Evictions

Eviction is the action of expelling an occupier from a property. 

Evict means, “to deprive a person of occupation of a building or structure, of the land on which such building or structure is erected, against his or her will”.

Residential evictions in South Africa are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998 (“PIE”).

PIE applies to all land utilised for 'dwelling' purposes, the actual zoning of the land being irrelevant.

Although the PIE Act prohibits unlawful evictions, it also provides lawful eviction procedures to remove non-rent paying tenants, as well as other unlawful occupants, from a property. The aim of the Act is to provide protection for landowners and occupiers.

The other relevant legislation governing unlawful occupation is ESTA, the Extension of Security of Tenure Act. This specfies what a land owner must do to evict unlawful occupants of land. This Act specifically refers to people who live in rural areas. ESTA also provides protection for people occupying land surrounded by a township, or land within a township earmarked for agriculture.

Grounds for eviction under PIE

For occupiers:

• do not vacate the property when a lease has a fixed concluding date which has expired
• have not paid rent
• are a nuisance to neighbours
• have caused damage to property
• have breached the the lease agrement

Grounds for eviction under ESTA

For occupiers

• cause or threaten harm to other people on the land
• cause damage to property
• assist others to erect shelters unlawfully

Commercial & Industrial Tenants

PIE and ESTA do not apply to eviction procedures applicable to tenants of commercial and industrial properties.

Commercial and industrial eviction cases will involve civil litigation based on the terms and conditions of the lease agreement, and the circumstances and merits of each case.

The Eviction Process

The Notice to Evict

Firstly, unlawful occupant(s) need to be notified of the landlord’s intention to have them evicted.

An application is brought before the Court to have a written notice, stating the landlord's intention to evict, served on the occupants. 

Written notice of the eviction hearing must be personally served on the unlawful occupier/s of the property. This notice must be served by the sheriff at least 14 business days before the eviction hearing in court.

The notice must indicate the date and time of the eviction hearing, the circumstances surrounding the eviction, and the unlawful occupier’s right to defend him/herself.

An occupant may choose to oppose the eviction, ignore it or even move out. If the occupier does not apear in court to opose the eviction, the court may grant an eviction order.

An Notice to Evict may also be referred to as an Eviction Letter or Letter of Eviction.

Eviction Order

Once the notice-period has lapsed, the landlord may apply to court for an eviction order. This authorises the Sheriff of the Court, to remove the tenant not paying rent, or any other unlawful occupants, from the property.

An eviction order may be granted by the court and will specify:

• the date on which the unlawful occupier/s must vacate the property, and
• the date on which the sheriff must evict the unlawful occupier/s from the property, if s/he has not yet vacated the property on the date determined by court.

Van Deventer & Van Deventer Incorporated - Property Lawyers in Johannesburg

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