A reader whose property was unlawfully occupied after the tenant did not pay the rent for a year wants to know if he can change the locks to prevent the occupier access.
The landlord obtained an eviction order, which has not yet been served on the tenant due to him being unable to locate him. However, despite that, the tenant has, bizarrely, lodged an appeal.
The tenant is therefore clearly aware of the eviction order despite it not yet having been served on him.
See the reader’s question here.
The Magistrates’ Court Rules provide for an appellant to lodge an appeal against a judgment within 20 days of it having been given. The appeal is noted by way of the delivery of a notice of such appeal.
Security for costs may or may not be required, depending on whether the occupier is represented by a legal aid institution.
In noting an appeal, the occupier must state whether it is the whole or only part of the judgment that he is appealing.
Importantly, he must also state the grounds for his appeal. In other words, whether it is the findings of fact or rulings of law against which he is appealing.
The Magistrates’ Court Act sets out what the effect is of the occupier having noted an appeal and what the reader’s rights are in respect of the property in the interim.
Although there is no information on the issue, it would seem logical that the tenant’s occupation of the dwelling is to remain undisturbed pending the outcome of the appeal. Changing the locks in such circumstances can only serve to aggravate matters.
The act states that where an appeal has been noted or an application to rescind, correct or vary a judgment has been made, the court may follow two courses.
It can direct either that the judgment shall be carried into execution or that execution thereof shall be suspended pending the decision upon the appeal or application.
It should also be noted that the occupier is required to prosecute his appeal within 60 days of the noting, failing which it will lapse.
In the Supreme Court of Appeal decision in the City of Johannesburg and Changing Tides (2013) matter, the court said its duty is to ensure that all relevant parties appear before it.
Furthermore, the court needs to ensure that proper investigations have been undertaken to provide it with the relevant facts and that the orders it crafts are appropriate to the particular circumstances of the case.
If, despite appropriate judicial guidance as to the information required, the judges are not satisfied that they are in possession of all relevant facts, no order can be granted.
From the occupier’s notice, the reader should be able to gather what case he is facing in respect of the appeal and whether or not he is likely to prevail.
An eviction under the PIE Act (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act) is largely based on whether the court finds that it is just and equitable to do so.
If eviction is granted, the court must decide when it is just and equitable that the occupier should vacate and, finally, when it is proper for the eviction order to be executed should the occupier not comply with the date to vacate the dwelling.
It may be the case that the occupier is merely challenging the date upon which he is required to vacate the dwelling and not the order itself.
Of course, this is cold comfort to the reader as the extension of the date for the occupier to vacate the dwelling still results in prejudice to him as he cannot gain any commercial benefit from renting the property out to a paying tenant.
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