Pertinent to current South African Law, there are do’s and dont’s when one is facing a possible illegal eviction. Corruption being the primary issue, recognising an imminent illegal eviction timeously, can be very difficult due to the suddeness of the landlord’s actions. If a court process is underway, it is a certain warning sign. A long silence from your acting attorney will be another serious indicator. Disruption of the electricity and water supply will confirm the tenant needs to expect the worst.
Despite robust legislation in place, illegal evictions still occur. How to see an illegal eviction coming, and what to do in the event of an imminent illegal eviction, is the essence of this brief study. It is important to know that an illegal eviction is an eviction that takes place without proper court process being followed. This type of illegal eviction is frequently executed by landlords taking the law into their own hands. Another type of “illegal eviction” occurs with what appears to be proper court process, but is in fact not proper court process, but “friends” doing favours for “friends” from The Bench! The victim’s difficulty lies in the fact the Sheriff is none the wiser, not knowing the difference between a genuine Order of Court, or an improper “Order of Court”. Amos 5:9 to 15.
A landlord might for any number of reasons wish to see a tenant leave. The landlord could move to court to cancel the tenant’s lease, thereby negating the very purpose of entering into a lease , (it has been known to happen), or try to seek an arrangement with the tenant to get the tenant to leave the property earlier than the tenant had planned, the prevention of which, forms the very reason for having entered into a fixed term lease, or the landlord may simply go the least expensive route, which is to disrupt the electricity and water supplies to the rented premises.
In the eventuallity of the utilities of electricity and water being disrupted, the tenant will be dealing with a landlord without any ethics or scruples. The tenant must immediately move all valuables and sentimental belongings to a place of safety to prevent the unlawful seizure thereof, before being unlawfully locked out. In this event it is best to get a trusted person to collect the valuables, in order to facilitate the tenant’s continued possession of the property. In cases where a valid builder’s lien is in force, under no circumstances is the tenant to leave the property unattended.
Without electricity or water it becomes impossible to live comfortably, hygienically, or work. The tenant cannot charge a cellphone or laptop, nor take a bath. If the matter is prolonged, the tenant will be forced to leave the property to be able to wash and work. It is at this stage, the moment the tenant is OFF the property, usually with only emergency supplies in hand, that the landlord makes a move to illegally lock the tenant out. Such a landlord might then illegally exercise a landlord’s hypothec, and claiming the right to seize the tenant’s property in lieu of rental owed, take the law into their own hands. A landlord’s hypothec is a court process where judgment in respect of rental owed is followed by an order of court to attach the tenant’s property until such time the tenant has paid. This will be deemed a perfected landlord’s hypothec. The rental owed must first become a liquidated amount before the Court in that there is a judgment of rental owed, and then the landlord may attach goods to the value of the rental owed. It requires the Sheriff to serve proper legal process on the tenant, and the landlord’s hypothec is thus perfected.
The law states clearly that even if the tenant is in arrears, the PIE Act (Prevention of Illegal Evictions) must be followed. Very basically the landlord must follow proper legal process, give proper notice in terms of the lease, or, relocate the tenant to acceptable premises before approaching the court for an eviction order.
In the worst cases where the tenant is suddenly faced with having to leave the property in order to maintain hygiene and work, the tenant must NOT for any reason of courtesy or under any circumstances advise the landlord that the tenant is doing so. The tenant MUST treat the landlord as clandestinely as the landlord has treated the tenant! If this is not followed, then a Spoliation Order which will certainly be obtained in the tenant’s favour, may be discharged (overturned) by the Court on the return date if not sooner. The landlord will use whatever note or letter the tenant has written, and very likely file a counterclaim.
If the utilities water and electricity have been disrupted to force the tenant to leave, the correct course of action is to approach an attorney for a Spoliation Order. A Spoliation Order obliges the landlord to permanently restore the utilities of water and electricity immediately, or risk being charged with contempt of court.
This lesson issues out of the experience of a victim of 2 illegal evictions, one commercial, and one domestic. In both cases disruption of the utilities played their part. The legal situation, or governing bodies may vary from country to country, however, these are the general guidelines to follow.
When one occupies desirable property that is leased, and an illegal eviction appears imminent, it is possible your own attorney might assist the party wishing to take occupation of the property! Illegal evictions are ruthlessly executed with devastating consequences, and should be avoided at all costs. The occupant, in the process of being forced out through corruption in the courts, will certainly be in a desperate situation, needing to buy time!
If your lease has been cancelled by what appears to an Order of Court, the correct process to follow is to timeously note an Appeal. Thereafter the Appeal should be properly set out, and served. The next step is to pay the bond of security to lodge the Appeal. This prevents the issue of a warrant in terms of the Order of Court. Your attorney may say “Do not pay the bond of security, that he or she will attend to it”, and then he or she does not do so, thereby enabling the issue of a warrant of ejectment or eviction.
Whilst the warrant looks legal in the Sherrif’s eyes, it is gross neglect on behalf of your attorney that undertook to pay the bond of security, which sails close to the wind of fraud! If your attorney asks you to sign an indemnity, then you must be on your guard, and realize you have the wrong lawyer.
Neglect, injury, or breach, are the three legs on which a civil claim for damages may stand. First, the claim must be quantified, and legal process must be served within three years.
Lester Oliver Thomas Flock © 2020