This article answers the most frequently asked questions property owners have in respect of evictions and provides a brief overview of what to expect when applying to court for an eviction order in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998
Amongst the constitutional rights afforded to persons in South Africa is the right to access to adequate housing and to be protected from arbitrary evictions, which right the government sought to give effect to through the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (“PIE Act”).
The procedures introduced by the PIE Act, in theory, seek to strike a balance between the rights of landowners and the homeless, but in practice, the procedures often result in, inter alia, major loss of rental income and costly and lengthy legal proceedings in order to obtain an eviction order and recover outstanding rental.
Below we answer some of the most frequently asked questions posed by property owners when facing tenants who are persistently defaulting on their rental obligations:
What is an eviction?
An eviction is the act of depriving a person of occupation of a building or structure or the land on which such a building or structure is erected, against their will. Therefore, anyone who occupies a building or structure without the permission of the landowner or fails to comply with the terms of their lease agreement may be evicted.
Who is an unlawful occupier?
An unlawful occupier is any person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land; but excludes persons whose occupation of the land is permitted in terms of another Act such as the Extension of Security of Tenure Act, 62 of 1997.
What procedure is followed to evict an unlawful occupier in terms of the PIE Act?
Step 1:
The lawful owner of the property or the person in charge of the land must apply to court for an eviction order against the unlawful occupier(s).
Step 2:
Once the lawful owner has applied for an eviction order, the unlawful occupier(s) and the local municipality within the jurisdiction of the property or land must be given notice to appear and/or defend such proceedings at least fourteen court days before the date of the hearing.
The PIE Act prescribes what must be stated in the aforementioned notice.
Step 3:
If the court is satisfied that all the requirements as set forth in the PIE Act have been complied with and that the unlawful occupier(s) have failed to raise a valid defence, the court will grant the eviction order and determine:
- A just and equitable date on which the unlawful occupier(s) must vacate the land, having regard to all relevant factors; and
- The date on which the eviction order may be carried out if the unlawful occupier(s) fail to vacate the land on the given date.
Step 4:
Best practice to be followed when evicting unlawful occupier(s), which is not provided for in the PIE Act, has been established by the Constitutional Court:
- Evictions must be conducted in a humane manner;
- Government must provide temporary alternative accommodation in certain instances, such as where those that are evicted are unable to secure their own accommodation;
- Every property owner must engage meaningfully with evictees, individually and collectively, before commencing the eviction process; and
- Eviction processes should not discriminate against an individual or group of people such as migrants and non-nationals.
Who carries out an eviction order?
If the unlawful occupier fails to vacate the property on the date provided for in the eviction order, the Sheriff of the Court (“Sheriff”) carries out the eviction order. The Sheriff may require and utilize the assistance of any other authorised person to carry out the eviction order, including members of SAPS.
Under what circumstances must the local municipality file a municipal report in eviction proceedings?
If an unlawful occupier has occupied the property or land for a period of more than six months at the time the lawful owner brings the application for an eviction order, the local municipality within the jurisdiction of the property or land must file a municipal report. The municipal report deals with, inter alia, the following:
- Whether land has been or can reasonably be made available by the municipality or another organ of state or another landowner for the relocation of the unlawful occupier(s); and
- The rights and needs of the unlawful occupier(s), specifically related to elderly persons, children, disabled persons or households headed by women.
The local municipality usually engages with both the lawful owner and the unlawful occupier(s) and attempts to arrange interviews, site inspections and joint meaningful engagement meetings, where possible, prior to compiling the municipal report.
Can’t I simply change the locks if my tenant doesn’t pay rent?
The below actions constitute an unlawful eviction:
- When a person is evicted without a court order.
- When the person being evicted lawfully resides within the building or on the land.
- When the landlord intimidates, threatens or changes the locks to the leased premises.
- Constructive evictions i.e instances where occupiers leave the building because the living conditions have been made intolerable, often through intimidation or where the occupiers’ electricity or water supply is cut off or their privacy is repeatedly invaded.
Anyone found guilty of unlawfully evicting anyone is liable to pay a fine or to imprisonment not exceeding two years.
Is it possible to recover the legal costs incurred when obtaining an eviction order and if so, how?
Yes, the court may grant a legal cost order upon granting the eviction order. The attorney for the applicant will draft a bill of costs at the end of the matter which must be scrutinised by the taxing master. Once the taxing master has attended to taxation of the bill of costs, the amount allowed will become due and payable. If the unlawful occupier(s) refuse and/or fail to make payment, collection proceedings must be instituted to recover the legal costs.
How long does the process of obtaining an eviction order take?
The time taken to obtain an eviction order depends entirely on the circumstances of each case and the court in which the proceedings are launched.
Final Note
We assist with obtaining eviction orders, recovering outstanding rental, negotiating and/or litigating lease agreement disputes as well as drafting lease agreements and advising on pre-drafted lease agreements. We are professional, cost-conscious and aim to resolve all matters expeditiously. Contact us for further information and/or to schedule a consultation.
The information contained in this article is for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act nor refrain from acting on the basis of any content included in this article without seeking legal or other professional advice. The contents of this article contain general information which may not reflect current legal developments or address one’s situation. The information is provided in good faith, however, we make no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability, or completeness of any information contained herein.
