CHAPTER 10

Responding to a court order

Sections in this chapter:

Introduction

Court orders will usually be received in person on the day of the judgement in court. In some cases the court may require more time and you will be advised to return to collect the judgement and the court order at a later date.

If you are in court for the judgement:

If you are in court when judgement is handed down, even if you do not receive a court order, it is assumed that you have received the order verbally by the magistrate. The order cannot be ignored.

If you are NOT in court for the judgement:

If you cannot make it to the court to receive the judgement and court order in person, your landlord is responsible for ensuring you receive a copy. The Sheriff may also be asked to deliver the court order to you at your home or work, but you need to give a very good reason for not going to court to receive your judgment.

Ensure the court has your correct details

To avoid confusion when receiving your court order, make sure the court has your most up-to-date contact information.

What to do once you receive a court order

Example scenarios:

You win your case. You are still a lawful occupier

In this case you continue the tenant-landlord relationship as it was before, according to the lease. You keep living in the property and you keep paying rent. At this stage your landlord may will still want to evict you and will go about the process again, but correctly this time. For this reason you should start looking for alternative accommodation. You do not want to get back to the court stage and not have any options for places to live.

You lose, but not really. Your occupation is deemed unlawful, but you are NOT evicted

This is a tricky situation to be in. In this case you remain on the property but there is no tenant-landlord relationship and the lease is not enforceable. However, you are still occupying someone’s property without an agreement, so while you won’t be paying rent you may have to pay 'damages' for your use of the property.

At this stage you should engage with your landlord and try come to a new agreement, as well as start looking for alternative accommodation. You can also ask your landlord to help you find somewhere else to stay as this would help you get out of their property sooner. Lastly, you should speak to the Municipality (City of Cape Town) for emergency housing or other housing programs, such as Social Housing.

You lose your case and are evicted

In this situation you need to read the court order immediately and very carefully. You must understand how an eviction is executed and what happens on the dates mentioned in the court order. At this stage you will know how long you have until you need to vacate the property. You must start looking for alternative accommodation immediately. Look online and in newspapers, ask friends and family, ask your landlord, and go to the City of Cape Town to ask about emergency housing and their other Housing Programmes. You should also start preparing your belongings to be transported or stored.

Learn how evictions are executed

How evictions are executed

You receive a court order for your eviction

This can be received from the court or may be delivered in person by the Sheriff. On the court order, there will be two important dates listed:

The eviction date:

The date by which you officially need to vacate the property.

The ejection/execution date:

The date, after the eviction date, by which the Sheriff will be authorised to remove you and your belongings from the property.

Important: If the Sheriff does not arrive on the day specified in the court order, this does not mean you are not evicted. The Sheriff may arrive any day after that date and it is important that you are prepared.

The Sheriff must obtain a warrant of ejectment

If you have not vacated the property by your eviction date, the Sheriff cannot remove you from your home without a warrant of ejectment. They have to go to court to obtain this warrant. If you eviction date is passed and you are still in the property, you can phone the Sheriff and ask if they have the warrant of ejectment yet.

Necessary force may be used to remove you

Once the Sheriff has acquired the warrant of ejectment, and if you as the tenant have not vacated the property by the date of eviction, the Sheriff is permitted to use “necessary force” to get you out.

Important: Necessary force does not mean that they can abuse you! The Sheriff is permitted to request the assistance of the police to remove you and your belongings from the property.

Your belongings are removed from your property

You must communicate with the Sheriff to establish what you would like to be done with your belongings. You have two options for how to deal with your belongings:

Use a storage facility:

The Sheriff takes your belongings to a storage facility and holds them there for you to collect at a later date. You will likely be charged storage fees which you have to pay before the Sheriff will release your belongings. You must demand the location and details of this storage facility.

Leave your belongings on the street:

If you choose not to store your belongings they will be left on the street outside the property. It is your responsibility to remove them.

Important: If anything is broken through the negligence of the Sheriff, you will need to sue the Sheriff for damages. The Landlord will likely be joined with the Sheriff in the matter. If SAPS break any of your belongings through their own negligence then you will need to sue SAPS in court. Take note that if it rains and your stuff is damaged because it is outside, YOU are liable and not the Sheriff, your landlord, or the Police.

Appealing a courts decision

In a magistrates' court, you have the right to immediately appeal your eviction. You can do so by asking your lawyer to file a Notice of Appeal.‌

Once the Notice of Appeal has been filed with the court, your eviction is stayed. Once your Notice of Appeal is filed, inform the Sheriff of the court immediately so that they do not act to evict you by mistake. While the appeal process is underway, nobody may act to remove you from your home. During the appeal process there are specific timelines that cannot be missed. If you do miss a deadline, your appeal may lapse and your eviction can be executed. Ensure that your lawyer keeps you informed and stays on top of the appeal process.

Take Action

Read the court order and take note of dates

You must carefully read your court order as soon as you get it. It will contain very important information and dates. If you are evicted, you must make a note of the eviction date, as well as the execution/ejection date.

Look for alternative accommodation

Win or lose, you should start looking for alternative accommodation immediately. Take note of your eviction date, this will tell you how long you have to find new accommodation.

Prepare your belongings

Start packing your belongings as soon as possible in preparation for moving and/or storage. The more organised you are, the faster you can act when the time comes and the less likely it will be for things to get lost or damaged.

Understand how an eviction is executed

Prepare yourself for the eviction by studying this section carefully. If you know what to expect you will be better prepared.

Learn how evictions are executed

Seek legal advice to appeal

Get legal advice on whether or not you should appeal. While an appeal might sound like an easy way to stay (or delay) your eviction, there are consequences of appealing without a good reason. Speak to a lawyer and get their opinion on whether you should appeal or not.

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