Irrespective of what side of the equation you find yourself, eviction is not a pleasant experience. As tenants, you are being deprived of your home or workplace, and as landlords, you’ve reached the point where you have no choice but to turn to this process to protect your interests.We’ve all heard of the “PIE Act”, and I’m sure talk around the braai is that it is difficult and expensive to evict recalcitrant tenants. It definitely isn’t easy, and like all legal process, does cost some money, but properly handled, an eviction doesn’t have to be the painful and endless process it is often made out to be.
What is eviction?
Eviction is a legal process which allows for occupiers of immovable property to be deprived of the occupation thereof against their will.
The process of eviction is regulated by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, as amended (“PIE”).
The purpose of PIE is to protect both the landowner and the occupier by providing for the prohibition of illegal eviction of occupiers of land.
PIE allows for certain legal procedures to be followed before a court can determine whether it is just and equitable for unlawful occupiers to be evicted. There is a school of thought that postulates that the provisions in PIE aimed at protecting the rights of illegal occupiers of land merely delay the landowners’ rights in this regard, and moves are afoot to test PIE constitutionally.
As matters now stand, however, the following steps must be taken to evict unlawful occupiers of land
1. Cancellation of the lease agreement
Eviction proceedings always follow a breach by the tenant.
To commence eviction proceedings in the Magistrate’s Court, the first step is to terminate the lease agreement between the landowner and the unlawful occupier/s in writing. This can be done in a cancellation notice, or in a letter of demand in which payment of arrear rentals is being demanded. The notice should contain a date by when the tenant is to vacate the property.
If the tenant ignores the cancellation notice and overstays his welcome beyond the indicated vacation date, the tenant becomes an unlawful occupier of the property, and the landlord can turn to PIE to commence the eviction process. This is a complex process, and we highly recommend that you consult an attorney to assist.
2. Drafting the eviction application
The eviction application takes the form of a notice of motion and founding affidavit, the latter of which must comply with Section 4(1) of PIE.
The PIE application must include an undated Section 4(2) notice which will be sanctioned by a magistrate in chambers at a later stage. The Section 4(2) Notice is essentially a second notice to the unlawful occupier/s ensuring that they are aware of the eviction hearing date at least 14 days prior to that date.
3. Issue and serve the eviction application
The PIE application must be issued out of the Magistrates Court with jurisdiction, and served by the relevant sheriff, who must deliver the application to all interested parties – usually the unlawful occupier/s and the municipality.
In terms of PIE, the municipality has a duty to ensure that alternate accommodation is available to the unlawful occupiers, unless the lease agreement provides for the contrary.
The sanctioned Section 4(2) Notice will also be required to be delivered to all interested parties by way of sheriff.
4. The eviction hearing date
The court file is prepared for the hearing and handed to the Magistrate before the hearing date (which is a date allocated for the hearing by the clerk of the court).
On the hearing date, the landlord (usually, and most advisedly, represented by an attorney) attends at court to argue for the eviction. It may be that the application is being opposed by the tenant, in which case, argument against eviction will also be heard.
The Magistrate has the power to grant the eviction or not. The decision is determined by a number of factors under PIE, with the most important being whether it is just and equitable to do so.
Irrespective of whether or not the tenant was in court when the eviction order is granted, the order must be served on the tenant by sheriff. The order will usually include a date by when the tenant must vacate the premises. If he fails to do so, the sheriff will be instructed in terms of the court order to physically evict the tenant.
Depending on the location of the property and the nature of the tenant, the sheriff may request assistance from the SAPS, or from contractors in the private sector (you’ve no doubt seen the “Red Ants” on the news), to physically evict the tenant.
A PIE application is not a claim for payment of arrear rentals or for damages (caused to the property by the tenant, the cost of which may exceed the deposit paid by the tenant). The recovery of arrear rentals and/or damages is a separate action.
Eviction matters are strictly adjudicated by our courts to ensure fairness and legality and can be complicated if the applicable procedures and legal rules are not correctly followed. It is imperative for you to seek the legal advice and expertise of your legal practitioner in this regard.
Sachen Bhagoo
sachen@NLAteam.com
Sources: The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, as amended.