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Understanding the Eviction Process

In an ideal world, a peaceful landlord-tenant relationship is a mutually beneficial situation where one party has a home to live in and the other enjoys an income from their asset, and neither one of the parties involved would want to disrupt this peaceful scene. However, sometimes that is not the case and the property owner is in the unhappy position of having to consider eviction.

What is eviction?

The laws on evictions are dealt with in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, also known as the PIE Act.  The PIE Act aims to protect both the rights of property owners and occupiers. It forms the backbone of eviction law and defines the process of evictions as well as protects occupiers from unlawful evictions. 

The right to shelter is enshrined in the South African Constitution, which prevents evictions without a court order.

Reasons for eviction

An occupier may be evicted from a property if they violate the terms of their lease or rental agreement or if the property owner has a valid reason for seeking an eviction.  Some specific reasons why someone may be evicted include:

  • Non-payment of rent
  • Breach of the lease
  • End of the lease term
  • Illegal activity
  • Disruptive behaviour
  • Sale of the property

Eviction process

Notice

The tenant will only be deemed to be an unlawful occupier if the lease agreement has come to an end, whether by cancellation due to a breach by the tenant or by due notice given in terms of the lease.

The landlord must first serve a written notice to the occupier, clearly stating the reason for eviction.  The notice should:

  • Be in writing and delivered personally or by registered mail.
  • Specify the nature of the breach and the consequences of non-compliance.
  • Include a reasonable timeframe for the occupier to rectify the breach or vacate the premises.
  • Inform the occupier of their right to seek legal advice or assistance from the Rental Housing Tribunal.

Court Application

If the occupant fails to remedy the breach within the timeframe and the occupant remains in occupation of the premises, the landlord can apply to the Magistrate’s Court for an eviction order.  

The application must be accompanied by supporting evidence. The court will then set a court date and notify both parties.

Court hearing

Both the landlord and occupant have the right to be present and represented at the court hearing. 

The landlord approaches the court on the basis of ownership alone and the unlawful occupation. The occupier may rely on special circumstances and they have to raise and present the special circumstances to the court.

The court gives special consideration to the rights of children, households headed by women, elderly, and disabled persons.

The court may only grant the eviction after considering all the relevant circumstances and has a wide discretion in ordering the date on which the unlawful occupier is to vacate.

The circumstances to be considered by a court in determining whether an eviction order will be just and equitable are outlined in s 6(3) of the PIE Act.

If granted, the eviction order will specify a date by which the tenant must vacate the property.  The order needs to be served on both parties and the relevant municipality.  It is important to note that a landlord cannot evict the occupier before the date specified on the order.

Execution of the order

If the occupier fails to vacate by the deadline, the landlord can approach the Sheriff of the Court to enforce the eviction order.  The Sheriff will then attend the property with law enforcement officers, and remove and safely store the occupier’s belongings. 

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Please note that the information provided in this blog post is general in nature and should not be construed as legal advice. For specific legal guidance, we encourage you to reach out to our team of experienced attorneys.

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