What Happens When A Tenant Opposes An Eviction?

For many landlords, learning that a tenant intends to oppose an eviction application is one of the most stressful aspects of evictions. Landlords often view this as the tenant now having the upper hand and that the eviction process has been halted indefinitely. While a tenant does have the right to oppose an eviction, an opposed eviction does not automatically grant a tenant a valid defence to remain on the rental property. What it does do is alter how long the eviction process takes, increases legal costs and the overall legal procedure.

We stress the fact that in all legal proceedings, including evictions, the person being sued is entitled to oppose or defend such legal proceedings

Opposed vs Unopposed Evictions

Under the PIE Act, every eviction follows the same basic procedure in that a landlord issues an eviction application in the Magistrate’s or High Court, and the relevant court may authorise a section 4(2) notice and give directions as to service of the section 4(2) notice informing the tenant and the Municipality of the proceedings.  The section 4(2) notice must give the tenant due notice of the eviction proceedings against them and further inform the tenant of their right to appear before the court, obtain legal representation and to oppose the matter if they wish to.  

Should the tenant choose to oppose the eviction application, the tenant would need to file and serve his/her notice of intention to oppose together with his/her answering affidavit responding to the landlord’s founding affidavit and putting their version of events and defences before the court.

On the other hand, an unopposed eviction, is one where the tenant has failed to file a notice of intention to oppose and an answering affidavit and has not appeared in court to defend the proceedings in any way.

Opposed Evictions

It is important to note however, that the mere fact that a tenant has decided to oppose the eviction does not mean the tenant has a valid defence against the eviction proceedings. A tenant has the right to oppose an eviction and can elect to oppose an eviction for various reasons.

The most common grounds of opposition by tenants include that the tenant is unemployed and can no longer afford rent, the tenant cannot afford to obtain alternative accommodation or that the lease agreement has not been properly terminated. The outcome of an eviction lies on the merits of the opposition and not merely on the existence of such opposition and a number of eviction orders have been granted even where a tenant has filed their intention to oppose.

Eviction proceedings in South Africa are not purely contractual disputes. Courts are required to balance a property owner’s rights with the constitutional protections afforded to unlawful occupiers under section 26 of the Constitution and the provisions of the PIE Act. As a result, courts consider both the legal basis for the eviction and whether granting the order would be just and equitable in the circumstances.

Opposition As A Way To Delay The Process

In some instances, the tenant will have full knowledge of the eviction proceedings against him/her and will fail to act, making the eviction appear unopposed to the landlord. The tenant will then usually either wait until the eleventh hour to file their opposing papers or even arrive at court on the day the matter has been enrolled on the unopposed roll to either seek a postponement to obtain legal representation or inform the court that they will be representing themselves and aim to oppose the eviction.

In other instances, a tenant’s opposition may be incomplete in that he/she files a notice of intention to oppose but fails to file an answering affidavit.

A further common basis upon which tenants oppose eviction proceedings is by placing their personal circumstances before the court. Factors such as the presence of minor children, advanced age, disability, illness or financial hardship may influence the court’s determination of what is just and equitable in the circumstances.  

As mentioned above, this clearly shows that the outcome of the eviction lies greatly on the merits of the defence raised and not merely on whether an opposition has been filed or not.

How Courts Deal With Opposed Evictions

Where an eviction application is opposed by an answering affidavit filed before the matter appears on the unopposed roll for the main eviction hearing, the position is that the landlord would need to withdraw the matter from the unopposed roll and have it re-enrolled on the opposed motion roll.

Where an eviction is subsequently opposed at the last minute or the tenant requests additional time before court to secure legal representation or additional time to file his/her opposing papers, the court is likely to postpone the matter to another day to allow the tenant the opportunity to do so.  

However, courts are highly aware of postponements being used as a delaying tactic rather than a genuine attempt to engage with the process. Where a tenant simply fails to appear at all, the court may proceed to hear the matter in the tenant’s absence, which can result in an eviction order being granted so that silence cannot be used to delay proceedings either.

Timelines

Landlords often question how long a tenant can “play for time” or drag out the eviction process by opposing it. Generally speaking, this depends on the grounds raised by the tenant and the reliance the court will have on those grounds and circumstances.

Realistically, opposed evictions can possibly push the matter by an additional couple of months, owing to the exchange of papers between the parties, the cooperation needed between the parties and possible interlocutory application in between to compel either party to comply with court rules etc. Further, court backlogs in allocating court dates amplify the time it takes to bring an eviction matter to finality.

A further aspect that causes delays in evictions is securing the cooperation of the Municipality. In certain matters, particularly where occupiers may be rendered homeless, the court may require information from the Municipality regarding the availability of emergency or temporary accommodation. This can contribute to delays in the finalisation of proceedings.  

Conclusion

Opposition does not stop an eviction, but it does test it. A tenant who opposes an eviction on valid grounds can reasonably delay the eviction process. On the other hand, a tenant who opposes purely for the purposes of playing for time and delaying the process may generally only succeed in obtaining some postponements before the court proceeds to decide whether or not to grant the eviction.

Disclaimer: This article is intended for informational purposes only and does not constitute legal advice. Each eviction matter depends on its own facts and circumstances, and landlords and tenants should obtain legal advice specific to their situation.

Prepared by Khanyisile Mabunda