The process to be followed by attorneys when seeking an eviction order in respect of residential property was confirmed in the judgment of McNeil and Another v Aspeling and Others (WCC) (unreported case no A85/18, 28-6-2018) (Davis AJ) handed down by the Western Cape Division of the High Court.
This article is, however, not directed at attorneys but rather the man on the street. There is much confusion when it comes to the process, cost implications and time periods. We accordingly herewith attempt to provide a layman’s guide to a lawful eviction.
Most evictions are instituted by private owners looking at evicting defaulting tenants. Landlords often come to our office once the arrears have accumulated over a few months and then they require a quick fix. The sad reality is, there is no such thing as a quick fix, the strenuous requirements put in place by The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (commonly referred to as “the PIE Act”) does not permit a quick fix.
When a tenant defaults, the tenant needs to be placed on terms as prescribed by the terms of the lease agreement, alternatively by placing the tenant on reasonable terms. This process should be done in writing to create a paper trail.
If the tenant fails to remedy their breach within the prescribed period, you may proceed to cancel the lease agreement summarily. At this juncture, I wish to stop and digress, in the debt collection process, at this stage you may institute legal action in the form of a summons to obtain a civil judgment against the tenant to collect the arrears.
Upon cancellation, you may request the tenants to vacate the property, if they do not, you may proceed with the eviction process.
The eviction process is a two-phased approach, firstly your attorney will draft the main application setting out the grounds for the eviction and complying will all the averments as prescribed by the PIE Act. There is an abundance of case law to stipulate the exact averments that will have to be made in both the main application and the ex parte application for a successful application. Since this article is directed at the lay person we will not go into the details of the averments to be made.
Once the main application has been issued and served on the tenants (now the illegal occupiers of the property) by a sheriff of the court, your attorney will start drafting an ex parte application. This is an application, normally in front of a Magistrate or Judge seeking authorisation and direction regarding the service of the section 4 (2) notice as prescribed by the PIE Act, which will then be served on the tenants at a stage when the hearing date has been determined.
Only once the 4(2) notice has been served on the tenants, may the eviction application proceed. During this entire process, if the tenant wishes to oppose the eviction application, they will concurrently to the aforementioned ex parte process, oppose the eviction application and serve opposing documentation.
At the hearing, the presiding officer will hear the case and make a finding. If the eviction application was successful, an eviction order will be granted in terms whereof, a date will be given at which time the tenants are legally required to vacate the property, if they fail to leave, the assistance of the sheriff of the court and the SAPS may be sought to forcefully remove the tenants and their belongings.
As may be seen from the aforementioned, an eviction is not a straightforward application, we accordingly propose that the advice of an attorney specialising in property law be sought when endeavouring to evict illegal occupiers.
If you require the assistance of Naudé Dawson Inc, please email us at xander@ndinc.co.za.
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