South Africa’s complex history of land rights has influenced how the courts handle eviction processes, and seen pro-tenant rulings in a plethora of cases.
While this may be fair, Kabir Chagan, candidate attorney at C&A Friedlander Attorneys, says it does not mean that landlords are exempt from protection.
Understanding the eviction process is crucial for landlords to not only protect their rights, but also manage their rental properties effectively.
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A regular scenario which occurs in rental court cases is where landlords enter into lease agreements with tenants, relying on the rental income to pay for or subsidise the bond repayments. However, after a few months, the tenant stops paying and refuses to leave, despite the landlord cancelling the lease agreement and giving them notice to vacate the property.
The only way to lawfully remove them from the property, Chagan says, is to evict them.
“While evictions should be a last resort, having sound knowledge about the process and its nuances can assist landlords a great deal in navigating challenging situations with tenants.”
He answers these key questions that landlords ask:
When may you evict?
A landlord can only initiate the eviction process if the tenant is in illegal occupation of the property – which will follow the cancellation of the lease agreement. Such cancellation could happen for various reasons, such as a breach of any of the lease clauses, for example the non-payment of rent, or simply by expiry of the lease term.
Chagan says it is crucial to establish that there are in fact valid grounds to cancel the lease, and accordingly to evict under the PIE Act, before commencing the process.
Should notice be given prior to cancellation?
In the case of breach, depending on the wording of the lease agreement and before initiating legal proceedings, he says landlords are generally required to provide written notice to tenants outlining the reasons for their breach and allowing them a reasonable opportunity to rectify the issue – if possible.
“The exact notice period should be set out in the lease agreement itself. Should the breach not be remedied, then the lease may be cancelled. Accordingly, if the tenant does not then vacate voluntarily, eviction proceedings may then be instituted by way of a formal court application in terms of section 4 of The Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act.”
Are there ways to resolve this without engaging in the eviction process?
Yes, there are, Chagan says.
“Mediation provides a cost-effective, private, and less painful pathway through which landlords and tenants can resolve their grievances – in a way that is both amicable and efficient. While the process is voluntary, section 7 of the PIE Act does provide for this very useful, yet scarcely used mechanism.”
Explaining further, he says this section stipulates that any party may request that the municipality – in cases where the municipality are not the landowners themselves – appoint one or more persons with the relevant expertise to attempt to mediate and settle any dispute in terms thereof. If done successfully, and where the relevant municipality takes a hands-on approach, the parties can bypass the long-winded and frustrating court process that an eviction application would bring.
What if mediation is not possible?
If an agreement cannot be reached, or if the tenant fails to comply with the landlord’s notice to vacate, the landlord may proceed with bringing an eviction application in the relevant court.
“The application must contain the necessary evidence to support the grounds for an eviction under the PIE Act. It is essential that all procedural requirements are met, and legal documentation prepared accurately.”
What do the courts consider in relation to tenants’ rights?
During the court proceedings, tenants have the right to defend themselves and present their cases. Tenants often cannot afford to appoint an attorney but will always be offered the option of getting legal representation through Legal Aid South Africa.
Chagan says judges and magistrates will consider all the relevant circumstances, such as the tenant’s right to housing, and the needs of vulnerable individuals or families, with the ultimate goal of determining whether it would be just and equitable to grant an order of eviction.
“It is thus imperative to follow due process and ensure that there is just cause for bringing an eviction application, as the courts are often inclined to grant in favour of tenants who bring a valid defence – especially in cases where they have occupied the land for longer than six months.”
How long does a landlord have to wait to get a final order of eviction?
A notable challenge in the eviction process is the likelihood of delays, given the backlog of cases currently saturating the country’s court systems. Due to various factors, such as limited resources, lack of capacity, and high demand, eviction cases generally take a significant amount of time to reach finality.
He says landlords must understand the inevitability of delays and accordingly seek legal advice that will enable them to navigate the process as effectively and efficiently as possible – and as soon as possible, after it becomes apparent that a tenant is not going to vacate the premises voluntarily.
What landlords can do to avoid dealing with evictions
As can be seen, Chagan says the eviction process is, unfortunately, not clear-cut.
“It takes time, it is not cheap, and there are a myriad of factors at play.
“As a landlord, it would be in your best interests to try to mitigate the risk of proceeding with an eviction.”
This can be done in various ways, including:
- Implementing a robust and comprehensive screening process of prospective tenants
- Properly considering deposit requirements
- Considering third-party surety
- Ensuring that your lease agreements are concise, comprehensive, and well-drafted
- Performing regular property inspections
- Promptly responding to any breaches made by the tenant
- Collaborating with the local authorities, such as the local municipality or the South African Police Service where you encounter problematic tenants.
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