It is no secret that South Africa has a complex history of land rights, more specifically when it comes to land dispossession. This history has shaped our current land dispensation and has influenced how courts have balanced landlord and tenant rights during the eviction process. Magistrates and Judges have, since the advent of democracy, acted pro-tenant in a plethora of eviction cases – and perhaps rightfully so. However, what does this mean for a landlord who is by no means exempt from protection?
Consider the following scenario which regularly occurs: A person takes out a bond to buy a residential property for investment purposes. They enter into a lease agreement with their chosen tenant (generally short-term leases, commonly for a year) relying on the rental income to pay for or subsidise their bond repayment. After a few months, the tenant stops paying and refuses to leave, despite the landlord cancelling the lease agreement and giving them notice to vacate the property. The only way to lawfully remove them from the property is to evict them.
The residential eviction process in a nutshell
Understanding this process is crucial to not only protecting the landlords’ rights but also to managing their property effectively. While evictions should be a last resort, having sound knowledge about the process and its nuances can assist landlords a great deal in navigating challenging situations with tenants.
As a point of departure, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998 (the “PIE Act”) is the principal legislation for both landlords and tenants in the eviction process. Let’s delve into some key questions that you may be asking when you have a potential eviction on your hands:
- When may you evict?
A landlord can only initiate the eviction process if the tenant is in illegal occupation of the property – which will follow the cancellation of the lease agreement. Such cancellation could happen for various reasons, such as a breach of any of the lease clauses, for example the non-payment of rent, or simply by expiry of the lease term. It’s crucial to establish that there are in fact valid grounds to cancel the lease, and accordingly to evict under the PIE Act, before commencing the process.
- Should notice be given prior to cancellation?
In the case of breach, depending on the wording of your lease agreement and before initiating legal proceedings, landlords are generally required to provide written notice to tenants outlining the reasons for their breach and allowing them a reasonable opportunity to rectify the issue – if possible. The exact notice period should be set out in the lease agreement itself. Should the breach not be remedied, then the lease may be cancelled. Accordingly, if the tenant does not then vacate voluntarily, eviction proceedings may then be instituted by way of a formal court application in terms of section 4 of the PIE Act.
- Are there ways to resolve this without engaging in the eviction process?
Indeed. Mediation provides a cost-effective, private, and less painful pathway through which landlords and tenants can resolve their grievances – in a way that is both amicable and efficient. While the process is voluntary, section 7 of the PIE Act does provide for this very useful, yet scarcely used mechanism. It stipulates that any party may request that the municipality (in cases where the municipality are not the landowners themselves) appoint one or more persons with the relevant expertise to attempt to mediate and settle any dispute in terms thereof. If done successfully, and where the relevant municipality takes a hands-on approach, the parties can bypass the long-winded and frustrating court process that an eviction application would bring.
- What if mediation is futile/not possible?
If an agreement cannot be reached, or if the tenant fails to comply with the landlord’s notice to vacate, the landlord may proceed with bringing an eviction application in the relevant court. The application must contain the necessary evidence to support the grounds for an eviction under the PIE Act. It is essential that all procedural requirements are met, and legal documentation prepared accurately.
Interestingly, a recent Supreme Court of Appeal matter (Stay At South Point Properties (Pty) Ltd v Mqulwana and Others (UCT intervening as amicus curiae) (1335/2021) [2023] ZASCA 108)), required the court to determine whether, for the purposes of section 26(3) of the Constitution and the PIE Act, the provision of student accommodation by Cape Peninsula University of Technology (CPUT) to its students constituted a “home” and thus whether the PIE Act could be relied on by the Applicant to secure the eviction of the Respondents. It was ultimately held that the provisions of the PIE Act did not apply, as their occupation of the land (being the student accommodation) did not constitute their home.
- What do the courts consider in relation to tenants’ rights?
During the court proceedings, tenants have the right to defend themselves and present their case. Tenants often cannot afford to appoint an attorney but will always be offered the option of getting legal representation through Legal Aid South Africa (an organisation that provides free legal services for those who qualify). Judges and Magistrates will consider all the relevant circumstances, such as the tenant’s right to housing, and the needs of vulnerable individuals or families, with the ultimate goal of determining whether it would be just and equitable to grant an order of eviction. It is thus imperative to follow due process and ensure that there is just cause for bringing an eviction application, as the courts are often inclined to grant in favour of tenants who bring a valid defence – especially in cases where they have occupied the land for longer than six months.
- How long does a landlord have to wait to get a final order of eviction?
A notable challenge in the eviction process is the likelihood of delays, given the backlog of cases currently saturating our court systems. Due to various factors such as limited resources, lack of capacity, and high demand, eviction cases generally take a significant amount of time to reach finality. Landlords ought to be alive to the inevitability of delays and accordingly seek legal advice that will enable them to navigate the process as effectively and efficiently as possible and as soon thereafter as it becomes apparent that a tenant is not going to vacate the premises voluntarily (so make sure you appoint a good attorney!).
As can be seen, the eviction process is, unfortunately, not clear-cut. It takes time, it is not cheap, and there are a myriad of factors at play.
As a landlord, it would be in your best interests to try to mitigate the risk of proceeding with an eviction and this can be done in various ways, such as:
- Implementing a robust and comprehensive screening process of prospective tenants;
- Properly considering deposit requirements;
- Considering third-party surety;
- Ensuring that your lease agreements are concise, comprehensive, and well-drafted;
- Performing regular property inspections;
- Promptly responding to any breaches made by the tenant; and
- Collaborating with the local authorities, such as the local municipality or the South African Police Service where you encounter problematic tenants.
If you have any questions, concerns, or require assistance with your lease agreements or possible evictions, don’t hesitate to reach out to us for help. Together, we will find the solutions you need.
Article by: Kabir Chagan
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).