<--- Back to contents

Chapter 10 - Land and Housing

Problem 1

A landlord applies for a civil eviction order

Cyril has received a summons for his eviction from his property because he is not up to date with his rental payments. He believes this is unfair because the landlord hasn’t fulfilled his own duties in terms of the contract, for example, by fixing the leaking roof. He wants to fight the court action. What should he do?

What does the law say?

1. Cyril must respond to the summons. If he does not respond to the summons, the court will give the landlord the eviction order. This is called a 'default judgement'. Cyril should see a lawyer immediately or get help from the Justice Centre at the Magistrates Court to help him defend the summons.

See Default judgments

2. Cyril and his lawyer must fill in a form called a NOTICE OF INTENTION TO DEFEND which is on the back of the summons. The form must be delivered to the court not later than three days after he received the summons. Even if a Notice of Intention to Defend was delivered to the court, the landlord could go straight to the court and ask for a quick judgement against Cyril. This is called a 'summary judgement'. To get a summary judgement, the landlord must convince the court that Cyril is a real threat to him and to the property. However, the landlord must send Cyril a notice if he wants to apply for a summary judgement. Then Cyril and his lawyer can write a document and explain that he does have a defence.
3. Once the Notice of intention to defend is in the process goes through the pleadings stages.

See Summary of steps in a civil claim

4. The court will decide who is right in the situation. If the landlord is right, then the court will give an EVICTION ORDER.
5. But even when the court gives an eviction order, the landlord still cannot force Cyril off the land or out of the house until he sends a document called a WARRANT OF EVICTION which must be stamped by the court and delivered by the Sheriff of the Court.

See Warrant of execution

The Sheriff can force Cyril and the people living with him off the property, and take his goods out of the house. The Sheriff can get the help of the police to make him go if he refuses. The court can fine him if he does not listen to the Sheriff. The landlord must not help the Sheriff.

6. If Cyril owes rent money, the landlord can ask the court for an order to ATTACH his things in the house. If the court gives this, it means the Sheriff can take Cyril’s goods away. The Sheriff sells the goods and pays the landlord the money that he owes. The landlord can also bring a special application to the Magistrate’s Court for Cyril’s immovable property to be attached and sold to pay the outstanding debt. The landlord could also ask the court for an order to stop Cyril from selling his goods or taking them away before he has paid the money he owes. This type of order is called an INTERDICT.

In many cases where landlords want to evict their tenants, they will issue the tenants with an application for eviction in terms of the PIE Act. It is very important that the person receiving the application should go to court to file an affidavit stating that they want to defend the application to evict. They should do this with the help of people at a Justice Centre.

Problem 2

Being arrested and charged with trespassing

Dilly has to appear in court on a charge of trespassing. How can she defend herself?

What does the law say?

Trespassing means going onto someone's land without getting permission from the owner or the lawful occupier. The police can arrest a person for trespassing. If the court finds the person guilty of trespass, they can get a fine or a jail sentence.

What can you do?

Dilly was arrested for trespass so she must appear in court on the date given to her. If she believes she had a lawful reason for being on the land, she must explain this and defend herself in court. In other words she can use a defense. These are some of the defenses she could offer the court:

- She had a right to be on the land because she is a tenant and proper notice was not given by the landlord
- She had permission to be on the land because she was given permission by the owner or lawful occupier or a person in charge
- She had a lawful reason to be on the land even though she didn’t have permission. She had a lawful reason because:

• she went onto the land to ask the permission of the owner or lawful occupier to be on the land
  
• she went onto the land to sell or deliver something to the owner or lawful occupier

- She thought she had a lawful reason to be on the land even if she did not have permission or a lawful reason to be on the land
- She honestly believed the owner would not mind about her coming onto the land.
- She had no choice, for example, she had to walk across the land because the public road was flooded - this defence is called 'necessity'.
- She has a right of retention which means she can stay on the land until the landowner pays her compensation for any improvements she made on the land.

If she has one of these defences, she is not guilty of trespass.

Problem 3

Protecting dismissed farmworkers against eviction

A group of 15 farmworkers was dismissed. They are told to leave the property at the same time as their jobs end. What can they do?

What does the law say?

If farmworkers are dismissed and evicted then there are specific procedures to follow under ESTA as regards the evictions.

See Case-study ESTA.

See Solving disputes under the LRA.

What can you do?

(a) Fairly dismissed workers

In the case of a fair dismissal, the workers would lose their right to live on the farm and they would be given two months notice to leave their homes. However, if the farmworkers refuse to leave, the farmer will have to apply to the court for an eviction order. The farmer must give two months notice of his intention to approach the court for an eviction order. The farmer must also give the municipality and the DOL notice at the same time of his intention to apply for an eviction order.

(b) Unfairly dismissed workers

If the farmworkers believe they have been unfairly dismissed, they can refer the case to the CCMA. They can ask a Magistrate to allow them to stay in their houses while the CCMA is hearing the case. If the CCMA decides that the dismissal was fair, the eviction proceedings can go ahead following the normal procedures in terms of the law. Obviously if you have been successful in keeping your job through the CCMA, then it is unlikely that the eviction will go ahead (because there will be no grounds for this).

Problem 4

Protecting labour tenants against losing land

How can labour tenants protect themselves against losing the land? What are the legal rights of labour tenants?

What does the law say?

A labour tenant is someone who pays their 'rent' with labour. In other words they work for the farmer in exchange for using the land for grazing or crops. The biggest problem for labour tenants is when the farmer ends the contract and evicts the tenant.

The Land Reform (Labour Tenants) Act protects labour tenants in certain ways. The Act says that:

• Labour tenants have the right to use the land they occupy if they continue to provide labour for the farmer.
• Labour tenants can only be evicted by a court order granted in terms of the Act.
• A labour tenant who is 65 years or older may not be evicted for not providing labour.
• If a labour tenant is evicted through a court order, the owner must pay the labour tenant compensation for improvements and crops.
• A labour tenant has the right to acquire the land he or she has worked and lived on. This can be negotiated with the farmer, with the assistance of the Department of Land Affairs.

The land - If you have worked for the farmer for the agreed time, you must be given the same amount of time to live free on the land. The farmer can't give you notice. For example, if you worked for the farmer from January to June, you can stay free on the land from July until December. The farmer can't give you notice in September. The notice period can only start after December, unless you do something seriously wrong.

Evictions – Labour tenants can only be evicted in specific circumstances such as:

• if they breached the contract with the landowner and stop providing labour
• if there is a complete breakdown of the relationship between the labour tenant and the farmer
• where there is a real danger of damage to the farmer or property
• where the likely harm to the farmer is greater that the likely harm to the labour tenant
• if the farmer urgently needs the land for development which the Land Claims Court believes is more important than the rights of the labour tenant

In all cases, the farmer must apply directly to the Land Claims Court and not to the Magistrate's Court to evict labour tenants.

Labour tenants must get 14 days notice that the farmer is going to apply for an eviction order. This gives the labour tenants a chance to oppose the eviction in court.

Alternative land - The Land Claims Court can order that a person is given alternative land if they cannot come to an agreement with the farmer about staying on the same land.

Problem 5

Provision of land, housing and services for homeless people

What are the different legal ways for our community to get land, housing and services?

What does the law say?

The Development Facilitation Act says that provincial authorities can make land available where people can settle and have secure tenure immediately. The land settlement grants and housing subsidies from the Government can help to pay for houses and services.

See Land redistribution and land grants.

See Types of housing subsidies.

But the laws alone will not deliver land or housing. Communities must also take the initiative to ensure that they get their rights. For example, in the Grootboom case, the Cape High Court and the Constitutional Court dealt with the obligations of the government regarding the right of access to adequate housing. The Court said the state must provide the children and their parents with shelter until their parents were able to shelter their own children. The bare minimum kind of shelter included tents, portable toilets and a regular supply of water. The Constitutional Court said all spheres of government (national, provincial and local) had a duty to have a plan and a programme in place to care for the needs of homeless people.

The integrated development plan of a local authority must include measures that will help to create housing and must provide for homeless people and those most in need of shelter and housing.

See Integrated Development Plan.

What can you do?

Community organisations can ask for a meeting with the person responsible for housing in the local municipal council. Then they can discuss finding land and setting up services.

Community leaders can also ask to be provided with the local authority’s integrated development plan (IDP) that shows how job creation, housing and services in the area are going to be facilitated.

See Lobbying.

Problem 6

Negotiating to upgrade an informal settlement

The authorities agree that our community can stay on the land where we have settled. How can we improve our area? What are the important things we need to work for or demand?

What can you do?

Community leaders can take political steps rather than legal steps and negotiate a better way to improve an area. The upgrading can take place while the people carry on living in the area. If the community is involved in the improvements, they will have a better chance of getting what they need and want in the area.

A community can make suggestions to authorities about, and organise for:

- Loans - Banks seldom lend money for squatter housing improvement, because they think that many people will not be able to pay the money back. The government gives subsidies to families that qualify to help them pay for housing. Communities can organise group savings schemes to save money to add to their subsidies.

See Land redistribution and land grants.

See Types of housing subsidies.

- Building materials and advice - Communities can approach demolishers, construction companies and companies that produce building materials, to ask for cheaper stock or second-hand materials. People in the community can also make building materials. Your local authority can assist. Contact the Department of Housing to find out more about the People's Housing Process.

See The People’s Housing Process Establishment Grants.

- Investment in public buildings and services - Communities can lobby local authorities and government to build places like community centres and childcare centres. This adds to people's feeling of security in the area

Problem 7

Applying for an individual housing subsidy

Veronica is a single, divorced parent supporting three children. She earns R2 500 per month doing odd domestic duties. She has never received a housing subsidy before and would now like to apply. Will she qualify and how can she apply for a subsidy?

What does the law say?

The law says that a person may apply for an individual housing subsidy if they are South African, over 21 years of age and earning less than R3 500 per month. The person must also either be married or single but with dependents, he or she cannot have owned a house or property anywhere in South Africa, and may not have received a housing subsidy in the past. According to these criteria it seems that Veronica will qualify for an individual housing subsidy.

What can you do?

Veronica can apply to the local council housing department for a housing subsidy. She will have to take the following documents with her: her identity document, the birth certificates of her children, her divorce papers and a recent payslip as proof of income.

See Individual Housing Subsidy.

Problem 8

Common problems in renting a house or flat

What are the common problems tenants have and what can they do about them?

What does the Law say?

The Rental Housing Act deals with the relationship between landlords and tenants. If there is a dispute between a landlord and a tenant then either of the parties can refer the complaint to the Rental Housing tribunal. Most problems that tenants and landlords have with each other can now be referred to the Rental Housing Tribunal.

See Making a complaint to the Rental Housing Tribunal.

Some examples of these are:

- Rent and service charges increase and this was not part of the lease agreement - The Rental Housing Act states specifically what should be included in a lease agreement to try and prevent disputes arising. The lease agreement should include a section on when, and by how much, rent and service charges will be increased. The landlord must stick to the terms of the agreement.

- You owe rent so the landlord takes your belongings without a court order - The landlord may not remove any of your belongings without a court order. He or she should refer the problem to the tribunal. If you are not paying rent because you believe the landlord is breaking the agreement (for example, not maintaining the building), then you should take steps to refer the matter to the tribunal yourself, rather than refuse to pay rent.

- You owe rent, so landlord takes away goods you are still paying off - If you are paying something off on an instalment sales agreement, for example a TV set, then it does not belong to you yet. The shop you bought the goods from is still the owner. Show the sales agreement to landlord or Sheriff the Court, or get the company to tell the landlord that they are the owners. The landlord or Sheriff of the Court can then not take the goods away. If they have already taken it away, you should immediately go and tell them that you are still paying the goods off. Take the sales agreement with you, or get the shop to telephone them.

- The landlord does not keep the property in good repair - The common law says that it is the landlord's duty to do repairsand maintain the property in good condition. You are only responsible for maintenance such as painting the inside walls. You can write a registered letter to complain to your landlord if he or she is not doing maintenance. If nothing improves, you can make a complaint to the Rental Housing Tribunal.

- The landlord enters your house or flat in order to inspect it without your permission - The Rental Housing Act says that a landlord may only inspect premises in a reasonable manner after reasonable notice. You can complain to the Rental Housing Tribunal in your province. The complaint will be recorded. If the landlord enters the premises unreasonably and without notice again, he or she could be fined or even receive a maximum prison sentence of two years.

See Rental Housing Act.

Problem 9

Falling behind on rent or rates and services payments to the local council

Alida, a single mother of three children, lives in a rented Council house. Her 75 year old disabled mother also lives with them.

The household survives on Alida's income from occasional casual work, a Child Support Grant for one child who is under 14 years and her mothers state pension. For a long time now, Alida has not been able to keep up with her rent payments and has fallen into arrears of R2 500.

Alida has received a notice from the Council saying that they are going to take steps to evict her unless she pays all her rental arrears. The Council gives her 30 days to respond.

What does the law say?

The Council cannot evict Alida without a court order and the magistrate has to consider all the relevant circumstances of the family before granting an eviction order.

See Problem 1: A landlord applies for a civil eviction order.

Under the Municipal Systems Act , every municipality has to draw up and pass a by-law on credit control and managing debts. This should include provisions for arrangements for people who are in arrears, particularly for people who are indigent (living in poverty). It should say what penalties there are for people who default on any of their payments, including the disconnection of services or the eviction of tenants or owners.

Alida and her family fall into the category regarded as indigent and should therefore be protected by the Council's indigency policy.

See Providing public housing.

What can you do?

You can check whether the Council followed all the proper procedures before sending Alida the 30-day notice of intention to seek eviction. There might have been breaches of the right to administrative justice in the process of administering the arrears payments.

Then you should check what protection Alida has under the Council's indigency policy. If the Council has not given her protection or has ignored the socio-economic circumstances of her family, you should write a letter saying what the Council has failed to consider in Alida's case and asking them to withdraw the threat of eviction.

Problem 10

The hidden costs of buying a house

There are many extra costs involved in buying a house. The bank where you get a home loan, can help you work out how much these costs will be.

Costs you pay once

Some of these costs must all be paid at the beginning of your loan. So you will need to have money put aside for them. It could cost thousands of rands.

Deposit - You have to pay a deposit, or down payment, of 5% - 20% of the value of the house before any bank will lend you money.

Valuation fee - The bank will inspect the property to make sure the price you are paying is not too high.

Transfer duty and stamp duty - These are state taxes you pay.

Conveyancing fees (transfer costs) and bond registration fees - These cover the legal costs involved in the transfer of the house into your name and registering of a mortgage bond.

Municipal deposits - These are for water and electricity

Telephone connections

Removal costs - The cost someone will charge for moving your goods and furniture

Costs you pay monthly

Monthly repayments on the bond

Insurance on the house - The bank insists that you insure the house against flood, fire or hail damage. The monthly cost of the insurance (the premium) will be added to your monthly bond payments. It is also useful (but not compulsory) to take out insurance on your movable household goods.

Insurance of owner's life - If you die, the money from the insurance pays off the rest of the bond. This protects the family from losing their home. Banks insist on it because it means they will be paid even if you die. You can also add to the insurance to cover the bond if you should become disabled.

Rates and taxes (also called site rent) - You pay this every month or every year to the local authority for road upkeep, rubbish collection, community facilities and so on.

Electricity, telephone and water- these costs can be prepaid and are not necessarily paid every month.

Problem 11

Falling behind on bond payments

What do I do if I fall behind on my house bond repayments?

Bond repayments

Banks are very strict about being on time with your repayments. If you have money problems it is a good idea to see if you can change your budget around, or take in lodgers, so that you can still meet your repayments.

If you can’t do this, you must immediately go and discuss your problems with the bank where you have the bond. Don't wait until you have missed a payment. They will not be so willing to help you then.

The bank will usually try and work out something to help you. For example, if you had to take a drop in salary, they might let you pay lower payments and pay over a longer time, say 25 years instead of 20. This means the house will cost you more in the long run, but it helps you out now.

If you miss a payment, the bank will send you a letter of demand. If they do not hear from you and you miss four months' payments in a row, they will take the house away, have it sold and then use the money to cover what you owe them on the bond.

Problem 12

Problems with a house you bought

What can we do about things that are wrong with the house we bought?

Whose responsibility is it?

Sometimes things are wrong with a house, for example there is a broken window, the paint peels off the walls, the toilet leaks, there is a big crack in the floor, or a problem with the electricity.

Who is responsible for fixing the problem depends on whether you have the problem in the first three months or later.

Contract with a builder

If you sign a contract with a builder to build a new house for you, you must sign a delivery note when the building is completed. This is a form to say that you are satisfied with the house. Before you sign, you should go through every room and check the walls, doors, windows, plumbing, electricity, painting, ceilings and roof. Only sign the delivery note after the builder has fixed the problems and you are sure there are no more problems.

The three month guarantee time

After you sign the form, the builder will give you a three-month guarantee on the house. The duties of the builder are finished when the guarantee period (the three months) is over, except for latent defects. If you have a problem with the builder do not stop paying the instalments on your home loan. Your problem is with the builder, not the bank. It is also important to remember that if the value of defects is less than R7 000 then the purchaser can also go to the Small Claims Court. For bigger problems involving latent defects, people can bring applications in court without the help of a lawyer but this can be a difficult.

Latent defects

Sometimes hidden problems only show after three months or later. For example, if the roof collapses in the first few years, it may be the builder's fault. This is a latent defect. Here are some examples of latent defects that are the builder’s fault:

- There are big cracks in the wall and the house is only 2 years old

- There is a crack or hole in the floor and the house is only 3 years old

- Rain pours through the roof and the house is only 2 years old

Problem 13

Getting money from the Land Bank for farming

The Land Bank

Most people who have used up their land grant to buy land, want to know where they can get more money to use for farming.

The Land Bank lends money to farmers. For poor farmers, the Land Bank will give loans without surety.

Who can benefit?

People who qualify for assistance are:

• new farmers
• land reform beneficiaries
• poor farmers, especially women, who want to improve their farms

Different kinds of loans

Many different kinds of loans are available:

• Loans without surety where a good repayment record will qualify you for a bigger loan next time.
• Loans to people who also have a savings account with the Land Bank (at the Post Office).
• Loans to buy farming equipment or livestock, with an insurance against to cover your loan in case you can't pay it because of for example drought.

Contact the Land Bank, to find out where the nearest Land Bank agent is who can give you advice about loans.