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

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

WHY IS MEANINGFUL ENGAGEMENT IMPORTANT?
AN EXAMPLE OF MEANINGFUL ENGAGEMENT
TAKING ACTION

20
21
22

SECTION 4 RESPONDING TO LEGAL DOCUMENTS

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

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

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.

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

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.

To grant an eviction order the court

EMERGENCY HOUSING

must look at your personal circumstances and make a decision that

Emergency Housing provides temporary

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 .

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.

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!

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 &

IDENTIFY YOUR NEXT STEP
YOU NEED TO RESOLVE A DISPUTE WITH YOUR LANDLORD

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

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

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

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.

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.

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

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.

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.

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.

Sometimes disputes between tenants
and landlords cannot be resolved
through meaningful engagement
(See page 20).

In such cases the

RENTAL HOUSING

TRIBUNAL (RHT) investigates and
tries to resolve the issues.

Having your dispute heard is free and
does not require a lawyer, although
you can have one present if you want.

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.

IMPORTANT TRIBUNAL RESTRICTIONS
1

If your landlord has started eviction proceedings against you (you have received

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: rht.enquiries@westerncape.gov.za
Hours: Mon–Fri, 7:30AM–3PM
8

TRIBUNAL
COMPLAINTS

COPY

& SH A

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

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.

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.

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.

MAKE 2 CERTIFIED COPIES OF ALL DOCUMENTS

SUBMIT 2 COPIES OF ALL DOCUMENTS TO THE TRIBUNAL

RECORD THE DATE OF SUBMISSION ON THE ORIGINAL FORMS (THE COPY YOU KEEP)

RECORD THE STAFF MEMBER’S NAME YOU SUBMITTED TO, ON THE ORIGINAL FORMS

GET WRITTEN CONFIRMATION OF YOUR SUBMISSION FROM THE TRIBUNAL (COULD BE A STAMP)

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.

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.

You can still engage with your
landlord to resolve any issues
between you (outstanding rent etc.).

If you cannot resolve these issues,

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.

WHEN CAN A LANDLORD SEND A NOTICE TO VACATE

If you breach
the conditions
of your lease
your landlord
is entitled to
cancel it.

The Notice to Vacate is the landlords way
of canceling your lease and telling you they
want you to leave by a certain date.

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.

Many notices to vacate are unfair

If you feel the notice your landlord

or unlawful.

gave you was unfair, you should
point it out to them.

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).

INSUFFICIENT NOTICE

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

SUDDEN TERMINATION OF LEASE

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

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

RECEIVING A NOTICE TO VACATE

TAKING ACTION
TASK TO COMPLETE
1

PAGE

CHECK THAT YOUR NOTICE TO VACATE IS LAWFUL

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).

SET UP A MEETING WITH YOUR LANDLORD

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.

MEET YOUR LANDLORD AND TRY TO RESOLVE ISSUES

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).

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.

ENGAGING MEANINGFULLY with
your landlord around important
issues as they arise is always the
best way to avoid eviction.

If you receive a Notice to Vacate
and cannot resolve the issues
through meaningful engagement it
is likely to become a legal process.

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.

AN EXAMPLE OF MEANINGFUL ENGAGEMENT
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.

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

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.

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.

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.

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.

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).

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.

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).

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.

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.

FOUNDING AFFIDAVIT will

also be delivered and should be
attached to the Notice of Motion.

You should seek legal advice

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.

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

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.

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.

%
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.

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.

FIND LEGAL REPRESENTATION OR ADVICE

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.

GO TO COURT

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

REQUEST A POSTPONEMENT TO FIND LEGAL REPRESENTATION

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.

GO TO ADVICE ASSEMBLY

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).

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.

If you are facing eviction and you
have nowhere else to live, you
must oppose your eviction by
appearing in court.

If you do not appear in court, there
will be no opposition to the Eviction
Application and the court will have
no choice but to grant the eviction.

Even if you don’t think you’ll win
(E.g. you haven’t been paying
rent), you can still go to court and
ask them to give you more time to
move out. 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

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

Get a lawyer and tell them you

Your lawyer will draw up legal

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.

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)

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!

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.

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.

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.

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.

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

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.

It is vital that you are always completely honest with your lawyer
as this document will be signed
under oath.

If you lie on this affidavit you
will be committing a crime and
it will be extremely difficult for
your lawyer to successfully argue
your case 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.

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.

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.

GO TO THE ADVICE ASSEMBLY

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

GO TO COURT ON THE DATE OF YOUR HEARING

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

REQUEST A POSTPONEMENT TO FIND LEGAL REPRESENTATION

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.

OPPOSE YOUR EVICTION IN COURT

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

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

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.

If you choose to represent yourself, it is still recommended that
you seek legal advice.

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

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

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.

To qualify, you must either be unemployed
or earning less than R5500/month after tax.

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.

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: cls@capelawsoc.law.za

Send a Please Call Me: 079 835 7179

Web: www.capelawsoc.law.za

Email: legalaidadvice@legal-aid.co.za

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: refugeelawclinic@uct.ac.za

Email: info@lrc.org.za

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: contact@nu.org.za

Building, 1 Stanley Avenue, Rondebosch,

Web: www.nu.org.za

Cape Town, 7700
Tel: 021 650 3775
Email: uctlawclinic@uct.ac.za
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.

Fully understanding the entire eviction
process will allow you to better instruct
your lawyer and understand what steps
to take next.

evicted, you need to instruct your
lawyer to oppose your eviction.

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

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.

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.

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.

FOLLOW UP WITH LAW CLINICS

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.

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.

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.

When served with papers, such
as the Notice of Motion (page 25)
and Section 4(2) Notice (page xx),
ensure the City is cited.

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.

the City and your landlord.

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.

The city is obliged to engage meaningfully with you once they are cited
in your eviction case.

Despite this obligation, the city has
been known to avoid meaningful
engagement.

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: contact.us@capetown.gov.za
Legal Services Department:
Telephone: 021 400 2908
Email:
Housing Department :
Telephone: 021 444 0333
Email: housingdb@capetown.gov.za

CONTACT THE CIT

Web: www.capetown.gov.za
Hours: Mon–Fri, 7:30AM–5PM
42

STEPS THE CITY SHOULD TAKE
1

CONTACT & ARRANGE TO MEET

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

of your situation.

OFFER ACCOMMODATION
Based on your personal circumstances
and level of need, the City should offer you

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.

STEPS YOU SHOULD TAKE
1

ANY OFFER IS GUARANTEED

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.

REJECT ANY RELOCATION CAMPS

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.

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.

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.

FINDING EMERGENCY HOUSING

TAKING ACTION
TASK TO COMPLETE
1

PAGE

ENSURE THE CITY IS CITED

DONE

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).

TELL THE CITY YOU WILL BE MADE HOMELESS

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.

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.

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.

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.

Once all documents have been
filed with the court, a date is given
for the court hearing.

In the hearing, everything that has
been placed on affidavit will be
argued in court.

Once the court has heard all the
information, the judge will make
an order that takes all relevant
factors into consideration.

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

CHECK COURTROOM & DATE

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.

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!

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

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:

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.

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.

SHOW EVIDENCE OF ATTEMPTS
Present any communications from legal
aid organisations (page 38) that prove you
have made an effort to find representation.

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.

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

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!

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.

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

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.

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.

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.

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

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

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.

CONTACT RECLAIM THE CITY FOR SUPPORT

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.

OPPOSE YOUR EVICTION

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.

ASK FOR A POSTPONEMENT TO FIND LEGAL REPRESENTATION

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

DO NOT SIGN OR SETTLE AT COURT

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!

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

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.

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

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

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.

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.

Once the

been filed with the court, your
eviction is

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.

While the appeal process is
underway, nobody may act to
remove you from your home.

During the appeal process there
are specific timelines that cannot
be missed. If you do miss a deadline, your appeal may lapse and

NOTICE OF APPEAL
This document notifies the court and
your landlord that you are appealing the

your eviction can be executed.

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).

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).

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.

PREPARE YOUR BELONGINGS

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

UNDERSTAND HOW AN EVICTION IS EXECUTED

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

SEEK LEGAL ADVICE TO APPEAL

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

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.

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,

committee@reclaimthecity.org.za

not profit!

General enquiries:
contact@reclaimthecity.org.za

THE CIT Y
CONTACT RECLAIM
MATION
FOR MORE INFOR

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

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.

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.

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

MAKE NOTES

GUIDE TO

THE EVICTION
PROCESS
RESOURCES AVAILABLE ONLINE

Visit: www.evictions.org.za

THE EVICTION PROCESS

ORGANISING
A PROTEST

LEGAL ASSISTANCE

TOOLKIT & GUIDE FOR

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