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A basic guide to evictions in SA
BY KABIR CHAGAN OF C&A FRIEDLANDER ATTORNEYS
South Africa has a complex history of land rights, more specifically when it comes to land dispossession
OUR history has shaped our current land dispensation and has influenced how courts have balanced landlord and tenant rights during the eviction process. Magistrates and judges have, since the advent of democracy, acted pro-tenant in a plethora of eviction cases – and perhaps rightfully so, says Chagan.
However, what does this mean for a landlord who is by no means exempt from protection?
Understanding the eviction process is crucial to protecting the landlords’ rights and managing their property effectively.
The firm answers several questions on the process.
Q When may you evict?
A A landlord can initiate the eviction process only if the tenant is in illegal occupation of the property, which will follow the cancellation of the lease agreement. Reasons can include a breach of any of the lease clauses, for example the non-payment of rent, or simply by expiry of the lease term. It’s crucial to establish that there are in fact valid grounds to cancel the lease and, accordingly, to evict under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act), before commencing the process.
Q Should notice be given prior to cancellation?
A In the case of breach, depending on the wording of your lease agreement and before initiating legal proceedings, landlords are generally required to provide written notice to tenants, outlining the reasons for their breach and allowing them a reasonable opportunity to rectify the issue – if possible.
The exact notice period should be set out in the lease agreement. Should the breach not be remedied, then the lease may be cancelled. Accordingly, if the tenant does not then vacate voluntarily, eviction proceedings may then be instituted by way of a formal court application under section 4 of the PIE Act.
Q Are there ways to resolve this without engaging in the eviction process?
A Mediation provides a costeffective, private and less painful pathway through which landlords and tenants can resolve their grievances – in a way that is amicable and efficient.
While the process is voluntary, section 7 of the PIE Act does provide for this useful, yet scarcely used mechanism. It stipulates that any party may request that the municipality (in cases where the municipality are not the landowners themselves) appoint one or more persons with the relevant expertise to attempt to mediate and settle any dispute in terms thereof.
If done successfully, and where the relevant municipality takes a hands-on approach, the parties can bypass the long-winded and frustrating court process that an eviction application would bring.
Q What if mediation is futile/not possible?
A If an agreement cannot be reached, or if the tenant fails to comply with the landlord’s notice to vacate, the landlord may proceed with bringing an eviction application in the relevant court. The application must contain the necessary evidence to support the grounds for an eviction under the PIE Act. It is essential that all procedural requirements are met, and legal documentation prepared accurately.
Q What do the courts consider in relation to tenants’ rights?
A During the court proceedings, tenants have the right to defend themselves and present their case. Tenants often cannot afford to appoint an attorney but will be offered the option of getting legal representation through Legal Aid South Africa (an organisation that provides free legal services for those who qualify).
Judges and magistrates will consider all the relevant circumstances, such as the tenant’s right to housing and the needs of vulnerable individuals or families, with the ultimate goal of determining whether it would be just and equitable to grant an order of eviction.
It is thus imperative to follow due process and ensure that there is just cause for bringing an eviction application, as the courts are often inclined to grant in favour of tenants who bring a valid defence, –especially in cases where they have occupied the land for longer than six months.
Q How long does a landlord have to wait to get a final order of eviction?
A Due to various factors, eviction cases generally take a significant amount of time. The eviction process is, unfortunately, not clear-cut. It takes time, it is not cheap, and there are myriad factors at play.
Q How can a landlord mitigate the risk of proceeding with an eviction?
A Implementing a comprehensive screening process of prospective tenants; properly considering deposit requirements; considering third-party surety; ensuring that lease agreements are concise, comprehensive and well-drafted; performing regular property inspections; promptly responding to breaches made by the tenant; and collaborating with the authorities, such as the municipality or South African Police Service when you encounter problematic tenants.
The article is a general information sheet and should not be used or relied on as legal or other professional advice. Always contact your legal adviser for specific and detailed advice
