Community shocked by eviction of Glenmore pensioner

THE eviction of a woman and her elderly mother from a flat in Myro Crescent in Glenmore on Friday last week has placed the rights of landlords and tenants in the spotlight.

The Glenmore community rallied to help 90 year old Phyllis Overall and her daughter Cheryl Kilfoil, when they were spotted on the pavement outside the property surrounded by their belongings.

According to the owners of the property, Shirley and Lionel Harbilas, an eviction notice had been issued by the court after Kilfoil had failed to pay rent for three years and was found to be more than R140 000 in arrears.

“We rented the property to Cheryl Kilfoil seven years ago, and she was the lawful tenant. Cheryl has not paid any rent for the past three years despite numerous attempts made by us. At some stage we could not bear the losses any further and therefore approached the housing tribunal. We offered to have her relocated and finally we were forced to seek legal relief,” she said.

She said the sheriff had contacted Kilfoil on Monday and told her she would have to vacate the property by Friday.

ALSO READ: Wanted murder suspect arrested

It was then that Marco Accolla, deputy chairman of the Umbilo CPF spotted Phyllis in her wheelchair on the pavement surrounded by their belongings and stopped to help.

Accolla said he had tried to negotiate with Harbilas to allow the women to stay another week but he refused.

He then appealed to the Glenmore community on social media for help. Together the community found the women alternative accommodation and their belongings and pet dog were moved to the alternative premises. In his Facebook post Accolla condemned the eviction of Overall saying it was tantamount to abuse of the 90 year old woman who is disabled and has a heart condition.

In response Shirley Harbilas posted on Facebook saying it had been unfortunate that not all the facts were included in Accolla’s post.

“No mention was made of Cheryl being the tenant. The eviction was not done by us but authorised by the court. Cheryl had every opportunity to defend herself both at the tribunal and at court. The arrears rental accrued to date does not include the immense legal costs incurred,” she said.

Speaking to Berea Mail this week, Kilfoil said she had bought a receipt book and had records of her payments, the last being in October 2015. She said she had explained to Harbilas that they were unable to pay the rent, however he had kept them on. She said she had been paying month to month from 2013.

“I put notices up at the local shop requesting accommodation which could be paid with a pension, however nothing came of it. On Thursday I pushed my mom in her wheelchair to the magistrates court and legal aid, but had no joy. I sent a message to Lionel to ask if he could keep give us grace until the end of the month, but the sheriff came at 8am the next day and moved us and our furniture onto the pavement, when we didn’t have anywhere to go. It broke my heart to see my mom sitting outside on the pavement on Friday, it was heartless,” she said.

Legal input on tenancy

LOCAL lawyer, Wesley Rogers from Jacques Botha and Associates in Morningside, gave Berea Mail legal input regarding tenancy.

He explained that a squatter is any person who has unlawfully taken occupation of a property, or who has remained in occupation once their lawful right of occupancy has expired or been revoked on notice by the landlord.

“There exists a misconception in our population that there is such a thing as squatter rights. There is not. No one may unlawfully occupy a property. What the law guarantees is the right not to be unlawfully evicted, in other words, one must follow due process before evicting someone, and they cannot take the law into their own hands. This is a Consitutional right in terms of Section 26(3),” said Rogers.

He said the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) was promulgated to give effect to the aforementioned constitutional right. And all (forced) evictions must be done in accordance with this act.

The Act requires that you give a tenant a full calendar month’s notice to vacate the property, failing which you must bring an application to court for an eviction order in terms of the PIE Act.

“In the event that you evict the unlawful occupier without a court order, you can be held liable for civil damages by the unlawful occupier. Once the eviction order is granted, the tenant must leave failing which the sheriff of the court is empowered to forcibly evict them. A court will only grant an eviction order when it is satisfied that the unlawful occupier stands to be evicted in law, and that it will be just and equitable to grant the order,” he said.

He said what is “just and equitable” is a discretion left to the court, taking into account the rights of persons to dignity, equality, access to housing and the property rights of landlords.

“It is noteworthy to state that eviction orders may still be granted if it will result in the unlawful occupier being homeless. Courts are reluctant to impose social burdens (which should be covered by government) on private persons – in this case property owners. The PIE Act requires notice be given to the municipality of any eviction application, and in theory the municipality is supposed to provide access to housing for vulnerable members of society, such as women, children and disabled persons, in the event that they are unable to afford to provide housing once evicted. In practice the municipality rarely gets involved,” he said.

Rogers said in the event that a tenant owes the landlord rent, the landlord can hold all movable property in lieu of the rental owed.

Do you want to receive news alerts via WhatsApp? Send us a WhatsApp message (not an sms) with your name and surname to 060 532 5535.

You can also join the conversation on Facebook, Twitter and Instagram.

PLEASE NOTE: If you have signed up for our news alerts you need to save the Berea Mail WhatsApp number as a contact to your phone, otherwise you will not receive our alerts