What Is an Eviction?
An eviction is the lawful removal of an occupant from property pursuant to an appropriate court order and legal process.
In residential matters, the process is designed to balance property rights with the constitutional and statutory protections afforded to people occupying homes.
A property owner should not personally carry out a forced eviction. Where an eviction order has been granted and the occupant does not leave by the date determined by the court, enforcement takes place through the Sheriff of the Court.
The Legal Framework
Residential evictions in South Africa are primarily governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, commonly referred to as the PIE Act.
The Rental Housing Act 50 of 1999 also regulates important aspects of the relationship between landlords and tenants in the residential rental sector.
Residential Evictions
PIE regulates the eviction of unlawful occupiers from residential land and establishes procedural safeguards that must be observed.
Landlord & Tenant Relations
The Rental Housing Act regulates aspects of residential leases and provides mechanisms for resolving certain disputes between landlords and tenants.
PIE specifically concerns unlawful occupation for residential purposes. Commercial ejectment proceedings are not governed by PIE in the same manner and may follow a different legal process.
When Can a Landlord Seek an Eviction?
A landlord may have grounds to seek an eviction where an occupant no longer has a lawful right to remain on the property. The precise process depends on the circumstances and the legal basis upon which the right of occupation has ended.
Lease Has Expired
The agreed lease period has ended and the occupant no longer has a lawful right to remain.
Non-Payment of Rent
A tenant has failed to pay rent and the lease has been lawfully cancelled following the required process.
Breach of Lease
The tenant has materially breached the lease and the agreement has subsequently been lawfully terminated.
No Consent to Occupy
A person is occupying the property without the owner's consent or another lawful right of occupation.
Where occupation originally arose from a valid lease, non-payment or another breach does not necessarily mean that the tenant instantly becomes an unlawful occupier. The lease and applicable legal requirements must first be dealt with correctly.
The Eviction Process
The exact procedure depends on the circumstances of the matter, but a residential eviction generally involves several distinct legal stages.
Establish the Right to Terminate Occupation
The landlord must first establish the legal basis upon which the occupant's right to remain on the property has ended. Where there is a lease, this may involve breach notices and lawful cancellation.
Demand That the Occupant Vacate
Once the right of occupation has lawfully ended, the occupant may be called upon in writing to vacate the property.
Institute Court Proceedings
If the occupant remains on the property, the owner must approach the appropriate court for an eviction order rather than attempting to remove the occupant personally.
Comply With the PIE Notice Procedure
In residential PIE proceedings, the prescribed notice process must be followed so that the unlawful occupier and relevant municipality receive proper notice of the eviction proceedings and hearing.
The Court Considers the Application
The parties have an opportunity to place their positions before the court. In a PIE matter, the court must consider the relevant circumstances and determine whether eviction is just and equitable.
The Court Determines the Vacating Date
If eviction is granted, the order determines the date by which the occupant must vacate and the date upon which the order may be enforced if the occupant fails to leave.
Sheriff Enforcement
If the occupant does not comply with the court order, the Sheriff may execute the eviction in accordance with the order.
What Does the Court Consider?
A residential eviction under PIE is not simply a matter of proving ownership and asking the court to remove an occupant. The legislation requires the court to determine whether an eviction is just and equitable in the circumstances.
Length & Circumstances
The circumstances surrounding the occupation and, where relevant, the length of time the occupier has lived on the property may be considered.
Personal Circumstances
Relevant circumstances concerning vulnerable occupiers may form part of the court's enquiry.
Alternative Accommodation
Depending on the circumstances, the availability of alternative accommodation may be relevant to the court's assessment.
Just & Equitable
Ultimately, the court must determine whether granting the eviction and the dates attached to it are just and equitable.
The fact that a court considers the circumstances of an unlawful occupier does not mean that an owner automatically loses the right to recover possession. It means that the eviction must take place lawfully and on terms the court considers just and equitable.
What Is an Unlawful Eviction?
Frustration with a non-paying or unlawful occupant does not entitle a property owner to bypass the courts.
Attempting to force someone out without following the proper process can expose a landlord to legal consequences and can make an already difficult dispute substantially worse.
If an occupant refuses to leave, the solution is to follow the appropriate legal process and obtain an enforceable court order, not to take matters into your own hands.
What If You Are Facing Eviction?
Receiving an eviction application does not mean that you should ignore it or assume that removal is inevitable.
Court documents contain important procedural information and deadlines. An occupant may have relevant facts, legal defences or personal circumstances that should properly be placed before the court.
If you have received an eviction application or documents from the Sheriff, obtain advice promptly. Failing to participate in the proceedings does not make the application disappear. Humanity has tried this strategy with paperwork for centuries. The paperwork remains undefeated.
What Should a Landlord Do?
Landlords should address non-payment or breach problems early rather than allowing the situation to continue indefinitely.
The lease, notices, cancellation and eviction procedure should be handled correctly from the outset. Mistakes at the beginning of the process can create unnecessary delays once the matter reaches court.
Keep the Lease and Payment Records
Preserve the signed lease, payment history, correspondence and records of any breaches.
Give the Correct Notices
Ensure that breach, cancellation and other required notices are properly prepared and delivered.
Avoid Self-Help
Do not attempt to solve the problem by changing locks, removing belongings or physically excluding the occupant.
Start Proceedings When Necessary
Where the occupant has become an unlawful occupier and refuses to leave, the appropriate eviction proceedings can be instituted.
Why Legal Assistance Matters
Eviction proceedings are procedural. A landlord may have a legitimate basis for recovering possession of property and still encounter substantial delays if the required notices, cancellation or court process are defective.
For an occupant, legal advice can help determine whether the eviction proceedings have been properly instituted and what information or defences should be placed before the court.
Whether you are the property owner or the occupant, the objective should be to deal with the dispute through the correct legal process rather than allowing an already stressful situation to escalate.
The Bottom Line
South African law protects people against arbitrary and unlawful eviction, but it also provides property owners with a legal mechanism for recovering possession where an occupant no longer has a lawful right to remain.
The key is procedure. The right of occupation must be properly terminated where necessary, the correct court process must be followed, and any eventual eviction must take place in accordance with a court order.
A landlord cannot simply remove an occupant. Where the occupant refuses to leave voluntarily, the matter must proceed through the appropriate legal channels.
Evictions & Property Disputes
Danel Campbell Attorneys assists landlords and occupants with eviction proceedings, lease disputes and related civil litigation, including advice on the correct notices and court process.
Explore General Litigation Services →This article provides general information on South African eviction law and does not constitute legal advice. The appropriate procedure depends on the nature of the property, the basis of occupation, the terms of any lease agreement and the circumstances of the parties. Different legal frameworks may apply to residential, commercial and other categories of occupation.