In Part 1 and 2 of this series, law firm Barnard Incorporated looked at the way in which landlords can lawfully cancel a lease agreement and the various forms of recourse that they can take against their tenants including claiming for arrear rental, damages for remaining on a leased premises and an application for the eviction of an unlawful occupant.
The final part of this series delves into greater detail by reviewing the steps that residential landlords need to follow to successfully obtain an eviction order, regulated by the Prevention of Illegal Eviction from the Unlawful Occupation of Land Act, 19 of 1998 (PIE Act).
Step 1: Lawfully cancelling a lease agreement
Depending on the circumstances, a landlord needs to ensure that the lease agreement was cancelled in line with the provisions of Section 14 of the Consumer Protection Act (CPA).
Should a landlord continue with the eviction steps without a lease agreement having been lawfully cancelled, the lease agreement may still be in force, and this could be seen as a repudiation of the contract on their part which could lead to a claim for damages by the tenant and render the eviction materially defective.
Landlords also need to remember that if the lease agreement was lawfully cancelled but the tenant remains in occupation and continues to make rental payments, which are accepted by the landlord, a new tacit agreement of lease may come into effect and the landlord might not be able to proceed with eviction steps before the new lease agreement has been lawfully cancelled.
The cancellation of the lease agreement, after the tenant was allowed the prescribed period in which to rectify its breach, takes place by delivering a written ‘Notice of Cancellation’. Only once this notice has been delivered, will the tenant be deemed to be an ‘unlawful occupant’ and the landlord may proceed with immediate eviction steps.
Step 2: Inspecting the premises
A landlord needs to inspect their property prior to the defaulting tenant vacating the premises, especially residential.
While an inspection will determine if there are any damages, it is also important to take note of the number of persons occupying the property, the family composition, and whether any of the occupants have disabilities as Section 4(6) of the Prevention of Illegal Eviction from the Unlawful Occupation of Land Act, 19 of 1998 (PIE Act) states that the Court should consider children, elderly people, women-headed households, and disabled people when deciding on a date on which it would be just to grant an eviction order.
The eviction process can be divided into two separate processes: ‘The Main Eviction Process’ which contains all the relevant facts pertaining to the merits of the eviction and the ‘Ex Parte Process’ which is mostly a procedural step that needs to be followed to ensure the tenant i.e., the Respondent, is aware of the proceedings against him/her, informing them of their rights in terms of law.
Step 3: Exchanging formal Court documents (pleadings)
‘The Main Eviction Process’ can be initiated in the Magistrate’s Court or in the High Court and it is launched by drafting formal court documents called a ‘Notice of Motion’ and a ‘Founding Affidavit’. The ‘Notice of Motion’ has a prescribed form that must be complied as determined by the rules of the Court.
The ‘Founding Affidavit’ is a sworn statement in the name of the landlord i.e., the Applicant, or the ‘person in charge’ of the leased premises and it must contain all necessary allegations to grant a just order of eviction.
The eviction documentation should describe the nature of the tenant’s breach of the lease agreement, the process followed in lawfully cancelling the lease agreement as well as address the equity provisions in terms of the Act as described above.
Careful consideration should be given to how the ‘Founding Affidavit’ is drafted and the allegations it contains. The Court must be provided with sufficient information, or the landlord may run the risk of having his case postponed several times before the final eviction order will be granted which means that he/she may not be able to conclude a new lease agreement with a paying tenant for an even longer period of time which could increase the legal costs significantly.
Dependent on the Court, upon issuance of the ‘Main Eviction Process’, the date of when the eviction will be heard is provided.
The Court affords the tenant 5 business days from the date on which the application was received to indicate whether he/she intends to oppose the eviction. After the tenant has indicated whether they intend to do so, they have 10 to 15 business days to deliver their ‘Answering Affidavit’ with reasons as to why the court should not grant the eviction order. A Typical defence could include that the lease agreement was never lawfully cancelled, or that the tenant has some other right to remain in occupation of the leased premises.
On receipt of the tenant’s ‘Answering Affidavit’, the landlord can then deliver a ‘Replying Affidavit’ to address any new facts or allegations that were raised by the tenant.
However, should the tenant not oppose the eviction, the process may continue unabated.
Step 4: ‘Ex Parte Process’
The PIE Act further prescribes a mandatory interim process that the landlord must follow before the ‘Main Eviction Process’ can be heard. This process entails a separate ‘Notice of Motion’ and ‘Founding Affidavit’, preferably deposed to the landlord where the process and the manner of delivery of the ‘Main Eviction Process’ is stated under oath to ensure that the tenant is aware that he/she has the application of eviction against him.
The aim of this process is to obtain consent that a Section 4(2) Notice may be delivered to the tenant which includes reference to his/her rights provided by the Constitution and specifically the right to obtain legal representation.
The ‘Ex Parte Process’, which loosely translates to “by one part only” need not be brought to the attention of the tenant and he/she is not usually required to be present during the hearing of this process.
This process does not concern itself with the merits of the eviction but solely focuses on the manner in which the documents were delivered to the tenant and the manner in which the Section 4(2) Notice is to be delivered.
Upon the Court providing its direction to the landlord to serve the Section 4(2) Notice, the Notice must be delivered to the tenant in the Court’s prescribed manner without delay and at least 14 days before the ‘Main Eviction Process’ is in Court for hearing.
Step 5: The ‘Main Eviction Process’ hearing
Upon the Section 4(2) Notice being delivered as directed by the Court, and the final Court bundles having been finalised, the ‘Main Eviction Process’ can finally be regarded as being ready to be heard by a Court.
On the date of hearing of the eviction, the Court must consider not only the landlord’s claim and the tenant’s defence, but also the relevant circumstances pertaining to case.
The Court must be satisfied that the tenant is an ‘unlawful occupant’ and has no legal defence that outweighs the landlord’s claim for eviction. The Court further considers whether the landlord had followed the proper process to cancel the agreement, delivered the Section 4(2) Notice and if satisfied, it must also determine a date upon which it is just and equitable for the tenants to be ordered to vacate the leased premises.
If the Court is satisfied with the landlord’s claim for eviction of the tenant, it will order a date upon which the tenants are to have vacated the leased premises and will also nominate a date upon which the Sheriff of the Court, often with the assistance of the South African Police Service, is to evict the tenants.
Once the tenants have been finally evicted, it is crucial that the leased premises be secured.
Another inspection should be undertaken by the landlord to determine and record the extent of damage to the leased premises to hold the evicted persons liable for such damage.
The eviction process (and the many claims that may follow after cancellation of a lease agreement) is complicated and fairly technical, considering the initial steps that have to be taken by a landlord.
Residential evictions in particular can be a lengthy and costly process if not done correctly and in line with the relevant legislation and court rules. However, with the right assistance and sound legal advice, protracted and costly litigation can be avoided.
This guide was authored by the Senior Associate, Johan du Toit, and Associate Wilco du Toit of Barnard Inc.
For tailored property law assistance, please contact Johan Du Toit to arrange a consultation – johan@barnardinc.co.za / 012 001 2739
