Lowdown on eviction orders

What all tenants need to know – or run the risk of being turned out on the street

IT IS not unusual for a landlord to stay an eviction order when the tenant undertakes to honour all future rentals in full and on time, and to settle the landlord’s legal costs.

Most tenants do not understand the implications of missing future deadlines, falling into arrears or failing to settle the legal costs.

The consequences are far worse for a tenant with a suspended eviction order. The landlord can “activate” the warrant of ejection and the sheriff is obliged to remove the tenant from the dwelling.

Such was the story of Christopher Robin Coetzee, who with his wife Rieta and four children occupied a house at 11 Huguenot Street, Ruyterwacht, in the Cape Peninsula.

Coetzee concluded a written lease in November 1999 with Communicare, which provided social housing to poor tenants.

The initial rental was R434.38, excluding municipal charges and electricity, and with the annual escalation, 10 years later the rental increased to R1615. The government subsidy reduced the rental to R864.62, but Coetzee fell into arrears from time to time during the 10 years.

In January 2009, Coetzee, who worked as a welder in Epping, was on short-time employment and, as the sole breadwinner, was unable to meet his rental commitments. The landlord instructed its attorneys to take action in February 2009, and when Coetzee failed to pay the rental of R864.62 after the letter of demand, the lease was cancelled for breach.

Kaminer Kriger & Associates attorneys, acting for Communicare, brought an application in the Goodwood Magistrate’s Court in terms of section 4(2) of the Prevention of Illegal Eviction (PIE) from and Unlawful Occupation of Land Act, 19 of 1998 (PIE). Coetzee was informed in the PIE application that his landlord intended to bring an eviction application on April 30, 2009.

At court, he met a Ms Casey, from the attorneys’ office, who told him the eviction had been stopped on condition he settled the legal fees by making an arrangement with Communicare.

Coetzee was shocked when the sheriff notified him on September 15, 2009, that he would have to move out with his family and belongings within five days. He was not aware that the eviction order was granted on the day he met Casey, on April 30.

Coetzee’s friend lodged a complaint of unfair practice on his behalf with the Western Cape Rental Housing Tribunal. The complaint related to “exorbitant increases in rentals and unfair practices”. The lodging of the complaint served as an interdict and the eviction order was stayed in terms of section 13(7) of the Rental Housing Act 50 of 1999.

This section states that from the date of any complaint having been lodged with the tribunal, until the tribunal has made a ruling on the matter or a period of three months has elapsed, whichever is the earlier:

(a) The landlord may not evict any tenant, subject to paragraph (b);

(b) The tenant must continue to pay the rental payable in respect of that dwelling as applicable prior to the complaint or, if there has been an escalation prior to such complaint, the amount payable immediately prior to such escalation; and

(c) The landlord must effect necessary maintenance.

Coetzee continued to occupy the dwelling for 29 months, paying his rent, contributing towards the legal fees, but falling into arrears. This went on for the next two years, until he was evicted by the sheriff. On appeal to the Western Cape High Court (Coetzee v Communicare and Others 2012 ZAWCHC 249), he succeeded in having the eviction declared illegal.

Communicare was ordered to restore occupation and possession of the dwelling to the Coetzees by close of business on Friday, December 21, 2012.

The sheriff and Communicare were ordered not to interfere with the Coetzees’ restored possession without the oversight of a court in terms of the relevant provisions of the act.

Communicare was also ordered to pay Coetzee’s legal costs. The court was not unsympathetic to Communicare, and took notice of the good intention on the part of its attorneys to stay the warrants of ejectment to allow defaulting tenants a last chance to settle their debts.

The court, however, could not allow arbitrary evictions, which was what happened when the decision to evict was at the sole discretion of the landlord’s agent. This ruling does not mean that Communicare is precluded from evicting unlawful occupiers from its properties: it must simply follow the procedures required by the law.

There is no reason, for instance, why the Coetzees could not have been served with an application in terms of section 4 of the act, which application could then have been postponed pending the regularisation of their continued rights of occupancy by the payment of, for instance, arrear rentals.

In the event of a failure to comply with the terms of such a pactum, the Prevention of Illegal Eviction application could have been set down on due notice to the occupants.

A tenant who is informed that legal action was withdrawn must ask for proof, for example, a withdrawal notice that is filed with the court. A notice of withdrawal must have a court stamp reflecting the date it was filed, as proof of the filing of the notice.

The tenant must respect and fulfil an undertaking given to the landlord.