ESTA protects occupants on rural or agricultural land, while PIE applies to urban and peri-urban dwellers. We explain how ESTA works.
Show Ubuntu, court urged stepmother who wanted to evict son
Reprinted from iol.co.za, by Zelda Venter - 2024-10-24
A widow who wanted to have her unemployed stepson evicted from his late father’s home as she wanted to move in was told by a judge to show Ubuntu and to try and resolve her issues with him.
The widow, only identified as Mrs M, turned to the Pietermaritzburg high court to appeal an earlier order which turned down her application to have her stepson evicted from the property.
The magistrate who delivered the first judgment said she should follow the spirit of Ubuntu, and the high court now agreed with that and turned down her appeal.
It was found that the widow had no pressing need to move onto the property as she already had a place to stay. The stepson said he cannot see why they cannot live in peace on the same property, as it is large and another dwelling could be easily erected for him to stay in.
The court was told that he has been living on the property for his entire life, while the widow never lived there - either before or after her husband’s death.
The widow is appointed as the representative of the estate of her late husband. The stepson is the son of the late husband and his first wife, who died in 1997.
The deceased married his present widow in 1999, and he passed away in 2010. They argued that the deed of grant confirms that ownership of the property vested, and still vests, with the deceased, who died without leaving a will. She, as his wife, thus has ownership of the property.
The deceased inherited the entire estate, which included the property and house, when his first wife died as they were married in community of property. Their son was thus not a beneficiary of his late mother’s estate.
The deceased subsequently entered his marriage to the appellant (his second wife) with full title to the property. The deceased and the appellant were married by customary law and registered the marriage with home affairs.
The marriage is one in community of property, and the appellant would lawfully be entitled to inherit a 100% share of the property from the deceased estate.
The widow testified that there was conflict between her and her stepson at the time of the deceased’s death. She did try to resolve the issues and requested him to vacate the property as she needed a place to stay.
He refused to vacate the property and chased the appellant off the property. The court noted that it was clear that the widow did not consent to the stepson residing on the property and that she did have a right to evict him.
In terms of the law, the lower court earlier found the stepson to be an unlawful occupier of his father’s land, and this was endorsed by the high court on appeal. But the court said the issue is whether it is just and equitable to evict the unlawful occupier.
The court considered the fact that the stepson has occupied the property for most of his life and would be rendered homeless if he was to move. The appellant had not resided on the property for a few years prior to the deceased’s death nor after the death of the deceased.
The court said the principles of Ubuntu, which encompass the values of “humanity to others,” should be applied here in arriving at a just and equitable decision. The property is approximately 400 square meters in size.
The surface area of the property is big enough to accommodate a second structure to be the dwelling of the stepson, the court said. It said the parties need to engage in mediation and reach a solution to live peacefully with each other.
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:
Family furious after eviction to pave way for mine
The Sindane family was forcefully evicted to make way for a mine, sparking outrage and accusations of police abuse during the relocation process.
Reprinted from Citizen.co.za, by Masoka Dube - 2024-10-03
A Mpumalanga family are furious after mining giant Exxaro evicted them from their home to make way for mining activities.
The Sindane family from the Leeu Bank farm near Belfast was evicted on Tuesday after failing to challenge an eviction order.
Spokesperson Elisa Sindane said during the eviction police assaulted some family members.
Police allegedly assaulted evicted family
“We were not refusing to relocate, we just demanded to be taken to a house similar to what we had. Our homestead comprised eight rooms and two big huts.
“We were taken to a house with four rooms and it can’t accommodate our furniture and other items. There are seven adults and six children.”
“We have been asking the mine to give us a bigger house and a place to keep our livestock but they decided to evict us.”
“We were forcefully removed from the land that our family occupied for more than 60 years. We had a huge yard, but we were taken to a small piece of land.”
Marweshe Attorneys, representing the family, said they were preparing legal action as Exxaro’s conduct was an ambush.
‘Exxaro’s conduct was an ambush’
A video shared with The Citizen showed the police and the officials from the sheriff of the court violently pushing some family members including women.
A male voice could be heard accusing the police of harassing an 83-year-old granny.
Exxaro spokesperson Nomonde Ndwalaza said: “Exxaro confirms that the supreme court of appeal has concluded the legal process related to land ownership in Belfast between Exxaro Resources and the Sindane family.”
“On 16 August, the court dismissed the family’s application for leave to appeal, reaffirming Exxaro’s legal right to the land and bringing legal closure to the issue.”
‘Exxaro’s legal right to the land’
“In line with the judgment, the Sindane family was relocated to newly built housing in Phumulani Agrivillage on 01 October.”
Magnificent Mndebele, head of media and communications for Mining Affected Communities United in Action condemned Exxaro’s action and accused the government of failing to protect communities against abuse by the mining firms.
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:
Eviction looms for 3,000 shackdwellers in Tshwane
Reprinted from GroundUp, by Silver Sibiya - 2024-09-29
Residents of Mahlangu informal settlement face an uncertain future
3,000 people in Mahlangu informal settlement in Tshwane face eviction from privately-owned land.
Some have lived there for 40 years.
The City of Tshwane says it is trying to eradicate 500 informal settlements across the metropole through upgrades and formalisation, but Mahlangu is not on State land.
Families have returned to rebuild their shacks in Mahlangu informal settlement in Olievenhoutbosch, Tshwane, after a devastating fire destroyed more than 200 homes. But they face another threat: eviction from the land.
Approximately 3,000 people live in the informal settlement, according to the City of Tshwane Emergency Services Department.
The department said 230 people affected by the fire were temporarily housed in two church shelters, but these were closed on 13 September.
Some of those affected by the fire have rented places elsewhere in the township. Others, like Lesotho national Thabang Motshekga have returned to Mahlangu and rebuilt their shacks.
Motshekga, who has been living in the area since 2014, said he and his girlfriend had nearly died in the fire.
“When I woke up it was smoke and fire all over my shack,” he said. “We couldn’t save any of our belongings. I’m happy to be alive but I’m still heartbroken.”
“I had to rebuild, it’s the only option I have,” he said.
The settlement has no electricity or running water. People rely on two water tanks which are filled by trucks, and some use water from a well dug at a water source on one side of the settlement to wash clothes and blankets. There are eight communal chemical toilets.
Those who can afford to, use small batteries to listen to the radio.
In April, lawyers for Crecora Investments, which owns the land, served residents with a letter of demand, giving them 30 days to leave the land, after which the owners would proceed with a court application for eviction.
The letter, from Patel Incorporated Attorneys, said the land had “considerable dolomite deposits”. “This is a considerable hazard and not suitable for settlement as it could and can result in sinkholes which can cause fatal injuries and loss of life”.
Asked by GroundUp whether the owners had gone to court, attorney Ziyaad Patel declined to answer. GroundUp has not been able to reach Crecora Investments directly.
Philip Mampana says he came from KwaNdebele in Mpumalanga and settled in the area in 1982. He said recycling from nearby dumps was the main source of income for most residents.
He also does a little gardening.
Mampana said most of the residents arrived between 2005 and 2010 and were from Lesotho. “We also have people from Zimbabwe, Mozambique, and other locals.”
Sitting with Mampana, listening to old disco music when GroundUp visited, was Paulos Matheswa from Mozambique.
He arrived two years ago and was present when the sheriff brought the eviction letter.
“We were asked to give it to the committee. But after months passed, we didn’t expect it to be enforced.”
“When they remove us from here they must tell us where they will place us,” he said.
Mampana said the settlement had been named after a football player called Vuilduis Mahlangu, who was one of the first residents. “He was a very prominent football player; everyone knew him here. Even during his old age he would do moves that would get the crowd roaring.” Mahlangu has since returned to his home province of Mpumalanga, said Mampana.
Mohlokwane Mohlokwane from Lesotho has been living in Mahlangu for nine years and makes a living selling traditional medicine. “I sell moriana to everyone; they all know me. Even police come here to buy it,” he said.
He said one side of his shack had been burned in the fire. He said the well was too far for him to get water. “I put the fire out with my hands literally.”
Recently appointed mayco member for human settlements Ofentse Madzebatela said the City was looking into eradicating informal settlements across the metropole.
“We are working very hard to eradicate areas such as this. Our plan is that every financial year there are at least 20 areas such as this that we can upgrade. Part of that is to ‘re-block’, so that when one shack catches fire it does not affect other shacks.”
He said it would take time to formalise informal settlements because there were more than 500 in the City of Tshwane.
“We encourage people not to invade land because when we continue to invade land we slow down the process of ensuring there is housing for all.”
His spokesperson Mfundo Mazwi said that 13 settlements had been upgraded last year, and 27 would be upgraded this financial year. This involved better provision of water, sanitation, electricity and access roads and pathways. But because the land in Mahlangu was privately owned, the municipality could not offer services.
He said up to 95% of people in Mahlangu were undocumented immigrants.
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:
Landmark SCA eviction ruling a wake up call for SA municipalities, warn experts
Reprinted from iol.com, by Yogashen Pillay - 2024-07-22
Municipalities have been urged to take note of a landmark ruling by the Supreme Court of Appeal (SCA) on the process of lawfully evicting illegal occupants from municipal-owned land.
This after the City of Cape Town application, to overturn a Western Cape High Court ruling that it had incorrectly applied its common law defence of counter-spoliation during an eviction in the Western Cape in 2020, was dismissed by the higher court.
Counter-spoliation means the immediate action to physically prevent land invasions and where occupation had not stabilised.
The SCA judgment said that counter-spoliation is only permissible where peaceful and undisturbed possession of the property has not yet been acquired.
“Once a spoliator has acquired possession of the property and the breach of the peace no longer exists, counter-spoliation is no longer permissible.”
The SCA said that pictures of the eviction process showed existing and complete structures being torn down.
“It leaves no doubt that the City did not act instantly in the captured circumstances. The occupants of the structures were removed from already erected structures.”
Legal expert Mpumelelo Zikalala said that the City of Cape Town failed to follow the law.
“I understand why the SCA dismissed the application. The City had to remove the illegal occupants as soon as possible and they didn’t do that.
“When structures are already erected the City will need to get a court order to remove the occupants and they need to also find alternative accommodation.
The important thing is that municipalities must understand the law before enforcing them.”
Zakhele Ndlovu, a political science lecturer at the University of KwaZulu-Natal, said that he was not surprised by the SCA judgment.
“The issue is that the City of Cape Town waited too long to evict the people. The City needed to act immediately and remove the illegal occupants and structures before they were put up.
“They allowed the occupants to settle and the law is that if they have to evict them they need to find alternative accommodation. There was also a video which showed one of the occupants being removed, while naked, which was inhumane and this all worked against the City. Municipalities need to know that they must act quickly if they need to get rid of illegal occupants and they have to do it in a humane way.”
Dr Bongekile Yvonne Charlotte Mvuyana, a senior lecturer at Mangosuthu University of Technology’s (MUT) department of public administration and economics, said that the judgment imposed by the Western Cape court requires all cities to reconsider how to deal with the increasing demand for housing which results in land invasion.
“The application of counter-spoliation when homeless people invade the municipality’s unoccupied land is critical. Municipalities are expected to satisfy the requirements of counter-spoliation to avoid litigation by communities.
“It should be noted that cities are considered better places to live, because they provide people with access to education, health services, as well as water, electricity, and sanitation.”
Mvuyana said that as more people flocked to cities, these cities must develop methods to deal with urban change in the emerging world.
Shack dweller movement Abahlali baseMjondolo said it was admitted as a friend of the court (amicus curiae) in the matter.
“We welcome the SCA judgment as a huge victory for the poor and marginalised,” it added.
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:
Mayor Geordin Hill-Lewis seeks eviction of occupants blocking City drains
City of Cape Town says Belhar families facing eviction won’t be homeless
Court grants order to evict hundreds of people living on streets of Cape Town
Court grants order to evict hundreds of people living on streets of Cape Town
But judge puts strict conditions on the way the eviction must be carried out and emphasises that the city also belongs to the evictees, as it does to those who live in mansions
Reprinted from GroundUp, by Tania Broughton - 2024-06-19
The Western Cape High Court has granted an order for the City of Cape Town to evict about 200 homeless people living at several inner-city sites.
However, the “pavement dwellers” will have until 30 July to move and find alternative accommodation.
Judge Michael Bishop also made orders to safeguard affected children, older people and disabled people living at these sites, and to ensure a just and lawful eviction process.
The judge added that while the City’s accommodation in its Safe Spaces was rudimentary, “it is undoubtedly better than their current accommodation”.
The City of Cape Town has been given the green light to evict about 200 people living on the pavement at several inner-city sites. But the “pavement dwellers” will have more than a month to leave and find alternative accommodation.
The ruling on 18 June by Western Cape High Court Acting Judge Michael Bishop follows a lengthy court battle between the City and the homeless groups occupying spaces along Buitengracht Street, FW De Klerk Boulevard, Foregate Square, Helen Suzman Boulevard, Strand Street, Foreshore/N1, Virginia Avenue and Mill Street Bridge in the city centre.
The order was granted in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land (PIE) Act.
Acting Judge Bishop ordered that the City must provide alternative accommodation at its “Safe Space” in Culemborg, which is also in the city centre. He said the homeless groups have about ten days to indicate whether they will move to this Safe Space. They should be allowed to live there for at least six months.
“Those who take up the alternative accommodation at the Safe Spaces, who are in a partnership with another [homeless person], and who require accommodation with their partner, are provided with accommodation for couples,” he ordered.
He also made orders to safeguard affected children, older people and disabled people living at these sites, and to ensure a just and lawful eviction process.
Judge Bishop said those who refused the offer of accommodation would be evicted and their structures demolished. However, their possessions must be kept in safe custody for six months.
He said he would “retain supervision” over the implementation of the order and directed the City - and the occupiers if they so wished - to file further affidavits on progress.
“This case concerns the rights of some of the most vulnerable people in our society - people living on the pavements in downtown Cape Town. The conditions in which they live are deplorable.
“They live next to busy roads in tents or structures constructed of plastic sheets and cardboard. They are compelled to live their lives in public, with little or no privacy. They struggle for food, shelter and warmth,” Judge Bishop said in his ruling.
He said homeless people in Cape Town do not exist separately from other residents. He added that the city belonged to them, the office workers and those who lived in mansions. This case was a reminder “that we are all a few bad decisions and some bad luck from living life on the pavements”.
He said to its credit, this was “largely the attitude” adopted by the City in its PIE application.
Judge Bishop said while the City’s accommodation in the Safe Spaces was rudimentary, “it is undoubtedly better than their current accommodation”.
It included toilets and showers, two meals a day, blankets and access to clothes.
The City had also committed to helping those who use the Safe Spaces to overcome addiction, find jobs and reconnect with their families.
He said the main gripe of the occupiers – represented by the Socio-Economic Rights Institute of South Africa (SERI) – was that the City had not meaningfully engaged them, and that the Safe Spaces were not suitable because they had rules which separated families and restricted their freedom.
“The occupiers accept that living on the streets creates risk for their physical and mental well-being. They accept that their eviction may be warranted - but only once the City has meaningfully engaged with them and offered suitable alternative accommodation,” Judge Bishop said.
The Safe Spaces are weapon free, drug free and alcohol free. People are searched on entry, and residents are required to leave during the day, but that is flexible, he said.
On the issue of whether there had been meaningful engagement, the judge said while “not perfect” the City had met its legal obligations, and during latter engagements agreed to relax some rules to accommodate legitimate concerns.
“This is an unusual eviction. I have therefore decided to maintain light supervision of it to deal with any outstanding issues that may arise.”
He refused to grant the City a broad interdict preventing named occupiers from re-occupying other properties. The City had argued that without this, the eviction would not achieve its purpose because some occupiers would simply occupy a different pavement.
However the judge did interdict the respondents from re-occupying these properties. “If the City believes it needs the power to evict people, it must create new mechanisms that are constitutionally consistent and apply equally to everyone,” he said.
The City was ordered to pay 30% of the homeless group’s legal costs.
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.
Sheriff of High Court concludes eviction in Cape Town’s east CBD
City tenant’s plea for support ignored
A legal tenant at one of the City owned properties is struggling to receive support from officials to evict individuals who have occupied the flat.
Reprinted from iol.co.za, by Bulelwa Payi - 2023-10-21
This is despite a request by the Western Cape High Court judge for officials to assist Moenier Eksteen evict his former partner and her children from his flat in Albow Gardens, Rugby.
The attempts date back to 2022, when Eksteen's family asked de Bruyn to move out after the relationship ended.
Instead, charges were laid against Eksteen, and a protection order was granted, preventing him from entering the property.
A letter from the judge, which was presented to the Housing officials, set out Eksteen's predicament: ‘’Eksteen is seeking legal assistance with eviction proceedings to restore occupation of the said premises to him.
Therefore, kindly note that Mr Eksteen's failure to resume occupation is neither wilful nor mala fide but consequent upon his bail conditions and pending legal proceedings. However, as soon as he is legally able to resume occupation, he will do so.’’
When de Bruyn refused to move out, the Eksteens also wrote to City officials responsible for housing, seeking assistance.
‘’Last year, they (City officials) shouted at us, saying we must evict them. Now that we’ve done everything legally possible, they refuse to give a letter of support for the eviction. So, I must be homeless, but I am still paying rent for a home that I love,’’ said Eksteen.
Despite numerous acknowledgements of the letters and promises to investigate the matter, no action has been taken by the officials.
Eksteen is recognised as the legal tenant in the contract with the City and had been paying rent for the flat.
After meeting with his lawyer, Eksteen was advised to approach the Manager of Homeownership Transfer and Tenancy Management in the City's Human Settlements department, Grace Blouw, for a letter acknowledging that he could proceed with the eviction process.
The matter was also brought to the attention of the Mayco member for Human Settlements, councillor Carl Pophaim, who, in turn, requested an explanation from Blouw.
On 2 October, Blouw responded: ‘’Subjoined email is acknowledged and content noted. Please allow me to investigate, and I will revert with a response soonest.’’
To date, no further response had been received by the Eksteen family.
‘’It brings me great disappointment that after several months, several emails, phone calls and complaints made by my family members and myself to the Bonteheuwel housing office and Grace Blouw, and we have still received absolutely no help with our matter.
‘’Instead of housing officials at the Bonteheuwel Housing office helping us, they have threatened to evict Moenier instead,’’ wrote a family member to the City.
Another Albow Gardens resident who spoke on the basis of anonymity for fear of reprisal claimed that drug addicts had occupied some flats in the complex.
‘’It's mostly elderly people who stay in the flats. When some die, family members are allowed to continue to stay and pay rent. However, some of these flats are either rented to individuals or occupied by those who carry out criminal activities, like selling drugs. One would expect the landlord to launch an investigation, but none has been carried out,’’ the source said.
City spokesperson Luthando Tyhalibongo said the City was in contact with the Eksteen family.
However, according to the Eksteen family, all they received were acknowledgement of receipt of emails and no action or the help sought.
Tyhalibongo said the City’s Public Housing Department investigated all complaints of "anti-social behaviour, including drug dealing and gangsterism" , at its properties and took the appropriate action where required.
He added that eviction orders were issued for non-payment of rent, unlawful occupation and anti-social behaviour.
But specific questions on why support was not being granted to Eksteen's attempts to evict the alleged illegal occupants were not answered.
An activist, Roscoe Jacobs, said the City was ‘’abdicating its responsibility and failing to assist Eksteen’’.
‘’The officials cannot continue to be unresponsive to the pleas. They must show a political willingness to serve all citizens.’’
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:
Court showdown over Cape Flats evictions
‘I want to take my last breath in this house’ says Cape farm dweller facing eviction
Avoiding common pitfalls of eviction
Lease termination can be amicable
How to handle evictions legally and ethically
“Biased” magistrate should have recused herself, judge finds in Communicare case
Court sets aside decision by acting magistrate Venice Burgins
Reprinted from GroundUp, by Tania Broughton - 2023-05-24
The Western Cape High Court has set aside a ruling by acting magistrate Venice Burgins who refused to grant an eviction order against social housing company Communicare.
The judges said Burgins’ social media posts showed she was hostile to Communicare and she should have recused herself.
They ordered the case be heard afresh by a different magistrate.
Social housing company Communicare has secured a court order setting aside a decision by a “biased” Cape Town acting magistrate who refused to grant an eviction order in its favour.
In August last year, acting magistrate Venice Burgins took three hours to read out her 68-page order, on what many would have considered a straightforward eviction application.
What Communicare did not know at that time, was that Burgins was an anti-eviction activist, with a history of campaigning against the social housing company, and that she ran a social media campaign under the name of “United Action Group”.
She also participated in a social media campaign #CommunicareMustFall.
When this emerged after Communicare failed in its court bid to evict “tenants” who had not paid any rent — and had no contract — the company turned to the Western Cape High Court to have Burgins’ ruling reviewed and set aside.
Judge Ashley Binns-Ward, with Judge Nobahle Mangcu-Lockwood concurring, has now ordered that the case be heard afresh, before a different magistrate.
In his judgment, Judge Binns-Ward spells out the history of the international “Bangalore Principles of Judicial Conduct” which identify the core values of impartiality, integrity and independence for judges. These were used to flesh out South Africa’s codes of conduct.
In its review application, Communicare said Burgins’ ruling must be set aside, citing the Superior Courts Act which states that bias, malice and corruption on the part of a presiding officer would result in a gross irregularity in the proceedings.
Judge Binns-Ward said some days after the dismissal of the eviction application, a parcel had been delivered anonymously to Communicare’s offices. It contained various documents which led the company to believe that Burgins had been biased and should have recused herself. The documents showed that Burgins, on various occasions before she considered the eviction application, had published, or associated herself with, strongly worded and unambiguously hostile opinions about Communicare on social media.
In one, Burgins said: “The struggle continues and we SHALL expose the Communicare rot of exploiting our people”.
In its papers before the high court, Communicare said Burgins was a member of the social media group United Action Group and had been the administrator since February 2021 and was still the administrator. Posts on the group include some by another member, Colin Arendse, who wrote: “Massive court ruling against Communicare NPC” and stated that in a dramatic, three-hour, 63 page judgment of “seismic proportions”… the court had ruled against the company in an “epic case that is going to shake the foundations of state capture and reverberate through the corridors of justice for centuries to come”.
Arendse described Burgins’ judgment as “technically sound”.
Judge Binns-Ward, citing case law, said there was a strict duty on judicial officers to decline, of their own accord, to hear cases in which they had a personal interest in the outcome or the contested issues.
But Burgins had not opposed the application and had chosen not to explain or qualify the import of the social media posts.
“Individually, and all the more so collectively, they suggest a passionate interest in the activities of the applicant and its relationship with its tenants. They indicate that she holds the view that the applicant’s conduct is oppressive.”
“Her reference to ‘the rot at Communicare’ implies an allegation of corruption.”
Judge Binns-Ward said it was evident that Burgins’s interests and campaigning were closely related to the issue she was called upon to adjudicate.
“It was clear she nurtured a hostile view of the applicant’s management of its housing stock. She was under an ethical and legal duty in the circumstances to have declined to sit in the case.”
The Judge said while the merits of the case were not at issue, it would be “remiss” not to mention that the 63-page judgment “unfortunately contains passages that bear out that she did in fact introduce her personal issues”.
He said Communicare had initially asked for a costs order against Burgins but had retracted that, in light of her abiding by the decision of the court.
“The applicant may, of course, if so advised, pursue her impropriety with the Magistrates Commission.”
For further information
Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you are concerned about unlawful eviction or if you need advice on the eviction process.
Further reading:
Communicare wins eviction case against Ruyterwacht tenants in rent arrears of R1.6 million
Eviction – how does it work?
What landlords and tenants need to know about eviction
Nobody wants to be evicted. And it’s rare that landlords want to evict tenants. A healthy landlord–tenant relationship is a mutually beneficial situation where one party has a home to live in and the other enjoys an income from their asset. In an ideal world, no one would want to disrupt this peaceful scene. Unfortunately, sometimes a tenancy does not go smoothly, and the property owner is in the unhappy position of having to consider eviction. What do both landlord and tenant need to know about the eviction process and their respective rights?
What is eviction?
In its simplest sense, eviction is the act of expelling someone from a property. However, a landlord may not actually remove a tenant. Only the sheriff can do that. A landlord must follow a carefully defined procedure or risk breaking the law.
Eviction is not the same as cancelling a lease. Lease cancellation is the conclusion of a civil contract between two individuals, for a valid reason. Either party may cancel the lease, and the terms under which this can be done should be set out in the lease.
One reason a landlord may cancel a lease is a breach of the rental agreement, for example failure to pay rent or some infraction of the rules, such as keeping a pet when no pets are allowed. In this case, the landlord must give the tenant notice of the breach and a chance to rectify it. A breach in itself is not sufficient grounds for eviction.
Rental housing legislation and tenant protection
Rental housing in South Africa is addressed via several pieces of legislation: the Rental Housing Act and Rental Housing Amendment Act (RHA), the Consumer Protection Act (CPA), Prevention of Illegal Eviction Act (PIE), and the Extension of Security of Tenure Act (ESTA). These cover different aspects of the relationship and different situations. (For example, PIE is concerned with eviction; ESTA specifically looks at land tenure.) There is some overlap, especially between the Rental Housing Act and Consumer Protection Act, and tenants’ rights always default to the greater level of protection, where the provisions of two Acts differ.
If there is a breach of the rental agreement, the landlord must issue a warning to the tenant in writing, giving them a specified amount of time to remedy the breach. This time frame will be determined by the terms of the lease. If not specified, it will be 20 working days, in accordance with the CPA. If there is no written lease, the landlord must give a full calendar month’s notice. If the tenant rectifies the breach, the matter is finished and harmony is restored.
If the breach is not remedied within the designated time, the next step is a letter of cancellation served on the tenant by the landlord. The cancellation notice should include a date by which the tenant must vacate the premises. This is still not eviction. Eviction only occurs when the tenant does not vacate the premises in accordance with the lease cancellation.
Eviction process
If the tenant fails to vacate, the landlord is entitled to give notice of their intention to evict the tenant through the courts. The landlord applies to court for an eviction order to be issued to the tenant. The court then issues the eviction order to the tenant and the municipality that has jurisdiction in the area 14 days before the court hearing. At the hearing, the tenant has the right to put forward a defence. If the court considers the defence valid, a trial date is set. In the absence of a valid defence, a warrant of eviction is issued to the sheriff, giving authorisation for them to remove the tenant’s possessions from the premises. So, depending on the judgment, either a trial begins or the sheriff removes the tenant’s possessions from the property.
Tenant’s rights
Even the most recalcitrant tenants have rights in the process. PIE provides for vulnerable people. If tenants are elderly, disabled, or women with young children, the court may allow extra time for them to vacate the property, to ensure they have time to find suitable alternative accommodation.
Landlords may not shut off utilities or other services or change locks, or in any way make a property uninhabitable. These acts amount to constructive eviction, which is illegal in terms of the RHA and could result in a fine or imprisonment of up to two years, or both.
How long does the process take?
If the eviction order is opposed, the case can drag on considerably. It can take from six to 18 months. Even if the eviction is unopposed, the court will want to ensure the occupier is given enough time to vacate the property and find alternative accommodation before allowing the sheriff to enforce an eviction order, particularly in the case of vulnerable tenants.
Tenant’s personal property
Tenants have a responsibility to restore the property to its original condition when they move out, and this includes removing personal property. However, tenants do sometimes leave unwanted items behind. While this may be deliberate – a desire to cause inconvenience out of resentment at the eviction, or just unwillingness to arrange disposal – it could also be unintentional. It’s not unusual for people, whatever the circumstances, to leave something behind in the stress of moving house. The landlord has a duty to try to track down the tenant. They must use any contact details they hold for the occupant and exhaust all possibilities. The landlord must be able to demonstrate that they tried in good faith to find the owner of the personal property.
For further information
Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on the eviction process.
Further reading:
Landlord’s tacit hypothec and recovering rental arrears
Camps Bay collective rejects housing assistance as eviction deadline looms
Reprinted from News 24, by Cebelihle Mthethwa - 2020-10-08
The collective of artists, who are occupying a Camps Bay mansion they booked through Airbnb, say they will not make use of the City of Cape Town's housing assistance in Philippi as the deadline for their court ordered eviction looms.
On Friday, the Western Cape High Court ruled the collective should vacate the luxury mansion no later than 8 October.
This is the same date the City estimated emergency accommodation would be ready.
The court made the ruling after the collective argued if they were to vacate the mansion, some of them would be homeless.
However, the City made it clear those facing homelessness after their eviction would have to fill in an assessment questionnaire that would help them determine whether they should get housing in Philippi or not.
"There was insufficient time for this process to commence and be finalised, hence no formal assessment process was instituted and there is no formal obligation on the City to provide assistance," the Mayco member for human settlements, Malusi Booi, told News24.
According to him, the City had not received the completed questionnaires from the group that would enable it to determine whether they qualified for emergency accommodation.
#Weseeyou spokesperson Kelly Eve said they would no longer use the City's housing accommodation.
"We do not think that the City's housing is viable for our safety. So no, we will not be using their services."
Links added by SD Law.
Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or sdippenaar@sdlaw.co.za if you need advice on the eviction process or if you are facing unlawful eviction.
Further reading:
Lockdown rights enforced for residents of informal settlements in Cape Town
The power of social media is immense. So much more than a mere communication tool, it’s a cornerstone of citizen journalism and can be one of the most effective ways in which ordinary people can tell important stories as they happen. What’s more, content posted on social media can be the grounds for legal action and meaningful change, as a case concerning lockdown rights recently heard at the Western Cape High Court clearly showed.
The naked man
On 1 July 2020, a video of a naked man being dragged out of his shack in an informal settlement in Khayelitsha went viral on social media. The man concerned, Bulelani Qolani, was removed from his home by City of Cape Town officials who were members of the Anti-Land Invasion Unit (ALIU). They destroyed his home shortly afterwards.
The ALIU is a specialised unit tasked with deciding which structures should be demolished on land they claim has been invaded. This work is conducted without a court order and typically refers to homes in informal settlements, which means that it usually affects some of South Africa’s most vulnerable people.
The video caused an outcry. It reminded people of the brutal forced removals that took place during apartheid, and demands for the judicial oversight of evictions and demolitions during the national state of disaster were heard. The South African Human Rights Commission (SAHRC), a state institution that is mandated to promote respect for human rights, stepped forward in response.
Together with the Housing Assembly and Bulelani Qolani, the SAHRC brought a case against the City of Cape Town as well as the Minister of Human Settlements, the Minister of Co-operative Governance and Traditional Affairs, the National Commissioner of the South African Police, the Minister of Police and the Western Cape Provincial Commissioner of the SAPS.
Lockdown rights infringed - not an isolated incident
The incident that occurred in Khayelitsha on 1 July wasn’t the only one of its kind. In fact, there were several others that took place during alert levels 3 and 4, despite that fact that evictions were meant to be suspended until the last day of the alert level period.
Some of the demolitions and evictions that occurred were as follows:
On 9 to 11 April 2020 in Empolweni Informal Settlement in Makhaza, Khayelitsha, the ALIU demolished structures on land owned by the City. Urgent relief was given by the Western Cape High Court to a number of residents whose structures were demolished. On 17 April, the court granted an interim order, ordering the City to return building materials confiscated from Empolweni and authorising residents to re-erect and occupy structures there for as long as the lockdown continues.
On 15 May 2020 in Ocean View, Kommetjie, evictions and demolitions took place on land that is privately owned by the Ocean View Development Trust. The City denied that evictions were conducted at the time, and said that ALIU had acted within its mandate to demolish illegally erected structures provided that they were unoccupied.
On 29 June 2020 in Hangberg, Hout Bay, the SAHRC received a complaint alleging that City officials had demolished a structure. The Western Cape High Court declared the City’s conduct unlawful and unconstitutional and emphasised that home demolitions could not be carried out without a court order during alert levels 3 and 4.
On 13 July 2020 in Zwelethu, Mfuleni, structures on land owned by the Western Cape Nature Conservation Board in Mfuleni, which joins city-owned land, were demolished. Many of the area’s residents are desperately poor and unemployed and have been the subject of at least seven evictions carried out without a court order.
“Bleeding and in pain”
Of course, there was also the incident that received the most attention – the one that took place in Khayelitsha on 1 July. The official court papers refer to the affidavit that Bulelani Qolani gave, in which he states that while the law enforcement officers were approaching, he went inside his home and prepared to bathe:
“He stood outside his dwelling naked and asked to be allowed to finish his bath. The law enforcement officers sprayed his neighbour with pepper spray and forcibly gained entry into Mr Qolani’s dwelling, carrying batons and guns. On entering his structure, they were already pushing up the roof to tear it apart.
“He asked to be shown an eviction order and told them it was illegal to evict during the lockdown period. They ignored his requests, he said, handled him physically and violently, pepper sprayed him and forcefully removed him from his house, whilst still naked and in full view of residents. As Mr Qolani tried to re-enter his house, he states they shoved him to the ground and one official knelt on his back while another held him down to stop him moving.
“Eventually, after quite a struggle, Mr Qolani got back into his house and sat on his bed, his head bleeding and in pain. Whilst he was still inside, he states, the demolition was completed.”
A precedent-setting judgment
On 20 and 21 August 2020, the case between the SAHRC as the first applicant and the City of Cape Town as the first respondent was heard at the Western Cape High Court. And on 25 August 2020, judgment was delivered.
In their judgment, Judges Shehnaz Meer and Rosheni Allie declared that the City of Cape Town ALIU will not be allowed to evict people or demolish occupied or unoccupied structures without a court order while the country remains in a state of national disaster. This landmark ruling is binding in the Western Cape and may set a precedent for other provincial courts too.
What’s more, if any evictions or demolitions are conducted with a court order in place, these must be conducted “in a manner that is lawful and respects and upholds the dignity of the evicted persons”. City officials are expressly prohibited from using force, the judges decreed, and from destroying or confiscating any material on the property concerned.
SAPS members will now have to be present during evictions and demolitions to ensure they are done lawfully, in line with South Africa’s Constitution and “in accordance with the SAPS’ constitutional duty to protect the dignity of the persons evicted”. In addition, the City was interdicted and restrained from considering, adjudicating and awarding any bids or tenders received in response to a tender specifically focused on the demolition of illegal formal and informal structures in Cape Town.
The court ordered the City to return all building material and personal possessions taken by the ALIU since 1 May, and to pay R2,000 to the people identified by the Economic Freedom Fighters.
But there’s more to come. In October, additional hearings will be held to determine whether demolitions or evictions can take place without a court order once the state of national disaster has ended. It’s likely that an important conversation has begun.
Contact us
Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or sdippenaar@sdlaw.co.za if you need advice on the eviction process or if you are facing unlawful eviction.
Reprinted from sdlaw.co.za
Further reading:
When lights out means tenants out
Disconnecting the electrical supply amounts to “spoliation”
Short of time? Watch the video here.
A case came before the High Court in the Western Cape recently that dealt with the eviction equivalent of “constructive dismissal”. Electricity supply was turned off to a couple’s home, in a clear attempt to remove them from the property by making it uninhabitable. The case was complicated (this was in fact an appeal against an earlier ruling, which was upheld) and the legal particulars of it of little interest to anyone but other lawyers, but it flagged some very important issues in the landlord/tenant contract, and the case inspired us to remind you of your rights and responsibilities as a landlord.
Makeshift 1190 (Pty) Ltd v Cilliers
This case concerns an appeal of an earlier order for spoliatory relief. The word “spoliation” has the same linguistic root as the world “spoil”, and shares its meaning (“the action of ruining or destroying something”) but is little used outside of the legal context. It crops up a lot in eviction cases, and refers to the wrongful deprivation of another’s right of possession. Spoliation can occur not only through physical eviction from premises, but by rendering the premises uninhabitable. In the case of Makeshift Ltd v Cilliers, it appears that a family rift led to the father, Martinus, who inhabited the farmhouse on the family farm, cutting off the electricity supply to one of his sons and his wife (Tom and Colleen), who occupied an outbuilding on the farm, called “the store”.
Martinus disconnected the Eskom supply when he installed a solar power generating system and no longer required electricity from the grid. However, the solar power did not supply the store, and Tom and Colleen were dependent on the Eskom supply. Furthermore, they paid all the electricity bills. When the power was cut off, Tom was away working and Colleen, alone on the property and nervous about her safety with no illumination around the building, applied for an urgent spoliation order in the Magistrate’s Court, which was granted. The case then becomes very complex and beyond the purpose of this article. You can read the full story here.
However, the outcome of the case is that the electricity supply to the store could not be denied without a court order. According to the magistrate’s decision, “the right to electricity is not ‘purely’ personal but ‘an incident of the possession or control of the property’ served by the supply of electricity…[and] the claimant’s occupation of the premises, and his or her use of its electrical appurtenances, constitute the possession of the premises and the quasi-possession of the alleged right to electricity as an incident of his or her possession of the premises.”
In plain English…
In other words, cutting off the electricity supply rendered the premises unusable – it was an act of spoliation as defined above. The take-home message is: landlords may not do this!
What rights does a landlord have?
Rental housing legislation is premised on a fair right of occupation of a property and is strongly biased in favour of tenants’ rights. This is to redress the balance of historical wrongs, when tenants were often summarily deprived of their homes without warning. But it does not mean that landlords don’t have rights. The law also recognises the right of a property owner to the enjoyment of that property, and provides recourse to landlords whose tenants are in breach of the lease agreement.
Here’s a reminder of what a landlord can and cannot do, in the event of troublesome tenants.
You may not:
Change the locks
Disconnect water, electricity or gas
Remove the tenant’s possessions
Physically remove the tenant
Evict a tenant without a court order
You may:
Serve notice on the tenant to remedy a breach of the lease agreement
Terminate the lease agreement if the breach is not remedied in the time given
Serve notice on the tenant of your intention to seek an eviction order through the courts
Apply to the court to have a tenant eviction order issued to the tenant
Thereafter, the matter is in the hands of the court. Only a Sheriff can evict a tenant. The tenant eviction process takes time, but if you can prove, among other things, that imminent harm will be caused by your tenant if they remain on the property for the duration, then an Urgent Eviction may be available to you. Eviction Lawyers South Africa can help you secure the necessary legal consent.
Leases, leases
Remember, it will soon be a legal requirement to have a written lease. Currently, verbal lease agreements are legally binding, but the as yet un-gazetted Rental Housing Amendment Act 35 of 2014 requires landlords to have a written lease agreement in place. We can help you draft both residential and commercial leases.
Don’t forget about lockdown
One final reminder: you cannot evict a tenant under the current lockdown level 3. You may begin proceedings in the courts, but a Sheriff will not remove a tenant until the government advises that evictions may begin again. We assume this will be under level 2, but no announcement has yet been made.
For further information
We are a Cape Town law firm specialising in eviction, also operating in Johannesburg and Durban. We act for both landlords and tenants and uphold the rights of each to a fair and satisfactory tenancy. If you have concerns 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
Time to hit the “pause” button on evictions?
By Eviction Lawyers South Africa Mar 24, 2020 COVID 19, Eviction news, Eviction notice, Evictions
Elsewhere in the world legislation is ensuring tenants don’t lose their homes due to COVID 19.
As if we didn’t have enough to worry about. COVID 19 is making everyone anxious for their health. Although the vast majority of patients recover, in South Africa we have a very vulnerable population and a weak health system, so widespread infection will wreak havoc in families and communities. Furthermore, those who have recovered describe the illness as extremely unpleasant, leaving them very weak for a considerable time. It’s to be avoided at all costs, hence the severe restrictions we are all living under and the lockdown that we are about to begin.
Beyond the literal threat the virus presents to health, up and down the country businesses have been closing, particularly in hospitality, and now all activities but essential services must cease while we all stay indoors for three weeks. If employers can’t afford to pay wages, employees will be sent home with no income. How, then, are they meant to pay their bills, including rent?
Some lenience on loan re-payments
As of 23 March, all the major banks have announced some provision for hardship caused by COVID 19. Standard Bank has announced a three-month payment holiday for small businesses with a turnover of less than R20 million, and for full-time students with student loans, to start on 1 April and run until 30 June. For other loans, including mortgage bonds, customers are urged to contact the bank. The other major banks are also assessing the situation and either inviting customers to contact them individually or waiting to see if they need to take more radical steps.
What about tenants?
Homeowners with bonds can hopefully expect some mercy, but what about tenants with rent to pay? In places where the pandemic has a tighter grip, legislative measures have been put in place to protect renters. Around the world, cities in the US and countries including Spain have temporarily halted evictions in response to the COVID 19 pandemic.
In England and Wales, the Housing Secretary has said, “Emergency legislation will be taken forward as an urgent priority so that landlords will not be able to start proceedings to evict tenants for at least a three-month period.” Up in Scotland, similar action is proposed. The Housing Minister said, “No landlord should evict a tenant because they have suffered financial hardship due to coronavirus and we are actively considering how best this can be addressed.”
A spokesperson for a tenants’ association said: “Up and down Scotland, tenants are facing not just a major health crisis, but the prospect of destitution and homelessness too. As their workplaces begin to shut their doors, it is hard to see how tenants who are already struggling to make ends meet will be able to pay their rent. It is unconscionable that anyone should even have to worry about being evicted from their home at this time.”
The situation here in South Africa is similar, and arguably will be worse, given our levels of poverty and disadvantage. At SD Law we support the 31 NGOswho have come together to appeal to President Cyril Ramaphosa, his Cabinet and Chief Justice Mogoeng Mogoeng to follow in the footsteps of our international counterparts and forbid evictions during the current crisis. After all, in a lockdown, it makes no sense at all to put people out on the streets.
Stop the “ejectment” if not the eviction
We understand that there may be situations where the eviction is not only legitimate, but long overdue. Perhaps a tenant has significant arrears with rent or has damaged the property. We’re not advocating for the entire eviction process to be overturned in these circumstances. A fair and just procedure can be resumed in due course, when life returns to normal. But this is not the time to execute a warrant of ejectment, i.e. to put the tenant out.
Look after good tenants
We would also urge landlords to exercise leniency in the case of good tenants who suddenly cannot pay their rent because they have lost their jobs or income due to COVID 19. If a tenant has a history of timely payments and full compliance with the terms of the lease, they should be treated compassionately and a repayment plan worked out when the crisis is past.
From a purely commercial perspective, even if the appeal to our shared humanity is in vain, evicting a good tenant because they can’t pay their rent is unlikely to result in replacement income. No one is looking to move right now. And a property could sit empty far longer than the time it takes for the existing tenant to recover. Good tenants are worth looking after.
Update 27 March:
In the government gazette released last night (26/3/2020), all evictions and execution of attachment orders, both movable and immovable, including the removal of movable assets and sales run execution is suspended with immediate effect for the duration of the lockdown.
Update 26 March:
As we head into a lockdown that will straddle two months, you may be wondering what will happen if a lease expires during the three-week period? In short, no movement is allowed. A tenant cannot be forced to leave a rented property even if another tenant is lined up to move in. The incoming tenant also won’t be able to vacate their current premises. The extraordinary measures in place (see the government gazette for full list of restrictions) take precedence over other contracts in place, such as leases. Technically, landlords and tenants can pick up where they left off as soon as the lockdown is over, but in reality it may be easier for everyone simply to extend the lease by one month and push the moving-out or moving-in date back to 1 May. Everyone in the country is in the same situation.
Rent should still be paid for any occupancy beyond the lease expiry. If the tenant is in financial difficulties, then a payment plan should be negotiated.
We’ve mentioned a “pause” on evictions to protect tenants who may be financially compromised as a result of COVID 19. But what about evictions that were already scheduled before this crisis emerged? Although the gazette does not mention eviction specifically, it is fair to assume that no movement means no movement. In effect, normal life is put on hold – paused – for three weeks. it will resume on 17 April.
Contact Eviction Lawyers for help
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:
How to evict a tenant off a property if the landlord dies
By Eviction Lawyers South Africa Mar 15, 2020 Evictions, Lease Agreement
What is the eviction process if the landlord dies?
If your landlord dies, you may wonder if you still have a home or if you will suddenly be evicted. And, as a landlord, what happens if your tenant dies? Is the estate liable for the rent or are you going to be left high and dry?
What is the eviction process if the landlord or tenant dies? The short answer is…the lease remains valid. The landlord’s or the tenant’s estate is bound by the lease and must honour the terms and conditions of the agreement. (Download a lease agreement template here.)
Can you be evicted immediately if the landlord dies?
As stressed in previous articles, having a written lease agreement is crucial as it protects the rights and obligations of tenants and landlords alike and makes dealing with the above scenario a whole lot simpler. Additionally, once the Rental Housing Amendment Act 35 of 2014 comes into effect, landlords will be compelled to draw up a written lease agreement.
Lease agreements are not simply rendered invalid if the landlord dies. The tenant cannot be summarily evicted from a property. However, the terms of the lease agreement will determine the conditions under which the lease may be terminated.
For example, a lease agreement may specify that the contract will automatically be cancelled when the landlord passes away. Should the executor of the landlord’s estate decide to sell the property, the executor is entitled to cancel the lease. Regardless of the reason for the cancellation of a lease, the landlord must generally give the tenant at least 20 working days’ to a full calendar month’s notice to vacate the premises in accordance with the Consumer Protection Act (CPA) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE).
If the tenant does not adhere to the time frame, the executor may then approach the court to apply for an eviction order.
When the tenant dies the estate is liable
If the tenant dies, the estate becomes liable for the rent and must give the landlord 20 business days’ notice of cancellation of the lease. The landlord cannot remove the tenant’s belongings during that time. It may be wise for both tenants and landlords to establish the cancellation clauses in lease agreements to avoid uncertainty or any nasty surprises down the line.
Seek expert guidance
Simon Dippenaar and Associates is a Cape Town law firm of 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.