There often comes a time where a lessor or an owner of a property experiences difficulty in getting a lessee, or a random third party, to vacate his/her property albeit after a lessor/lessee relationship has broken down, or where a property, which was left vacant for an amount of time, simply gets occupied by third parties. This often leads to financial distress of the lessor or owner, and possible damage to the property.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“the Pie act”) regulates the manner and rules to be followed when pursuing a residential eviction. In terms of the Pie act, an owner or a person in charge of the property is entitled to approach the Court for an eviction order. An owner is defined in the Act as “the registered owner of land, including an organ of state” and a person in charge of the land in question is defined as “a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question.”

 In terms of the Pie act, only unlawful occupiers may be evicted. This means that the occupiers must be made aware of the fact that they are unlawfully occupying a property. Occupiers of a property can either be in terms of a lease agreement between themselves and the landlord, lessor or owner, or by way of an oral agreement to reside at the relevant property, or totally randomly and unlawfully. With either of the above, the Pie act must be strictly followed when an eviction of a person or persons are planned.  A Court will only issue an eviction if it was proved to the Court that an eviction under the circumstances is just and equitable.

For an occupant/ occupier to be evicted in terms of the Pie act, he/she/they have to be classified as unlawful occupiers of the relevant property. Usually unlawful occupier/s of a property is a person, and all those who reside through that person, who does not reside at the property in terms of a valid lease agreement any longer. Under these circumstances the lease agreement may have been terminated by the lessor or the lease period may have expired.

Breach of lease agreement by lessee:

Should the lessee be in breach of any term of the lease agreement, the breach clause must be strictly followed in order to determine when a lessor is entitled to cancel the lease agreement. Most breach clauses in lease agreements stipulates a number of days to provide the lessee to rectify his/her breach, failing which the lessor may cancel the lease agreement.

Should the agreement be subject to the Consumer Protection Act 68 of 2008, the lessor is obliged to provide the lessee with at least 20 (twenty) business days to rectify his/her breach of the agreement, failing which the lessor may proceed to cancel the agreement. Should there not be a formal written agreement, or should the written agreement not contain a breach clause, a reasonable time should be awarded to the occupier to remedy the breach, or if there is no written agreement, a reasonable notice of cancellation should be provided to the occupier.

The cancellation of the agreement:

The cancellation of the agreement is done by an additional written notice that is delivered to the tenants/lessee(s) advising him/her that the agreement is thereby formally cancelled and that he/she must vacate the property immediately. The tenant/lessee will then embody the title of an unlawful occupier.

The process of a residential eviction:

An application is drafted and issued at Court supported by a founding affidavit;

  1. The application is then served on the unlawful occupier/s by way of a sheriff;
  2. An interlocutory (interim) application is then brought in terms section 4 (2) of the Pie act in terms whereof the applicant requests the Court to approve a final notice, which notice must contain the following information:
    • that proceedings are being instituted for an order for the eviction of the unlawful occupier;
    • indicate on which date and at what time the court will hear the proceedings;
    • set out the grounds for the proposed eviction; and
    • state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.
  3. The notice referred to in paragraph 3 hereinabove is then served at least 14 days prior to the hearing of the main application.
  4. Should the Court grant the eviction order, same will contain a number of days in which the unlawful occupiers must vacate the property. Should they fail to do so, the sheriff can be instructed to remove the unlawful occupiers from the property with, or without the assistance of the police service.

Arrear rental:

Most of the time, an arrear rental account foregoes an eviction application. Unfortunately, the arrear rental cannot be claimed in the eviction application. A separate summons for the recovery of the arrear rental should be issued together with the application. It is also advised that a summons including an automatic rental interdict is utilized, and is served on the occupiers simultaneously. This specific summons interdicts the unlawful occupier/s from removing any assets from the property, in security of the arrear rental.

Should you require any assistance with a residential eviction, do not hesitate to contact our offices at Jaques@cvhattorneys.co.za or 012 993 5907 or Whatsapp us on 076 151 6800.

Associate Legal Practitioner (Attorney)