The Eviction Process in Detail | A South African Context

Eviction is a complex legal process that occurs when a landlord or property owner seeks to remove a tenant from their fixed property. In South Africa, eviction laws are designed to protect the rights of both landlords and tenants, with a particular emphasis on safeguarding vulnerable individuals. We chatted to a highly experienced Cape Town-based attorney about the practicalities of the eviction process so that we're able to share some insights with you.

Once a tenant has failed to vacate a property following being issued with a Notice of Termination letter by the landlord, the eviction process is initiated. There are several steps involved in the eviction process, as laid out below.

Step 1:  An application in terms of Section 4 (1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). This entails a Notice of Application and affidavit which sets out the facts regarding the breach of lease and cancellation thereof. The Application must be served by the sheriff on the tenant, all other occupiers of the immovable property and on the City of Cape Town.

Step 2:  A further application to court in terms of Section 4 (2) of the PIE Act. This is essentially a request to the court that the eviction proceedings may continue, provided that the first step has been complied with. This application must also be served on the above-mentioned parties.

Step 3: This is the actual hearing in court. The tenant must attend court and the magistrate must decide whether the lease agreement was properly cancelled and, if so, whether and when the tenant and all other occupiers must vacate the premises. Here is where postponements can be experienced, if the tenant requests Legal Aid representation and/or a report from the City of Cape Town as to possible alternative housing options.

Some interesting insights:

1. The inclusion of the local municipality as a Respondent in an eviction application is necessary given the obligation the PIE Act places on the relevant municipality to provide alternative housing options to displaced persons.
2. If all the above 3 steps proceed on an unopposed basis and the magistrate's court grants an order for the occupiers to vacate the premises by a certain date, the landlord can expect the costs of the eviction to be approximately R20 000 inclusive of VAT and sheriff's fees (July 2023).
3. The costs increase when the matter is opposed or becomes postponed, given that this requires further preparation and appearances by the attorney.
4. While lease agreements often provide for the recovery of legal costs from a tenant, in practice, the court seldom grants cost orders in favour of the landlord in residential eviction matters. The reason being that the court appears to have a general sympathy towards tenants who are being evicted.
5. The location of the court can increase costs owing to a correspondent firm requiring instruction where the court is not a local one.

Having been in the property management industry for over 140 years, we can attest to the fact that more than 95% of landlord/tenant relationships are mutually beneficial ones. By placing importance on the application and approval stage of letting a newly available property, one can mitigate the risk of an eviction being required. It is also important to encourage pro-active communication during the lease agreement, so that the appropriate arrangements can be made swiftly when a tenant's circumstances change. For those vast minority of instances where issues can't be solved amicably and an eviction application becomes the only option, we are well placed to recommend an appropriate attorney.