ABANDONED FOLKS: consider debt-collection for your retirement/old-age home before you opt for eviction.

Old-age and retirement home owners are often confronted with the difficult task of deciding what to do in situations where residents who are mostly old pensioners can no longer afford the stay and care provided. In the landmark case of Malan v City of Cape Town (1) the Constitutional Court ascertained the position of our law regarding evictions of elderly persons. The case involved the City of Cape Town evicting an elderly woman from her rented home which formed part of the City’s public housing programme.

The issues before the Court were two-fold; whether Malan’s rental arears and the illegal activities conducted on the premises that consequently led to the City’s decision to cancel her lease agreement was against public policy or unconstitutional and whether the provisions of the Prevention of Illegal Eviction and Unlawful Occupation Act (PIE) (2) were applicable. The focal point of this article is whether home owners may validly terminate rental agreements entered into with the elderly on the basis of arrears in rental and the aim is to advise on other remedies that may be available to home owners to recover their monies before they elect to terminate the lease agreement and apply for eviction orders.

The Court of first instance in City of Cape Town v Malan granted the application to evict Ms Malan in terms of the PIE Act and ordered Malan and her family to vacate the premises within two months’ notice on condition that the City provides them with alternative accommodation. Ms Malan took the High Court’s decision to the Appeals Court holding that there was no material breach of her rental agreement and that the cancellation clauses in the contract were unlawful and unenforceable or her eviction was not just and equitable under her circumstances at the time. The application for leave to appeal was denied.

The case made its way up to the Constitutional Court where the City argued it complied with the High Court’s order by providing Ms Malan with alternative accommodation in an old-age home and adhered to the PIE Act. The CC held that there was procedural fairness in the process to evict Ms Malan because the City allowed her timeous notice to settle her arrear rentals. Furthermore, the Court found that the City was justified in cancelling the contract and applying for eviction taking into account the incidents of illegal activities that were also reported.

Therefore, the Court held that the City complied with Section 26 (3) of the Constitution which provides that no one may be arbitrarily evicted from their home without a court order. The eviction order was also found to be just and equitable as the City offered the elderly widowed pensioner alternative placement in an old-age home as has a constitutional responsibility to provide public housing and complies with the PIE Act.

While pensioners are protected as unlawful occupiers, the right to have access to adequate housing can also be limited. Fortunately, private home owners do not have a constitutional obligation to provide public housing so their occupants must seek alternative affordable residences. However, the PIE Act is still applicable where eviction is sought. The Act applies to all land throughout the Republic of South Africa except where the Extension of Security of Tenure Act (ESTA) applies and it is mandatory to comply with its provisions in applying for eviction.

Home owners must consider the following options for rental payments before they opt to evict elderly residents/pensioners from the retirement home:
1. Contact the resident’s next of kin/person liable for the occupier and make payment arrangements.
2. If their next of kin is deceased, find the executor of the deceased’s estate and lodge a claim.
3. Contact their provident/pension funds if they were contributing to one.
We also advise home owners to include stringent clauses when drafting their rental contracts to include full information of the occupant and their next of kin who must be assessed and able to afford and qualify to occupy your property.

EVICTIONS
An eviction order legally compels an occupant to leave the premises and it is the only manner in which property may be seized from another person. To evict someone from your premises, the following must be complied with (together with requirements under the PIE Act):
1. The owner must cancel or withdraw the consent of any right given to the occupier before applying for eviction and bring such action to the attention of the occupier giving them sufficient notice to vacate the premises.
2. If the occupier remains on the premises after the lapse of a vacation notice, the owner may approach the court and initiate eviction proceedings.
3. Written notice of the eviction hearing must be personally served by the Sheriff (at least fourteen days before eviction hearing) on unlawful occupier as well as on the municipality situated in the area of the occupied property. (4)
4. The owner and the occupier must both be present at court for the eviction hearing.

(1) Malan v City of Cape Town [2014] ZACC 25
(2) Act 19 of 1988.
(3) Act 62 of 1997
(4) Prevention of Illegal Eviction and Unlawful Occupation Act, Section 4 (5)