Due to the unfortunate current economic climate that we as South Africans find ourselves in, coupled with financial constraints brought about by an all-time high unemployment rate, tenants are defaulting on their rental payments at an unprecedented rate and consequently, eviction proceedings are rife within the legal industry and the Courts have been inundated with eviction applications. Having said that, now would probably be the most appropriate time to equip oneself with a basic understanding of the procedure to be followed when confronted with a defaulting tenant, especially in the case of landlords or property owners.
Eviction is almost always the least desirable outcome or course of action for both tenants and landlords as it generally results in a lose-lose situation for both parties however, if a tenant refuses to pay his/her monthly rental the result will more than likely be eviction. From the outset it is worth noting that the law governing evictions emanates from the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE Act) and its purpose on the one hand is to provide for the prohibition of illegal eviction, and on the other to provide for adequate procedures to facilitate the eviction of unlawful occupiers. It is also important to bear in mind that section 26 of the Constitution recognises the right to adequate housing as a basic human right and for that reason no person may be evicted from his/her home without an order of court. It was for this reason that the PIE Act was legislated in line with the aforementioned vision of the Constitution and numerous stringent processes were put in place and must be complied with before a landlord is able to evict a tenant from his/her property, albeit a defaulting tenant.
In a nutshell, the following steps must be followed by a landlord in order to render the defaulting tenant an “unlawful occupier” and to ultimately have the tenant evicted:
Step 1: Failure by the tenant to pay the monthly rental promptly and in full constitutes a breach of the lease agreement which entitles the landlord to recourse. The first step would be for the landlord to send a legal notice to the tenant (letter of demand) notifying him/her of their breach and affording them a period of 20 business days (a calendar month) to rectify their breach (make payment of arrear rental) or vacate the premises, failing which the lease will be cancelled.
Step 2: Upon expiry of the stipulated time period afforded to the tenant, if the tenant has not yet rectified his/her breach or vacated the property, then the landlord is entitled to cancel the lease agreement and must send the tenant another legal notice stating that the lease agreement has been cancelled.
Step 3: Once the lease agreement has been lawfully cancelled and the tenant has been notified thereof, the tenant becomes an “unlawful occupier” as described by the PIE Act and is then susceptible to eviction proceedings and can be evicted.
Step 4: The landlord can now approach the High Court or the Magistrate’s Court to make an application and start with the eviction process.
The above steps are just a broad outline of the process to be followed by a landlord and should not be construed as legal advice or a comprehensive framework for evictions proceedings. This article is only intended to provide insight and a basic understanding regarding the rights available to a landlord and therefore merely outlines the basic process to be followed when confronted with a defaulting tenant.
Ultimately, the process of eviction can be a time-consuming exercise and can end up taking many months before being finalised. For this reason, we would always advise against taking the law into your own hands and would strongly suggest contacting an attorney to assist you with this lengthy and complex process should you ever be faced with a defaulting tenant and require an eviction in the future.
Article by Liam Labuschagne
