Unlawful Occupation - How We Assist Parties On Either End | Legal Articles

 

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Unlawful Occupation - How We Assist Parties On Either End

The unlawful eviction of persons from a property more often than not results in grievous consequences. To avoid such, the law requires that evictions be done through lawful means. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (PIE) aims to prevent unlawful evictions in South Africa, and was enacted to give effect to the provision in Section 26 (3) of the Constitution of the Republic of South Africa which provides that:

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

 

Consequently, any eviction in South Africa ought to be authorised by a Court Order, unless the parties themselves have reached an agreement for the occupier to vacate the property on their own accord. The case of Alias Mtolo and Another V Theunis Christoffel Lombard and Others [2021] ZACC 39 shows how serious the Courts frown upon unlawful evictions. In this case the landlords had failed to or inadequately complied with a High Court order to restore the property to a condition that is suitable for human settlement. The landlord had acted in this manner so as to force the tenant to vacate the property without a court order.

 

Sections 4 - 6 of the above-mentioned Act (PIE) provide for the processes by which an eviction order may be sought and issued from the Court. In this article we will discuss a few principles applicable in eviction processes, for the benefit of those wishing to apply for an eviction Order or defend eviction proceedings.

For the jurisdiction of PIE to be triggered, the occupier must not be in lawful occupation i.e without authority or consent of the party holding ownership title to the property. Secondly, the person bringing an application for an eviction must have ownership title to the property. An Executor of a deceased estate may bring such application as would the deceased owner of the property would have. 

Where the eviction application is brought against a tenant, the lease agreement should have been terminated between the parties. Remember, an eviction application is brought on the grounds that the occupation is unlawful, so the lease agreement ought to be terminated first, and the tenant offered an opportunity and notice to vacate the property. In such instance, the first step is the cancellation of the lease, by way of notice to the tenant, which notice must preferably be in written form and done in accordance with the provisions of the lease agreement.

 

Most agreements (including leases) provide that where there is breach by either party, the aggrieved party should bring notice to the breaching party, to remedy the situation within a given time (usually 7-10 days) and in the event that the breaching party fails or neglects to cure the breach, the aggrieved party has the option to cancel the agreement and/or claim damages. Reducing the notice in writing has the ultimate advantage that when the eviction application is lodged, proof that the lease was cancelled and the tenant given ample notice to vacate, will be available and attached in support of the application.

 

Once the tenant has been notified of the breach and the lease agreement cancelled, it will mean the tenant is occupying the property unlawfully as soon as the period given for them to vacate lapses. Effectively, this situation can now be concluded to be under the jurisdiction of PIE and its attendant procedures.

The landlord can then file a Notice of Motion for the eviction process at a Court with jurisdiction. Usually an interim order is issued, which simultaneously calls upon the Respondent to indicate whether they opt to oppose the application or not and if they opt to oppose, on the date indicated on the Notice of Motion they ought to attend Court to oppose such application.

It is important to note that the municipality under whose jurisdiction the property is situated in, must always be cited as one of the Respondents although essentially, they will merely be an interested party to be proceedings.

In the event that the unlawful occupier does not oppose the application, the Court will issue an Order and declare a date upon which the tenant must vacate the property. Where the tenant opposes the application, the Court will issue a Final Order after both parties are heard (after the hearing).

In the event that the tenant fails to comply with a Final Court Order to vacate the property, the Court will issue, a warrant for ejectment where the Sheriff of the Court is instructed to remove the unlawful occupier from the property. Should there be any outstanding amounts, the landlord may proceed by way of action (summons) procedures.

At Van Deventer & Van Deventer Incorporated, our Litigation Department assists with eviction applications and collection of outstanding rental arrears. You might be the Respondent against whom an eviction application is brought, we assist in that regard as well to oppose the application either on substantive or procedural grounds, whichever is applicable.

Contact us for comprehensive assistance.

The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages.

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