Tag Archive: eviction

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 sdippenaar@sdlaw.co.za

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Rental arrears? Is it worth trying to collect?

What can you do when your tenant falls into rental arrears?

Nobody wants to fall into rental arrears, but unfortunately it happens. Times are tough, and the economic climate isn’t forecast to improve for some time yet, so it is all too common for tenants to default on their rental payments.

Arrear rentals - eviction lawyers

This is a stressful situation for both landlord and tenant and it must be approached with caution and a full knowledge of the rights of each.

What’s in the lease?

Depending on the specific lease agreement, in general, if a tenant is seven days late with their rental payment, they are then deemed, in the eyes of the law, to be in breach of the lease agreement.

It is up the landlord to inform the tenant in writing of the arrear rental, but the landlord does not have the right to immediately evict the tenant. Through this official notice, the landlord is giving the tenant the opportunity to resolve the breach of the lease agreement. A landlord can blacklist the tenant with credit bureaux at this point.

In general, if the tenant does not resolve the arrear rental within 20 days, the landlord can consider cancelling the lease, and suing for the arrears. The landlord may attach the tenant’s belongings in terms of the landlord’s tacit hypothec. They can also begin the eviction process. A landlord cannot evict a tenant without following the correct legal procedure. For that reason, if a tenant has defaulted on their rental payments, a landlord should obtain legal assistance as soon as possible.

Tacit hypothec

If a tenant falls into rent arrears, common law grants the landlord “tacit hypothec” over the tenant’s goods on the property. What does this mean in plain English? “Hypothec” is an old term, dating back to the 16th century and having its origins in French, which has survived in legal jargon and means “a right established by law over a debtor’s property that remains in the debtor’s possession”. Tacit means “implied” or “understood without being stated”.

When might the landlord’s tacit hypothec apply?

The provision for tacit hypothec is enshrined in Section 32 of the Magistrates’ Courts Act. Section 32 allows a landlord to apply for the attachment and, in certain circumstances, for the removal of a tenant’s movable goods in the leased premises, in lieu of rent owed. A landlord may choose to invoke Section 32 because it can be more effective than a rent interdict summons. Understandably, tenants will not want to see their possessions impounded and may respond more swiftly to this threat than to an interdict for payment of arrears.

How does it work?

The landlord applies to the Magistrate’s Court for an attachment under Section 32 in securitatem debiti – in other words, to secure the debt. However, if there is reason to suspect the tenant might abscond with the goods, the landlord can request an immediate order. This allows for removal of goods as security for unpaid rent without giving notice, because such notice could result in the tenant removing things in advance, thus rendering the landlord’s tacit hypothec worthless.

Burden of proof

It is the landlord’s responsibility to prove grounds for a Section 32 order. If the application is opposed and a dispute arises, resolution is based on the balance of probabilities. If this fails, there must be substantial doubt regarding the landlord’s case for the attachment to be set aside. Therefore, the landlord’s right to enjoy the rental income from a property is protected, but that right may not be abused by invoking Section 32 without due cause. In this way common law seeks to treat all parties equitably.

Costs and benefits of collecting arrears or invoking the tacit hypothec

As with anything in business, it’s important for landlords to weigh up the costs and benefits of any action taken. Loss of income through rental arrears is never pleasant but will the cost of recovering the lost rent be worth the effort? The benefit of invoking the landlord’s tacit hypothec is that it compounds the effectiveness of the eviction procedure. A tenant, particularly one with a history of flitting, may not be unduly fazed by an eviction notice. The threat of losing belongings may be taken more seriously. It adds litigation pressure and puts the landlord in a better bargaining position, resulting in more likelihood of the tenant meeting the rental demand. If the tenant has little of any value to attach, the landlord can apply for a long-term order. This is binding for 30 years against the occupier’s assets or salary, so there is no escaping!

On the other hand, there are legal costs involved. Although the tacit hypothec gives the landlord a bargaining chip, assets are not cash. It may be some time before the landlord can recover arrears and costs. If all else fails and the landlord takes the tenant’s goods to auction, to realise the rental arrears, the Sheriff costs can be in excess of R5 000. There are also storage costs to consider while holding the goods as collateral.

Time to cut one’s losses?

If the rental arrear is not substantial, e.g. R10 000 – 15 000, it may not be worth pursuing.  This is not to suggest that tenants should get away with not paying their rent. But if the proper procedures are followed, i.e. the tenant is given a chance to rectify the breach of the lease agreement, and the rent is still not forthcoming, it may be best to begin the eviction process and leave it at that. The sooner the recalcitrant tenant is off the property, the sooner a new occupier can be found and the income stream can start flowing again.

Eviction Lawyers South Africa can help

However, if your loss is significant, we can help you recover your rental arrears, using the landlord’s tacit hypothec if necessary Cape Town law firm SD Law & Associates are property and eviction lawyers in South Africa, with offices in Cape Town, Johannesburg, Durban and Pretoria. We uphold everyone’s constitutional rights and act for both landlords and tenants. If you’re a landlord with unpaid rent and you would like to take action, or if you are in rent arrears and think you may be subject to a Section 32 order, we can help. Contact Cape Town Attorney Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Source: Eviction Specialists

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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 sdippenaar@sdlaw.co.za.

Source: Eviction Specialists

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Commercial evictions: how a landlord can evict a tenant

PIE does not apply to commercial evictions, but CPA might

Legislation introduced in the last few years gives residential tenants a host of rights, and landowners or landlords must follow very strict procedures to evict tenants. However, the same is not true of commercial tenants. In some case the Consumer Protection Act (CPA) may apply, but if not, the relationship is governed by contract law.

Commercial evictions - Eviction lawyers

Landlord and commercial tenant relationship

South African contract law is derived from the Roman-Dutch law of contract. A contract is defined as an agreement between two or more parties binding them in a legal commitment. It is basically a legal framework that enables individuals or juristic persons (in other words, companies or organisations) to engage in business. They can exchange resources – such as money or their time – in the knowledge that they are protected by a legal agreement that is – or should be – fair to both parties. If one party reneges on their obligations, the other party is safeguarded by law from loss or the consequences of unlawful behaviour.

A commercial lease is a form of contract. It outlines the interests of both landlord and tenant and their duties towards each other. Properly drafted, it should facilitate a harmonious relationship between the two. Unlike residential tenancies, there is no legislation specifically governing commercial leases, so a professionally prepared, written lease is essential for avoiding misunderstanding and disputes. It is the contract as defined above.

Commercial rental is normally charged per square metre, rather than a flat rate for the premises. On top of that, there is usually a cost for the landlord’s operating costs, parking, rates and taxes, body corporate levies and insurance as well as charges based on use for electricity, water, refuse collection and sewerage. These should all be specified in the lease.

Selling the lease

If a tenant moves out without notifying the landlord and sells the lease to a new business, the new tenant is an illegal occupier. A lease is a contract between two named individuals or juristic persons. A lease can be sold, but the contract with the property owner must then be renegotiated and a new lease drawn up. Whether or not this can be done will also depend on the stipulations in the original lease.

Definition of a commercial tenant

Whether or not a tenant is considered commercial is not based on the zoning of the building but on the use of it. So someone who resides in a commercial property is considered a residential tenant and is protected by PIE. By contrast, a commercial occupant is someone who “…does not use buildings and structures as a form of dwelling or shelter”. The commercial occupant could be an organisation or an individual, and the building could be a residential structure. For example, a homeowner may let a cottage on their property to a self-employed consultant to use as an office. Although the cottage is part of a residential holding, the consultant is a commercial tenant because of the way the cottage is used.

Cancellation of a commercial lease

While commercial tenants do not enjoy the level of protection afforded residential tenants by PIE, the landlord must still follow due process. If a landlord wishes to evict a tenant, they must first cancel the lease. This can be done on expiry of the lease or on the occasion of a material breach of the terms of the agreement (usually rent arrears).

Consumer Protection Act

In some instances a commercial tenant may be protected by the Consumer Protection Act (CPA). If there is a fixed term lease, Section 14 of the CPA applies. In this scenario the landlord must give 20 business days’ written notice of a breach of the lease agreement. They may then only cancel the lease if the tenant fails to rectify the breach within the 20 days.

Section 14 does not apply in the following situations:

  • If the tenant is an organ of State (municipality, state department etc.)
  • If the landlord and tenant are both juristic persons
  • Once-off leases
  • If the tenant is a juristic person with an income/turnover above R2 million per year

In these circumstances 20 business days’ notice of a breach is not required before being able to cancel the lease.

Eviction process for a commercial tenant

Commercial evictions are handled either by the High Court or the Magistrate’s Court. The case is brought by way of action or application proceedings in the High Court and by way of action proceedings in the Magistrate’s Court. The choice of court is usually determined by the lease agreement, with the jurisdiction of the Magistrate’s Court the most common. The lease agreement must first be cancelled, as discussed above, before an eviction proceeding can be brought.

Generally, commercial evictions are effected speedily. The issues surrounding residential evictions – the rights of the occupier to a dwelling and the wellbeing of vulnerable individuals – are not at stake. By contrast, in the business context the rights of the property owner to protect commercial income take priority. But this highlights the need for a rock-solid lease to be in place. This provides the legal framework within which the eviction can take place.

Commercial evictions do not only involve the removal of the tenant. Landlords have a right to claim any damages that may apply at the time of eviction, as well as rent arrears.

Who can evict?

It is worth noting that in a commercial eviction the official landlord may not necessarily be the property owner. Commercial property is often owned by a juristic person such as a large corporation or a pension fund. Therefore an agent can act as applicant in an eviction case, as long as they can prove they have the right to appear in court on behalf of the owner (this is known in law as “locus standi”).

Landlord’s hypothec – the right to repossess tenant’s equipment

A commercial tenant does not have the same attachment to a property as a residential tenant. They still have somewhere to sleep at night, and it is not that difficult to find an alternative location for a business. For that reason, there is a greater risk that a commercial tenant might abscond when the notice to quit is served. Rather than pay the outstanding rent, the tenant might just take their moveable property and run. After all, they are not losing their home.

If a landlord is concerned that the commercial tenant might do a midnight flit, an urgent application can be brought before the Court to allow the landlord to attach and secure the movable goods on the property. If the tenant then removes them it is a criminal offence.

The security a landlord holds over a tenant’s property is known as the hypothec and is actually the strongest form of security in South African law. However, once the movable goods are removed from the property the landlord has no security over or rights to those goods. Therefore if there is reason to suspect a tenant might beat a hasty retreat, the landlord must apply for the attachment of the goods urgently. This is best done with the help of an experienced Cape Town Eviction Attorney.

Business rescue

Occasionally a landlord might not be able to commence the eviction process, even if the tenant is in breach of the lease. A business that has fallen on hard times may enter Business Rescue. This is a process that allows a business in financial distress time for rehabilitation. During this period there is a moratorium on all legal action, so an eviction notice may not be served.

What happens if the premises are sold?

There is a principle in South African law, derived from Roman-Dutch law, called “huur gaat voor koop“, which translates as “only the lease and nothing more”. What this means for the tenant is that, in the event of a sale of the building leased by the tenant, the purchaser is obliged to honour the lease agreement. The tenant may continue to occupy the building, or their part of it, according to the terms of the lease. The tenant’s rights in this situation are stronger than the right of ownership. However, the tenant should be alert to the fact that the new owner may not wish to renew the lease, depending on their plans for the property. So a wise tenant will be on the look-out for new premises well in advance of their lease expiry.

Professional help is essential

Whether you are a commercial tenant or landlord, it’s important to have a carefully drafted lease that includes all your requirements and conditions. If both parties know exactly who is responsible for what, conflict is less likely to occur. This includes the terms of renewal, which are often left open-ended in commercial leases and can be a cause for dispute as the end of the lease period draws near. Cape Town Eviction Attorneys, Simon Dippenaar & Associates, Inc. in Cape Town law firm of evictions specialists with extensive experience in property law (now serving Gauteng and Kwazulu Natal). They can ensure your lease is a sound business contract that will protect you, landlord or tenant. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Request a commercial lease agreement template

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Eviction Law – Changes

Eviction Law Changes - Eviction Lawyers South Africa

How Constitutional law is transforming eviction law

Eviction | The Constitution is the backbone of society and South Africa is fortunate to have “the most admirable Constitution in the history of the world,” according to Harvard law scholar Cass Sunstein. Our Constitution is unique in that it includes “positive rights” which require the State to enact policies that minimise inequality, free South Africans from discrimination and redress historical inequalities. Any legislation that contradicts the Constitution is deemed invalid.

The lie of the land

In terms of eviction law, these Constitutional principles are being applied by the Courts in an attempt to strike a balance between the rights of landowners and the rights of the landless.

Section 26(3) of the Constitution states that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” Section 26(1) of the Constitution further provides for everyone’s right “to access to adequate housing” and sets out the State’s obligation to ensure this right is upheld (Section 26(1).

Clearly it is residential evictions, regulated by The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), and the rights of landowners that are most affected by the implementation of these Constitutional principles. Read more about PIE here.

So, although section 26(3) of the Constitution has not amended our common law, it does mandate legislation that impacts the common law rights of landowners. In addition, the Courts tend to place a greater burden on the applicant-owner where the State is the applicant.

Burden of proof

A landowner must prove ownership by producing title deeds for the property and must show that the defendant is occupying his property to ensure eviction. This is known as rei vindicatio. The onus then falls to the defendant to prove he has a valid right to occupation.

Majority of disputes about day-to-day tenancy

While changes to legislation have indeed contributed to greater social justice, there have been some negative side effects, such as the reluctance of landowners to provide housing for their labourers, uncontrolled squatting and an influx of rural residents into urban areas, with the associated health and safety hazards of overcrowding. But it is day-to-day tenancy issues and the maintenance of property values that comprise the vast majority of disputes, rather than the extreme cases of large-scale land invasions and the plight of the homeless.

Navigating your way through an eviction

Eviction law has developed significantly over the last few years and some procedures have changed because of the Consumer Protection Act. Recent cases also indicate that the same procedures must be followed in both the Magistrate’s Court and the High Court. Navigating your way through an eviction and making sure you follow the correct process can be daunting. So, whether you’re a tenant or a landlord, don’t try to go it alone.

We can help

At Cape Town Eviction Attorneys, SD Law & Associates, we are specialists in property law. Let us help you with the eviction process or other property matter. Contact Cape Town Lawyer Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

 

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Eviction – when your tenant is also your employee

In South Africa it is not uncommon for employees to be tenants. This is most often the case when a domestic worker or gardener occupies a cottage on the property of their employer. Usually the accommodation is part of the remuneration package, and often the employer pays the utilities and sometimes even provides food. The dual nature of the relationship can make things complicated if it becomes necessary to terminate one or other of those contracts, but in law the situation is straightforward.

We’ll look first at the simple application of the law, and then consider a couple of alternative scenarios.

Employment terminated

In the simplest scenario you terminate the employment of your domestic worker, including accommodation. You must give reasonable notice, compliant with the terms and conditions of employment (e.g. you may have agreed a contract stipulating 90 days’ notice). If you wish to terminate the employment prematurely and the Basic Conditions of Employment Act applies, you must give one month’s notice of termination. The employee is then required to vacate the premises provided, unless other provisions have been made. In the event of premature termination of a contract, the employee is entitled to accommodation for one month, or longer, according to the outstanding period of the contract.

Employment terminated, accommodation is extended

But perhaps the contract of employment is concluded, or the employee retires or is sick and unable to work. Their replacement does not wish to live on your premises and therefore the accommodation does not need to be vacated. You are happy for the former employee to remain a tenant. In this case the employee becomes a conventional tenant. You draw up a lease as you would for any other tenant. Whether you charge a rent or allow them to stay as a “grace and favour” tenant is between the two of you, but it is still advisable to have a written lease in place. Some families promise accommodation for life to a loyal domestic worker. If you have made this commitment in the past you are obliged to honour it, whether or not it was in writing.

Employment continues, lease is cancelled

On the other hand, you are very happy with your domestic worker, but your daughter is returning from varsity and wants to live in the property currently occupied by the employee. You wish to cancel the lease but retain the employee. In this case you are bound by the Rental Housing Act and the Consumer Protection Act. Firstly, you must check the lease agreement (or the employment contract, if the provision of accommodation is an integral part of that and not a separate agreement). You must then give notice in accordance with the provisions of the lease or employment contract. See our article Lease Agreement – How To End It With Dignity. If there is no specified notice period given, you must give one month’s notice (20 business days to be compliant with the CPA).

Eviction

If the tenant refuses to leave as requested, you may then resort to eviction. You must comply with all the statutory measures and procedures that apply to your situation, i.e. if the property is in an urban area, the Prevention of Illegal Eviction (PIE) applies (see our article on PIE). If the property is in a rural area and is subject to the Extension of Security of Tenure Act (ESTA), then the provisions of that Act must be followed.

Bear in mind that if you have to evict your employee from your property, you will place your working relationship under severe strain, making it difficult for you both to continue as employer and employee. Try to resolve the situation without resorting to eviction if you can. It may mean being flexible with the notice period to allow your tenant time to find alternative accommodation. Be aware that they now may have to travel a distance to work and be sensitive to how that might impact their start and finish times. Review the employment contract to reflect the new live-out status and consider the implications for total remuneration. If accommodation was provided gratis as part of the package, you will need to revisit the wage you pay. Make sure all contracts are up to date and represent fair and reasonable employment practices.

Take professional advice

If you need help with any aspect of lease agreements or employment contracts for your domestic workers, we can help. Cape Town Eviction Attorneys, Simon Dippenaar and Associates are experts in property and contract law. We will make sure you are fully compliant with all relevant regulations. Contact Cape Town Attorney Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

 

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Eviction process challenged in court – the PIE gets teeth

Eviction process challenged in court

Court ruling suggests more active judicial management of the eviction process

Eviction process – Property owners and tenants alike have rights under South African law; and when an eviction notice has to be served, it is important to consider the rights (and responsibilities) of both parties, to be sure that fair and just treatment is accorded to everyone. Our Constitution exists to protect all citizens and ensure a rights-based approach is taken in matters of legal dispute. An eviction notice that came before the Constitutional Court last year provides a test case for the accountability of housing lawyers and the judicial system in safeguarding the rights of the most vulnerable in our society.

In the the case of Occupiers of Erven 87 & 88 Berea v De Wet, Christiaan Frederick N.O. and Another, appeal was made under the PIE Act to the ConCourt after the High Court refused to rescind an eviction order. Here we look at the facts of the case and draw some conclusions from the judgement.

 

History of the eviction notice

An abandoned block of flats in Berea, Johannesburg, was purchased by a new owner following liquidation of the former landlord. The building was occupied by 184 residents at the time, some for as long as 25 years. In order to carry out renovations and restore the building to residential letting standards, the purchaser wished to evict the sitting tenants and served them with an eviction notice, following the procedures set out in PIE.

The 184 occupiers were represented in court by four of their peers, who were known as the “Appearer Occupiers”. These Appearer Occupiers asked the court for a postponement of the hearing to give them time to seek legal advice and representation. However, when they appeared in the High Court, they consented to a draft eviction order, leaving the remaining 180 occupiers somewhat stunned. The occupiers sought their own legal advice and applied to the High Court to have the eviction order rescinded. The High Court turned down the application, on the basis that the eviction notice was not in contravention of PIE and the eviction court had discharged its duties faithfully.

A further application for leave to appeal was refused by the High Court and the Supreme Court of Appeal.

 

What happened next?

The case was based on a series of misunderstandings. The Appearer Occupiers said they had not consented to an eviction order. They argued that even if they had consented, their consent was not legally valid; and the court had an obligation to ensure the fairness of any eviction order in the light of all relevant circumstances. They maintained that the eviction order should have been rescinded.

The Respondents argued that the applicants had lost the right to appeal because they had agreed to the eviction order in the first place. They also said there was no evidence that the occupiers would be made homeless or that they had made any attempts to find alternative accommodation. Therefore the eviction process was fair and an appeal was not warranted.

 

What did the judges consider?

The Constitutional Court reviewed the judicial oversight functions of the eviction courts under PIE. How great a duty does an eviction court have in determining the validity of the mandate between the occupiers and their representatives? How far should the eviction court go to ensure the consent is legitimate? In this case, were the non-Appearer Occupiers within their rights to request the eviction order to be rescinded?

 

The ConCourt decision

The Constitutional Court ruled that where legal representatives consent to judgements without proper authority, the judgement is not valid. In other words, the Appearer Occupiers in this case knew the main body of occupiers needed time to seek legal representation, but the Appearer Occupiers did not allow for this in the eviction process. In the face of the resulting eviction order, the occupiers “had no legal representation when the order was obtained against them,” according to the Court. The Court also held that the occupiers’ consent to the eviction order should have been given “freely and voluntarily with the full awareness of the rights being waived,” and this did not occur. The occupiers were not aware of their rights and therefore the consent they gave to the postponement could not be considered informed consent in the light of the eviction order. Informed consent is a guiding principle of the Constitution. As a result, the Appearer Occupiers’ consent was not binding on the occupiers.

 

Conclusion

The ConCourt judgement raises some interesting questions and may signal a new role for the courts in matters of eviction. It reinforces the function of the courts in protecting the poor and vulnerable in our society. This case places an increased burden on the courts and property owners, the latter now having to ensure a legally valid and binding mandate exists before Appearer Occupiers can enter into court-ordered agreements.

The courts may now have to scrutinise eviction applications carefully to prevent any ambiguities between Appearer Occupiers and the occupiers they represent when resisting an eviction application. This would seem to be a victory for social justice; with this judgement the Constitutional Court is refining its stance on active judicial management of eviction applications. Whether this leads to fairer, more just outcomes for all parties or simply brings the process to a grinding halt remains to be seen.

 

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