Tenant troubles – approaching a court for an eviction order

10 March 2023 ,  Aqeelah Petersen 1214
When embarking on the process of instituting eviction proceedings, the unfortunate reality is that it can become a costly and lengthy procedure. There are time periods which must be adhered to in terms of the Rules of Court for the service of the letters of demand and cancellations as well as for the Application on the unlawful occupiers, the time limit to file a notice to oppose and thereafter, if any, opposing affidavits. An overview of the procedure is below. 

Firstly, due regard must be had to whether an unlawful occupier is occupying a residential property or a land or farm when deciding to approach a court for assistance. The procedure for the latter occupation is set out in the Extension of Security and Tenure Act 62 of 1997 (ESTA).  For the purposes of this article, the focus will be on residential evictions which procedure is regulated by the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998, better known as PIE. 

To institute the application for eviction, the tenant must be an unlawful occupier. To determine what an unlawful occupier is, one must look at whether a lease agreement has been terminated or lapsed and yet the tenant refuses or fails to vacate the property. An unlawful occupier can also be a person who stays in a property without the consent of the owner.

An owner or landlord may have several reasons as to why a lease agreement are cancelled and need not only be due to outstanding rental. The cancellation could be due to a violation of the lease, damages to their property, illegal activities or health or safety violations. 

A letter of demand would be sent to the tenant to remedy the breach within a reasonable time period. Should the tenant fail to remedy the breach, a further letter should be sent that the lease agreement has been cancelled. The tenant is now an unlawful occupier. 

The owner or landlord will apply to court in terms of Section 4 of PIE by means of a notice of motion supported by a founding affidavit setting out the reasons for the eviction. The application, which indicates a court date, will be served personally on the unlawful occupier by the sheriff of the court. 

In the event that the unlawful occupier elects to not oppose the eviction or consents thereto, a court may grant the eviction order and set a date for the unlawful occupier to vacate the premises. 

In the event that the unlawful occupier elects to oppose the eviction, the litigation runs its course for legal arguments to be advanced as to why the eviction order should or should not be granted. 

It is important to note that the court takes several factors into consideration when ordering an eviction. Each case has its own merits but usually the personal circumstances of the unlawful occupiers would be enquired into, whether the eviction would be just and equitable or whether there is alternative accommodation available. 
Related Expertise: Civil Litigation
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