South Africa: Understanding the Documents You Might Be Sent During an Eviction

7 November 2019

You can't be evicted without a court order

If you're facing eviction, it's important to understand the difference between the documents you may receive. For instance, a Notice to Vacate and a Notice of Motion may sound similar and seem similar, but in the context of an eviction, they represent two completely different phases of the process and different actions need to be taken.

Understanding the difference between the two and knowing what actions to take (and when to take them) can save you from being evicted into homelessness.

What is a Notice to Vacate?

A Notice to Vacate is a conversation, letter, email, SMS or Whatsapp message from your landlords (or their lawyer) in which they state that they have cancelled your lease and that you must vacate the property by a certain date. If you breach the conditions of your lease, your landlord is entitled to cancel it and ask you to leave.

See an example of a Notice to Vacate here.

What is a Notice of Motion?

A Notice of Motion is a legal document that indicates that your landlord is taking you to court to have you evicted. The Notice of Motion outlines the details of the legal proceedings and it is important that you understand these details and respond appropriately. A Notice of Motion will be delivered and explained to you by the Sheriff of the court. A Founding Affidavit will also be delivered and should be attached to the Notice of Motion. A Founding Affidavit is a document that contains the reasons (called "grounds") your landlord has given for your eviction as well as the facts the landlord will be relying on in court.

See an example of a Notice of Motion here.

See an example of a Founding Affidavit here.

What should you do if you receive a Notice to Vacate?

If you receive a Notice to Vacate from your landlord telling you to leave your home, it does not mean you are evicted. You cannot be evicted without an order of the court! At this stage, there is still a lot of time to resolve issues and come to an agreement with your landlord. Going to court will be costly for your landlord and you should try to settle the matter without legal proceedings. This is what you should do:

Check that your Notice to Vacate is lawful (learn more about that here);

Set up a meeting with your landlord to discuss the cancellation of your lease and the Notice to Vacate; and

Try to resolve the issue so that the matter does not have to go to court.

What should you do if you receive a Notice of Motion?

After you have received a Notice of Motion, the legal process has begun. You should seek legal advice immediately.

This is what you should do:

Ask the Sheriff to explain all the documents to you;

Find legal representation or advice (learn more about that here);

Go to court (If you do not appear in court on the day of your hearing, you are likely to be evicted!);

If you go to court and you don't have a lawyer yet, request a postponement to find legal representation (learn more about that here); and

Attend an Advice Assembly, get support and start learning about the eviction process (learn more about the Advice Assembly here).

Summary

In summary, a Notice to Vacate is when your landlord has cancelled your lease and wants to evict you. At this stage, there is still lots of time to negotiate, and sometimes the cancellation may not even be lawful. If you are at this stage, take action, learn about the process, and get advice and support. EVICTIONS.ORG.ZA is a great place to start learning about your rights and the eviction process.

A Notice of Motion is delivered when the matter has gone to court and it is more serious than a Notice to Vacate. If you are at this stage, you need to get legal advice and legal representation immediately. If you cannot afford a lawyer, you can find free legal representation by following the instructions on EVICTIONS.ORG.ZA on the legal support page. After you have started looking for legal representation you should learn your rights and legal process so that you are prepared for court.

The author is the Evictions Project Manager for OpenUp. This information sheet is produced by OpenUp and first published on GroundUp. This is the second in a series. Read the first one here.

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