Eviction
Eviction in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
In order to evict an unlawful occupier (tenant) from residential property, the procedure in terms of Sections 4 and 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the Act) must be complied with. A lessor has to obtain a court order to evict an unlawful occupier.
The main purpose of the Act is to protect both occupiers and landowners by prohibiting illegal eviction on the one hand and by providing the correct procedures for eviction of unlawful occupiers on the other. Landowners must follow these steps in order to obtain an eviction order:
STEP 1 - LETTER OF DEMAND AND CANCELLATION OF LEASE AGREEMENT
First establish whether the lease agreement has come to an end, whether by cancellation due to breach or by due notice given in terms of the lease agreement.
STEP 2 - DRAFT EVICTION APPLICATION
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Prepare the eviction application. The application is brought on Notice of Motion supported by an affidavit as to the facts relied upon by Applicant for relief.
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The application is issued and delivered to Sheriff for personal service on the occupants. The occupants will have 5 court days to note their intention to oppose the application and thereafter 15 court days to file their answering affidavit. The Applicant will have an opportunity to file a replying affidavit.
STEP 3 - DRAFT SECTION 4(2) EX PARTE APPLICATION
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Prepare the Ex Parte Application. The Applicant approaches the court on the given date where the court will be requested to authorise the service of the Section 4(2) Notice.
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Once the Ex Parte Application is granted, the clerk of the court will be given notice to immediately issue the Section 4(2) Notice.
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the Section 4(2) Notice may be served on the occupiers and the municipality having jurisdiction.
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The service must take place in accordance with the directions of the court and at least 14 days before the hearing takes place.
STEP 4 - THE HEARING OF THE APPLICATION
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On the return date the court will hear evidence as to the equity provisions in terms of Section 4(6) of the Act regarding the rights and needs of the elderly, children, disabled persons and households headed by women.
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The court must then, considering the provisions of Sections 4(6), 4(7), 4(8) and 4(9), determine whether it is just and equitable to grant an order for eviction.
STEP 5 - ORDER GRANTED
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The court order will indicate on which date the occupiers must vacate the property.
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Should the occupiers fail to vacate the property as per the court order, the Sheriff will be instructed to evict the occupiers.
Eviction in terms of the Extension of Security of Tenure Act
All evictions in South Africa are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, unless the Extension of Security of Tenure Act 62 of 1997 (ESTA) applies.
ESTA sets out the procedure for eviction of occupiers who resides on the land of another person and who has on 4 February 1997 or thereafter had consent or another right in law to reside on such land.
An occupier however excludes the following persons:
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A labour tenant.
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People using land for mining or industrial purposes, for business or commercial farming.
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People who have a gross income in excess of R 5000 per month.
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Unlawful occupiers.
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People who live in a proclaimed township not designated for agricultural purposes.
The consent required by the occupier to reside on the land may be express or tacit consent of the land owner ( meaning the owner of the land at the time of the relevant act, omission or conduct and includes the holder of mineral rights or person in charge of such land ( meaning the person who at the time of the relevant act, omission or conduct had or has legal authority to give consent to a person to reside on the land in question.
Either the owner of the land or the person in charge will be able to bring an eviction application in terms of ESTA.
The eviction proceedings in terms of ESTA:
Notice of termination of the occupier’s rights to reside on the land must be given in terms of ESTA prior to any eviction proceedings may commence.
Section 8 of ESTA states that the occupier’s rights of residence may be terminated on any lawful ground, provided that such termination is just and equitable giving regard to the circumstances of the matter and having regard to the following factors:
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the fairness of the agreement between the occupier and the owner of land;
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the conduct of the parties giving rise to the termination;
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the interests of the parties;
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the existence of a reasonable expectation of the renewal of the agreement and
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the fairness of the procedure followed by the owner of land.
The Act imposes a limitation on eviction of an occupier who has resided on the land for longer than 10 years and has reached the age of 60 and is in the employ of the land owner, however cannot work due to illness. Such occupier can only be evicted if the occupier has committed a breach that is material, the owner of the land has complied with all his obligations to the occupier and the occupier must have also fundamentally breached the relationship between himself/herself and the owner which breach cannot be remedied.
After the right to residence has been terminated in terms of section 8, written notice must be given to the occupier, the relevant municipality and the head of the provincial office of the Department of Land Affairs, providing the occupier with not less than 2 months within which to vacate the land as mentioned in section 9 of ESTA.
In addition to the factors mentioned above, in terms of section 10 of ESTA, the court will order eviction of a person who was an occupier on 4 February 1997, if alternative accommodation is available, and if not, if alternative accommodation is made available within a period of 9 months after the termination of residence.
In terms of Section 11 of ESTA, the court will order eviction of a person who was an occupier after 4 February 1997, if the consent provided to reside of the land was for a fixed, determinable date and such consent lapsed. The Court will however also have regard to
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the period that the occupier has resided on the land in question;
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the fairness of the terms of any agreement between the parties;
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whether suitable alternative accommodation is available to the occupier;
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the reason for the proposed eviction;
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the balance of the interests of the owner or person in charge, the occupier and the remaining occupiers on the land.
The eviction order must determine a just and equitable date on which the occupier shall vacate the land.
Furthermore, section 13 of ESTA provides that the occupier must be compensated for any any improvements to the land or property, including crops that have been planted with the consent of the owner, and any wages due to the occupier.
The application through ESTA must be brought to the Land Claims Court or the relevant Magistrate's Court.
It is important from to firstly establish whether the evictions process in question is undertaken in terms of PIE or ESTA as the applicable legislation, which will necessarily have dramatic implications with respect to the time frames and costs involved.
