Understanding Evictions in South Africa: A Comprehensive Guide

Evictions are a sensitive and complicated issue in South Africa, particularly in the context of the ongoing housing crisis. It's essential to understand the legal requirements, procedures and consequences of evictions, as well as how they can affect tenants and landlords. In this blog post, we'll discuss everything you need to know about evictions in South Africa, their legal requirements, procedures, consequences and how they can affect tenants and landlords.

Legal Requirements for Evictions in South Africa

Evictions in South Africa are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE Act). The PIE Act sets out the legal requirements that must be met before a landlord can evict a tenant. These requirements include:

1. Notice: The landlord must provide the tenant with written notice of the eviction, stating the reasons for the eviction and the date on which the eviction will take place.

2. Reasonable Opportunity to Respond: The tenant must be given a reasonable opportunity to respond to the eviction notice, including the opportunity to seek legal advice.

3. Court Order: The landlord must obtain a court order before evicting the tenant. The court will consider several factors, including the reason for the eviction, the impact of the eviction on the tenant, and the availability of alternative accommodation.

4. Sheriff of the Court: The eviction must be carried out by the Sheriff of the Court, who will ensure that the eviction is carried out lawfully and without violence.

When Can You Be Evicted?

A person may be evicted from a property if they are considered as an unlawful occupier of the property, which means that such a person is staying on a property that they do not own without the consent of the rightful owner.

In South Africa, evictions are governed by the the Prevention of Illegal Eviction and Unlawful Occupation of Land Act a.k.a PIE Act.

Lawful Evictions Explained

The main purpose of the PIE Act is to protect both the owner of a property and the occupier of a property by ensuring that lawful and fair procedures are followed before an eviction order can be granted by the court and from preventing people from taking the law into their own hands.

Steps To Be Followed for a Lawful Eviction?

STEP 1: Letter of Demand and Notice to Remedy

• The first question that needs to be determined is what agreement is in place between the parties?

• In the event that a tenant is in breach of the agreement entered into with the landlord, a notice to remedy such breach will be sent in accordance with the provisions of the agreement.

STEP 2: Notice of Termination and to Vacate

• If the tenant fails, refuses and/or neglects to remedy the breach, the next step is to terminate/cancel the lease agreement so that the tenant/s occupation of the property becomes unlawful.

• It may be necessary to send a notice to the tenant informing them that the lease agreement has been terminated and that the tenants is afforded a set period of time to vacate the premises.

• If the tenant fails, refuses and/or neglects to vacate the premises despite having received a notice of termination/to vacate, the landlord can commence with the eviction proceedings.

STEP 3: Eviction Proceedings

• An Eviction Application will need to be prepared by litigation attorneys.

• An Eviction Application comprises of a Notice of Motion and Founding Affidavit.

• The Eviction Application will then be issued from Court.

• The Eviction Application is then served on the tenant personally.

• After service of the Eviction Application on the tenant, the tenant has a period of 5 court days within which he/she can oppose the Eviction Application.

• If the tenant opposes the Eviction Application, the tenant then has further 15 court days to file an answering affidavit.

• The Landlord then has an opportunity to respond thereto, by filing an replying affidavit.

• Once pleadings have closed, the next step is to compile a section 4(2) PIE - Ex Parte Application.

• The Court then has to authorise the service of the Section 4(2) Notice and once authorised it is then served on the tenants personally, 14 court days prior to the hearing of the matter.

STEP 4: Court Hearing

• At the hearing, the onus of the landlord (as the applicant) to prove on a balance of probabilities that it is just and equitable to evict the tenants from the property.

• When determining whether the eviction is just and equitable, various factors are considered and which factors include, inter alia, the age of the tenants, whether there any children, the availability of alternative accommodation in the area.

• On the return date per the Section 4(2) Notice, the presiding officer can: (1) grant the eviction; (2) dismiss the eviction; (3) postpone the matter to grant the occupants an opportunity to file their papers (if they had not done so) or obtain legal representation or (4) listen to verbal arguments from both sides.

STEP 5: Court Order

• If the court grants the eviction order, it must clearly state the date on which the unlawful occupier/s of the property must vacate the property.

• If the unlawful occupier/s fail, refuse and/or neglect to vacate the property in terms of the court order, the sheriff is then empowered to evict the occupier by force if necessary.

Evictions are not a ‘quick’ fix and are legally complex.

What is an Eviction Order?

If your landlord wants to legally evict you from the premises that you are letting, the landlord has to apply for an eviction order and have it approved in writing by the court. A court order prevents illegal eviction from taking place and allows you to vacate the property through legal processes.

An eviction occurs when a person is legally forced to the property that they are occupying without consent from the owner. According to the Constitution, no person’s property may be taken away from him or her and no person may be evicted from his or her home without a court order.

Consequences of Evictions in South Africa

Evictions can have significant consequences for both tenants and landlords. Tenants who are evicted may lose their homes and their belongings and may be left homeless and destitute. Landlords who carry out evictions unlawfully may face legal consequences, including fines and even imprisonment.

How to Protect Your Rights in Case of Evictions

If you are facing eviction in South Africa, it's essential to understand your rights and to take action to protect them. This can include:

1. Seeking Legal Advice: Seek legal advice from an attorney who specializes in property law. They can provide you with guidance on your rights and options.

2. Negotiating with the Landlord: Try to negotiate with the landlord to find a mutually acceptable solution.

3. Challenging the Eviction: If you believe that the eviction is unlawful, you can challenge it in court.

4. Finding Alternative Accommodation: If you are facing eviction, start looking for alternative accommodation as soon as possible.

Conclusion

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE Act) sets out the legal requirements for evictions, including notice, reasonable opportunity to respond, court order, and eviction by the Sheriff of the Court. Evictions can have significant consequences for both tenants and landlords, and it's important to understand your rights and take action to protect them. If you are facing eviction, seek legal advice, try to negotiate with the landlord, challenge the eviction if necessary, and start looking for alternative accommodation as soon as possible.

It's crucial to remember that eviction should be seen as a last resort and all other alternatives should be explored before resorting to eviction. In South Africa, there are many support systems available for tenants who find themselves struggling to pay rent or facing eviction. It's essential for tenants and landlords to familiarize themselves with these support systems and to take advantage of them before resorting to eviction. Barter McKellar’s property lawyers have extensive experience with eviction applications and can assist you with eviction applications.

If you need assistance with a property dispute matter, contact our offices today to schedule a consultation with one of our specialist property law attorneys. Alternatively, you can schedule a consultation online by using the following link Book An Online Consultation.