Residential evictions are done in terms of either the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) or the Extention of Security of Tennure Act (ESTA). Determining which of these two Acts applies to a specific eviction is the first step in the process. In terms of ESTA, only a Land Claims Court or a Magistrates Court has jurisdiction to hear an eviction matter, while in terms of PIE you must approach either the Magistrates Court or the High Court.
It is clear that selecting the incorrect Act at this point will cause failure, regardless of the merits of your case.
The key factors to consider when determining which of these two Acts apply to your case, includes the type of land in question, the type of consent (if applicable) the occupants have or had when occupying the land and the income levels of the occupants, to name but a few.
Evictions Under PIE
After you have determined that your eviction will be done in terms of PIE, you must ensure that the occupant is in illegal occupation. The mere fact that a tenant under a lease agreement has failed to pay the rent does not cancel the lease agreement. In the event of a breach of any provision of a lease agreement, the aggrieved party must act in terms of the “Breach” clause. This clause typically provides for the Landlord to give the Tenant written notice of the breach and affording the Tenant a certain amount of time to remedy the breach. Only on expiry of the notice period may the Landlord then cancel the lease agreement. The breach clause may however fall within the scope of the Consumer Protection Act (CPA) and it may be necessary to give the Tenant 20 Business day’s notice. Failing to provide for the correct amount of days may invalidate your notice. Only after the notice period has expired and the Landlord gave the Tenant a written notice cancelling the lease agreement, will the Tenant be in illegal occupation of the property.
As soon as the occupant is in illegal occupation of the property, the eviction process can start. In terms of PIE one must obtain a service directive from the Court to authorise the method of service of the eviction application. This application for a service directive takes the form of an Ex-Parte application. At this time it is necessary to disclose to the Court the personal circumstances of the occupants of the property. The Court will have regard to the number of occupants on the property, whether there are any elderly persons on the property, whether the household is headed by a woman or child and other relevant circumstances.
After obtaining a service directive from the Court, notice of the pending eviction is given to the occupants as well as the local municipality. The occupants then have an opportunity to state their case, and explain why they should not be evicted. Here occupants often raise issues relating to previous actions of the Landowner aimed at self-help evictions (or spoliation). This may have the effect of causing delays in obtaining a final eviction order. As soon as both the Landowner and the Occupant have stated their cases, the matter is ready for argument before a Judge or Magistrate. The Presiding Officer will then determine whether an eviction order may be granted, and if so, by when the occupant should vacate the property. The personal circumstances of the occupants (including the time period for which they have occupied the property) will guide the Presiding Officer in determining a reasonable date for vacating the property.
Should the occupants not vacate the property on the date ordered by the Presiding Officer, the Landowner may apply for a Warrant of Ejectment to be issued by the Court. The warrant is then submitted to the Sheriff of the Court who will attend to the eviction. The process of obtaining a warrant and having the sheriff enforce the eviction may take up to a further 2 weeks.