Landlords, what are your rights when an unlawful occupier refuses to move out of your property? Willem le Roux, MD of Le Roux Attorneys Inc, explains the two relevant sections in the Prevention of Illegal Eviction Act but concludes that it is always better to reach a settlement than to go to court.
Section 4(7) of the Prevention of Illegal Eviction Act (PIE) states that if an unlawful occupier has occupied land for more than six months at the time when eviction proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so. Relevant factors which must be taken into account are the availability of alternative accommodation and the rights and needs of the elderly, children, disabled persons and households headed by women.
Section 4(8) of PIE states that if the court is satisfied that all the requirements of Section 4 have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction process. The word “must” is of particular significance as PIE does not provide the court with discretion as to whether an eviction order may be granted in these circumstances. In other words, if all the requirements of Section 4 have been met with no valid defence, the court is obliged to grant an order for eviction.
The court is then tasked with determining a just and equitable date for eviction. The determination of the date can therefore only be done after the court has decided to grant an eviction order. In order to determine a just and equitable date for vacation, the court must have regard to all relevant factors, including the period the unlawful occupier and his or her family have resided on the land in question. In City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others (SCA)  ZASCA 116, the Supreme Court of Appeal dealt with the relationship between Section 4(7) and Section 4(8) of PIE.
The court held that:
“the first enquiry is that under S 4(7), the court must determine whether it is just and equitable to order eviction having considered all relevant circumstances. Among those circumstances the availability of alternative land and the rights and needs of people falling in specific vulnerable groups are singled out for consideration. Under S 4(8) the court is obliged to order an eviction ‘if the requirements of the section have been complied with’ and no valid defence is advanced to an eviction order. The provision that no valid defence has been raised refers to a defence that would entitle the occupier to remain in occupation as against the owner of the property, such as the existence of a valid lease. Compliance with the requirements of Section 4 refers to both the service formalities and the conclusion under S 4(7) that an eviction order would be just and equitable. In considering whether eviction is just and equitable the court must come to a decision that is just and equitable to all parties.
“Once the conclusion has been reached that eviction would be just and equitable the court enters upon the second enquiry. It must then consider what conditions should attach to the eviction order and what date would be just and equitable upon which the eviction order should take effect. Once again the date that it determines must be one that is just and equitable to all parties.”
How long does it take to evict someone from my property?
In light of the above, it is clear that there are no hard and fast rules when it comes to how long court eviction process proceedings take. Some tenants are evicted within three months. Some matters, especially those involving occupants deemed to be vulnerable, drag on for years. What is apparent is that the parties will always be better off reaching a negotiated settlement, rather than going to court.
Landlord rights in South Africa
What are your rights as a landlord in terms of the Rental Housing Act 50 of 1999?
In terms of Section 4(5) of the Rental Housing Act, the landlord’s rights against the tenant include his or her right to:
- prompt and regular payment of a rental or any charges that may be payable in terms of a lease;
- recover unpaid rental or any other amount that is due and payable after obtaining a ruling by the Rental Housing Tribunal or an order of a court of law;
- terminate the lease in respect of rental housing property on grounds that do not constitute an unfair practice and are specified in the lease;
- on termination of a lease to—
(i) receive the rental housing property in a good state of repair, save for fair wear and tear; and
(ii) repossess rental housing property having first obtained an order of court; and
- claim compensation for damage to the rental housing property or any other improvements on the land on which the dwelling is situated, if any, caused by the tenant, a member of the tenant’s household or a visitor of the tenant.
Who is Willem le Roux?
Willem Le Roux is the managing director of Le Roux Attorneys Inc., a South African law firm specialising in immigration, litigation and commercial legal services. Willem obtained degrees in both law and commerce at the University of Stellenbosch, where he was the chairman of the Law Students’ Society.