How does eviction work in South Africa?
27 November 2018
Eviction Procedure in South Africa can be very complicated. Usually, before a landlord can approach a Court with an eviction application they need to have followed certain steps. Below is a quick explanation of the steps, which are also illustrated above.
STEP 1
HAS THE TENANT DONE SOMETHING WRONG?
A Landlord needs to tell the Tenant that they have done something wrong (e.g. not paying rent); and at the same time give them a chance to fix the problem, this is called a LETTER OF DEMAND.
Evictions that are based on a Letter of Demand (i.e. the Tenant is in Breach) are more likely to succeed if the Tenant opposes the eviction or does not cooperate.
If the Tenant HAS NOT done anything wrong but the Landlord wants them to leave the property, the Landlord needs to give the Tenant a TERMINATION NOTICE. This notice is intended to cancel the Tenant’s occupation and the Landlord needs to give them to right notice period (time) for the termination to be valid.
The right notice period is usually mentioned in the Lease. If there is no mention of the notice period in the Lease or there is no Lease, then the Landlord needs to give 1 (one) full calendar month notice.
Evictions that are based on the Landlords wish to end to Tenant’s occupation without any Beach by the Tenant are difficult evictions if the Tenant opposes the eviction or does not co-operate.
STEP 2
DID THE LANDLORD GIVE A LETTER OF DEMAND OR TERMINATION NOTICE?
The Tenant did something wrong; the Landlord gave them a LETTER OF DEMAND … and the tenant has failed to act as the Landlord has demanded in the time the Landlord demanded.
NOW the Landlord needs to give the Tenant an EVICTION NOTICE.
The Landlord cannot give them an eviction notice if the tenant has acted as the Landlord demanded.
The Landlord gave the Tenant a TERMINATION NOTICE and the Tenant did not leave the property in the time the Landlord gave them.
NOW the Landlord needs to give the Tenant an EVICTION NOTICE.
STEP 3
DID THE TENANT LEAVE AFTER THE EVICTION NOTICE?
The issue of removing the Tenant is resolved and there is nothing further for the Landlord to do in respect of the Eviction.
However, the Landlord may have suffered losses in respect of arrear rental, damage to property, etc. which they may wish to peruse. The Landlord will likely need the assistance of an attorney in this regard.
NOW the Landlord can make an application to Court to order that the Tenant vacates the property … the order is called an EJECTMENT ORDER. The Landlord will usually need a lawyer to do the application for them.
If the parties have signed a lease they will normally be able to get the correct dates, notice periods, and proceed from there. If there is no lease or the lease has expired, the Landlord may have to rely on what is reasonable or Common Law.
If the occupant/Tenant still will not leave the Landlord will need to launch legal proceedings through the Courts and these letters/notice will form part of the Landlord’s Court papers.
DISCLAIMER: THIS INFORMATION DOES NOT CONSTITUTE LEGAL ADVICE. IT IS ALWAYS ADVISABLE TO DISCUSS YOUR SITUATION WITH AN ATTORNEY OR PROFESSIONAL.
STEP 1 : LETTER OF DEMAND or TERMINATION NOTICE
R299
Build a Letter of Demand or Termination Letter to compile with Step 1 of the Eviction Procedure.
STEP 2 : NOTICE OF EVICTION
R299
Build an Eviction Notice letter to compile with Step 2 of the Eviction Procedure.