Cyril has received a summons for 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 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?

Cyril must respond to the summons. If he does not respond, the court will give the landlord the eviction order. This is called a ‘default judgment’. Cyril should see an attorney immediately or get help from the Justice Centre at the Magistrate’s court to help him defend the summons. (See Default judgment)

Cyril and his attorney must fill in a form on the back of the summons called a Notice Of Intention To Defend. 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 still go to the court and ask for a quick judgment, called a ‘summary judgment’, against Cyril. To get this the landlord must convince the court that Cyril is a real threat to him and the property. However, the landlord must send Cyril a notice if he wants to apply for a summary judgment. Then Cyril and his attorney can write a document and explain that he does have a defence.

Once the Notice of Intention to Defend is in the process it goes through the pleadings stages. The court will decide who is right. If the landlord is right, then the court will give an Eviction Order. But even if the court does this, 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 Summary of steps in a civil claim)

The Sheriff can force Cyril and the people living with him off the property. The Sheriff can get the help of the police to make Cyril leave if he refuses. The court can also fine Cyril if he refuses. The landlord must not help the Sheriff.

If Cyril owes rent, the landlord can ask the court for an order to attach his goods. If the court gives this, 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. (See Interdicts) In many cases where landlords want to evict their tenants, they will issue the tenants with an application for eviction in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). 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.