The long and the short of evicting a tenant from a residential property

24 Feb 2022

South Africa’s unemployment has reached an all-time high and the number of South Africans defaulting on their rent confirms that many are struggling financially. In a report released by Statistics South Africa, the number of people being taken to court for outstanding rental debt is approximately 3 000 per month. It’s a lose-lose situation for both the landlord and the tenant but unfortunately if a tenant refuses to pay rent, the result will be eviction.

The purpose of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE Act) is on the one hand to provide for the prohibition of illegal eviction and on the other to provide procedures for the eviction of unlawful occupiers.

The Constitution of the Republic of South Africa recognises the right to adequate housing as an important basic human right. No person’s property may be taken away from him/her and no person may be evicted from his/her home without a court order. This means that a landlord must apply to court before evicting a tenant from his/her property.

More specifically section 26 of the Constitution provides that:

1. Everyone has a right to have access to adequate housing;
2. The state must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of this right;
3. No one may be evicted from their home or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

So what can you do as a landlord if your tenant is in breach?

Failure to pay rental promptly and in full constitutes a breach of the lease, which entitles a landlord to cancel the lease, evict the tenant and claim arrear rental and damages from the tenant.

The first step by a landlord will be to send a legal notice to the tenant asking him/her to rectify the breach or else to vacate the premises. The landlord must give the tenant at least 20 business days’ notice to rectify the breach, and if not, the lease will be cancelled.

Once a landlord has let the tenant know that he/she is going to take legal action for eviction, and if the tenant has still not rectified the breach or vacated the premises, the landlord can send the tenant a letter cancelling the lease. The tenant is now deemed to be occupying the property unlawfully and the lease is cancelled. The tenant is now considered to be an unlawful occupier.

After this, a landlord can lodge an eviction application. The landlord may approach the High Court or Magistrate’s Court to start with the eviction procedure. The court will provide the landlord with the date and time that it will hear the eviction application.

Written notice of the eviction hearing must be personally served on the unlawful occupier, as well as on the municipality situated in the area of the property. This must take place at least 14 business days before the eviction hearing in court.

And what can a tenant do?

The law gives a tenant the right to defend him/herself against an illegal eviction if a landlord forces him/her to leave the premises without any appropriate notice. The fact that a landlord owns the premises does not give him/her the right to evict a tenant in any way he/she sees fit. An illegal eviction is where a landlord, through force, intimidation or otherwise (such as cutting off utilities, changing the locks etc), denies a tenant from accessing the premises, or removes the tenant’s belongings.

At the court hearing, the tenant needs to prove a valid defence as to why he/she should not be evicted. If there is a valid defence, a trial date is set. If there is no valid defence a warrant of eviction is issued to the sheriff giving authorisation to remove the tenant and the tenant’s possessions from the premises.

The process of eviction can take many months and you should always contact an attorney to help you with this process. Do not take the law into your own hands.

See also:

• New rules for the property sector
• Love thy neighbour as thyself – Short-term rentals and the law
• Property Practitioners Act in Effect on 1 February 2022
• Landlord and tenant – A rocky relationship?

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)