Regardless of which side of the eviction process you are on, it is never a pleasant experience. For tenants, it means losing access to their home or workplace, while for landlords, it signifies a last resort to protect their property rights and financial interests.
Many people have heard of the “PIE Act” and often discuss how challenging and costly it can be to remove tenants who refuse to vacate. While the eviction process is not simple and does involve expenses, when handled correctly, it does not have to be the drawn-out and difficult ordeal it is often perceived to be.
Understanding Eviction
Eviction is a legal mechanism that enables property owners to remove occupants who are residing on the premises without permission lawfully.
The process is administered by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, commonly called “PIE.”
PIE aims to balance the rights of both landlords and occupants by prohibiting unlawful eviction while outlining the proper procedures that must be followed.
Before a court can order an eviction, specific legal steps must be taken to determine whether it is fair and just to remove unlawful occupants. Some argue that PIE overly protects illegal occupiers at the expense of landowners, and there have been discussions about its constitutional validity.
However, under the current legal framework, the following steps are necessary to evict unlawful occupants:
1. Terminating the Lease Agreement
Eviction proceedings generally begin with a breach of the lease agreement by the tenant.
To initiate eviction proceedings in the Magistrate’s Court, the landlord must first terminate the lease in writing. This is typically done through a cancellation notice or a letter of demand requiring payment of overdue rent. The notice should specify a deadline for the tenant to vacate the property.
If the tenant fails to leave by the stated date, they become an unlawful occupier, and the landlord can proceed with an eviction application under PIE. Given the complexity of this process, seeking legal assistance is strongly recommended.
2. Preparing the Eviction Application
The eviction application consists of a notice of motion and a supporting affidavit, which must comply with Section 4(1) of PIE.
A key component of the application is an undated Section 4(2) notice, which must later be approved by a magistrate. This notice ensures that the unlawful occupiers receive proper notice of the eviction hearing at least 14 days in advance.
3. Filing and Serving the Eviction Application
The application must be filed in the Magistrate’s Court that has jurisdiction over the property, and a sheriff must serve it on all relevant parties, including the unlawful occupants and the municipality.
Under PIE, municipalities must assess whether alternative accommodation is available for unlawful occupiers unless otherwise specified in the lease agreement.
Once the magistrate approves the Section 4(2) notice, it must also be served on the relevant parties by the sheriff.
4. The Eviction Hearing
The court file is prepared in advance and presented to the magistrate on the hearing date, which is set by the court clerk.
On the scheduled day, the landlord—ideally represented by a legal professional—attends court to argue for the eviction. If the tenant opposes the application, their arguments will also be heard.
The magistrate will decide whether to grant the eviction order based on various considerations outlined in PIE, primarily whether it is just and equitable to do so.
Regardless of whether the tenant attends the hearing, if an eviction order is granted, it must be formally served on them by the sheriff. The order will include a deadline for vacating the premises. If the tenant does not leave by this date, the sheriff will be authorized to enforce the eviction.
Depending on the circumstances, the sheriff may request assistance from the South African Police Service (SAPS) or private security contractors (such as the well-known “Red Ants”) to carry out the eviction.
Important Considerations
It is important to note that an eviction application under PIE does not include claims for unpaid rent or property damage. If a landlord seeks to recover arrears or damages beyond the tenant’s deposit, a separate legal action is required.
Evictions are strictly regulated by the courts to ensure compliance with the law and fairness to all parties involved. Failure to follow the proper procedures can lead to significant delays or even dismissal of the application. Seeking legal advice from a qualified attorney is essential to navigating the eviction process effectively.
Recent eviction-related cases in South Africa have highlighted the complex interchange between property rights, tenant protections, and constitutional considerations. Here are some noteworthy cases:
1. Skog N.O. and Others v Agullus and Others (797/2021) [2023] ZASCA 15
In this case, the Supreme Court of Appeal addressed the eviction of farm occupiers under the Extension of Security of Tenure Act 62 of 1997 (ESTA). The court examined whether terminating the occupiers’ right of residence was just and equitable and considered the applicability of the legal principle of res judicata, which prevents the same issue from being litigated multiple times. The judgment emphasized the need for a balanced approach, considering both the rights of landowners and the protections afforded to occupiers under ESTA.
2. City of Johannesburg’s Eviction Attempt at a Retirement Village
In October 2024, the City of Johannesburg sought to urgently evict unlawful occupants from a retirement village. The Johannesburg High Court denied the eviction order and subsequently refused the city’s application for leave to appeal, stating that the law in question was “unappealable.” This case stresses the judiciary’s cautious approach to evictions, expressly involving vulnerable groups, and highlights the stern requirements that must be met to justify such actions.
3. William Grobler v Clara Phillips and Others CCT243/21
The Constitutional Court dealt with an eviction matter where the High Court had previously set aside an eviction order issued by a Magistrates’ Court. The High Court held that the landlord had not established that the tenant was an unlawful occupier as defined under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). This case highlights the importance of landlords adhering to proper legal procedures and ensuring that tenants’ rights are respected before seeking eviction.
These cases explain the South African courts’ commitment to balancing property owners’ rights with the constitutional protections afforded to occupiers, warranting that evictions are steered in a manner that is just, impartial and in line with legal contexts.