Evictions in South Africa are regulated by the Prevention of Illegal Evictions from and Unlawful Occupation Act, Act 19 0f 1998 ("PIE" Act). In terms of Section 4 of the Act an application has to be made to court for an order of eviction.

Eviction proceeding can only commence once the lease agreement has come to an end. The agreement will naturally end when the lease term has come to an end as stipulated in the agreement or agreed between the parties. The agreement can also end when the tenant has been given notice of the termination by the owner (or landlord). The lease agreement is then cancelled and the tenant needs to vacate the premises within a certain number of days as stipulated in the lease agreement. Normally if there is not agreed period to vacate it will be 30 days’ notice.  If the tenant has failed to adhere to the termination of the agreement and failed to vacate the premises the owner or person in control of the property can proceed with an eviction application.

Eviction proceedings may also commence in a  situation where the tenant never lawfully rented the premises. Either way one will have to give notice to the tenant that either his lease has expired and/or come to an end and/or he is occupying the property unlawfully and needs to vacate the premises by a certain period.

If the tenant fails to adhere to the notice then the tenant can be considered to be an unlawful occupier, i.e.  he/she has no legal grounds (good reason) on which he/she is occupying the leased premises. In terms of the PIE Act the eviction procedure will consist of two applications, the first being and an ex parte application (application without notice to the tenant) to court in terms of the Act requesting the court for the authorisation to serve the eviction application on the tenant (whom will now be known as the respondent) and the applicable municipality (the municipality where the premises is situated).

The PIE Act sets out certain aspects that needs to be addressed in the eviction application i.e that the tenant is an unlawful occupier, grounds for the eviction and the tenant needs to be advised of his rights to legal representation. The Act further states the circumstances the court needs to take into consideration before granting an order for eviction. These include age of tenant, women and children and whether the tenant is disabled or not. The Constitution also plays a role in that a person's right to adequate housing is entrenched in section 26 of the Constitution.

Your attorney will have to draw the tenant’s attention to this constitutional right and the court will also take this into consideration when hearing the application.

The court has the discretion to grant the ex parte application, if this is granted then the you can proceed to have the second application (being the actual eviction application), together with the order for authorisation, served on both the tenant and municipality. The tenant or unlawful occupier can then oppose the application, consent to vacate the property or do nothing. If the tenant or unlawful occupier consents or does nothing then you may  enrol the application and have the matter heard as unopposed. The court can then grant an order for eviction if it considers if just and equitable to do so. If the application is opposed and the applicable opposition procedure is followed as set out in the rule of the court.  The opposed application will be argued before the court. The court will then exercise its discretion whether to grant the order or not based on the arguments heard and the facts before the court.

If and eviction order is granted the court will determine a date on which the respondent needs to vacate the property and if the tenant or unlawful occupier does not vacate the property then the Sheriff of the court is authorised to do so.

Written by Anye Jansen van Rensburg, SchoemanLaw Inc