Snaid & Morris

The Processes Regarding Residential Evictions, What You Should Know

There has been an increase in non-paying tenants and/or Landlords not following the correct procedures. The eviction process was created and drafted for the lawful eviction of individuals and/or juristic bodies and in the republic of South Africa. The main discussion herein is summarised in accordance with the relevant acts.

A landlord must provide the lease agreement, whether signed or unsigned to their attorneys of record. Furthermore, the following documentation and/or evidence should be provided in order for a complete application / summons to be drafted. Whichever process you decide on following: –

  • A power of attorney, if required;
  • Proof of the address of the dwelling being leased;
  • A confirmed property search to establish ownership of the dwelling;
  • A copy of the letter of demand;
  • A copy of the cancellation letter;
  • Identity details of both the landlord, tenant and occupants;
  • Utility, water & lights charges;
  • Any correspondence between the Landlord and tenant;
  • Full and complete statement(s) of rental paid and owed;
  • Any take-on balances;
  • Any further documentation that may be relayed to you by your attorney(s) of record.

The letters as described above should only be drafted or attended to after the Lease has come to an end or whether the landlord has the right to cancel (within the boundaries of the lease agreement). If you have not attended to a letter of demand or cancellation, then same will be attended to by the attorney of your selection.

The tenant has to be in unlawful occupation prior to a letter being served on the tenant. In the case of mora debitoris on the part of the tenant, the landlord has the right to cancel the contract by notifying the lessee that he reserves the right to cancel if the tenant fails to for instance pay the arrear rental by a certain date.

In Nel v Cloete 1972 (2) SA 150 (A)). To effect cancellation, a further juristic act is required, namely a notice that the lessor cancels the contract. The lessor may combine the two notices to bring about mora and gain a right to cancel in one single act.

If the tenant fails to remedy the breach and the lease has been cancelled, the tenant who remains in occupation of the premises, are evicted by following the further legal process in terms of the Rental Housing Amendment Act 50 of 1999 (“RHA”) and the Rules of Court, without delay.

The institution of the eviction application only, is the process to follow in the event that the landlord intends to evict the tenant. The institution of an action and an application is part of the process to follow in the event that the landlord intends to either claim arrear rental, damages, automatic rent interdict and/or to evict the tenant.

The court is obliged to ensure that the notice will be effective in the circumstances of the case, having regard to the intention and importance of the Act and section 26 (Twenty-Six) of the Constitution. This section gives direction regarding who may or may not be evicted.

In City of Johannesburg Metropolitan Municipality vs Blue Moonlight Properties 39 P/L & another [2011] ZACC 33 the court decided that evictions of unlawful occupants could take place if the eviction was just and equitable. The factors that the court took into consideration are: –

  • Length of time spent on the dwelling;
  • Was it unlawful;
  • Is the Landlord / new landlord aware of the occupants on the dwelling;
  • The risk of homelessness;
  • Temporary emergency accommodation

In terms of section 4(6) occupants may not be evicted until the following factors have been taken into consideration:

  • If there are children residing at the dwelling;
  • If there are any elderly people residing at the dwelling;
  • Woman headed households;
  • Are there any disabled persons.

These considerations do not prevent evictions from taking place. It merely demands the Court to take their specific needs into consideration before granting the eviction order. It is important to note that these considerations must appear on the notice of the application brought by the landlord / Applicant. Furthermore, if the Applicant is able to provide details of alternative accommodation, then same must be provided to the Court in order to assist the court in making a consideration of the abovementioned categories of people.

Once the application for eviction is brought, a date will be provided to hear the matter in the first instance. Upon receipt of a hearing date, the returns have to be filed in court and the Ex Parte application must be included 14 days prior to the first hearing date. On this date, if the occupant does not appear in court on the elected date, then a further date will be provided for the Ex Parte application in terms of section 4(2).

If the occupant wishes to defend the matter, the normal course of the application process is followed. The Occupant may file a notice of intention to oppose 5 (Five) days after receipt of the application and to then serve and file their further papers within 15 days after serving and filing the notice of intention to defend.

Once the court order is obtained, it must clearly state on which date the occupiers must vacate the premises and state that if the occupants fail to vacate the dwelling, the Sheriff will be authorised to remove them from the premises from the date provided.

The last step herein is where the Sheriff may force the occupiers to vacate the property on the date stipulated, and a warrant of ejectment will be given to the Sheriff to attend to the above.

Contact our offices at info@snaidmorris.co.za to request a lease agreement to be reviewed or for our offices to draft same in accordance with your conditions and specifications.