poor and the vulnerable, after decades of exploitation and unfair practices under apartheid. Everyone has the right to adequate housing. Therefore the recent actions of the Red Ants in Gauteng are disappointing and disturbing.

Shacks destroyed in Alexandra Township

Earlier this month, more than 80 shacks, allegedly built illegally and too close to the Jukskei River, were destroyed by the Red Ants in Alexandra, Johannesburg, rendering 100s homeless. However, the Red Ants are not solely to blame. Johannesburg Mayor Herman Mashaba has said that the demolition was unlawful and should not have been authorised by city officials. The eviction order was in fact obtained in 2016 (before Mashaba was elected), but the eviction not carried out until now. Mashaba vows to “get to the bottom of it” and rebuild the demolished structures timeously.

Marshall St, Johannesburg

Last October, the Red Ants were also involved in a mass eviction in the Joburg CBD. In this case, residents were not forewarned of the eviction and many of their personal possessions were destroyed, in a callous and brutal removal that took place while many occupants were at work. We can only imagine the horror of returning home to find your belongings damaged or destroyed and your home uninhabitable. Occupants of the Marshall St building were mostly domestic workers, taxi drivers and informal traders, vulnerable individuals with limited means either to replace their possessions or to take action against the city. In this case, according to Tshepo Skosana, the sheriff who carried out the eviction order did not act in accordance with due process of law and “was negligent in fulfilling his duty to inform the residents of their pending eviction, which made the process illegal”. The Red Ants were the purveyors of brutality, but not the cause of it.

Death in the Vaal

It’s bad enough losing one’s home, but eviction should not result in loss of life. Sadly, this is precisely what happened in April when an eviction in the Vaal area of Gauteng, again facilitated by the Red Ants, led to clashes with community members. Two died, one from the Red Ants and one from the community, and six were injured. Yet again, the Red Ants and the Sheriff were acting on a court order to remove occupants from illegally erected shacks. The casualties happened when a fight broke out between the residents and the Red Ants.

Duties of the Sheriff

As Eviction Lawyers in South Africa, we do not condone the construction of unlawful dwellings. Residents should act within the law in choosing a site and erecting a structure. However, the current housing situation in South Africa does not always make that possible. Although there is a comprehensive social housing strategy that includes RDP homes, Community Residential Units (CRUs) and Upgrading of Informal Settlements (UISP), waiting lists are long and government has fallen behind in meeting its housing commitments to the poor and vulnerable in our society. It is no wonder communities sometimes take matters into their own hands. Section 26 of the Constitution guarantees the right to adequate housing, so they are only claiming their constitutional rights.

But landowners also have a right to the proper use of their land, so they may seek an eviction order when homes are built illegally. However, the court has an obligation to consider all circumstances before granting the order. According to Skosana, if occupants will be made homeless, there must be provision of alternative accommodation for an eviction to be lawful. The court must also consider the number of women and children and old people affected by the eviction and this will influence the amount of time granted before the order can be served. Turning people out of their homes with no warning breaches these conditions and more. 

The Sheriff’s role is serve court documents. This includes orders of eviction. The Sheriff has a duty to inform the occupants of the situation, in terms they will understand, and this includes their right to be represented in court. The Sheriff is also obliged to treat everyone with dignity and respect, and ensure that belongings are properly looked after during an eviction. The use of violence and threats in effecting an eviction is an abuse of the Sheriff’s authority.

In all these cases the Sheriff acted together with the Red Ants to intimidate residents and damage or destroy their possessions. Neither party can claim that they implemented a legal process.

Protection under the law

Residential tenants are protected through the Prevention of Illegal Eviction Act (PIE) and the Consumer Protection Act (CPA). A stringent eviction process is meant to safeguard human dignity, property, and ultimately life! As a specialist eviction attorney we are diligent about observing lawful eviction procedure. We condemn the abuse of power recently demonstrated by the Sheriffs and Red Ants involved in these evictions.

Landlord or tenant – let us help you

Eviction lawyers are now in Johannesburg, Pretoria and Durban, as well as Cape Town. So wherever your property is located, we can help you with an eviction matter, whether you are landlord or tenant. If you have been the victim of an illegal eviction, call us today.

Contact Eviction Lawyers South Africa on 086 099 5146 or email simon@sdlaw.co.za

Read More

Eviction cost

How much does it cost to evict a tenant?

Eviction is an unpleasant word. It conjures up images of an uncaring landlord putting an unfortunate tenant out on the streets. It’s true that there are cases of unfair evictions. But for the most part, rental housing legislation now provides considerable protection to tenants and prevents the abuse of power by landlords that sometimes happened in the past.

Eviction cost - eviction lawyers

The law protects tenants…but it also assures property owners of certain rights. If you own property and it provides you with valuable income, you are entitled to enjoy your property and benefit financially from it without suffering misuse or abuse at the hands of your tenants. If the worst happens and you need to evict your tenants, what is the cost of eviction?

When should you consult an eviction attorney?

If the landlord-tenant relationship is harmonious, and both parties uphold the lease agreement, the word “eviction” is unlikely to arise. Eviction is the last resort when there is an unresolved breach of the lease. A breach can happen for a number of reasons, which may include failure to maintain the property or adhere to the conditions of the lease, but the most common cause for eviction is default in payment of rent. However, a landlord cannot simply evict a tenant for rent arrears. In fact, a landlord can’t evict a tenant at all. Only the courts can do that.

However tempting it may be to “do it yourself”, eviction is a legal process and it requires an eviction attorney. While you may wish to avoid eviction costs, delay in consulting an eviction lawyer can be a false economy. As the rent arrears pile up, you are losing money that may never be recovered. Spending money on expert eviction attorneys will ensure a speedier, smoother course of action and is likely to save you money in the long run – by limiting your losses and restoring the property to its income-earning status.

How much does an eviction cost?

The cost of an eviction will depend on the complexity of the situation. If a tenant is very stubborn and refuses to vacate the property, eviction costs can mount. An unopposed eviction will cost between R5 000 and R15 000. However, if the eviction is opposed, the cost can escalate to as much as R100 000 and the months can drag on. This is not a job for a layperson. Provided your eviction attorney follows the correct process, the court will award the eviction order – eventually – but getting the tenant out is another matter.

 

Call the Sheriff!

The court may grant your eviction order, but if the tenants simply dig their heels in and refuse to move, you may not legally remove them or their possessions from your property yourself. Only the Sheriff is authorised to do this. If you need the services of the Sheriff to forcibly effect the eviction, the cost will depend on the size of the property and the number of tenants. You can expect to pay from R1 000 to R10 000 in Sheriff’s costs.

Women and children first

Remember that PIE gives special consideration to vulnerable tenants – woman-headed households with children, the elderly and the disabled – so while you are not prohibited from evicting these tenants if they are in breach of the lease, you must allow them more time to find suitable alternative accommodation. This will add to your lost earnings and effectively increase the eviction cost, although it won’t generate additional legal costs.

Can you claim the eviction cost from the tenant?

While it may be technically possible to reclaim eviction charges from the tenant, in reality you are very unlikely to succeed in recouping your costs. If your tenant has defaulted on rent due to inability to pay, you may struggle even to recover the rent you are due. Expecting a financially stressed individual to come up with a five-figure sum in addition to unpaid rent is fanciful. You could sue for it, but the result will be the same. You can’t get blood out of a stone.

Consult a good eviction attorney

As we’ve highlighted, an eviction lawyer is essential if you have a troublesome tenant who doesn’t respond to reason and eviction is your only recourse. You can attempt to obtain an eviction order from the court yourself, but if you are not well versed in rental housing law your chances of success are much reduced. An eviction lawyer knows the intricacies of PIE and will make sure you don’t lose your case on a technicality.

Furthermore, an eviction attorney will save you money, despite the fee charged. If your rental income is R10 000 – R 20 000 per month it won’t take many months of rent arrears to lose you far more than your eviction will cost in legal fees. Cape Town lawyers Simon Dippenaar and Associates are experts in eviction law and will make sure your property is returned to its income-earning status as soon as possible! Contact Cape Town Eviction Attorneys on 086 099 5146 or email simon@sdlaw.co.za.

Source: Eviction Specialists

Read More