De Waal Esterhuyse

attorneys | conveyancers | notaries

EVICTIONS:

 

General:

In terms of the Constitution of South Africa (Sec 26.3), ‘no person may be evicted from their home....without an order of court’.  Laws like this are dreaded by Landlords, but you have the same rights to access a court of law to protect your interests as property owner (Sec 34).

 

It does mean that “strong arm tactics” Eg. Removing a door / cutting the water & electricity supply/ burly ‘family’ moving in on top is not allowed, and you will make the tenant as non-paying villain into a ‘victim’ to run to court for a spoliation order. These tactics are illegal: rather follow & uphold the law. 

 

Our role is to take the subjective bond between Landlord and tenant away: (i) To objectively deal with your problem Tenant; (ii) ensuring the process does not take any longer that it should; (iii) Liaising with the body corporate & SA Police Services.

Common fallacies about evictions:
‘…It takes 6 months…’	-Not if proper service of Notices is ensured.  We aim the Application to avoid any defenses (leading to delays);

‘…it costs R20 000.00…’ 	-No. We pre-agree upon a set fee for the process. No hidden extras.

‘..Eviction is immediately...’	-No. Any court will allow them at least 2 weeks to move.

‘..Papers issued is the order..’   	No. It is a Notice to start the process. It is not the Eviction Order.

 


BEFORE WE CAN GET TO THE PROCESS:

The ‘NOTICE to REMEDY BREACH/ PAY’ and ‘NOTICE OF TERMINATION & VACATE’?

=Were these Notices done & delivered? If not: they must be delivered at the UNIT.

 

The PROCESS:

It is an Application (not a Summons or a criminal case) in terms of The Prevention of Illegal Evictions & Unlawful Occupation of Land Act, No 19 of 1998. (all tenants / occupants of residential property)

 

◦ Attorney take instructions, draft documents, e-mails it for signing to the Owner (1 to 2 days);

◦ The signed forms are e-mailed back to attorney. Attorney generates the rest of the documents;

◦ Attorney issues in front of a Magistrate the Ex Parte Application for eviction (ISSUE Date);

◦ the Return date for Court is chosen;

◦ Sheriff services the Notice to be in court on the Tenant & the City of Cape Town (2-3 days);

 

HOW IS THE RETURN DATE CHOSEN?

=we must allow for +/- 4 days for service by Sheriff plus 14 working days (ito PIE Act) from ISSUE Date;

-choosing the quickest date yet allowing enough time for service. (here Complex gets you an advantage)

 

On Return Date: If Tenant show up at court: they are entitled to legal representation & always will be allowed a postponement or 2.  Cape Town Court grants postponement of max 2 weeks at a time.

 

If the Tenant is not at court on the return date? The Eviction Order is granted.

● about 30% of tenants vacate before the return date;

●If no defense: after 1 or 2 appearances. Then it is ‘game’s up’ and a date for Vacating is agreed upon;

● Almost all tenants Vacate according to the Court Order (no need for the Sheriff to Evict them).

THE TIME EACH STAGE OF THE PROCESS TAKES:

INSTRUCTIONS,ATTORNEY DRAFT DOCS;
CLIENT SIGN
MAIL BACK
,ISSUE at COURT
To SHERIFF 
,SHERIFF SERVES;
COMPLEX GIVE ACCESS; 
RETURN OF SERVE 

 


Day 1                                       Day 2                    Day 3 ‘Issue Date’                  1 Week later         

WAIT FOR RETURN DATE,NO APPEARANCE by Tenant:




APPEARANCE by Tenant:
(Agree to move / ‘Play for time’)
,ORDER:
VACATE in 14 / 30 day (Magistrate’s discression)
,If DEFENDED: -receive details of attorneys

 


                                                                                               

                                                                                                  +/-25 days before Return Date

 

Ask POSTPONEMENT FOR LAWYER / LEGAL AID LAWYER (2 Weeks),At FINAL COURT DATE:

● Arguments
● Point out ‘No Defense’
● Argue as to ‘Vacate Date’
● Argue as to Costs
● ORDER GRANTED
 


Importance of Service:

The occupants must be served personally by the Sheriff not less than 15 business days of the notice;

It is crucial that the documents are served in time.  If tenant manage to hide from service it’s a problem.

▪ Alternative Service then by affixing to door: Complex Patrols must again open up gate to the complex.

 

 

Most common problems with evictions?

no PROPER NOTICE OF BREACH (non payment) and TERMINATE & to VACATE exist;

● Service on a Tenant hiding away;

● Deputy Sheriffs that cannot get access to complex gate (the 15 days run short);

● Lawyers asking for arrear rental, fines & levies. =It hands tenant a factual dispute (a valid defense).

 

 

WHAT DO YOU NEED TO SUPPLY US TO START an Eviction?

▪ The Lease Agreement;

▪ Notice to Tenant to remedy non-payment (7 day notice);

▪ Notice to Tenant confirming Termination & to Vacate;

▪ Recent e-mails to Tenant;

▪ Names of persons living in Unit;

▪ Copy of ID or Passport of Tenant & Vehicles detail & Reg No’s (to make enquiries at SAPS);

 

The BENEFITS OF WORKING WITH US:

▪ severing the “too personal bond” with your problem tenant, which causes financial loss;

▪ Expedient Service of court documents via Complex Patrols;

▪ Minimum of Unnecessary Delays;

▪ Arranging of Monitoring & Inspections;

▪ Quality Service and Results;

▪ Dealing with possible criminal elements on your behalf;

▪ Assisting you and providing you with quality specialist legal service;

▪ Agreed maximum legal costs with no hidden fees.

 

HOW MUCH DOES AN EVICTION COST?

● We negotiate with the client a flat rate fee for the handling of the entire process;  All inclusive rates available on request;

● There are no hidden costs;

● There are no extra charges for postponements or disbursements;

● Once invoiced and paid, that is the total expenses applicable, *except removal fees (see below).

We reserve the right to inform and agree differently, should occupant delay and institute counter claims / joinder actions, etc. that results in numerous extra trial dates.

 

WHEN AND HOW IS IT PAYABLE?

◦ Upon Instructions to the Attorney to proceed to draft documents:

This covers Instruction fees, drafting of documents, travel to court for issue in front of a Magistrate, travel to sheriff, the cost of the sheriff for service on tenants & the City of CT.

Should the matter become opposed by trial in open court: further invoicing per court day will apply.

 

WHAT IF THE TENANT DOES NOT VACATE ON DATE THAT THE COURT ORDER INSTRUCTS AND THE COST OF IT?

The Court Order provides that 1 day after date for Vacating, the Sheriff forcibly removes any occupant.

Cost of removal: CLIENT HAS TO PAY IT. It is not included in the legal fees. This amounts to +/- R 9000 per ejectment, dependent on the amount of movables etc. on the premises. A deposit toward Sheriff Cost will be requested should the matter proceed to ejectment.