How to Evict a Tenant Legally in South Africa?
According to a study, over 6% of tenants in South Africa didn’t pay their rent by the end of 2017. Those with a rent amounting to R3 000 monthly were among the group who failed the most in paying their rent. Landlords may not be able to easily evict problematic tenants like this due to the PIE Act.
What is the PIE Act? How can landlords evict a non-paying tenant? What does the rental law in South Africa say about the rights of landlords and tenants? These are the questions will give answers to as you read on.
The PIE Act
The Prevention of Illegal Eviction and Unlawful Occupation of Land Act No. 19 of 1998 (PIE Act) stipulates processes in evicting illegal occupants and prohibiting landlords from doing unlawful eviction of tenants. Tenant rights are reinforced in this rental law by adding steps that will give them the chance to explain and defend themselves. The rental law also gives power to landlords to exercise their rights, albeit under legal proceedings.
It’s important to have a legally binding agreement between the landlord and the tenant. The lease agreement may either be written or verbal in form. Although not required by law, it’s highly recommended to get a written contract that spells out the terms and conditions of the tenancy. This will serve as protection to both parties in case either of them fails to fulfil their obligations.
Evicting a Tenant
A tenant is considered an unlawful occupant when the lease contract ends either due to the stated expiration of the lease or due to a breach of contract.
According to the Consumer Protection Act (CPA), a landlord should give notice to their tenants regarding the cancellation of the lease agreement due to a breach in the contract. The rental law in South Africa states that the notice period should last for at least 20 business days. Within this period, the tenant can either pay the rent or comply with the agreed contract to avoid making matters worse.
The proper tenant eviction process should be followed in accordance with the law. If done improperly, this can cause delays or even imprisonment on the part of the landlord. However, you can apply the urgent eviction process if you can prove that your tenant poses an imminent danger.
The Proper Procedure
The tenant rights enforced in South Africa give people extra protection against unlawful evictions. The landlord, though, still has the right and power to dispatch problematic tenants who have breached lease agreements. They just have to go through the proper eviction process as listed below.
- Contract cancellation
The landlord can only issue an eviction notice at the 21st business day after the tenant received the notice on the lease breach. It will only be considered legal if there also has been no action on the part of the tenant to rectify the breach.
The eviction notice will contain instructions for the tenant to vacate the premises within the date specified by the landlord. You can download an eviction notice template online.
- Legal action
If the tenant fails to vacate the premises on the specified duration, only then will the landlord be able to proceed with the prescribed legal action. The landlord can lodge the eviction application to the court and request to serve the unlawful tenant with a notice of motion.
However, if the tenant has also lodged a complaint with the Rental Housing Tribunal (RHT), the landlord can’t proceed with court summons yet. They have to wait until the RHT has come to a decision with regards to the complaint or 3 months has elapsed since the complaint was filed.
- Notice of motion
The landlord must serve the approved notice of motion to the unlawful tenant at least 14 days before the hearing ensues. Failure to serve the notice in person within the said duration will nullify its effect and the landlord must resubmit the eviction application again to the court.
- Court proceedings
An eviction application will be considered unopposed if neither the unlawful tenant nor their legal representative is present in the court. The court will also consider the motion unopposed if the unlawful tenant completely agrees to vacate the premises by the prescribed date.
However, there’s still a chance for the unlawful tenant to defend themselves. They can inform the court of their intention to oppose the notice before the hearing date. In this case, the court will postpone the hearing to allow both parties to file the required papers for the proceeding. The unlawful occupant can also oppose the motion on the day of the hearing itself by explaining their side for failing to comply with the lease agreement.
If the court finds out that the landlord failed to comply with the practice prescribed in the Rental Housing Act, both the occupant and the landlord will be taken to the RHT. The case will only be taken to the court again after the RHT has made a decision.
- Eviction order
After the court proceedings, the eviction order will be delivered to the unlawful occupant. The order must include the date when the occupant should vacate the premises. Typically, the occupier is given a month to look for a place to live in after the eviction.
The order must contain details granting the Sheriff authority to forcibly remove the occupant if they fail to leave the property on the specified date.
- Forced removal
The Sheriff can’t just take the unlawful occupant by force without having a warrant of ejectment at hand. This means the landlord must immediately request the court to issue a warrant and then have the Sheriff handle things from there.
The eviction process in South Africa is a long procedure. It will take around 4 to 10 weeks to complete the process of unopposed eviction applications. On the other hand, in instances where the occupier opposes the landlord, it may take up to 18 weeks to go through all the legal procedures.
The best way to free yourself from this hassle is to thoroughly screen applying tenants. When worse comes to worst, document everything that transpires between you and your problematic tenant and then take immediate legal action to quickly resolve the dispute.