Can a body corporate cut off electricity to unit owners for non-payment of utility charges? A recent court case presents a constitutional dilemma.
Protection from eviction: Extension of Security of Tenure Act
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:
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
How to handle evictions legally and ethically
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.