Thomson Wilks has been very successfully obtaining orders for eviction of defaulting tenants by way of an application in the various Courts.

The procedure that one is to follow when seeking an order for the eviction of an unlawful occupier is provided for in the Prevention of Illegal Eviction from and Unlawful Occupation of Property Act (“PIE Act”). According to the PIE Act, a person may only be evicted from a property if he/she is an unlawful occupier. A person is an unlawful occupier if that person ‘occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land.’

A lack of consent from the landlord can occur when the landlord has cancelled or withdrawn his/her consent which had been previously given to an occupier to stay on his/her property (due to, for example, the non-payment of rental obligations or any other breach of the lease agreement) or if the building in question has been hijacked.

In most instances, when a tenant breaches the terms of the lease agreements, the landlord will kick-off the eviction proceedings by delivering a letter of demand to the tenant. The contents of the letter of demand will depend on the terms of the lease agreement. It may in some instances be required that the landlord give the tenant an opportunity to remedy the breach. Failure by the tenant to remedy the breach will entitle the landlord to cancel the lease agreement. To the extent that the tenant refuses to vacate the property, the tenant becomes an unlawful occupier. The landlord is then entitled to bring eviction proceedings in a court with jurisdiction.

Eviction proceedings can be brought by way of either an action (by the issuing of a summons) or an application. In both instances, the unlawful occupier is afforded an opportunity to defend/oppose the proceedings. Irrespective of whether the proceedings are defended or opposed, the landlord is required to comply with the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of 1998 otherwise known as the PIE Act. A court will not grant an eviction order unless the unlawful occupier and the local authority (municipality) has received the prescribed statutory notice provided for in section 4(2) of the PIE Act.

The notice must:

a) State that proceedings are being instituted for an order for the eviction of the unlawful

occupier;

b) Indicate on what date and at what time the court will hear the proceedings;

c) Set out the grounds for the proposed eviction; and

d) State that the unlawful occupier is entitled to appear before the court and defend the case and where necessary has the right to apply for legal aid.

If the Court is satisfied that all the requirements of section 4 of PIE have been complied with and that no valid defense has been raised by the tenant, the court must grant an eviction order in respect of the unlawful occupier and must determine a just and equitable date on which the unlawful occupier must vacate the property and the date on which the eviction order may be carried out if the unlawful occupier has not vacated the property.

Contact us for assistance in legal evictions

Email: info@thomsonwilks.co.za

Tel: 011 784 8984

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1 June 2023

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