The Eviction Process
A person may be evicted from a property if he is an unlawful occupier of the property. Occupation is unlawful if the person does not have the landlord’s consent to occupy the property, or does not have any right in law to occupy the property.
A landlord may cancel or withdraw consent given previously, which will render occupation unlawful. For example, a tenant may lawfully occupy a property in terms of a lease agreement, but should the lease agreement expire or be cancelled and the tenant fails to vacate the property, his occupation will become unlawful.
If a landlord needs to evict a tenant or any other occupier, it is important to use the process as provided for in PIE Act and not to take matters into his own hands, such as cutting utilities or changing locks, as such steps may land the landlord in hot water.
The landlord must first ensure that any right or consent is withdrawn (if it had not been done previously). This is done by providing written notice of the withdrawal and giving the occupier reasonable time to vacate the property.
If the occupier then fails to vacate the property, the landlord may then formally start the eviction procedure in the court situated in the same area as the property.
Written notice of the hearing must then be served personally on all unlawful occupiers of the property by the sheriff of the court and on the relevant municipality. Notice must be served at least 14 days before the date of the eviction hearing and must indicate the date and time of hearing, the circumstances surrounding the eviction and must indicate the unlawful occupier’s right to defend himself.
The landlord and unlawful occupier will then appear in court, with or without legal representation, on the date of the hearing to state their cases. If the unlawful occupier is not present, the court may either postpone the hearing or may proceed with the hearing in his absence. An order may then be granted.
Before an order may be granted, the court must be satisfied that the correct procedure was followed and whether the occupier is in fact an unlawful occupier. The court will then further take certain factors into account, depending on how long the person has been in occupation of the property.
If the unlawful occupier has occupied the property for less than 6 months, the court will take all circumstances into account, such as the rights of children, the elderly, disabled and households headed by women, and whether it will be just and equitable to grant an eviction order.
If the unlawful occupation has persisted for more than 6 months, the court will take the same factors into account as stated above, and in addition, whether alternative accommodation has been made available or can be made available by a municipality, organ of state or an owner of property and options for relocation of the unlawful occupier.
When satisfied that it is just and equitable to do so, the court will grant an order which state the date on which the unlawful occupier must vacate the property and the date on which the Sheriff must evict the unlawful occupier from the property of the unlawful occupier has failed to vacate.
In addition to the prescribed procedure in the PIE Act, the Constitutional court has set out the best practise to note and take into account in its case law:
1. Evictions must be conducted in a humane manner;
2. The State must provide temporary alternative accommodation in certain instances, such as where those that are evicted are unable to secure their own accommodation;
3. Every property owner must engage meaningfully with evictees, individually and collectively, before commencing the eviction process; and
4. Eviction processes should not discriminate against an individual or group of people such as migrants and non-nationals.