Residential Eviction Proceedings In South Africa

Introduction:

Section 4 to Section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998 (“PIE Act”) sets out the process that has to be followed in order to evict an unlawful occupier. It is important to note that the PIE Act only applies to residential tenants.

The following is a brief summary of the procedure that has to be followed in order to comply with the requirements of the PIE Act:

The Eviction Procedure:

In order to commence eviction proceedings, a residential tenant has to be an unlawful occupier. A tenant will be an unlawful occupier if the lease agreement came to an end and the tenant continues to occupy the premises without the landlord’s consent.

Usually lease agreements contain “breach clauses”, which provide for notices to be given to the tenant at a chosen address if the tenant defaults on rent or breaches the agreement in some other way, and to provide the tenant with a reasonable time to remedy such breach. The first step in eviction proceedings will thus be to send a letter of demand to the tenant requiring him/her to remedy the breach within a reasonable time. The letter should also state that the landlord reserves the right to cancel the lease agreement should the tenant fail to perform by a certain date.

It is important that landlords take note of the Consumer Protection Act 68 of 2008, which provides that the landlord has to give at least 20 business days to the tenant in order to rectify the breach of the lease agreement.

If the tenant fails to remedy the breach by the date stipulated in the letter of demand, the next step would be to cancel the lease agreement. In order to cancel the lease agreement, a further notice has to be sent to the tenant notifying him/her that the landlord cancels the agreement.

After cancellation of the agreement, the tenant will be an unlawful occupier of the premises. The landlord will now be in a position to apply to court for permission to institute eviction proceedings in terms of the PIE Act. If the court is satisfied that it is just and equitable to institute eviction proceedings against the tenant, the court will grant the landlord leave to serve the eviction application papers on the tenant and a court date for the eviction application is allocated.

The sheriff then serves the eviction application papers on the tenant and the local municipality. The tenants would then have the option of opposing the application.

If the tenants do not oppose the application, the court will grant an eviction order stipulating a date whereupon the tenants have to vacate the premises.

If the tenants decide to oppose the application, the matter will be argued in motion court before the magistrate, who will decide whether the eviction order should be granted or not. If the court grants the eviction order, the court will stipulate a date by which the tenants have to vacate the premises.

The court will only grant an eviction order if it believes that it is just and equitable to do so. The court has to take into account inter alia the personal circumstances and any other relevant circumstances of the tenant.

After an eviction order is granted:

After an eviction order is granted, the court order has to be served upon the tenant by the Sheriff.

Should the tenant fail to vacate the premises as per the date specified in the court order, the landlord will be in a position to have a warrant of ejectment issued by the court.

The landlord thereafter instructs the sheriff to remove the unlawful occupier from the premises.

What about the arrear rental?

Eviction proceedings are initiated by way of an application to the court. The arrear rental, however, should be claimed by the issuing of a summons for the outstanding debt. The relevant rules relating to action proceedings will then apply.

In practice, the summons, which includes an automatic rent interdict, is issued together with the application for eviction.

_______________________________

By: Francois Van der Westhuizen