How to Evict a Tenant Legally in South Africa

Evicting a tenant is often one of the most challenging aspects of being a landlord. But there are times when it’s necessary. Tenants can be evicted due to non-payment of rent. A breach of lease terms is another reason. Landlords must understand how to legally handle the tenant eviction process. South Africa has strict laws. These laws are primarily governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). They ensure that evictions are fair and follow due process.

What is the PIE Act?

The PIE Act prevents illegal evictions by requiring landlords to follow a legal process. A court order is mandatory before any eviction can take place. Self-eviction, like changing locks or cutting utilities, is illegal. The Act applies to both lawful tenants and unlawful occupiers. It ensures they are given proper notice. It also provides the opportunity for them to defend themselves in court. Courts also consider the personal circumstances of vulnerable groups before granting eviction orders. Ignoring the Act can result in fines or imprisonment for landlords.

The following laws provide the necessary guidelines for tenant eviction:

• Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). This Act prohibits the unlawful eviction of tenants. It requires a court order to evict a tenant legally.
• Extension of Security of Tenure Act (ESTA). This Act applies to tenants living on rural or agricultural land and provides them with security of tenure.
• Rental Housing Act. This Act governs the rights and responsibilities of both landlords and tenants in rental agreements. Disputes between the parties can be taken to the Rental Housing Tribunal.
• Consumer Protection Act. This Act ensures that rental agreements are fair and that tenants have a clear understanding of their rights and obligations.

Why Would You Want to Evict a Tenant?

You can’t just evict a tenant because you don’t like how they look. The reasons must be valid. Attempting to evict a tenant without just cause can lead to legal complications. It can also result in potential penalties under the PIE Act. Some of the reasons for evicting a tenant include:

1. Non-Payment of Rent. This is the most common reason. If your tenant is not keeping up with rent payments, you should take reasonable steps to resolve the issue. If these steps have failed, you may have grounds for an eviction.
2. Breach of Lease Agreement. This includes unauthorized subletting, damage to property, or using the property for illegal activities. Violating any of the terms set out in the rental agreement can be a valid reason for eviction.
3. End of Lease Term. If the tenant refuses to vacate after the lease term has ended, eviction can be pursued. This applies if no renewal or new agreement has been made.
4. Disruptive Behavior. Tenants engaging in disruptive behaviour, affecting the quality of life for neighbours or damaging communal areas, can also be evicted.
5. Sale or Renovation of Property. If you need to sell or renovate the property, the tenant’s continued presence might prevent this. In such cases, it may serve as grounds for eviction.

How Do You Evict a Tenant?

You need to serve an eviction notice, apply for an eviction order, have the court hearing, issue the eviction order and have the sheriff enforce the eviction. The eviction process in South Africa is complex and highly regulated, with specific laws protecting both landlords and tenants. Therefore, getting legal advice and an attorney to handle the process for you is important.

Here is the eviction process in more detail:

1. Serve an Eviction Notice: The first step in the legal eviction process is to issue a formal eviction notice to the tenant. This notice must be in writing. It should state the reason for eviction. It must provide the tenant with a reasonable timeframe. The timeframe is usually 14 to 30 days. The tenant can either rectify the issue or vacate the premises. This document is also known as the 30-day eviction notice.
2. Apply for an Eviction Order: If the tenant does not comply with the notice to vacate, you should take the next step. Apply to the Magistrate’s Court for an eviction order. Along with your application, you must provide supporting documents. These include the lease agreement. You must also provide proof of the tenant’s breach of contract.
3. Court Hearing: The court will notify both parties of the hearing date. Both you and the tenant will have the opportunity to present your case. At this stage, tenants may also present defenses. They might contest the eviction notice or explain the reasons for their breach.
4. Issuance of the Eviction Order: If the court finds your case valid, an eviction order will be granted. This order will provide the tenant with a specific date by which they must vacate the property.
5. Sheriff Enforces Eviction: If the tenant fails to vacate by the specified date, the Sheriff of the Court will execute the eviction order by removing the tenant and their belongings from the property.

Ideally, you want to talk to your tenant and ask politely if you could come to an arrangement.

Common Eviction Mistakes

As a landlord, it’s easy to make mistakes during the eviction process, especially when emotions run high. Avoid the following common pitfalls:

1. Self-Eviction: Changing the locks, cutting off utilities, or physically removing a tenant’s belongings without a court order is illegal. The PIE Act makes it clear that only a court can issue an eviction order.
2. Not Following the Legal Process: Skipping any steps, like failing to issue an eviction notice or not providing enough time for the tenant to rectify the breach, will delay the process and may result in the court ruling in favor of the tenant.
3. Accepting Partial Payments: Once you have issued an eviction notice, accepting rent payments from the tenant could nullify the process. Be clear that the issue is no longer about rent but about the breach of contract.
4. Inadequate Documentation: Make sure you have all relevant paperwork, including the lease agreement, breach notices, and proof of non-payment or other violations.
5. Ignoring Tenant Rights: Tenants have a right to a fair trial and the opportunity to defend themselves. Be aware of tenant rights under the Rental Housing Act and other relevant legislation.

When to Consult an Eviction Lawyer

Given the complexity of the legal framework, it’s highly recommended to consult with an eviction lawyer if you’re unsure about any aspect of the tenant eviction process. A professional will ensure that all steps are followed correctly, avoiding costly delays or legal repercussions.

Conclusion

Your first attempt should always be negotiation and conversation with your tenant. The legal process could be a long one – and could cause a big loss for property investors. If you’re reading this article, then it’s probably too late – but you need to screen tenants better.

By adhering to the correct eviction procedures, landlords can protect their investments.

Happy investing!