Guide To The Eviction Process Online
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THE EVICTION PROCESS RESOURCES AVAILABLE ONLINE Visit: www.evictions.org.za THE EVICTION PROCESS GUIDE TO LEGAL ASSISTANCE TEST COPY 4 MARCH 2019 Disclaimer: The information in this Guide is provided for general information purposes only and does not constitute legal or other professional advice. While we have taken every care to ensure that the content is accurate, the content is provided as is and your use of and reliance on the information contained herein is entirely at your own risk. All the information is not intended to stand alone as legal advice. Before making any decision or taking any action you should take appropriate legal advice from a suitably qualified person with regard to your particular circumstances. We accept no responsibility for any loss or damage which may arise from reliance on information contained in this guide. PLEASE GIVE US YOUR FEEDBACK User feedback from this test version of the guide is vital to its improvement. Go to evictions.org.za to contribute. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. -Section 26(3) of the Constitution This guide has been designed to provide valuable resources and accurate information to those who are looking to understand the eviction process. Knowledge of your rights as a tenant and the surrounding legislation is key to ensuring that your can effectively oppose your eviction. For more information please visit: www.evictions.org.za CONTENTS INTRODUCTION THIS GUIDE & EVICTION 1 HOW TO USE THIS GUIDE WHAT DOES EVICTION MEAN FOR YOU? OUTLINE OF THE EVICTION PROCESS 1 2 4 SECTION 1 THE RENTAL HOUSING TRIBUNAL RESOLVING DISPUTES WITH YOUR LANDLORD IMPORTANT TRIBUNAL RESTRICTIONS CONTACTING THE TRIBUNAL WHAT COMPLAINTS CAN YOU TAKE TO THE TRIBUNAL? THE TRIBUNAL PROCESS: STEP-BY-STEP SECTION 2 RECEIVING A NOTICE TO VACATE WHAT DOES IT MEAN TO RECEIVE NOTICE? WHEN CAN A LANDLORD SEND A NOTICE TO VACATE SIGNS OF AN UNLAWFUL NOTICE TAKING ACTION 7 7 8 8 9 11 15 15 16 16 19 SECTION 3 ENGAGING WITH YOUR LANDLORD 20 WHY IS MEANINGFUL ENGAGEMENT IMPORTANT? AN EXAMPLE OF MEANINGFUL ENGAGEMENT TAKING ACTION 20 21 22 SECTION 4 RESPONDING TO LEGAL DOCUMENTS 23 RECEIVING & RESPONDING TO A NOTICE OF MOTION WHAT IS A NOTICE OF MOTION? TAKING ACTION 23 24 27 SECTION 5 HOW TO OPPOSE YOUR EVICTION THE IMPORTANCE OF OPPOSING VALID REASONS TO OPPOSE YOUR EVICTION OPPOSING WHEN YOU RECEIVE YOUR NOTICE OPPOSING WITH LIMITED TIME OR WHEN IN COURT THE OPPOSING AFFIDAVIT 28 28 29 29 30 33 OTHER LEGAL DOCUMENTS TAKING ACTION SECTION 6 HOW TO FIND & INSTRUCT A LAWYER FREE LEGAL REPRESENTATION FOR THOSE IN NEED QUALIFYING FOR FREE LEGAL REPRESENTATION LIST OF LEGAL ASSISTANCE ORGANISATIONS INSTRUCTING YOUR LAWYER TAKING ACTION 34 35 36 36 37 38 39 40 SECTION 7 YOUR RIGHT TO EMERGENCY HOUSING 41 THE CITY HAS A DUTY TO PROVIDE ACCOMMODATION MEANINGFUL ENGAGEMENT WITH THE CITY STEPS THE CITY SHOULD TAKE STEPS YOU SHOULD TAKE TAKING ACTION 41 42 43 44 46 SECTION 8 GOING TO COURT WHAT TO EXPECT WHEN GOING TO COURT FINDING THE RIGHT COURT FINDING THE RIGHT COURTROOM LIST OF CAPE TOWN COURTS FIRST APPEARANCE: OPPOSING & POSTPONING SECOND/THIRD APPEARANCE (WITHOUT A LAWYER) ARGUMENT SETTLEMENT THE COURT ORDER TAKING ACTION SECTION 9 WHAT TO DO AFTER YOUR COURT ORDER WHEN AND HOW DO I RECEIVE A COURT ORDER? WHAT TO DO ONCE A COURT ORDER IS RECEIVED HOW EVICTIONS ARE EXECUTED BY THE SHERIFF APPEALING A COURTS DECISION TAKING ACTION ADVICE ASSEMBLY & RECLAIM THE CITY 47 47 48 48 49 50 50 51 51 52 54 55 55 56 57 59 60 61 GLOSSARY63 INTRODUCTION THIS GUIDE & EVICTION HOW TO USE THIS GUIDE This guide will teach you your rights as a tenant and provide tips and actions to help you navigate the eviction process. STEP 2 JUMP TO THE RELEVANT SECTION AND LEARN HOW TO TAKE ACTION STEP 1 UNDERSTAND WHERE YOU ARE IN THE EVICTION PROCESS You should first look at the Eviction Process Flow Diagram on page 4. This will give you an overview of the entire process and help you find out where you are. SS ION PROCE T IC V E E H T 4) AM (PAGE R G IA D W F LO STEP 3 READ INFO BOXES AND USE THE GLOSSARY If there are any words you don’t understand Once you understand where in the process look for definitions in the glossary on page 63. you are, use the Eviction process diagram The most important concepts are highlighted (page 4) or the contents page to jump to the in info-boxes. Read these carefully so that relevant page to find out more and discover you understand the rest of the information. what actions you should take. At the end of each section there is a page called “Taking Action”. You should do as many of these as possible, as long as they are relevant. 1 SEEK LEGAL ADVICE This guide does not replace legal advice or representation. If you are facing an eviction in court you should still get legal representation. WHAT DOES EVICTION MEAN FOR YOU Being evicted can be a very traumatic experience. Having to worry about whether or not you and your loved ones will have a roof over their heads tomorrow is an experience that no one should have to endure. If there is anything you learn from this guide it’s this: No one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances. -Section 26(3) of the Constitution 1 This means that you can’t be forced to leave your home before the court JUST & EQUITABLE says you have to. If you have nowhere to go your landlord cannot kick you out Just and equitable means that the decision without a court order! If they physically is fair, not biased, and takes into account remove you or lock you out of your all relevant information. home they are committing a criminal offense. 2 To grant an eviction order the court EMERGENCY HOUSING must look at your personal circumstances and make a decision that Emergency Housing provides temporary is assistance in the form of access to land JUST AND EQUITABLE . If you are going to be made homeless by your and/or shelter (houses) in a range of eviction the Municipality must provide emergency situations. Currently the only you with houses provided are zinc shacks. EMERGENCY HOUSING . 2 3 Remember that just because your CONSULT A LAWYER landlord has taken you to court does not mean you are definitely Lawyers can be very expensive. DO NOT going to be evicted. There are many WORRY! If you can’t afford a lawyer, there circumstances where landlords try are free options such as Legal Aid and to evict people unlawfully and this is Pro Bono lawyers from the Legal Practice uncovered by the court. If you have Council. This guide will help you find a received papers saying you need lawyer who can represent you for free. to go to court you should immediately CONSULT A LAWYER for legal advice. They will tell you if you have a chance of winning your case, and will tell you what your options are. 4 There is no shame in being evicted. You are not alone! We are in a housing crisis and landowners are valuing profits over people. Rental prices have become too expensive and this is pushing many people out of neighborhoods they have lived in for over 50 years! Join Reclaim the City in fighting against a property system that is abusing the poor. Become a housing activist and be part of the change that is sweeping through Cape Town, South Africa, and the World. We have had enough, it is time to fight back! 3 G AL HOW TO FIND LE GE 36) ASSISTANCE (PA There is no shame in being evicted. You are not alone! We are in a housing crisis and landowners are valuing profits over people. THE EVICTION PROCESS COPY & SHARE IDENTIFY YOUR NEXT STEP YOU NEED TO RESOLVE A DISPUTE WITH YOUR LANDLORD 1 If there is a dispute between you and your landlord, you can go to the Rental Housing Tribunal to have the issue resolved. An example of a dispute is if your landlord refuses to do maintenance on your home. Or they want to increase your rent by more than normal. SEE PAGE 7 2 ACTION Go to the Rental Housing Tribunal and make a complaint YOUR LANDLORD GIVES YOU A NOTICE TO VACATE A Notice to Vacate does NOT mean you have to leave your home. It means that your landlord has cancelled your lease and would like you to move out. In order for an eviction to be lawful your landlord must act in accordance with the law (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act). SEE PAGE 15 ACTION Meaningfully engage with your landlord. Try resolve the matter so that you can remain in the property or get more time to move out. THE SHERIFF DELIVERS PAPERS SAYING YOU ARE BEING EVICTED 3 When the Sheriff delivers (serves) the Notice of Motion it means that your landlord is going to court to get you evicted. At this point you still DO NOT have to leave your home. You must still go to court and the magistrate or judge will decide if you are evicted or not. Attached to this Notice will be your landlord’s SEE PAGE 23 Founding Affidavit, which contain the reasons you are being evicted. ACTION Ask the Sheriff to explain the documents to you. Read them very carefully and write down important dates and information. Seek legal assistance immediately. Make notes of anything that is not true in your landlord’s affidavit. 4 4 YOU SEEK LEGAL ASSISTANCE If you have received court papers you should seek legal assistance as soon as possible. The worst thing you can do at this stage is NOTHING, as this will make it more difficult for you when you go to court. Just because you have received SEE PAGE 36 court papers does not necessarily mean you will lose in court and be evicted. Getting good legal advice immediately could save you from homelessness. ACTION If you cannot afford to hire a lawyer you can go to a pro bono (free) law clinic like Legal Aid or the go to the Cape Law Society (now called the Legal Practices Council), who will provide you with a lawyer. 5 YOU OPPOSE YOUR EVICTION Opposing your eviction is very important if you do not want to be evicted or would like more time than your landlord is willing to give you. You can oppose your eviction by filing Opposing Papers (called the Notice of Intention to Oppose), or SEE PAGE 28 you can oppose in-person in court. Attached to this Notice will be your Opposing Affidavit. This affidavit is your side of the story, and why you think your eviction is unlawful or unjust. ACTION If you have a lawyer, tell them you want to oppose your eviction and that they must file opposing papers. If you do not have a lawyer you must go to court on the date given in the Notice of Motion (step 3) and tell the court you are opposing your eviction and that you need a postponement in order to find legal representation. 6 THE CITY OF CAPE TOWN (MUNICIPALITY) FILES ITS REPORT The Municipality has an obligation to house anyone who will be made homeless by an eviction. They should do an investigation in to your circumstances and if you qualify they will offer you emergency accommodation. SEE PAGE 41 ACTION First make sure the City has submitted its report to the court. If not the matter cannot continue until they have. Once submitted you should read the report carefully. If the place they want to move you to is too far away or would have a big (negative) effect on your life you should object. 5 7 YOUR LANDLORD FILES A REPLYING AFFIDAVIT A Replying Affidavit is an opportunity for your landlord to reply to what you put in your Opposing Affidavit. They may disagree with the facts you have set out in your affidavit and will challenge them in their replying affidavit. SEE PAGE 34 ACTION Read this affidavit carefully. If you do not agree with anything in it you should tell your lawyer and try to find evidence showing that what they are saying is not true or accurate. 8 YOU OR YOUR LAWYER ARGUE YOUR CASE IN COURT Argument in court usually does not happen the first time you go to court. Once both sides are ready to argue you will go to court again and argue your case based on the affidavits you have already submitted. It is very important that all relevant information goes into your affidavit, as the court will base their SEE PAGE 47 decision on this and will not allow new information in court. ACTION Even though you have a layer, you should still go to court. You must listen to everything your lawyer and your landlord’s lawyer say in court. Any agreement that your legal representative makes will be binding on you, so you must demand to know what is going on at all times. 9 YOU RECEIVE A COURT ORDER A Court Order is the official decision by a magistrate/judge and is legally binding. In an eviction the Court Order must be communicated to you in a document given to you by the Sheriff. The court order will say whether or not SEE PAGE 55 you are evicted and what date you have to vacate the property. ACTION If you are not evicted you carry on living in your current property. If you are evicted you need to note the date you need to vacate by and make plans to move out by then. If you think the magistrate made a mistake you can appeal the decision. You should get legal advice before you make an appeal. 6 SECTION 1 THE RENTAL HOUSING TRIBUNAL RESOLVING DISPUTES WITH YOUR LANDLORD Settling disputes at the RHT is a free process that does not require a lawyer and is usually much quicker than going to court. 1 Sometimes disputes between tenants and landlords cannot be resolved through meaningful engagement (See page 20). 2 In such cases the RENTAL HOUSING TRIBUNAL (RHT) investigates and tries to resolve the issues. 3 Having your dispute heard is free and does not require a lawyer, although you can have one present if you want. 4 A decision by the RHT carries as much weight as a COURT ORDER , but the process is usually quicker. COURT ORDER Is an official order that has been written by the judge/magistrate of the court and must to be obeyed. A court order authorises the carrying out of certain steps by one or more parties. E.g. If you are evicted you must leave the property by a certain date. Consequences for failing to comply with a court order (acting in contempt of a court order) can include criminal sanctions (e.g. fines or jail time) and in the case of an eviction order, a sheriff (possibly with the assistance of SAPS) can use appropriate force to physically remove you from the property. 7 IMPORTANT TRIBUNAL RESTRICTIONS 1 If your landlord has started eviction proceedings against you (you have received 2 If you have already made a complaint at the Rental Housing Tribunal your landlord a document saying you have to go to court) cannot start eviction proceedings in or if your lease has already expired or court against you for three months or been terminated then you cannot go to until the Tribunal has made a decision the Rental Housing Tribunal. on your matter. CONTACTING THE TRIBUNAL When meaningful engagement is unable to resolve a dispute, you should contact the Tribunal. RENTAL HOUSING TRIBUNAL The RHT is a decision-making body comprising of five members appointed by Government, who each have expertise in Housing. These members are independent and do not work for the housing department. DAY! CONTACT THE RHT TO Anyone can contact or approach the RHT at any time for enquiries or general information regarding their rights and duties as a tenant or landlord. Once you have decided what category your complaint falls under and filled out the relevant forms (see page 9), you should visit their offices in person to submit your complaint and ask any questions you may have about the process. Rental Housing Tribunal Office: Address: Department of Housing Ground Floor 27 Wale Street Cape Town City Centre Telephone: 0860 106 166 Please call me: 079 769 1207 SMS: “Help” to 31022 Email: firstname.lastname@example.org Hours: Mon–Fri, 7:30AM–3PM 8 TRIBUNAL COMPLAINTS COPY & SH A RE IS MY COMPLAINT VALID? If your dispute is listed below, you have grounds to lay a complaint at the Tribunal. FAILURE TO REFUND DEPOSIT FORM A Your landlord has not returned your deposit after you’ve left the 1 Identify all the forms that are relevant to issues you are having with your landlord. Download them or ask for 2 3 them at the Tribunal office. Submit forms to the Tribunal office. For urgent matters you may need to get a Spoliation Order (coming soon). UNLAWFUL NOTICE TO VACATE FORM B property. EXORBITANT INCREASE IN RENTAL FORM C unaffordably high amount. is unlawful (See page 10 on unlawful Notices to Vacate) FAILURE TO ACCEPT YOUR NOTICE Your landlord has increased the rent more than usual or by an The Notice to Vacate you received Your landlord doesn’t accept that FORM D you have decided to leave after giving them your notice and wants you to stay and keep paying rent. MUNICIPAL SERVICES NOT PROVIDED URGENT! FORM E MUNICIPAL SERVICES NOT PAID Your landlord has failed to provide municipal services (e.g. water; refuse and sewerage. If you (the tenant) are supposed FORM F to pay for municipal services but have not, your landlord will make a complaint against you using this form. 9 FIND ALL FORMS ONLINE www.evictions.org.za/complaint-forms FAILURE TO DO MAINTENANCE FORM G Your landlord is failing to do proper and required maintenance on your home. UNILATERAL CHANGES TO AGREEMENT FORM I Your landlord has made changes to the lease without your agree- UNLAWFUL EVICTION OR LOCKOUT URGENT! FORM H FORM J from the property or takes things from the property that belong to FORM M Your landlord refuses to give you a copy of the lease. Your landlord comes into your home without proper notice, FAILURE TO PROVIDE PAYMENT RECEIPTS Your landlord refuses to provide FORM L him but you have a right to use. FAILURE TO PROVIDE COPY OF LEASE so you can’t get into the house. or when you are not at home. Your landlord takes your things FORM K evicted you or changed the locks UNLAWFUL ENTRY ment or consent. UNLAWFUL SEIZURE OF POSSESSIONS Your landlord has unlawfully you with monthly statements or receipts for payment of rental after you have asked for them. FAILURE TO PROVIDE A WRITTEN LEASE FORM N You have a verbal lease your landlord has a duty to turn it in to a written lease if you ask them. CLAIM FOR LOWERING OF RENTAL FORM O OTHER COMPLAINTS You think your current rental amount is too high and unfair you can ask for it to be reduced. FORM P You have any other dispute that is not on this list but you think it is important. 10 THE TRIBUNAL SHARE PROCESS & Y P O C A STEP-BY-STEP GUIDE STEP 1 ALWAYS KEEP RECORDS IDENTIFY YOUR COMPLAINTS Use the list of Tribunal Complaints (see page 9) to check if your complaint is valid. If you are unsure about whether you have a valid complaint, submit it anyway! The Tribunal will tell you if it is valid or not. Write down a history of your landlord’s unfair practices and include as much detail as possible: •• Names of the people involved •• Dates when you had discussions with people STEP 2 FILL IN RELEVANT FORMS When going to the Tribunal with a complaint, you must always fill in the Main Complaint form. That form must then be accompanied by the specific complaint forms •• Where you had those discussions •• What was said •• You can also take photos of your house to show that the landlord has not done maintenance. related to your situation. INFO AND DOCUMENTS YOU NEED TO MAKE A COMPLAINT AT THE RHT OFFICIAL ID / PERMIT COPIES OF LEASE (IF THERE IS ONE) YOUR CONTACT DETAILS LANDLORD’S CONTACT DETAILS SUPPORTING EVIDENCE (PHOTOS, PAYMENT RECEIPTS ETC.) EXAMPLE SCENARIO Your landlord entered your house without asking and has not fixed a hole in your ceiling. MAKING COPIES OF FORMS 11 MAIN FORM FORM J FORM G ALWAYS REQUIRED UNLAWFUL ENTRY MAINTENANCE You should have three copies of all important documents: two for the RHT and one for you (you keep the originals). STEP 3 SUBMIT YOUR DOCUMENTS HOW TO CERTIFY Complaint forms, as well as any other relevant supporting Take copied documents along documentation, need to be delivered, in person, to the with the originals, to a police Rental Housing Tribunal (see page 8 for contact information). station, a bank, a post office or STEPS TO TAKE WHEN SUBMITTING DOCUMENTS a lawyer to have them certified free of charge. 1 MAKE 2 CERTIFIED COPIES OF ALL DOCUMENTS 2 SUBMIT 2 COPIES OF ALL DOCUMENTS TO THE TRIBUNAL 3 RECORD THE DATE OF SUBMISSION ON THE ORIGINAL FORMS (THE COPY YOU KEEP) 4 RECORD THE STAFF MEMBER’S NAME YOU SUBMITTED TO, ON THE ORIGINAL FORMS 5 GET WRITTEN CONFIRMATION OF YOUR SUBMISSION FROM THE TRIBUNAL (COULD BE A STAMP) 6 KEEP ALL ORIGINAL DOCUMENTS SAFE YOU MUST HAVE THIS INFORMATION BEFORE YOU SUBMIT FOLLOW UP WITH YOUR COMPLAINT You should get a phone call from a Tribunal staff member. If they STEP 4 THE RHT RECORDS YOUR COMPLAINTS call, ask them for their name and for your case reference number. Ask if they have sent the letter After Tribunal staff receive your complaint they open a file and ask for the contact details of and give it a case reference number. This is a number the case officer assigned to your that will be used to track your complaint. About two matter. If you do not hear anything weeks later, you and your landlord should receive a letter after two weeks, call the Rental from the Tribunal saying that your complaint has been Housing Tribunal to follow-up. received, and should include your case reference number. Keep following up regularly! FIND ALL FORMS ONLINE www.evictions.org.za/complaint-forms 12 STEP 5 TRIBUNAL STAFF INVESTIGATE YOUR COMPLAINTS Tribunal staff check whether your complaint qualifies as an unfair practice. This check is called a preliminary investigation. If they think they need more details, they can ask for more information from you or your landlord to help them understand the complaint. Tribunal staff can also get an inspector to inspect the property. If you think it is necessary you must ask that they come and do an inspection. STEP 6 TRIBUNAL STAFF DECIDE WHETHER A VALID DISPUTE EXISTS After the investigation, the Tribunal staff decide whether or not the complaint qualifies as an unfair practice. After you submit the complaint, they then have 30 days to make a decision. If they do not think your complaint involves an unfair practice, they must send a letter to let you know and give reasons. If the Tribunal staff think that an unfair practice may be involved, they will continue to try solve the dispute, and must let you know about what is decided. STEP 7 RESOLVING YOUR DISPUTE WITH THE TRIBUNAL A case officer is appointed to your case. This case officer is supposed to contact you and the landlord. The case officer might first try to resolve the matter by calling you and your landlord to discuss and find a solution that suits both parties. If the matter cannot be resolved then the case officer decides whether the dispute can be resolved through MEDIATION , or whether a TRIBUNAL HEARING is required. MEDIATION TRIBUNAL HEARING A meeting where both sides try to come to Both parties share the facts of their dispute to an agreement after discussing the problem, members of the Tribunal board and the board with the help of a neutral person, in this case, then makes a ruling based on these facts and from the Tribunal. the circumstances of the case. 13 STEP 8 REQUEST A TRANSLATOR ATTENDING MEDIATION The mediator listens to both parties and asks questions If you require a translator or have to help them come to an agreement. If you come to an a disability, ask your case officer agreement, you sign the agreement and both parties do to arrange a translator or make what was agreed to. This mediated agreement is binding. special arrangements for your It has the same power as a court order. If you do not disability during your mediation come to an agreement, the next step is to have a hearing. or Tribunal hearing. STEP 9 ATTENDING A TRIBUNAL HEARING If mediation fails, you will be given a hearing date by your case officer. The hearing will be held at the Tribunal office (see page 8). In the hearing, each party is asked to share the facts of their case. At least three Tribunal members will be present at the hearing. They ask the parties questions, and may ask for documents to prove your case. It is not as formal as a court, and you do not need to have lawyers or legal representation. However, in some cases it helps to have a lawyer. After hearing both sides, the Tribunal members make a ruling. The ruling is communicated to the parties a few days after the Hearing. The ruling has the same power as a ruling by a Magistrates’ Court. If you or the landlord would like to challenge the decision, you have to go to the High Court as soon as possible. STEP 10 HIGH COURT REVIEW REPORT UNFAIR TREATMENT If one of the parties is not happy with the If you feel that your complaint has not been dealt conclusion reached by the end of this with correctly or they closed your case incorrectly, process, they may have the decision you can report this to Nathan Adriaanse, the Director reviewed by the High Court. of Communication and Stakeholder Relations at the Department of Human Settlements. You can also HE HIGH CONTACT T GE 47) COURT (PA report staff who treat you disrespectfully or unfairly. CONTACT NATHAN ADRIAANSE Email: Nathan.Adriaanse@westerncape.gov.za Tel: +27 (0) 21 483 2868 14 SECTION 2 RECEIVING A NOTICE TO VACATE WHAT DOES IT MEAN TO RECEIVE A NOTICE TO VACATE If you receive a letter from your landlord telling you to leave your home, this does not mean you are evicted. You cannot be evicted without an order of court! NOTICE TO VACATE EXAMPLE ON PAGE 18 Receiving NOTICE TO VACATE does not mean you must leave your home. 2 You can still engage with your landlord to resolve any issues between you (outstanding rent etc.). 3 If you cannot resolve these issues, 4 Going to court can be expensive you may need to go to court. and time-consuming. It is always recommended to settle any disputes without going to court. ALWAYS KEEP A PAPER TRAIL Always keep a record of all your documents A conversation, letter, email, SMS or Whatsapp and conversations with your landlord. message from your landlord, or their lawyer, Write down the date and details of the in which they state that they have cancelled conversation so that you always have your lease and that you must vacate the proof it happened. property by a certain date. 15 1 WHEN CAN A LANDLORD SEND A NOTICE TO VACATE If you breach the conditions of your lease your landlord is entitled to cancel it. 1 The Notice to Vacate is the landlords way of canceling your lease and telling you they want you to leave by a certain date. 2 Breaching of the conditions of your lease may include: not paying your rent, intentionally causing serious damage to the property, using illegal substances on the property, or using the property for non-residential purposes. SIGNS OF AN UNLAWFUL NOTICE If any of the following points apply to your Notice to Vacate, you have grounds to challenge it. 1 Many notices to vacate are unfair 2 If you feel the notice your landlord or unlawful. gave you was unfair, you should point it out to them. 3 If your Notice to Vacate is unfair or unlawful, you should take it to the Rental Housing Tribunal and fill in the relevant complaint form (see page 9). 1 INSUFFICIENT NOTICE 2 BREACH OF TERMS OF LEASE If the Notice to Vacate gives you less than If the Notice to Vacate gives you less time to a month (30 days) to leave the property. leave than what was agreed in your lease. 16 3 5 17 SUDDEN TERMINATION OF LEASE 4 NOTICE DUE TO CONFLICT If the landlord suddenly ends/cancels your If the landlord suddenly gives you a Notice lease without an explanation and if you feel to Vacate after you had a disagreement, you have done nothing wrong. or if you raised a complaint against them. UNTRUE STATEMENTS IN NOTICE 6 UNFAIR PRACTICE If the Notice to Vacate says something that If the Notice to Vacate constitutes an unfair is untrue or is not representative of the facts. practice. THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. EXAMPLE OF A NOTICE OF MOTION Notice to Vacate Notice to Vacate BEFORE a landlord/landowner starts the court process to evict you they often send you a letter to CANCEL your lease and ASK you to LEAVE your BEFORE a landlord/landowner starts TO the VACATE. court process youorder! they home. This letter is called a NOTICE It is to notevict a court often send you a letter to CANCEL your lease and ASK you to LEAVE your home. This letter is called a NOTICE TO VACATE. It is not a court order! Angela Attorneys and conveyancers Angela Attorneys and conveyancers Karen Thomas 21 Chapel Street Woodstock Karen Thomas Cape TownStreet 21 Chapel Woodstock Cape Town Dear Madam 111 Granger Drive PO BOX 1000 Cape Town Drive 8000 111 Granger PO BOX 1000 Cape Town 8000 YOUR NAME 4 June 2017 4 June 2017 Re: Lease Agreement 21 Chapel Street, Woodstock Dear Madam ERF 31343 Cape Town Re: Lease Agreement 21 Chapel Street, Woodstock ERF 31343 Cape Town We represent your landlord Big Properties (our client) registered as the owner of the abovementioned property and take our instructions from the same. We represent your landlord Big Properties (our client) registered as the owner of the Our instructions property herein are livefrom on the same. premises without a written lease abovementioned andthat takeyou our currently instructions agreement, and as such your verbal lease agreement is on a month-to-month basis. Our instructions herein are that you currently live on the premises without a written lease CANCELLATION OF LEASE It is our further to inform our clientishas to cancel basis. your lease of the agreement, andinstruction as such your verbal you leasethat agreement on aelected month-to-month property. Our client has chosen to redevelop the property, and requires that you vacate as soon as further possible. This letter notice and toyou are required to vacate It is our instruction to serves inform as youyour thatone our month’s client has elected cancel your lease of the the property. property. Our client has chosen to redevelop the property, and requires that you vacate as soon as possible. This letter serves as your one month’s notice and you are required to vacate We hereby give you one month’s written notice to vacate the premises by the 31st July 2017. the property. Should you give haveyou anyone queries please do not hesitate to contact the writer We hereby month’s written notice to vacate the premises bythereof. the 31st July THIS 2017.IS YOUR NOTICE PERIOD Yours faithfully, Should you have any queries please do not hesitate to contact the writer thereof. YOUR LANDLORD OR THEIR LAWYERS DETAILS Shahied Davids Attorney Yours faithfully, Angela ShahiedAttorneys Davids & Conveyancers Tel: (021) 013 5096 E-mail: Contact@angelaattorneys.org.za Attorney Angela Attorneys & Conveyancers Tel: (021) 013 5096 E-mail: Contact@angelaattorneys.org.za The date your landlord wants you out of the property. THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. NOTE % Unlike the formal legal documents, the Notice to Vacate can vary depending who wrote In other words theyTHEY won’t look like ON thisREAL one.EVENTS OR PEOPLE. THESE DOCUMENTSit.ARE EXAMPLES ONLY. AREall NOT BASED % 18 RECEIVING A NOTICE TO VACATE TAKING ACTION TASK TO COMPLETE 1 PAGE CHECK THAT YOUR NOTICE TO VACATE IS LAWFUL 16 Receiving a Notice of Vacate does not mean you are evicted! Use this guide to check that your Notice to Vacate is lawful. This is a good time to attend an Advise Assembly (see page 61). IF NOTICE TO VACATE IS LAWFUL IF NOTICE TO VACATE IS UNLAWFUL Proceed to step 2. Challenge your Notice to Vacate at the rental housing Tribunal (see page 7). 2 SET UP A MEETING WITH YOUR LANDLORD 20 Use email, SMS, Whatsapp, a phone call or a face-to-face conversation to set up a meeting between you and your landlord to discuss your Notice to Vacate. IF YOU LANDLORD AGREES TO MEET IF YOU LANDLORD WON’T MEET Keep a record and proceed to step 3. Keep records of any attempts to engage. This will serve as evidence to strengthen your case if it ends up going to court. 3 MEET YOUR LANDLORD AND TRY TO RESOLVE ISSUES 21 Engage meaningfully with your landlord and highlight the particular details of your situation. If there are issues like outstanding rent or property damage, use this time to resolve them. IF YOU RESOLVE ISSUES IF YOU CAN’T RESOLVE ISSUES Congratulations, you can continue If you cannot resolve the issues, you living in your home! Keep a record of can either engage with your landlord the terms of your new agreement for and negotiate a suitable timeline to future reference. vacate OR seek legal advice and await the delivery of a Notice of Motion by a sheriff (page 23). 19 DONE SECTION 3 ENGAGING WITH YOUR LANDLORD WHY IS MEANINGFUL ENGAGEMENT IMPORTANT? Resolving issues with your landlord before they escalate to the point of eviction, is always the best way to avoid any legal action. 1 ENGAGING MEANINGFULLY with your landlord around important issues as they arise is always the best way to avoid eviction. 2 If you receive a Notice to Vacate and cannot resolve the issues through meaningful engagement it is likely to become a legal process. 3 Going to court to dispute an eviction is a time consuming, emotional and expensive process. It is advisable to settle issues out of court, but only if you are certain MEANINGFUL ENGAGEMENT that you can stick to what has been agreed. Meaningful engagement is not a legal process. It means that both parties sit down and honestly try to resolve the issues that led to you receiving notice. If your landlord meets with you but does not properly listen or entertain your suggestions, they are not engaging meaningfully. KEEP RECORDS OF ENGAGEMENT It is helpful to have proof that you attempted to resolve these issues with your landlord and that they were the ones who didn’t want to engage. Keep records of ALL communication between yourself and your landlord. 20 AN EXAMPLE OF MEANINGFUL ENGAGEMENT 1 1 AN ISSUE ARISES BETWEEN TENANT AND LANDLORD Angela Khumalo is in arrears because she has not paid her rent. Two weeks ago her landlord sent her a letter demanding that she pay her rent or he will cancel the lease. She should have engaged her landlord at this point, but was too scared. 2 THE LANDLORD THREATENS TO CANCEL THE LEASE Angela receives another letter under her door saying that her lease is cancelled and that she needs to leave the property by the end of the next month. O A NOTICE T G IN IV E C E R E PAGE 15) VACATE (SE 3 TENANT MEANINGFULLY ENGAGES WITH LANDLORD Angela overcomes her fears and schedules a meeting to meaningfully engage with her landlord to resolve the payment problems she has been having. She arranges to pay her outstanding rent and as a result her landlord reinstates her lease and she is able to continue living in the property. 21 ENGAGING WITH YOUR LANDLORD TAKING ACTION TASK TO COMPLETE 1 DONE CONTACT YOUR LANDLORD AND ARRANGE A MEETING As soon as a problem arises, you should contact your landlord by telephone and arrange a time and place to meet. You should also send them an email, SMS or Whatsapp message. This is important because this message can be saved as proof of attempted engagement. 2 PREPARE YOURSELF In order to negotiate you need to know the law and your rights. Read the rest of this guide and, if possible, attend a Reclaim the City Advice Assembly (see page 61) to prepare yourself for the meeting with your landlord. 3 TAKE SOMEONE WITH YOU Engaging with your landlord can be stressful. If possible, take someone with your for support. This person can also be a witness to any statements made by your landlord. 4 DON’T LET YOURSELF BE BULLIED With knowledge and support, you are less likely to be bullied. If you are bullied, explain that you know your rights and that what they are doing is unlawful and can be used against them in court or at the Rental Housing Tribunal (see page 7). 5 RECORD THE OUTCOME Keep a record of any documents from, or conversations with, your landlord. Write down the date and details of any conversations as proof that they happened. 6 TAKE FURTHER ACTION IF AN AGREEMENT CANNOT BE REACHED If a solution that suits both you and your landlord is not reached, you should approach the Rental Housing Tribunal (page 7) and seek legal advice (see page 36). 22 SECTION 4 RESPONDING TO LEGAL DOCUMENTS RECEIVING & RESPONDING TO A NOTICE OF MOTION Once you receive a notice of motion, the legal process has begun. You need to act immediately and seek legal advice and assistance. 1 A NOTICE OF MOTION will be delivered and explained to you by the Sheriff. You will be asked to sign and confirm you have received and understand the notice. 2 A FOUNDING AFFIDAVIT will also be delivered and should be attached to the Notice of Motion. 3 You should seek legal advice 4 For free advice and support immediately (see page 36). on how to proceed from here, attend the Reclaim the City Advice NOTICE OF MOTION Assembly (see page 61). EXAMPLE ON PAGE 25 This document notifies you that your landlord is going to court to get you evicted. It does not mean you have to leave your home. You can oppose your eviction. FOUNDING AFFIDAVIT EXAMPLE ON PAGE 26 A document delivered along with the Notice of Motion that contains the reasons (grounds) your landlord has given for your eviction as well as the facts they will be relying on. 23 WHAT IS A NOTICE OF MOTION A notice of motion is a document that outlines the details of your legal proceedings. It is important that you understand these details and respond correctly. OPPOSING PAPERS EXAMPLE ON PAGE 31 1 These details include: • What court you must appear in • The date of your hearing • The date by which you need to file OPPOSING PAPERS . • By when and to whom you must submit your opposing papers. 2 You must go to court on the date specified. If you fail to appear in court, the judge can rule against you in your absence. This is known as a default judgement. ATTEND AN ADVICE ASSEMBLY Reclaim the City holds a weekly Advice Opposing papers are the documents you Assembly in various locations around Cape must submit to the court to say that you are Town. This is a place for people who are opposing your eviction. Opposing papers facing eviction to gather, share, and get consist of a Notice of Intention to Oppose and advice and support from legal professionals your Opposing Affidavit. and other tenants who have gone through an eviction before. (See page 61) GOLDEN RULE: YOU CANNOT BE EVICTED WITHOUT A COURT ORDER Remember, a lawful eviction can only be ordered by the court. This means you cannot be forced to vacate (move out) until there has AL FIND LEG 6) O T W O H E3 CE (PAG N A T S I S AS been a fair and proper court process. 24 THESE NOT BASED BASED ON ON REAL REALEVENTS EVENTSOR ORPEOPLE. PEOPLE. THESEDOCUMENTS DOCUMENTSARE AREEXAMPLES EXAMPLES ONLY. ONLY. THEY THEY ARE ARE NOT EXAMPLE OF A NOTICE OF MOTION Notice of Motion Notice to Vacate Legal proceedings to evict you officially start when you receive a NOTICE OF MOTION. The Notice of Motion is the first legal document that the landlord or BEFORE landlord/landowner starts the court process to you they her/his legalarepresentative will give to you. It represents theevict beginning of an often send you a letter to CANCEL your lease and ASK you to LEAVE your EVICTION APPLICATION in the court. home. This letter is called a NOTICE TO VACATE. It is not a court order! Angela IN THE MAGISTRATES COURT FOR THE DISTRICT OF CAPE TOWN HELD AT CAPE TOWN COURT YOU NEED TO and BE IN conveyancers Attorneys InKaren theThomas matter between: 21 Chapel Street Woodstock APPLICANT (YOUR LANDLORD) BIG PROPERTIES Cape Town (Registration Number: 2010/0054896/07) and Dear Madam THE RESPONDENT(S) 111 Granger Drive CASE NO : 5847 / 2016 PO BOX 1000 Cape Town 8000 Applicant 4 June 2017 This is you and anyone else living in the property. Their names will only be mentioned if they are Re: Lease Agreement 21 Chapel Street, Woodstock over 18 years of age. KAREN THOMAS First Respondent ERF 31343 Cape Town And all those holding under her and / or any other persons(s) who also occupy the premises vis-à-vis the Respondent We represent your landlord Big Properties (our client) registered as the owner of the abovementioned property and take our instructions from the same. THE MUNICIPALITY IF THEY ARE CITED CITY OF CAPE TOWN Second Respondent If they are not here then you must tell your Our instructions herein are thatlawyer you and currently live on the premises without a written lease the court they should be cited. agreement, and as such your verbal lease agreement is on a month-to-month basis. NOTICE MOTION TYPEyour OF DOCUMENT It is our further instruction to inform you that ourOF client has elected to cancel lease of the property. Our client has chosen to redevelop the property, and requires that you vacate as soon as possible. This letter serves as your one month’s notice and you are required to vacate TAKE NOTICE THAT that Big Properties, (hereinafter called the Applicant) the property. We herebymakes give youan one application month’s written notice to vacate the premises by thefor 31stan Julyorder 2017. in hereby to this honourable court Should of youS4(1) have any please do not of hesitate to contact writer thereof. terms of queries the Prevention Illegal and the Unlawful Occupation of Yours faithfully, Land Act 19 of 1998, evicting the First Respondent and all those who Shahied Davids Attorney hold under them from the property known as Helium Heights. Angelatitle Attorneys & Conveyancers Tel: (021) 013 5096 E-mail: Contact@angelaattorneys.org.za BODY OF DOCUMENT Explains what the Notice is about. I.e. an evic- tions, ONLY. details THEY of the ARE property, the occupiers THESE DOCUMENTS ARE EXAMPLES NOTwho BASED ON REAL EVENTS OR PEOPLE. THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE BASED are, and the law they willNOT be relying on.ON REAL EVENTS OR PEOPLE. 25 % 4 EXAMPLE OF A FOUNDING AFFIDAVIT THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. Founding Affidavit The FOUNDING AFFIDAVIT is attached to the NOTICE OF MOTION. It is a statement from the landlord or person in charge. It explains why you are being evicted. It is their side of the story. IN THE MAGISTRATES COURT FOR THE DISTRICT OF CAPE TOWN HELD AT CAPE TOWN COURT YOU NEED TO BE IN CASE NO : 5847 / 2016 In the matter between: APPLICANT (YOUR LANDLORD) BIG PROPERTIES (Registration Number: 2010/0054896/07) and THE RESPONDENT(S) This is you and anyone else living in the property. Their names will only be mentioned if they are over 18 years of age. KAREN THOMAS And all those holding under her and / or any other persons(s) who also occupy the premises vis-à-vis the Respondent CITY OF CAPE TOWN Applicant THE MUNICIPALITY IF THEY ARE CITED If they are not here then you must tell your lawyer and the court they should be cited. FOUNDING AFFIDAVIT First Respondent Second Respondent TYPE OF DOCUMENT I, the undersigned, PETRONELLA ISAACS do hereby make oath and say: BODY OF DOCUMENT Contains facts the landlord will be relying on, reasons given for evicting you as well as their personal circumstances and how your occupation is affecting them. 10 THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. 26 RESPONDING TO LEGAL DOCUMENTS TAKING ACTION TASK TO COMPLETE 1 ASK THE SHERIFF TO EXPLAIN ALL DOCUMENTS PAGE 23 The sheriff of the court will deliver your Notice of Motion and Founding affidavit to your home personally. It is important that you ask the sheriff to explain all documents to you fully. Do not sign until you know exactly what you are signing. 2 FIND LEGAL REPRESENTATION OR ADVICE 36 It is important that you seek legal advice or representation immediately (see page 36). Once you receive your Notice of Motion, it means legal proceedings have officially begun. 3 GO TO COURT 47 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. 4 REQUEST A POSTPONEMENT TO FIND LEGAL REPRESENTATION 44 Legal representation is a right of every South African. If you do not have a lawyer, you must request a postponement from the judge in order for you to find legal representation. You should also show the court proof that you have attempted to find legal representation. 5 GO TO ADVICE ASSEMBLY 61 Knowledge is key to understanding and navigating the eviction process. Go to the Reclaim the City Advice Assembly to learn more about what to do after you have received a Notice of Motion (see page 23). 27 DONE SECTION 5 HOW TO OPPOSE YOUR EVICTION THE IMPORTANCE OF OPPOSING If you do not oppose your eviction, the court will have no choice but to evict you! It is important that the judge hears both sides of the story. 1 If you are facing eviction and you have nowhere else to live, you must oppose your eviction by appearing in court. 2 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. 3 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. This is very common. YOUR RIGHT TO EMERGENCY HOUSING DON’T MISS YOUR COURT HEARING! If you are going to be made homeless by If you do not go to court on the date of your an eviction you need to contact the City of hearing YOU MAY BE EVICTED! Cape Town housing department as soon as possible and ask them to provide emergency alternative accommodation for you. SEE PAGE 41 FOR HOUSING DEPARTMENT DE TAILS 28 VALID REASONS TO OPPOSE YOUR EVICTION 1 3 2 NO GROUNDS FOR EVICTION PERSONAL CIRCUMSTANCES You believe your landlord does not have the You believe your eviction is LAWFUL, but grounds (proper reasons) to evict you and because of your personal circumstances, that your eviction is UNLAWFUL. you need more time to move out. NO ALTERNATIVE HOUSING NOTICE F O S E L EX AMP E (PAGE 31) S TO OPPO You believe your eviction is LAWFUL, but you have nowhere to go if you are evicted and the Government needs to provide you with Emergency Alternative Accommodation. OPPOSING WHEN YOU RECEIVE YOUR NOTICE If any of the reasons above apply to you, then you should oppose your eviction as soon as possible. L ND LEGA ) I F O T 36 HOW E (PAGE C N A T S I ASS 29 1 Get a lawyer and tell them you 2 Your lawyer will draw up legal 3 They will submit a Notice of want to oppose your eviction. papers and file them at court. Intention to Oppose (see page 31). This means you are officially opposing your eviction. OR You can draw up and file your own Notice of Intention to Oppose with the court. THIS IS NOT ADVISED. OPPOSING WITH LIMITED TIME OR WHEN IN COURT 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. ARANCE: FIRST APPE TPONING & P OS OPPOSING (PAGE 50) 1 DO NOT MISS YOUR COURT DATE Ensure you appear in the correct courtroom on the correct date and time. If you fail to appear, YOU MAY BE EVICTED! 2 WAIT TO BE CALLED Sit and wait quietly in the back of the courtroom until your case is called and you are asked to approach the witness box. 3 ASK FOR A POSTPONEMENT When called to the witness box, tell the judge that you are opposing your eviction and that you need a postponement to find legal representation. YOUR RIGHT TO A LAWYER 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 In civil matters (such as evictions) the state is NOT obligated to provide you with a lawyer. However, in practice the court will allow a certain amount of time for those who cannot afford to pay for lawyer to get a free legal representation from Legal Aid or elsewhere. for opposing their eviction. 30 EXAMPLE OF A NOTICE TO OPPOSE THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. Notice of Intention to Oppose The NOTICE OF INTENTION TO OPPOSE is a very important document. It makes it clear to the court that you do not want to be evicted and are challenging the eviction. You or your lawyers give these documents to the landlord and their lawyers. IN THE MAGISTRATES COURT FOR THE DISTRICT OF CAPE TOWN HELD AT CAPE TOWN COURT YOU NEED TO BE IN CASE NO : 5847 / 2016 In the matter between: BIG PROPERTIES APPLICANT (YOUR LANDLORD) (Registration Number: 2010/0054896/07) and THE RESPONDENT(S) This is you and anyone else living in the property. Their names will only be mentioned if they are over 18 years of age. KAREN THOMAS And all those holding under her and / or any other persons(s) who also occupy the premises vis-à-vis the Respondent CITY OF CAPE TOWN Applicant THE MUNICIPALITY IF THEY ARE CITED If they are not here then you must tell your lawyer and the court they should be cited. NOTICE OF INTENTION TO OPPOSE First Respondent Second Respondent TYPE OF DOCUMENT TAKE NOTICE THAT the First Respondent hereby gives notice of its intention to oppose the relief sought by the Applicant in these proceedings. BODY OF DOCUMENT Formally informs the court you are opposing your eviction THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. 31 14 THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. EXAMPLE OF A OPPOSING AFFIDAVIT The Opposing Affidavit The OPPOSING AFFIDAVIT is the document where you reply to the things the landlord said against you in the NOTICE OF MOTION. It is your side of the story. It explains why you are challenging the eviction. This document is signed by you as the occupier. It is given to your landlord and their lawyers. IN THE MAGISTRATES COURT FOR THE DISTRICT OF CAPE TOWN COURT YOU NEED TO BE IN HELD AT CAPE TOWN CASE NO : 5847 / 2016 In the matter between: APPLICANT (YOUR LANDLORD) BIG PROPERTIES (Registration Number: 2010/0054896/07) Applicant THE RESPONDENT(S) and This is you and anyone else living in the property. Their names will only be mentioned if they are over 18 years of age. KAREN THOMAS And all those holding under her and / or any other persons(s) who also occupy the premises vis-à-vis the Respondent CITY OF CAPE TOWN THE MUNICIPALITY IF THEY ARE CITED If they are not here then you must tell your lawyer and the court they should be cited. OPPOSING AFFIDAVIT I, the undersigned, First Respondent Second Respondent TYPE OF DOCUMENT KAREN THOMAS do hereby make oath and say: 1. I am an adult female, currently employed at Cape Town events and residing at Helium Heights with my family. BODY OF DOCUMENT The facts you will be relying on, the reason you think you THESE DOCUMENTS ARE EXAMPLES THEYyour AREpersonal NOT BASED ON REALand EVENTS OR PEOPLE. should notONLY. be evicted, circumstances how the eviction will negatively affect you and your family. 17 32 THE OPPOSING AFFIDAVIT An opposing affidavit is your side of the story. In this affidavit you respond to the allegations made against you by your landlord in the Notice of Motion. E OF WHAT IS A NOTIC 5) MOTION? (PAGE 2 OPPOSING AFFIDAVIT EXAMPLE ON PAGE 32 OPPOSING AFFIDAVIT is 1 An 2 They will sit down with you and drawn up by your lawyer. ask lots of questions regarding your case. This is to help establish your side of the story. 3 It is vital that you are always completely honest with your lawyer as this document will be signed under oath. 4 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 or they can withdraw as your lawyer. ALWAYS BE COMPLETELY HONEST This document, written under oath, con- Being dishonest or withholding information tains your side of the story. It will include from your lawyer is bad for your case. You the facts from your perspective as well must give them all the facts so they fight your as your personal circumstances, which case the best they can. Client-attorney privilege must be taken in to account by the court means that any information you give to your when deciding whether to evict you or not. lawyer must remain private between you two and they cannot tell other people if you do not want them to. 33 OTHER LEGAL DOCUMENTS During your eviction case, there may be a need for your lawyer to submit new documents in response to those submitted by your landlord. These documents may include: 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 (see page 39 for City’s report/affidavit). 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 ENSURE ALL INFORMATION IS PROVIDED IN YOUR AFFIDAVITS as a chance to add anything you might In an eviction everything is argued on paper, OF NOTICE A S I T A WH GE 24) A P ( ? N MOTIO 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 have left out of your opposing affidavit. personal circumstances before they make a decision. 34 OPPOSING YOUR EVICTION TAKING ACTION TASK TO COMPLETE 1 FIND LEGAL REPRESENTATION OR ADVICE PAGE 36 It is important that you seek legal advice or representation immediately (see page 36). Once you receive your Notice of Motion, it means legal proceedings have officially begun. 2 GO TO THE ADVICE ASSEMBLY 61 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. 3 GO TO COURT ON THE DATE OF YOUR HEARING 47 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. 4 REQUEST A POSTPONEMENT TO FIND LEGAL REPRESENTATION 30 Every South African 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 been to. 5 OPPOSE YOUR EVICTION IN COURT 30 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. 35 DONE SECTION 6 HOW TO FIND & INSTRUCT A LAWYER FREE LEGAL REPRESENTATION FOR THOSE IN NEED Everyone has the right to a lawyer. If you have received a Notice of Motion, seek legal representation or advice as soon as possible. KEEP RECORDS OF ATTEMPTS TO FIND LEGAL REPRESENTATION 1 a constitutional right afforded to everyone in South Africa. If you can’t afford a lawyer, you can request free legal representation from the State. This representation is not guaranteed. 2 If you choose to represent yourself, it is still recommended that you seek legal advice. 3 If you are a South African citizen, LEGAL AID SOUTH AFRICA is the main form of government funded legal assistance available to you. important that you are able to prove to the an effort to find legal representation. Make next page for description of legal advice vs. legal representation) is When you go to court, it is extremely judge or magistrate that you have made Having legal representation (see 4 If you are not an SA citizen, you can approach the Cape Law sure to request written responses from all Society (now legal practice coun- the legal clinics you have approached. cil) and any free legal clinics for AL FREE LEG ) F O T S I L 8 (PAGE 3 CLINICS assistance (see page 38) or pay for a private lawyer 36 THE DIFFERENCE BETWEEN LEGAL ADVICE & LEGAL REPRESENTATION LEGAL ADVICE LEGAL REPRESENTATION Legal advice is when a qualified lawyer consults Once a lawyer has officially taken on your matter, with you, understands the facts of your matter you become their client and they are your legal and gives you advice on what your options are. representative. This means they can go to court However, they are not considered to be your and represent you. lawyer at this point. QUALIFYING FOR FREE LEGAL REPRESENTATION Certain law clinics offer pro bono (free) legal assistance. To qualify to receive this assistance, you must meet the following criteria. 1 To qualify, you must either be unemployed or earning less than R5500/month after tax. 2 VALUE OF BELONGINGS HOUSEHOLD LIMITATIONS If you are part of a household (2 or more people) the household must earn less than R6000/month after tax. 3 4 LIMITED OR NO EMPLOYMENT PROPERTY VALUE If you own a house, it, and all the belongings inside it, cannot be worth more than If you DO NOT own a house, then the total R500,000. You can only own one house value of all your belongings (for example, and it must be the one you are living in. your car, furniture, clothes and other personal things) must not be worth more than R100 000. 37 LIST OF LEGAL ASSISTANCE ORGANISATIONS LEGAL AID SOUTH AFRICA LEGAL PRACTICE COUNCIL BEST OPTION FOR SA CITIZENS BEST OPTION FOR NON-CITIZENS 3rd Floor South African Reserve Bank Absa Centre, Building, 60 St Georges Mall, Cape Town, 2 Riebeek Street, 8001 Cape Town Tel: (021) 426 4126 Tel: 021 443 6700 Toll-Free Legal Advice: 0800 110 110 Email: email@example.com Send a Please Call Me: 079 835 7179 Web: www.capelawsoc.law.za Email: firstname.lastname@example.org Open Hours: 8AM to 5PM (Mon-Fri) Web: www.legal-aid.co.za Open Hours: 8AM to 3PM (Mon-Fri) UCT REFUGEE LEGAL CLINIC BEST FOR REFUGEES & ASYLUM SEEKERS LEGAL RESOURCE CENTRE Refugee Rights Unit 54 Shortmarket Street, 4th Floor Kramer Law School, UCT Middle Greenmarket Square, Campus Cape Town Tel: 021 650 3775 Tel: 021 481 3000 Email: email@example.com Email: firstname.lastname@example.org Open Hours: 8:30AM to 4:30PM (Mon-Fri) Web: www.lrc.org.za Closed everyday (1PM to 2PM) Open Hours: 8AM to 3PM (Mon-Fri) ENQUIRE AT MULTIPLE LAW CLINICS & KEEP RECORDS Do not just go to one place! The more law clinics you go to, the better chance you have of finding a lawyer quickly. Keep records of all your attempts to find legal representation. DETAILS AVAILABLE ONLINE www.evictions.org.za/legal-aid 38 NDIFUNA UKWAZI LAW CLINIC UCT LAW CLINIC Tel: 021 012 5094 Room 436 4th Floor Kramer Law School Email: email@example.com Building, 1 Stanley Avenue, Rondebosch, Web: www.nu.org.za Cape Town, 7700 Tel: 021 650 3775 Email: firstname.lastname@example.org Web: www.lawclinic.uct.ac.za Open Hours: 8AM to 5PM (Mon-Fri) INSTRUCTING A LAWYER Instructing your lawyer means telling them all the facts about your case as well as what outcome you want. 1 Fully understanding the entire eviction process will allow you to better instruct your lawyer and understand what steps to take next. 39 evicted, you need to instruct your lawyer to oppose your eviction. 2 Some pro bono (free) lawyers are not eviction specialists. For this reason, it is important that you have a good understanding of the entire eviction process. This will allow you to know if your lawyer is acting in your best interests. 3 READ THIS ENTIRE GUIDE If you feel you are being unfairly If you feel your lawyer is not acting in your best interests, you should find a new lawyer. L EE LEGA R F F O 2) LIST (PAGE 3 S C I N I CL FINDING & INSTRUCTING A LAWYER TAKING ACTION TASK TO COMPLETE 1 PAGE DONE 38 APPROACH A FREE LEGAL CLINIC Legal advice and assistance is available to South African citizens and non-citizens alike. However, only SA Citizens are eligible for free legal representation through Legal Aid. 2 IF YOU ARE A SA CITIZEN IF YOU ARE NOT A SA CITIZEN Contact Legal Aid South Africa (page Contact the Cape Law Society (page 38), and then as many other legal 38) and then as many other legal clinics clinics as possible. as possible. GET PROOF THAT YOU LOOKED FOR LEGAL REPRESENTATION Being able to prove in court that you made an effort to find legal representation is very important when seeking a postponement to your case. Be sure to get written responses from any legal clinics that you approach, and keep records of all communications. If you do not appear to have made an effort, the judge or magistrate may not grant you a postponement. 3 READ THIS GUIDE & ATTEND AN ADVICE ASSEMBLY In order to instruct your lawyer properly, you need to understand the eviction process. Be sure to read this entire guide and, attend an Advice Assembly (see page 61), if you can. 4 FOLLOW UP WITH LAW CLINICS 38 If you are waiting to hear back from a law clinic regarding legal representation, follow up with them regularly. Email or phone them, or go to their offices in person and request an update on your case. Putting pressure on them can speed up the process and mean that you find representation faster. 40 SECTION 7 YOUR RIGHT TO EMERGENCY HOUSING THE CITY’S DUTY TO PROVIDE ACCOMMODATION The City of Cape Town municipality has a duty to provide emergency housing to anyone who will be made homeless by an eviction. 1 The City of Cape Town must be CITED in all eviction appli- cations and must produce a report on the availability of emergency alternative accommodation for those who qualify. 2 When served with papers, such as the Notice of Motion (page 25) and Section 4(2) Notice (page xx), ensure the City is cited. 3 If the City is not cited, your lawyer must cite them in the Opposing Affidavit (page 32), and serve both BEING CITED When someone is cited, they are officially part of a court case. Citing someone means ensuring that they appear on the court papers as a respondent under your name. 41 the City and your landlord. 4 When serving these papers, be sure to include a letter stating you will be made homeless, as well as all relevant contact details so that they cannot claim that they were not able to contact you. MEANINGFUL ENGAGEMENT WITH THE CITY Once the City of Cape Town is part of the case, they must engage with you meaningfully to understand your circumstances and come to an agreement on suitable emergency housing. FUL REVISIT MEANING GE 20) ENGAGEMENT (PA THE CITY DOES NOT ALWAYS ENGAGE PROPERLY Despite their obligations and the regulations put in place to ensure that meaningful engagement takes place, The City of Cape Town does not always engage properly. 1 The city is obliged to engage meaningfully with you once they are cited in your eviction case. 2 Despite this obligation, the city has been known to avoid meaningful engagement. 3 If the City does not want to engage meaningfully with you, you must send them letters and call them to prove to the court that you made an effort to engage and it was the City who was not doing their job. City of Cape Town Municipality: Address: Civic Centre, Podium Block, 6th Floor, 12 Hertzog Boulevard, Cape Town, 8001 Telephone: 086 010 3089 Email: email@example.com Legal Services Department: Telephone: 021 400 2908 Email: Housing Department : Telephone: 021 444 0333 Email: firstname.lastname@example.org CONTACT THE CIT Y! Web: www.capetown.gov.za Hours: Mon–Fri, 7:30AM–5PM 42 STEPS THE CITY SHOULD TAKE 1 CONTACT & ARRANGE TO MEET 2 SEND YOU A QUESTIONNAIRE It is the city’s responsibility to contact you and As part of understanding the details of your arrange a meeting to discuss your eviction. case, as well as your personal circumstances, the city must send you a questionnaire to complete which outlines the important details 3 of your situation. OFFER ACCOMMODATION Based on your personal circumstances and level of need, the City should offer you 4 SUBMIT A REPORT TO THE COURT suitable emergency accommodation. The City should submit a report (in the form of an affidavit) to the Court containing the following information: CIT Y’S EX AMPLE OF THE ) REPORT (PAGE 45 • Their duty to provide you with emergency accommodation. • Date and record of your engagement. • An offer of emergency accommodation if you qualify. 43 STEPS YOU SHOULD TAKE 1 ANY OFFER IS GUARANTEED 2 KEEP RECORDS OF ENGAGEMENT Understand that there is no waiting list for Be sure to keep any records of engagement emergency accommodation. If the City offers with the city. These include, letters, emails, you accommodation, it is guaranteed and SMSs, and the dates and times of any must be provided to you. phone calls etc. This information is always important to your case. 3 REJECT ANY RELOCATION CAMPS 4 ENSURE A REPORT IS FILED If the City only offers you a place in RELOCATION CAMP , such as If the City has not filed a report you must ask Wolwerivier or Blikkiesdorp, you need to the court to postpone the matter until they clearly object to this during your engagement. do. The court CANNOT make a decision It must be part of the record that you objected without all the facts and the City’s report to unsuitable living conditions. Ask them for a is vital to this. a written response to any objections you had. RELOCATION CAMP Currently Cape Town only provides emergency housing in relocation camps. The Wolwerivier Camp is built on a farm more than 30km drive from the City Centre. It does not have adequate services like schools, hospitals, regular transport, or shops. 44 EXAMPLE OF A REPORT FROM THE CITY THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. City of Cape Town Affidavit The CITY OF CAPE TOWN AFFIDAVIT: The municipality has to respond to ALL eviction cases. Their AFFIDAVIT says what alternative accommodation they have available for the occupier should the occupier be made homeless in the eviction. IN THE MAGISTRATES COURT FOR THE DISTRICT OF CAPE TOWN COURT YOU NEED TO BE IN HELD AT CAPE TOWN CASE NO : 5847 / 2016 In the matter between: BIG PROPERTIES APPLICANT (YOUR LANDLORD) (Registration Number: 2010/0054896/07) and Applicant THE RESPONDENT(S) This is you and anyone else living in the property. Their names will only be mentioned if they are over 18 years of age. KAREN THOMAS And all those holding under her and / or any other persons(s) who also occupy the premises vis-à-vis the Respondent CITY OF CAPE TOWN First Respondent THE MUNICIPALITY IF THEY ARE CITED Second Respondent If they are not here then you must tell your lawyer and the court they should be cited. AFFIDAVIT I, the undersigned, do hereby make oath and say: TYPE OF DOCUMENT JOHN DUIK BODY OF DOCUMENT The municipality’s report content, details the results of their investigation into your personal and housing circumstances and what emergency accommodation they have available and can offer you. THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. 45 21 FINDING EMERGENCY HOUSING TAKING ACTION TASK TO COMPLETE 1 PAGE ENSURE THE CITY IS CITED DONE 41 The City of Cape Town Municipality should be cited in ALL eviction cases. It is their job to understand your circumstances to see if you will be made homeless by an eviction. IF THE CITY IS CITED IF THE CITY IS NOT CITED Proceed to step 2. Instruct your lawyer to cite the City in your Opposing Papers (see page 31). 2 TELL THE CITY YOU WILL BE MADE HOMELESS 41 Whether or not the City has been cited, you must inform them that you will be made homeless by your eviction. The City cannot ignore this information and must engage with you. 3 OBJECT TO UNSUITABLE EMERGENCY ACCOMMODATION Wolwerevier and Blikkiesdorp are two relocation camps far outside of Cape Town. There are no schools, shops or clinics at these locations. If the City offers you accommodation at one of these sites, you must object and ask for a written response from the city. 4 KEEP A RECORD OF ALL ENGAGEMENTS Always keep all records of any engagements with the City. Dates, times and what was discussed/promised can be very important in court. 4 MAKE SURE THE CITY’S REPORT TO THE COURT IS ACCURATE After the City has assessed all options for emergency accommodation, they will submit a report to the court. You must ensure that the report accurately reflects your engagement with the city. If the report is not accurate, your lawyer must report this to the court. 46 SECTION 8 GOING TO COURT WHAT TO EXPECT WHEN GOING TO COURT An eviction hearing is where the arguments between Landlords (Applicants) and Tenants (Respondents) are heard by a judge or magistrate. 1 Once all documents have been filed with the court, a date is given for the court hearing. 2 In the hearing, everything that has been placed on affidavit will be argued in court. 3 Once the court has heard all the information, the judge will make an order that takes all relevant factors into consideration. 4 If the judge decides to evict you, they will issue a COURT ORDER giving the date by which you must leave the property. COURT ORDER Is an official order that has been written by the judge/magistrate and must to be obeyed. A court order authorises the carrying out of certain steps by one or YERS THIS IS HOW LAW DRESS IN COURT more parties. E.g. If you are evicted you must leave the property by a certain date. LIST OF COURTS 47 www.evictions.org.za/courts FINDING THE RIGHT COURT 1 3 CHECK COURTROOM & DATE 2 LOCATE YOUR LOCAL COURT The notice of motion will tell you which court Your case will be heard in the court nearest you need to be in and on what date you to the property in question. In certain cases, need to appear. you may be called to the High Court. GOING TO THE HIGH COURT T COURT FIND THE NEARES ) TO YOU (PAGE 49 If your court papers say “High Court” then you need to go to the Cape Town High Court in Keerom Street. FINDING THE RIGHT COURTROOM Evictions are held in Motion Court, so ask a clerk, security officer, or any of the lawyers walking around where the Motion Court is. 1 FIND YOUR COURTROOM EARLY Court buildings are difficult to navigate and badly signposted. Be sure to arrive early enough to allow yourself time to locate the correct courtroom. If you miss your court appearance, you may be evicted! 2 ASK FOR ASSISTANCE If there is an information desk, ask them which room evictions are in. If there is no information desk, the clerk of the court, any lawyer, security, guard or anyone who looks like they work at the court building. 48 LIST OF CAPE TOWN COURTS Check your Notice of Motion to see which court you are in. 35 Keerom St, Cape Town Telephone: 021 480 2411 Hours: Mon–Fri, 9AM–3PM Closed daily from 1PM–2PM Athlone Magistrates’ Court Old Klipfontein Road 021 697 1246 Atlantis Magistrate’s Court c/o Wesfleur Circle & Reygersdal Street 021 572 1003 Bellville Magistrates’ Court c/o Voortrekker Road & Landdros Street 021 950 7700 Bishop Lavis Magistrates’ Court c/o Myrtle and Valhalla Drive 021 934 1021 Blue Downs Magistrates’ Court Eersriver Way & Bentley St 021 909 9000 Cape Town Magistrates’ Court 7-11 Parade Street 021 401 1556 Goodwood Magistrates’ Court 273 Voortrekker Road 021 591 3171 Khayelitsha Magistrates’ Court c/o Walter Sisulu and Steve Biko 021 360 1400 Kuilsriver Magistrates’ Court 122 Van Riebeeck Road 021 903 7902 Mitchells Plain Magistrates’ Court 1st Avenue, Eastridge 021 370 4200 Parow Regional Court Arnold Wilhelm Street 021 936 9400 Phillippi Magistrates’ Court c/o New Eisleben and Govan Mbeki Road 021 372 0902 Simon’s Town Magistrates’ Court 133 St Georges Street 021 786 1561 Somerset West Magistrates’ Court 33 Caledon Street 021 850 7420 Wynberg Magistrates’ Court 021 799 1800 64 Church Street LIST OF CAPE TOWN COURTS 49 Cape Town High Court: www.evictions.org.za/courts FIRST APPEARANCE: OPPOSING & POSTPONING If you are going to court for the first time and do not have a lawyer, do these two things: 1 OPPOSE YOUR EVICTION Once your case is called and you are requested to approach the witness stand, you must state that you would like to oppose your eviction. 2 REQUEST A POSTPONEMENT YOUR RIGHT TO A LAWYER Request a postponement from the judge Courts must respect your right to legal for yourself. At your first appearance, the representation and will usually grant a judge should always grant a postponement. in order for you to find legal representation postponement. SECOND/THIRD APPEARANCE (WITHOUT A LAWYER) Any further postponements to your case will require evidence of an effort on your part to find legal representation. 1 SHOW EVIDENCE OF ATTEMPTS Present any communications from legal aid organisations (page 38) that prove you have made an effort to find representation. 2 DO NOT FEEL INTIMIDATED! Do not feel rushed into representing yourself! As long as you have proof that no pro bono (free) lawyer is available to take your case, you should be granted an extension. 50 ARGUMENT After opposing and finding a lawyer (or choosing to represent yourself), both sides will present their arguments. 1 Remember, you can only argue what has been written in your affidavits. No new evidence, information or arguments may be brought before the court unless there has been a relevant and material change to circumstances of the parties. ENSURE AFFIDAVITS CONTAIN ALL RELEVANT INFORMATION E IF SEEK LEGAL ADVIC G ENTIN YOU ARE REPRES 3 6) YOURSELF (PAGE It is vital that you have submitted documents to the court that backup your case. You cannot decide to provide alternative information in court if it is not present in your affidavit. SETTLEMENT At any stage before the court has ruled, you can come to an agreement with your landlord. PRESENTING YOUR CASE 1 CONSIDER OFFERS CAREFULLY Often your landlord will make a settlement offer. Sometimes it is fair, sometimes it may not be. Remember, you do not have to accept this offer. Always consult with a lawyer! 2 AVOID RUSHED AGREEMENTS! Offers may be presented at short notice before going to court. Do not feel rushed! Tell your landlord you would like to take your time to consider the offer and seek advice. 51 URT EX AMPLE OF A CO ) ORDER (PAGE 53 THE COURT ORDER The ruling from the court stating whether you are to be evicted or not. If you are evicted, the order will state by when you need to leave the property. ER WHAT TO DO AFT DER IS YOUR COURT OR 5 5) RECEIVED (PAGE 1 DATE OF EVICTION The order by the judge will clearly state by when you will need to leave the property. Even if you are evicted, this date will usually take into account your circumstances and allow sufficient time for alternative arrangements to be made. 2 DATE OF REMOVAL (EXECUTION) There will also be a date specified by which, if you have not left the property, the Sheriff will be allowed to physically remove you. This is called the “execution date”, and it is usually a few days after the eviction date. 52 THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. EXAMPLE OF A COURT ORDER The Court Order The COURT ORDER will state whether you have been evicted or not. If you are evicted it will say by what day you must leave the property. IN THE MAGISTRATES COURT FOR THE DISTRICT OF CAPE TOWN HELD AT CAPE TOWN COURT YOU NEED TO BE IN CASE NO : 5847 / 2016 In the matter between: APPLICANT (YOUR LANDLORD) BIG PROPERTIES (Registration Number: 2010/0054896/07) and Applicant THE RESPONDENT(S) This is you and anyone else living in the property. Their names will only be mentioned if they are over 18 years of age. KAREN THOMAS And all those holding under her and / or any other persons(s) who also occupy the premises vis-à-vis the Respondent CITY OF CAPE TOWN THE MUNICIPALITY IF THEY ARE CITED If they are not here then you must tell your lawyer and the court they should be cited. ORDER First Respondent Second Respondent TYPE OF DOCUMENT THE COURT HEREBY ORDERS that the First Respondent and her family vacate the property known as Helium Heights by 30 November 2017. Should the First Respondent and her family not vacate the property by the 30th of November, the court orders that the Sherriff be allowed to remove them from the property on the 15th of December 2017. BODY OF DOCUMENT 53 States whether you are evicted or not. If you are NOT evicted you can continue to live in the property. If you ARE 24 evicted it will say what date you need to move out by. If you THESE DOCUMENTS ARE EXAMPLES ONLY. THEY NOT BASED EVENTS OR PEOPLE. AREARE evicted it will also ON say REAL what date the Sheriff can come and physically remove you from the property (usually a few days after the date to vacate). GOING TO COURT TAKING ACTION TASK TO COMPLETE 1 LOCATE THE RIGHT COURT & COURTROOM PAGE DONE 48 Make sure you know where the court is. You must be at the court before 9am on the day of your hearing. You can even go to court before your court date, just to get familiar with the court and how long it will take you to get there. 2 CONTACT RECLAIM THE CITY FOR SUPPORT 61 If you are in court in Cape Town or Wynberg Magistrates’ Courts, Reclaim the City are happy to come with you to show you around the court. They can help you find the right courtroom and what to expect when you have your first appearance in court. 3 OPPOSE YOUR EVICTION 28 You must oppose your eviction if you feel your landlord does not have grounds to evict you or you need more time to find somewhere else to live. (see page 28). When your case is called, tell the court you are opposing your eviction. 4 ASK FOR A POSTPONEMENT TO FIND LEGAL REPRESENTATION 50 Once you have told the court you are opposing your eviction, ask for a postponement to find legal representation. At this point, it will help to show proof of any attempts you have made to find legal representation 5 DO NOT SIGN OR SETTLE AT COURT 51 Your landlord or their lawyers may present you with a settlement offer before your court appearance. DO NOT RUSH INTO ACCEPTING ANY OFFERS. Take your time and seek advice from a lawyer or housing activists like Reclaim the City. Make sure you fully understand the offer before you sign anything. Do not feel pressured! 54 SECTION 9 WHAT TO DO AFTER YOUR COURT ORDER WHEN AND HOW DO I RECEIVE A COURT ORDER? Court orders can 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. URT EX AMPLE OF A CO ) ORDER (PAGE 53 1 IN COURT FOR 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. 2 NOT IN COURT FOR 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 CONTACT DETAILS To avoid confusion when receiving your court order, make sure the court has your 55 most up-to-date contact information. WHAT TO DO ONCE A COURT ORDER IS RECEIVED SCENARIO 1 YOU WIN THE 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 it is likely that your landlord 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. SCENARIO 2 YOU WIN THE CASE. YOUR OCCUPATION IS DEEMED UNLAWFUL. BUT YOU ARE NOT EVICTED (DEEMED NOT JUST AND EQUITABLE) 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. SCENARIO 3 YOU LOSE THE 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 (see page 42). You should also start preparing your belongings to be transported or stored. ONS HOW ARE EVICTI E 57) EXECUTED? (PAG 56 HOW EVICTIONS ARE EXECUTED UNDERSTAND THE PROCESS STEP 1 YOU RECEIVE A COURT ORDER FOR YOUR EVICTION EXAMPLE OF A COURT ORDER (PAGE 53) This can be received from the court or may be delivered in person by the EVIC TION DATE EJEC TION DATE Sheriff. On the court order, there will be two important dates listed: THE EVICTION DATE THE EJECTION/EXECUTION DATE The date by which you officially need The date, following the eviction date, to vacate the property. 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 and it is important that you are prepared. STEP 2 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. IMPORTANT: You can call your local Sheriff and inquire about your case. Ask them if they have the warrant yet and on what day they plan to evict you. CONTACT DETAILS FOR LOCAL SHERIFFS 57 www.sheriffs.org.za STEP 3 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. STEP 4 YOUR BELONGINGS ARE REMOVED FROM THE 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 LEAVE BELONGINGS ON THE STREET The Sheriff takes your belongings to a You choose not to store your belong- storage facility and holds them there ings and they are left on the street for you to collect at a later date. You outside the property. It is your will likely be charged storage fees responsibility to remove them. which you have to pay before the Sheriff will release your belongings. You must demand the details for this storage location. 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, you are liable and not the Sheriff, your landlord, or the Police. 58 APPEALING A COURT DECISION In a magistrate’s court, you have the right to immediately appeal your eviction. You can do so by asking your lawyer to file a Notice of Appeal. 1 Once the been filed with the court, your eviction is 2 NOTICE OF APPEAL has 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. 3 While the appeal process is underway, nobody may act to remove you from your home. 4 During the appeal process there are specific timelines that cannot be missed. If you do miss a deadline, your appeal may lapse and NOTICE OF APPEAL This document notifies the court and your landlord that you are appealing the your eviction can be executed. 5 Ensure that your lawyer keeps you informed and stays on top of the appeal process. matter. In the Magistrates’ Court you have automatic right to appeal. This means you do not have to apply to the court for permission to appeal. STAYED EVICTION An eviction order that is paused while an appeal process happens. You are technically still evicted but nobody can act on the eviction (remove you from your home). 59 GOING TO COURT TAKING ACTION TASK TO COMPLETE 1 PAGE DONE READ THE COURT ORDER & 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 (see page 53). 2 LOOK FOR ALTERNATIVE ACCOMMODATION Win or lose, you should start searching for alternative accommodation immediately. Take note of your eviction date, this will tell you how long you have to find new accommodation. 3 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. 4 UNDERSTAND HOW AN EVICTION IS EXECUTED 57 Prepare yourself for the eviction by studying this section carefully. If you know what to expect you will be better prepared. 5 SEEK LEGAL ADVICE TO APPEAL 36 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 good reasons. Speak to a lawyer and get their opinion on if you should appeal or not. 60 RECLAIM THE CITY ADVICE ASSEMBLY WHAT IS THE ADVICE ASSEMBLY? The Advice Assembly is a weekly meeting of tenants, occupiers, and activists. It is a space to learn about your rights, the eviction process and the law. ATTEND ADVICE ASSEMBLY Advice Assembly currently takes place every Thursday at 7pm. All are welcome! Please note that times and days may change in the future. Call 021 012 5094 to check. Woodstock Advice Assembly: Cissie Gool House (Old Woodstock Hospital), 36 Mountain Road, Woodstock Sea Point Advice Assembly: Ahmed Kathrada House (Helen Bowden Nurses Home), Corner Beach Rd & Granger Bay Blvd The ADVICE ASSEMBLY is an initiative created by RECLAIM THE CITY . At Advice Assembly we stand in solidarity to prevent and resist unlawful evictions and unfair landlord practices. Many who have been through an eviction still attend Advice Assembly so that they can help others going through what they went through. WHAT THE ADVICE ASSEMBLY DOES NOT DO The Advice Assembly is NOT a legal clinic and you will NOT get formal legal advice or legal representation. However, there are often lawyers present and others who know the law that can guide you in the right direction to find a lawyer who can represent you in court. The Advice Assembly does NOT provide accommodation. If you are looking for a place to stay they unfortunately cannot help you with that. 61 WHY YOU SHOULD ATTEND ADVICE ASSEMBLY The Advice Assembly provides a space Through Advice Assemblies, tenants have the power to make plans of action to resist unlawful and unjust evictions. for tenants to support and advise each other and to decide on practical actions. The law is made accessible and people are linked to community organising and activism. Through Advice Assemblies, tenants have the power to make plans of action to resist unlawful and unjust evictions. ABOUT RECLAIM THE CITY CONTACT RECLAIM THE CITY Reclaim the City is a movement of tenants and workers campaigning to stop displacement from well-located Facebook: Reclaim the City areas and secure access to decent Twitter: reclaimCT affordable housing. They believe it is Instagram: reclaimthecitysa time to take the struggle for housing to the Website: www.reclaimthecity.org.za centre of the city, to the heart of power, to the people who should live there, and to Co-ordinating Committee: the land that matters. Land for people, email@example.com not profit! General enquiries: firstname.lastname@example.org THE CIT Y CONTACT RECLAIM MATION FOR MORE INFOR 62 GLOSSARY UNDERSTAND COMMON TERMS Definitions for common words that you may hear when dealing with your eviction case. APPEAR To appear in court is when you have to be in court in person. AFFIDAVIT An affidavit is a sworn written statement made under oath. If you are intentionally APPLICANT untruthful in your affidavit you will be committing perjury, which is a criminal offence that could result in a prison sentence. The applicant is the party that starts the court process. In eviction cases the landlord is the applicant because they make an application to the court to have you evicted. BREACH A breach of your lease is when either you CITE (the tenant) or your landlord breaks one of the rules you have agreed to. E.g. If it says you must pay rent on the first of every To cite is to notify a person of a court case month and you forget to pay, then you have against them or to call a person to appear breached your lease agreement. in court. YOUR NEED HELP WITH D AN ADVICE EVICTION? AT TEN PAGE 61) ASSEMBLY! (SEE 63 COSTS DISPUTE Costs refer to the money that was paid for A dispute is an argument or disagreement lawyers to represent you and your landlord between you and your landlord. E.g. If you in court. E.g. in your relief, you can request think it is your landlord’s job to fix the hole in the court to order that the application is your ceiling but they do not think they have to. dismissed WITH COSTS. This means that your landlord would need to pay your lawyer’s costs. HOLDING TITLE UNDER EVICTION APPLICATION An eviction application is a legal procedure a landlord or landowner needs to follow if they want to evict you. If you are the person who signed the lease and you have two children living with you, they are holding title under you and do not have to be named in the court papers. LEGAL REPRESENTATION Legal Representation refers to a lawyer that is PARTIES appointed to act on your behalf. A lawyer who gives you legal advice may not necessarily be representing you (I.e. they will not go to Parties refer to the people or organisations court for you). (Note: this person cannot act involved in the court case. E.g. In an eviction against your instructions.). the parties will generally be you (the tenant), your landlord, and the City of Cape Town. RELIEF RESPONDENT Relief refers to what help you are asking the court for. E.g. if someone crashed into The respondent is the party against whom your car and you decide to sue them, you the application is made. In eviction cases approach the court for an order that they the tenant is the respondent. pay for the damage to your car. 64 SECTION 4(2) NOTICE SERVICE/BEING SERVED The SECTION 4(2) notice is a legal docu- Service is the act of giving legal papers ment that has to be served by the Sheriff to the person who must respond to them. to those being evicted. It is given to you Service of eviction papers (Notice of Motion with the Notice of Motion. This document and Section 4(2) Notice) will be done by the is important because it has the DATE AND Sheriff. If you oppose your eviction YOU (or TIME of when you have to be in COURT. your lawyer) will serve your landlord (or their It also tells you that you can OPPOSE the lawyer) with your legal documents. eviction and you have the right to get legal representation. UNDERTAKING TERMINATION Undertaking is the act of doing something that has been agreed to. Termination means the cancellation or ending of a lease. VIS-à-VIS VACATE VIS-à-VIS is a Latin term that means ‘through’ or ‘in relation to’. To vacate means to leave the property entirely. You and anyone else who has been evicted, as well as all your belongings, must be out of the property. 65 THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. EXAMPLE OF A OPPOSING AFFIDAVIT Section 4(2) Notice Section 4(2) Notice The SECTION 4(2) notice is a legal document that has to be served by the Sheriff to those being evicted. It is given to you with the Notice of Motion. This document is important has the AND TIME The SECTION 4(2) notice is a legal because documentit that hasDATE to be served by of when you have to be in COURT. It also tells you that you can the Sheriff to those being evicted. It is given to you with the Notice of OPPOSE thedocument eviction and you havebecause the right ittohas get the legal representation Motion. This is important DATE AND TIME of when you have to be in COURT. It also tells you that you can OPPOSE the eviction and you have the right to get legal representation IN THE MAGISTRATES COURT FOR THE DISTRICT OF CAPE TOWN HELD AT CAPE TOWN COURT YOU NEED TO BE IN IN THE MAGISTRATES COURT FOR THE DISTRICT OF CAPE TOWN CASE NO : 5847 / 2016 HELD AT CAPE TOWN In the matter between: CASE NO : 5847 / 2016 APPLICANT (YOUR LANDLORD) In the matter between: BIG PROPERTIES (Registration Number: 2010/0054896/07) BIG PROPERTIES THE RESPONDENT(S) (Registration Number: 2010/0054896/07) and Applicant Applicant This is you and anyone else living in the property. Their names will only be mentioned if they are over 18 years of age. and KAREN THOMAS And all those holding under her and / or any other persons(s) KAREN THOMAS who also occupy the premises vis-à-vis the Respondent And all those holding under her and / or any MUNICIPALITY IF THEY ARE CITED other persons(s) who also THE occupy the premises If they are not here then you must tell your CITY OF the CAPE TOWN vis-à-vis Respondent Second Respondent CITY OF CAPE TOWN Second Respondent lawyer and the court they should be cited. S4(2) NOTICE First Respondent First Respondent TYPE OF DOCUMENT S4(2) NOTICE TAKE NOTICE THAT the Applicants hereby intend to bring an application for the eviction unlawful hereby occupier in terms of an s4 application (1) of the TAKE NOTICE THATof thean Applicants intend to bring Prevention of Illegal Unlawful Occupation Land of Acts419(1) of 1998. for the eviction of and an unlawful occupier in ofterms of the Prevention of Illegal and Unlawful Occupation of Land Act 19 of 1998. BODY OF DOCUMENT Explains what the notice is about, I.e. service. The date and time of when you have to appear in court. It tells you that you can oppose your eviction and that you have the right to legal representation. THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. THESE DOCUMENTS ARE EXAMPLES ONLY. THEY ARE NOT BASED ON REAL EVENTS OR PEOPLE. 7 7 66 MAKE NOTES 67 68 69 70 GUIDE TO THE EVICTION PROCESS RESOURCES AVAILABLE ONLINE 71 Visit: www.evictions.org.za THE EVICTION PROCESS ORGANISING A PROTEST LEGAL ASSISTANCE TOOLKIT & GUIDE FOR
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