When it comes to evicting a residential tenant, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (known as the PIE Act) governs the whole process, say Gunston Strandvik Mlambo Attorneys.
One purpose of the PIE Act is to prohibit unlawful evictions. But another purpose of PIE is to prevent unlawful occupation and put in place fair procedures to allow for lawful evictions of illegal occupants. PIE seeks to protect both occupiers and landowners.
There are many pitfalls to the legal process, and it can take a long time. However, you will almost certainly succeed if you remember the basics and follow the correct procedures.
Process
As a starting point, the owner who wants to evict must legally terminate the lease. The reason for cancelling the lease must be a legal one. For example, the lease agreement must have expired, or there should have been a material breach of contract by the occupant, for instance, not paying the rent as agreed. The cancellation must follow the procedure set out in the contract - if any.
The next step is for the owner to apply to the court to begin the eviction proceedings. If the application is successful, the court will order notice of the upcoming eviction proceedings to be served upon the occupant and the municipality. The municipality must be included because it has an interest in the outcome of the case.
This notice must be served in the form of a notice of motion accompanied by a supporting affidavit. It is the job of the sheriff of the court to serve this notice. This notice must be served at least 14 days before the court date.
The notice sent to the occupant must:
- State that proceedings are being instituted in terms of the relevant section of PIE.
- Inform the occupant of the date and time the court will hear the eviction proceedings.
- Set out the reasons for the proposed eviction.
- State that the unlawful occupier is entitled to appear before the court and defend the case and may apply for legal aid, where necessary.
The occupant is then allowed to oppose the eviction and file an answering affidavit. The owner has a final opportunity to respond with replying papers. In this process, there is a chance for resolution of the matter without going to court.
If no resolution can be found before the court date, the matter must go to court. The matter will be argued before the court, and the court will then decide the case.
Eviction
If the court grants an eviction order, it has to set a just and equitable date by which the unlawful occupants must leave the property by themselves. It has wide discretion in determining this date.
The court must also set a date on which an eviction can be carried out if the occupants have not left the land by the first date.
In determining these dates, the court must consider all relevant factors. This includes the period the unlawful occupiers have lived on the property in question.
The landowner is not permitted to carry out the eviction if the unlawful occupiers fail to vacate by themselves.
The sheriff of the court is the only person who may carry out the eviction. At the sheriff's request, the court may authorise the sheriff to be accompanied by another person to help carry out an eviction. But the sheriff must at all times be present for the eviction.
An eviction is a legal matter; knowing the ins and outs outlined above will save you time and money.
Writer: Sarah-Jane Meyer
