Residential Evictions

Residential evictions in South Africa are governed by either the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) or the Extension of Security of Tenure Act (ESTA). The first step in any eviction process is determining which of these two Acts applies to your situation.

• ESTA evictions must be handled by either a Land Claims Court or a Magistrate’s Court.
• PIE evictions can be handled by either a Magistrate’s Court or the High Court.

Choosing the wrong Act can cause your case to fail, no matter how strong it is. Key factors to consider include the type of land, the consent (if any) the occupants had when moving in, and the income level of the occupants.

Evictions Under PIE

If your eviction falls under PIE, the first step is to confirm that the occupant is in illegal occupation. Simply failing to pay rent does not automatically make a tenant’s occupation illegal.

If a tenant breaches a lease agreement, the landlord must act according to the breach clause. This usually involves:

• Providing written notice of the breach.
• Giving the tenant a set period to fix the issue.

In some cases, the Consumer Protection Act (CPA) applies, which may require a 20-business-day notice. Failing to give the correct notice can invalidate the eviction. Only once the notice period has expired and the lease has been formally cancelled in writing does the tenant become an illegal occupant.

Once the tenant is in illegal occupation, the eviction process can begin. Under PIE:

1. The landlord applies for a service directive from the Court, which allows them to notify the occupant about the eviction.
2. This is done via an Ex-Parte application, where the Court must be informed about the personal circumstances of the occupants, including:
   – Number of people living on the property
   – Presence of elderly occupants
   – Whether the household is headed by a woman or child

After receiving the service directive, notice of the eviction is given to both the occupants and the local municipality. Occupants then have the opportunity to explain why they should not be evicted. They may raise issues like self-help eviction attempts, which can delay the final order.

Once both sides have presented their cases, the matter goes before a Judge or Magistrate. The Presiding Officer considers the occupants’ personal circumstances, including how long they have been living on the property, to set a reasonable date for vacating.

If the occupants do not leave by the date ordered, the landlord can apply for a Warrant of Ejectment. The warrant is given to the Sheriff of the Court, who enforces the eviction. This final stage may take up to two weeks to complete.

If you would like more advice on your particular matter, feel free to contact us.