Rent is late…again. As this dreadful month-end ritual unfolds, you can’t help but wonder: Will the rent be paid in full, or at all, this time? If not, what then? Can this situation be resolved? How can it be prevented? Perhaps the most common predicament landlords face when having to evict a tenant is the uncertainty of what to expect and figuring out what to do. In her book, The Landlord’s Guide – Property Rental and Eviction, attorney and MD of SSLR Inc, Cilna Steyn, provides guidance on some of the typical problems facing landlords while providing the legal options available to address them.
Steyn has kindly granted HomeTimes permission to republish her book.
Chapter #2: The eviction process
Up to now, the process has been relatively straightforward and could easily have been handled by the landlord. But from this point on, an in-depth knowledge of the relevant eviction legislation, and experience, could mean the difference between weeks or months with equal proportions of costs and losses.
After the successful cancellation of the lease agreement we are no longer dealing with a tenant but with an unlawful occupant leaving us with one of two possible courses of legal action to follow: Eviction in terms of PIE or ESTA.
Whereas PIE applies to unlawful occupiers of land situated within South Africa, in both rural and urban areas, ESTA applies only to “occupiers” of rural or peri-urban land. Both will be discussed in greater detail later, but, for now – as our now unlawful occupant makes a clear case for eviction in terms of PIE – the eviction attorney will continue with eviction proceedings in terms thereof.
What process, which court?
The eviction process differs from court to court but there are a few specific processes that are followed by different courts; it is therefore imperative to ensure that you are acquainted with the process followed by the court that you intend to approach prior to initiating the process.
Many Magistrates Courts’ processes can be determined by attending to the court in question and approaching either the Clerk of the Court, or a Magistrate at the court, and enquiring which process is followed. In the High Courts it is advisable to obtain the Practice Manual of the specific court, as this would give sufficient insight into the procedure to be followed.
Most, if not all, High Courts follow the process as set out in the Cape Killarney-case below. It requires that the main action or application be served and only once it is ascertained whether the matter is unopposed (or undefended) – or only on litis contestatio – to bring the Ex Parte application. In most High Courts the Ex Parte application will be brought in the Motion Court and not in Chambers.
CAPE KILLARNEY PROPERTY INVESTMENTS (PTY) LTD V MAHAMBA AND OTHERS (495/99)  ZASCA 87;  ALL SA (A)
Section 4(3) provides that the notice of proceedings must be served in accordance with the Rules of the Court.
Brandt JA: Section 4(3) requires that a notice of motion is to be served upon the alleged unlawful occupier in the manner prescribed by Rule 4 of the Rules of the Court. Therefore, a separate application must be instituted in terms of Rule 6 of the Rules of Court in addition to the section 4(2) notice.
An ex parte application is done to obtain an order authorising the Notice in terms of section 4(2) and to provide a service directive for this notice.
The ex parte application is not an interim order for eviction to be confirmed on a return date.
The ex parte application can only be heard after litis contestatio (When all papers have been filed setting out the basis of the claim and the alleged defence)
The purpose of section 4(2) is to afford the Respondents in an application an additional opportunity, apart from the opportunity they already had under the Rules of the Court, to put the circumstances that they allege to be relevant to their continued occupation before the court.
As mentioned, each court follows its own specific practice regarding evictions but the two main procedural trends are as follows:
- Notice of Motion and Founding Affidavit
- Founding Affidavit is deposed by the owner of the property setting out the grounds for the eviction under oath;
- Served via sheriff on the occupants either personally or on any person older than 16 on the property;
- States that the occupants have 5 court days in which to file their Notice of Intention to Oppose should they wish to prepare a defence against the eviction;
- The Notice of Motion includes a date on which the eviction shall be heard.
- Ex Parte application
- Application to the court for the authorisation of the Section 4(2) Notice and service directives.
- Section 4(2) Notice
- Section 4(2) Notice is served on the occupants.
- Section 4(2) includes the date on which the matter shall be heard. The Notice must be served 14 calendar days before the eviction hearing stipulated in the Notice of Motion and the Section 4(2) Notice.
- The purpose of the Section 4(2) Notice is to:
- Give the occupants notice of the eviction proceedings against them and notice of the date on which the court will hear the proceedings;
- Set out the grounds on which the eviction is sought;
- Inform the Respondents of their right to appear before the court and defend the proceedings.
- Eviction hearing
- takes place on the date set out in the Section 4(2) Notice.
- The Judge or Magistrate decides on a just and equitable date on which the occupants must vacate the property.
- Should they fail to vacate on the date chosen by the Judge or Magistrate, the court authorises the sheriff to forcibly remove the occupants and all movables from the property.
- Notice of Motion and Founding Affidavit
- Served on the occupants of the property by sheriff;
- The occupants are allowed 5 court days in which to oppose the matter.
- Notice of Intention to Oppose
- Served on attorneys of record and filed at court;
- Thereafter, they have 15 court days in which to file their Answering Affidavit.
- Answering Affidavit
- Deposed by one of the occupants of the property setting out their alleged defence under oath;
- Thereafter, the owner of the property has 10 court days in which to file their Replying Affidavit.
- Replying Affidavit
- Answers to all allegations made in the Answering Affidavit of the occupant.
- Ex Parte Application
- Section 4(2) Notice
- Eviction Hearing
Flow of the eviction process
Possible grounds for opposing eviction (defences)
Occupational right was never cancelled – This would typically be a position where a tenant was in breach of the terms of the agreement, but the agreement was never formally cancelled.
Habitatio – This is a personal servitude affording the holder a right of occupation of a property which belongs to another party. For habitatio to be enforceable against a third party, it should be registered. However, even if it is not registered, it will be enforceable inter partes (the parties between whom the agreement was concluded).
Property Lien – This should be dealt with in full detail in the lease agreement. Usually the lease agreement will state that only improvements done with the consent of the landlord can be offset against rental.
In a case where there is no agreement regarding this, the general rule is that only necessary improvements, for instance repairing a burst geyser, may be deducted from rental payments. Any other improvement, regardless how costly or ecstatic, cannot be deducted from payment.
However, even though the tenant may not withhold rental payment because of these improvements, the tenant may have a right to claim reimbursement from the landlord if the improvements increased the value of the property.
Huur Gaat Voor Koop – In terms of this principle, the tenant is protected against any subsequent purchasers of the property. He is in essence protected against any subsequent successors in title of the landlord. The tenant shall be protected for the full terms of the lease if:
- the tenant is in occupation of the property let; or
- the successor of the landlord was aware of the lease when he or she entered into the contract with the landlord or when he or she acquired the real right in the property; or
- the successor of the landlord acquired the right in the property gratuitously.
Example: Mrs Lessor and Mr Lessee entered into a lease agreement in respect of property X. Mrs Lessor, as the owner and landlord of the property sells her property to Mrs New Owner and does not notify Mr Lessee of this. In terms of the Huur Gaat Voor Koop principle, Mrs New Owner must honour the lease agreement and if the lease agreement is subject to the CPA, Mrs New Owner may only cancel the lease agreement if Mr Lessee commits a material breach. Mr Lessee on the other hand, must make the rental payments to Mrs New Owner, as she has become the landlord of the property and replaced Mrs Lessor in that position.
Section 4(6) of PIE provides for four categories of persons to whose needs the court should pay specific attention when determining a date on which it would be just and equitable to grant the eviction against such occupants.
These four categories are:
- elderly people;
- woman-headed households; and
- disabled people.
It is a common misperception that eviction will not be granted against these categories of people, or that it would be more difficult to obtain an eviction order against these categories of people. PIE merely demands the court to take their needs into special consideration when granting an eviction order. For instance, where children are part of the household to be evicted, the court would consider the time period that the occupants would require to find alternative accommodation close to the school which the children attend. Therefore, instead of allowing the occupants two weeks to vacate the property, the court might consider providing them with a two-month period instead, before the Sheriff is authorised to attend to the eviction.
It is of paramount importance that the court be made aware of such people with special needs and it is the duty of the applicant to do so, should the applicant be aware of any of these categories of people residing at the property. The court can also be addressed on the possibility of relocation and the availability of alternative accommodation which would assist the court in the consideration of these categories of tenants.
The Sheriff of the Court will be authorised by the Court to attend to the eviction on (or after) a specific date, should the occupants fail to vacate as directed by the order. In a case where there are a large number of occupants, the sheriff might be authorised to make use of independent contractors, such as the Red Ants for instance, to assist with the eviction. Where assistance from the South African Police Service or the Army might be required, it needs to be arranged accordingly.
Last time: When to start the eviction process
Next time: Understanding legal concepts
Who is Cilna Steyn?
Cilna Steyn, MD of SSLR Inc, completed her LLB Degree at Unisa, after which she was admitted as an attorney in 2007. She co-founded Steyn & Steyn Attorneys, where she began specialising in evictions.
She regularly presents trainin
g sessions, where she advises groups of rental agents and private landlords on matters relating to landlord and tenant disputes and broader scope property law-related matters. She also acts on the panel of experts for the Law Society of South Africa’s Legal Education and Development. She presents seminars on behalf of LSSA: LEAD, educating attorneys nationally on eviction procedures and rental claims. She is one of the drafting attorneys of the TPN (Tenant Profile Network) Residential Lease Pack.
Cilna authored The Landlord’s Guide – Property Rental and Eviction in 2015 and regularly publishes articles in newspapers and peer-review magazines. She also appears on television and radio, participating in discussions relating to property law and, in particular, evictions. As the managing director she is dedicated to leading SSLR Inc in accordance with its core values.
Cilna is passionate about property and understands the pressures of being a landlord. Her attention to detail and knowledge of property law makes for efficient evictions.