What is an eviction?
- An eviction is basically the process whereby a person is removed from the premises which he/she is staying on.
- Ordinarily, in terms of the Constitution and the Prevention of Illegal Eviction and Unlawful Occupation of Property Act (“PIE”) a person may not be evicted unless a due process has been followed and a court order authorizing the eviction has been granted by the court
- Furthermore, a person may not be constructively removed from a premises. In other words, a person cannot be forced to leave a premises as a result of the landlord shutting down the electricity or water etc. This will result in the tenant having legal recourse in the form of a mandament van spolie, which we will discuss in another article. For our purposes, this basically means that the landlord will be compelled to return the tenant’s use of the electricity or water.
When can a person be evicted?
- A person may only be evicted from a premises if he/she is deemed to be an “unlawful occupier”.
- An unlawful occupier is basically a person who resides on a premises without any right to do so.
How is a person deemed an unlawful occupier if he/she had an agreement with the landlord to reside on the premises?
- A person is deemed an unlawful occupier when his right to reside on a premises has been revoked. For example, a person entered into an agreement in writing, or verbally, or via Whatsapp or telephone to reside on a premises for a fixed-period or indefinitely – the tenant will be deemed to be an unlawful occupier ONLY once the landlord has cancelled the agreement or if the lease has agreement has come to an end of its term. In other words, the tenant is a lawful occupier of the premises even if he has breached the terms of his lease agreement (by not paying rent for example) up until the point that the landlord cancels the agreement or the agreement has come to the end of its term.
What is the procedure that must be used to evict an unlawful occupier?
- The procedure for eviction is set out in the PIE Act, and is summarized as follows:
- Firstly, as briefly stated above, the landlord has to cancel the agreement which had been entered into between the landlord and the tenant.
- Secondly, if the tenant refuses to vacate the premises, the landlord may proceed with a formal eviction application via the relevant court holding jurisdiction to hear the matter.
- Thirdly, the eviction application process comprises of a written notice in two parts, with corresponding affidavits. Effectively, these notices are prepared in terms of Section 4(1) and Section 4(2) of the PIE Act respectively.
- Thereafter, these written notices of the eviction hearing must be personally served on the unlawful occupiers of the property, together with being served on the relevant municipality in which the premises is situated. Ultimately, the notice must be served on the unlawful occupier and municipality by the sheriff at least 14 business days before the eviction hearing is heard in court.
- The notices should indicate relevant details such as the date and time of the eviction hearing, the circumstances surrounding the eviction, and the unlawful occupier’s right to defend himself.
- On the date of the eviction hearing, both the landlord and tenant or their respective representatives will be present at court. Should either of the parties be absent, this may result in the court granting an order in default against the absent party.
Before granting an eviction order, the court will consider the following:
- The court will consider whether the tenant is in fact an unlawful occupier and whether the landlord has followed the CORRECT procedure provided for in the PIE Act.
- If the unlawful occupier has resided in the premises for less than six months, the court will also consider whether it will be just and equitable to grant the eviction by looking at factors such as elders, minors, and disabled persons living in the house.
- If the unlawful occupier has resided in the premises for more than six months, the court will also consider whether it will be just and equitable to grant the eviction by looking at factors such as elders, minors, and disabled persons living in the house, as well as whether reasonable alternative accommodation exists for the tenant whether provided by the relevant municipality or other means.
- After consideration of the above, should the court find it just and equitable to grant an eviction order, the court will state:
- the date on which the unlawful occupiers should vacate the premises;
- if the unlawful occupiers do not vacate the premises on the court given date, the court will state the date on which the sheriff should evict the unlawful occupiers from the premises.
DISCLAIMER: This article should not be taken as thorough legal advice, and merely serves as a guideline. Each case has its own specific circumstances, and the law is ever-changing, therefore legal advice should be sought by a legal professional thereon. For a consultation on the merits of your case by an experienced admitted attorney, refer to one of our consultation products here.