Evictions Blog

Knowing these three things could save you from being evicted into homelessness

Just like soccer, once you know the rules, the “game” becomes a lot easier to play.

An increasing number of Cape Town renters are facing eviction. High rent increases, job losses, serious illness, and predatory landlords are just some of the reasons poor and vulnerable tenants are having to go to court to fight for the roof over their (and their family’s) heads. Although the Constitution offers protection to tenants, many don’t know this. Many believe it’s only property owners who have rights. The few tenants that do know they have rights are often overwhelmed by the legal system and excluded because of a lack of financial and social resources.

The law is a complex business. Often I feel it is made more complicated than it should be by lawyers and the judiciary so that they can stay employed. But just like soccer, once you know the rules, the “game” becomes a lot easier to play. Eviction law is a good example of how taking a little time to understand your rights and the law could have a huge impact — and save you from being made homeless.

With the right information, tools, and support, tenants who are at risk can fight their eviction, and maybe they won’t win, but they might reach an agreement or be handed a judgement that respects their dignity and allows them a reasonable opportunity to find alternative accommodation. The goal of EVICTIONS.ORG.ZA is to see if giving citizens the right tools can empower them to take action.

What follows is just three of the things you should know that could save you from being evicted into homelessness. Go to EVICTIONS.ORG.ZA for a more comprehensive guide to the eviction process and how you can take action immediately.

1. Not showing up to court will (almost always) mean you are evicted

‘Most tenants are not evicted at their first appearance at court…if they show up.’

Probably the biggest mistake a tenant can make is not showing up to court. It means there is no official opposition or challenge to your landlord’s eviction application. It also means the court does not get to hear your side of the story. There may be mitigating or important personal circumstances that could count in your favour: maybe you’re caring for children or an elderly parent, you recently lost your job, or your landlord massively increased your rent. These types of circumstances matter and are important for the court to know about, but if you do not go to court you have no chance to put these before the court.

It is understandable that people are afraid of going to court and that by showing up you may seem like you are admitting guilt, but this is not the case — as you’ll see in the next section. Showing up to court can at the very least ensure that an eviction order is not immediately granted, as most tenants are not evicted at their first appearance at court…if they show up. Coming to court also tells the judge that you are taking the matter seriously and they are more likely to be sympathetic toward you.

2. You can oppose your eviction even if you haven’t paid your rent

‘Without opposing the eviction the court is likely to grant whatever the landlord is asking for, as long as it is lawful.’

An eviction case usually starts with the Sheriff serving the eviction application on you — coming to your house and handing you a pack of court documents. Then the landlord has to go to court “ex-parte”, which means that only one party (your landlord) is involved in the matter, to get permission to serve another notice on you reminding you of the date of the hearing of the when the landlord will ask the court to grant an eviction order. This process can seem (and is) a little confusing. What’s important is that the Sheriff will serve a second notice on you which basically tells you when you need to go to court. At this stage, you can either oppose the eviction in writing, go to court on the court date and oppose your eviction, or do nothing and accept that you will be evicted at court.

Without opposing the eviction the court is likely to grant whatever the landlord is asking for, as long as it is lawful. It is only when you oppose the matter by going to court and giving your side of the issue, that the court is able to look into both sides and make a fair judgment.

Many tenants don’t realise that even if they are in the “wrong” and are unlawful occupiers — in other words, they have not been paying rent — they can still oppose their eviction. This is because, in South Africa, our laws are meant to ensure that no one is evicted into homelessness. There are two main factors the court must decide when evicting someone. First, are they an unlawful occupier? Second, they must ALSO decide whether evicting someone would be just and equitable.

What this means is that they need to take into account your personal circumstances and decide whether it would be fair and within the spirit of the Constitution to evict you. And even if they decide it is just and equitable, the amount of time they give you to move out must also be just and equitable. What this means is that you can oppose your eviction, not to stop your landlord from evicting you but to request from the court a reasonable amount of time to move out.

For example, if you are 80 years old, living off a state pension, and have been renting the same house for 50 years and now the owner wants to evict you because you cannot keep up with the high rent they are asking, it would not be just and equitable to give you one month’s notice. If you do not go to court to oppose your landlord the court may grant as short a time as is lawful for you to move out, because they are not aware of your circumstances. Not opposing means you accept what your landlord has written in their eviction application.

3. Citizens AND foreigners can get free legal representation

Having legal representation will go a long way toward protecting your rights and making sure you are not taken advantage of due to the complicated legal system.

Everybody knows that lawyers are expensive, so some families being evicted don’t even bother looking for one to defend them in court. However, Legal Aid South Africa and the Legal Practice Council both provide access to pro bono (free) legal services for those in need and who cannot afford to pay for a private lawyer.

While Legal Aid is only for South African citizens in civil cases, the Legal Practice Council is open to anyone, and they provide a service of matching pro bono lawyers to clients, including foreign nationals. In addition, for people who are not South African citizens and are living in Cape Town, the UCT Refugee Law Clinic can sometimes help with eviction cases (even if you are not technically a refugee).

Reclaim the City protesting the sale of public land

Having legal representation will go a long way toward protecting your rights and making sure you are not taken advantage of due to the complicated legal system. However, you still need to educate and empower yourself to make sure your lawyer is always acting in your best interest. One of the best ways to do this is to speak to people who have gone through the eviction process before and engage with social movements such as Reclaim the City, who are actively working to resist unlawful eviction and displacement in Cape Town. They can provide great practical advice and support in stressful and confusing times. Through such engagement, you will quickly realise that you are not alone. Sadly, evictions are very common.

OpenUp in collaboration with Ndifuna Ukwazi and Reclaim the City have developed EVICTIONS.ORG.ZA, a website with detailed information about the eviction process — as a resource for tenants so that you can begin to empower yourself and your community, so that if the Sheriff comes knocking you know what to do!

November 25, 2019
Shaun Russell

Project Manager for the Eviction Project at OpenUp

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