A client asked “if my lease contains a clause whereby the tenant agrees to immediate eviction without legal documentation should he fail to pay the rent on time every month, can I evict or lock out my tenant without obtaining an eviction court order?”

In South African Law, the eviction of a residential tenant is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998 (the PIE Act), that lays down strict steps that a tenant must follow to evict an unlawful occupant (a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land).

To answer my client’s question, the PIE Act specifically prohibits unlawful evictions without the intervention of the Courts.

The PIE Act:

• Protects only residential tenants (i.e. it doesn’t apply to commercial leases), including illegal squatters and defaulting tenants;

• Sets out the steps that a landlord should follow to remove an unlawful tenant who is not paying rental, is a nuisance to the neighbours, causes damage to the property, has a fixed lease which has come to an end and has not been renewed, has breached provisions of an existing lease agreement, etc.

A landlord will instruct his attorney to commence eviction proceedings, and the following happens:

• Typically (except in a case of urgency, e.g. if the tenant is maliciously damaging the leased premises because he got notice to vacate) the attorney will call on the tenant to remedy the breach (usually failure to pay rent on time);

• If the tenant fails to deal with the demand, the tenant will be considered to be in illegal occupation of the property;

• The attorney then applies to court for permission to begin the eviction process. The court gives a directive as to how and on whom notice of eviction should be served;

• The attorney doesn’t give the tenant notice at this time;

• The application to court sets out the reasons for the application and the personal circumstances of the occupants;

• If the courts is satisfied that it is fair to evict the tenant and all persons occupying the property with him, it gives a directive as to how the application for eviction must be served;

• The sheriff then serves the notice of intention to evict on the tenant and the Local Municipality;

• The occupants have an opportunity to oppose the application, and explain why they should not be evicted;

• If there is opposition, the matter gets argued before a magistrate or judge, who decides whether an eviction order can be granted, and if so, by when the occupants should vacate the property within a stipulated time;

• If the tenant does not oppose, the court will grant the eviction order;

• If the tenant fails to move, the attorney will apply to Court for a warrant of ejectment to be issued by the Court. This process can take a further three to four weeks.

Spoliation

The landlord must follow the steps laid down by the PIE Act and not take the law into his own hands by, e.g., changing locks, disconnecting electricity and water supplies, or evicting a tenant by intimidation or force. These are examples of “spoliation”, which entitles the tenant to approach the court to give him the leased premises back and to order the landlord to pay the tenant’s legal fees.

For more on Spoliation, see here.

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