Not showing up in court usually means you will be evicted. Archive photo: Ashraf Hendricks
10 October 2019
The law is a complex business. But just like soccer, once you know the rules, the “game” becomes a lot easier to play. Taking a little time to understand your rights under eviction law could save you from being made homeless.
With the right information, tools, and support, tenants who are at risk can fight their eviction. Maybe they won’t win, but they might reach an agreement or be handed a judgment that respects their dignity and allows them a reasonable opportunity to find alternative accommodation. The goal of EVICTIONS.ORG.ZA is to give citizens the right tools to empower them to take action.
Here are 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 what you can do to take action.
Probably the biggest mistake a tenant can make is not showing up to court. This means there is no official opposition to your landlord’s eviction application. It also means the court does not get to hear your side of the story. There may be important personal circumstances that could count in your favour, and if you do not go, you have no chance to put these before the court.
It is understandable that people are afraid of going to court. It may seem that by showing up 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 he or she is more likely to be sympathetic towards you.
An eviction case usually starts off with the sheriff serving the eviction application on you. 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 a further notice. This notice must give you the date of the hearing when the landlord will ask the court to grant an eviction order. The notice must then be served on you by the sheriff.
If you don’t oppose the eviction on the date given in the notice, the court is likely to grant whatever the landlord is asking for, as long as it is lawful. Only if you oppose the matter, giving your side of the story, will the court be able to look into both sides.
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. There are two main factors the court must decide when evicting people. First, are they unlawful occupiers? Second, would evicting them be just and equitable?
What this means is that the court must 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 the judge decides it is just and equitable, the amount of time you are given 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 you 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 being charged, it would not be just and equitable to give you one month’s notice. If you do not oppose your landlord, it is possible that the court will grant as short a time as is lawful for you to move out, because the judge is not aware of your circumstances. If you do not oppose the eviction, you are effectively accepting what your landlord has written in the eviction application.
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 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 it provides a service of matching pro bono lawyers to clients, including foreign nationals. In addition, for non-South Africans living in Cape Town, the UCT Refugee Law Clinic can sometimes help with eviction cases (even if you are not technically a refugee).
Having legal representation will go a long way towards protecting your rights and making sure you are not taken advantage of because of the complicated legal system. However, you still need to educate and empower yourself to make sure your lawyer is always acting in your best interests. Speak to people who have gone through the system before and speak to or meet with social movements such as Reclaim the City, who are working to resist evictions in Cape Town. They can provide practical advice and support in stressful and confusing times. Use EVICTIONS.ORG.ZA as a resource to empower yourself and your community, so that if the sheriff comes knocking, you’ll know what to do!
Eviction Website: https://evictions.org.za
Legal Aid South Africa: https://legal-aid.co.za/ | legalaidadvice@legal-aid.co.za | 021 426 4126
Legal Practice Council: https://lpc.org.za/ | cls@capelawsoc.law.za | 021 443 6700
UCT Refugee Law Clinic: http://www.refugeerights.uct.ac.za/law-clinic | refugeelawclinic@uct.ac.za | 021 650 3775
Reclaim the City: http://reclaimthecity.org.za/ | contact@reclaimthecity.org.za | 021 012 5094
Eviction Advice Assembly: Thursdays at 7pm, Old Woodstock Hospital, Mountain Road, Woodstock