Introduction
In terms of the South African laws, the first step in an eviction is establishing whether such eviction falls under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the “PIE Act”), the Extension of Security of tenure Act 62 of 1997 (“ESTA”) or Labour Tenants Act 3 of 1996 or Common Law eviction.
The PIE Act applies to buildings utilised for residential purposes. The PIE Act states that “no one may be evicted from their home… without an order of court made after considering all the relevant circumstances”.
Section 1 of the PIE Act defines an “unlawful occupier” as “a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997, and excluding a person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act, 1996 (Act No. 31 of 1996).”
The below steps apply in common residential evictions in terms of the PIE Act.
Step 1: Breach Notice/Letter Of Demand
Should a tenant breach the terms of a lease agreement (usually failure to pay the rental amount timeously or at all), the landlord should prepare a breach notice (a letter of demand) and deliver it to the tenant demanding that the tenant rectify the breach (i.e. the cause of complaint) within the time period stipulated in the lease agreement (usually within 7 business days. If the time period is not specified in the lease agreement, the tenant would usually be provided with 20 business days).
Step 2: Cancellation (“Eviction”) Notice
If the tenant does not rectify the cause of complaint (for example, make payment of the outstanding rental amounts) within the stated time period, the landlord must then prepare a cancellation notice cancelling the lease agreement and placing the tenant in lawful occupation of the property. The cancellation notice should provide the tenant with 20 business days to move out and vacate the property.
Step 3: Eviction Application
Should the tenant refuse or fail to vacate the property within the stated 20 business days, the tenant will then be in unlawful occupation of the property. The landlord will then be entitled to issue an eviction application (supported by a Notice of Motion and Founding Affidavit deposed to by the owner or a duly authorised person in charge of the property).
The unlawful occupiers are required to oppose the eviction proceedings within 10 court days and deliver their Answering Affidavit within 10 court days after date of opposition of the eviction proceedings.
If the landlord wishes to claim unpaid rents or any other damages, the landlord must launch separate court proceedings (summons) with an automatic rent interdict. It must be noted that the eviction application and claim for unpaid rent or damages are 2 (two) separate court proceedings.
Step 4: Section 4 Pie Act Notice
The Section 4 PIE Act Notice must be served by the sheriff of the court on the unlawful occupiers and any other respondents to the eviction proceedings. A Section 4 PIE Act Notice would have to be issued at least 14 (fourteen) days before the court hearing of the eviction proceedings.
Step 5: Section 4 Pie Act Ex Parte Court Order
Once the applicant has obtained a Section 4 PIE Act Ex Parte court order, it will be served on the unlawful occupiers by the sheriff. Should the unlawful occupiers fail to oppose the eviction proceedings within the stipulated time periods, the eviction application will be set down on the unopposed court roll and an eviction order may be granted in the unlawful occupiers’ presence.
Step 6: Eviction Hearing
At the hearing, the court will decide whether or not to grant the eviction court order (and the time required for the unlawful occupiers to vacate the property) is just and equitable decision in terms of the PIE Act. Factors taken into account in terms of the PIE Act are whether there are minor children, elderly person or persons with health issues occupying the property.
Step 7: Eviction And Removal
Should the court decide that it is just and equitable to evict the tenants (unlawful occupiers) and therefore grant an eviction order, the unlawful occupiers would be ordered to vacate the property within a specified time period. The court will allow a reasonable time period to allow the unlawful occupiers to find alternative/other accommodation.
If the unlawful occupiers refuse or fail to vacate the property within the stated time period in the eviction court order, the applicant should issue a warrant of eject and deliver it to the sheriff authorising the sheriff (with the assistance of the members of the South African Police Services (SAPS)) to legally remove and evict the unlawful occupiers from the property.
Disclaimer: the above steps are not generic to all evictions. Each eviction will depends on the circumstances of the case. Accordingly, each matter must be dealt with on a case-by-case basis and you should consult an attorney before taking any action contemplated herein. MK Ledwaba Attorneys can assist with residential evictions. This article is for general public information and use. It is not to be considered or construed as legal advice.
Written by: Mohau Ketshegofaditswe Ledwaba
MK Ledwaba Attorneys – Property Law and Eviction Attorneys
Telephone: 010 226 9815
Email: mohau@mkledwaba.co.za
