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Knowing Your Rights When Facing an Eviction

Cape Town mother Inganathi Mafenuka gave birth to quadruplets earlier this year. However, the joy of being becoming a mother was somewhat marred by the worry of not having a home to return to. Speaking to media, Mafenuka explained that the owner of the house in Khayelitsha had informed her that she and her mother would have to vacate the premises or face eviction.

Evictions happen in cities and rural areas across South Africa every year. And the unfortunate reality is that many disgruntled or unreasonable landlords evict occupants illegally, and often in violent ways. Whether these landlords are not in the know or have little regard for the law, it doesn’t change the fact that to evict someone, a legal procedure must be followed.

Everyone has the right to adequate housing

According to our Constitution, all South Africans have the right to access to adequate housing. The government also has a responsibility to take reasonable measures to in time provide decent housing to everyone.

The law protects the rights of property owners as well as the rights of occupants. And when faced with eviction, inhabitants can defend themselves.

Standing up to illegal evictions: know the law and your rights

It’s important to remember, that you cannot be legally evicted from your home without a court considering all the circumstances and the effect that the eviction will have on you and your family. These circumstances include whether there are vulnerable people (such as the elderly, people living with disabilities, children and women-headed households) involved; how long you have resided at the premises; and whether you will be left homeless.

If you are renting a property, it’s important to keep in mind that the property owner as Landlord can go to court and seek an eviction against you (remember, they cannot physically evict you) for one or more of the following reasons:

  • your rental agreement has expired;
  • you haven’t paid rent;
  • you’ve intentionally damaged the property;
  • you cause trouble with the neighbours;
  • you haven’t followed to all of the terms and conditions of the lease.

Some Landlords disregard the law and rights of tenants and employ tactics to remove tenants from the property forcefully. It’s important to know that:

  • your landlord isn’t allowed to lock you out;
  • your landlord cannot sell your possessions to compensate for unpaid rent (only a court can enforce this);
  • you must be served with an eviction notice from the court, which is dated and signed by the landlord and agent;
  • if you believe the eviction is unfair, you can approach the Rental Housing Tribunal or the court for assistance
  • when the day you are supposed to leave the premises arrives, and you refuse to go, you cannot be forced to leave the premises, unless there is a court order.

The legal process for eviction

If you are in breach of your rental agreement, the landlord’s first step must be to send you a letter making you aware of the violation and giving you time to remedy the situation. If you don’t find a solution by a specific date, the contract will be cancelled, and the landlord can ask you to leave. If you don’t vacate the property, the landlord can go ahead and apply for an eviction.

The Sheriff of the Court will serve a Notice on you and indicate when you will have to appear in court. On the day you appear in court, the Magistrate could postpone the proceedings for arguments. If you don’t oppose the application the court will consider all the facts, determine if you are an unlawful occupant and give you reasonable time to find other accommodation and leave the property the court has made an order, and you still don’t leave the premises, the Sheriff can remove your belongings.

There is usually enough time for you to gather all your facts on the matter so that you can present a counter-argument. Courts are known to side with tenants if you can prove that the landlord is claiming that you haven’t paid rent, but you have statements to back up that fact that you have. Or if you the landlord has failed to carry out maintenance on the house and you deducted the costs from your rental amount.

Using the law to protect yourself against an illegal eviction

Since a forced removal from the property without a court order is unlawful, it is well within your rights to approach to police and make a case. The police should then warn the landlord or others involved that they are breaking the law and that they could face being arrested if they persist.  Alternatively, you could also approach a lawyer for assistance.  If you don’t have legal cover and cannot afford a high-profile lawyer, you can contact the Legal Aid Board or a university’s legal clinic, which does pro bono (free) work.

We’ve Got Your Back!

The eviction process can be complicated and frustrating, so it is always best to seek legal guidance. LAW FOR ALL offers expert legal advice, and its caring lawyers will assist you to the best of their abilities. Take a look at the affordable LAW FOR ALL policies.

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