YOUR RIGHTS AS A TENANT
According to our Constitution, all South Africans have the right to access to adequate housing. The government also has a responsibility to take reasonable measures in time to provide decent housing to every South African citizen.The law protects the rights of property owners as well as the rights of Occupants/Tenants. When facing an eviction, Tenants can defend themselves. Many citizens are living salaries and business income, paying rent is a priority for most South Africans to ensure they have a roof over their heads. But in times of great financial strain, it’s often not possible or realistic for some to sacrifice a significant portion of their income to pay rent. And while the law is on the side of landlords to claim arrears and cancel lease agreements, it also protects tenants from illegal removals. As a Tenant, you must know your rights when facing an eviction. Evictions happen in cities and rural areas across South Africa every year. And the unfortunate reality is that many disgruntled or unreasonable landlords evict occupants illegally, and often in violent ways. Whether these landlords are not in the know or have little regard for the law, it doesn’t change the fact that to evict someone; the correct legal procedure must be followed.
It’s important to remember that you cannot be illegally evicted from your home, a rented place; eg. shop, house, etc. without a court considering all the circumstances and the effect that the eviction will have on you and your family. These circumstances include whether there are vulnerable people (such as the elderly, people living with disabilities, children and women-headed households) involved; how long you have resided at the premises; and whether you will be left homeless. If you are renting a property, it’s essential to keep in mind that the property owner as Landlord can go to court and seek an eviction against you (remember, they cannot physically evict you) for one or more of the following reasons:
Some Landlords disregard the law and rights of tenants and employ tactics to remove tenants from the property forcefully. It’s important to know that:
If you are in breach of your rental agreement, the landlord’s first step must be, to send you a letter making you aware of the violation and giving you time to remedy the situation. If you don’t find a solution by a specific date, the contract will be cancelled, and the landlord can ask you to leave. If you don’t vacate the property, the landlord can go ahead and apply for Eviction Order. The Sheriff of the Court will serve a Notice on you and indicate when you will have to appear in court. On the day you appear in court, the Magistrate could postpone the proceedings for arguments. If you don’t oppose the application the court will consider all the facts, determine if you are an unlawful occupant and give you reasonable time to find other accommodation and leave the property the court has made an order, and you still don’t leave the premises, the Sheriff can remove your belongings.There is usually enough time for you to gather all your facts on the matter so that you can present a counter-argument. Courts are known to side with tenants if you can prove that the landlord is claiming that you haven’t paid rent, but you have statements to back up that fact that you have. Or if you the landlord has failed to carry out maintenance on the house and you deducted the costs from your rental amount or the landlord has treated you unfairly.
Since a forced removal from the property without a court order is unlawful, it is well within your rights to approach the police and make a case. The police should then warn the landlord or others involved that they are breaking the law and that they could face being arrested if they persist. Alternatively, you could also approach a lawyer for assistance. If you don’t have legal cover and cannot afford a high-profile lawyer, you can contact the Legal Advice Centres, Legal Aid Board or a University’s legal clinic, which does pro bono(free) work.