Opposing your eviction

Sections in this chapter:

Introduction

Do not miss your court hearing! If you do not oppose your eviction, the court will have no choice but to evict you!

If you are facing eviction and you have nowhere else to live, you must oppose your eviction by appearing in court. ‌If you do not appear in court, there will be no opposition to the Eviction Application and the court will have no choice but to grant the eviction. ‌Even if you don’t think you’ll win (E.g. you haven’t been paying rent), you can still go to court and ask them to give you more time to move out. It is important that the judge hears both sides of the story.‌

Your right to emergency housing

If you are going to be made homeless by an eviction you need to contact the City of Cape Town housing department as soon as possible and ask them to provide emergency alternative accommodation for you.

Your right to a lawyer

While you have the right to a lawyer, in civil matters (such as evictions), the state is NOT obligated to provide you with one. In practice, however, the court will allow a certain amount of time for those who cannot afford to pay for lawyer to get free legal representation from Legal Aid or elsewhere.

Liability for legal costs

If you oppose your eviction and you lose you may have to pay the legal costs of your landlord. However, the court is unlikely to order costs against a tenant who does not earn a lot of money and has a good reason for opposing their eviction.

Valid reasons for opposing your eviction

No grounds for eviction

If you believe your landlord does not have a good reason to evict you or that your eviction is UNLAWFUL, you should oppose your eviction.

Personal circumstances

If you believe your eviction is LAWFUL, but because of your personal circumstances being evicted would have a serious negative effect on your health or living situation, then you should oppose your eviction.

No alternative housing

If you believe your eviction is LAWFUL, but you have nowhere to go if you are evicted and government needs to provide you with Emergency Alternative Accommodation, you should oppose your eviction.

How to oppose your eviction

How to oppose after you receive a Notice of Motion

If any of the valid reasons apply to you, then you should oppose your eviction as soon as possible.

OR

How to oppose if you are already in court or don't have enough time to find a lawyer

If there isn’t time to find a lawyer to write and file your legal papers, or you are already in court, then you can oppose your eviction in person in court on the date of your hearing.

What is an Opposing Affidavit?

In this affidavit you respond to the allegations made against you by your landlord in the Notice of Motion

An Opposing Affidavit is your side of the story. An Opposing Affidavit is drawn up by your lawyer. They will sit down with you and ask lots of questions regarding your case. This is to help establish your side of the story. ‌It is vital that you are always completely honest with your lawyer as this document will be signed under oath. If you lie on this affidavit you will be committing a crime and it will be extremely difficult for your lawyer to successfully argue your case. They can even withdraw as your lawyer.

Always be completely honest

Being dishonest or withholding information from your lawyer is bad for your case. You must give them all the facts so they fight your case the best they can. Client-Attorney privilege means that any information you give to your lawyer must remain private between you and they cannot tell other people if you do not want them to.

Other legal documents that may be involved

During your eviction case, there may be a need for your lawyer to submit new documents in response to those submitted by your landlord.

In an eviction everything is argued on paper, so it’s important to provide ALL information in your affidavit. The court has a duty of care to poor tenants and should ask you about your personal circumstances before they make a decision.

Replying Affidavit

A Replying Affidavit is a chance for the landlord to reply to the story and facts you put before the court in your Opposing Affidavit. The landlord will have a chance to deny or accept your version. This is also the opportunity for the landlord to reply to the affidavit by the City.

Supplementary Affidavit

A Supplementary Affidavit is a document where you have a chance to respond to any new matters that have come up during the legal proceedings. This is a chance to respond to the affidavit by the City, as well as a chance to add anything you might have left out of your opposing affidavit.

Take Action

Find legal representation or advice

It is important that you seek legal advice or representation immediately. Once you receive your Notice of Motion, it means legal proceedings have officially begun.

Go to the advice assembly

Knowledge is key to understanding and navigating the eviction process. Go to the Reclaim the City Advice Assembly to learn how to oppose your eviction, and how to find legal representation.

Go to court on the date of your hearing

If you do not appear in court on the day of your hearing, you will be evicted! Whether or not you have found a lawyer, you must go to court and oppose your eviction

Request a postponement to find legal representation

Everyone has a right to legal representation. If you do not have a lawyer, you must request a postponement from the judge in order for you to find legal representation. If you have already been looking for a lawyer, you must show the court proof of this, with a letter from the law clinics you have already gone to.

Oppose your eviction in court

Tell the judge that you are opposing your eviction. If you do not have a lawyer yet, you can make this statement yourself when you are called to the stand.

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Proceed to the next chapter
How to find and instruct a lawyer