Property

Evictions – step by step

• The main purpose of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the Act) is to protect both occupiers and landowners by providing for the prohibition of illegal eviction on the one hand and procedures for eviction of unlawful occupiers on the other.
• In order to evict an unlawful occupier (lessee) from residential property, the procedure in terms of sections 4 and 5 of the Act must be complied with.
• The owner or landlord or person in charge with necessary proxy has to obtain a court order to evict an unlawful occupier. Sections 4 to 6 of the Act provide for the procedure in case of evictions (including for urgent eviction).

Step 1: Taking Instructions

• Obtain full particulars of your client and his own claim to the property.
• If he represents a trust or a legal entity, obtain proof of the authority of the person instructing you (trust deed, power of attorney and/or resolution of Board of Directors).

Establish whether the person to be evicted is:

–        a labour tenant as described in the Land Reform (Labour Tenants) Act 3 of 1996;

–        a person residing on land which belongs to another person and who on 4 February 1997 or thereafter had consent or another right in law to do so; or

–        a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, and who never had such a right.

• Properly identify the immovable property (a stand number will be good proof in court, but is often insufficient for a Sheriff to effect service).
• Obtain as much information as possible on the person to be ejected, full names and nicknames, physical description, age and identity number, work address, telephone numbers, vehicle registration numbers, names of persons who may be claiming occupation through this person, et cetera.
• Establish whether there are other people on the property and whether they have an independent claim or say they have a claim to tenure. There may be other people on the property whose occupation should not be disturbed.
• The status of the property that is being occupied.
• The circumstances under which the person occupying entered on to the property – peruse all documentation carefully, including leases, letters and receipt books.
• The procedures already followed by your client to encourage voluntary evacuation.
• Whether any contractual arrangements that existed between your client and the person to be ejected have been terminated and, if so, whether this has been done properly.
• If the contractual arrangement that allowed occupation has not been terminated, what steps need to be taken.

Step 2: Letter of demand and cancellation

• Establish whether the lease agreement has ended, whether by cancellation due to breach by the occupier in terms of the contract or by due notice given in terms of the lease.
• The occupier of the property must be an unlawful occupier meaning that the lease agreement has come to an end, yet the occupier remains in unlawful occupation of the property, without the consent of the landlord. Therefore, the lessee has no right to occupy the property, and is an unlawful occupier.
• Obtain the signed lease agreement from the client and details of the breach of the tenant.
• In the event of the occupier failing to pay rental, the client must provide full details of the arrears, or last payment as well as deposit paid earlier.
• In the event of breach of the lease by the occupier, pay close attention to the ‘Breach Clause’ in the written agreement. A typical Breach Clause should provide for a further Cancellation Clause. Also, pay attention to the clause which provides for the manner in which notices and legal process needs to be effected or served and at what address, namely, by hand, postage, by e-mail or by registered mail to a specific address.
• In the case where there are mora debitoris on the part of the lessee, the lessor has the right to cancel the contract by notifying the lessee that he reserves the right to cancel if the lessee fails to perform.
• The breach clause in the agreement usually stipulates the number of days that is allowed to rectify the no-payment to the lessee to remedy his or her breach.
• In the event that no time period is provided for in the breach clause, the lessor must afford the lessee a reasonable time to perform, taking into account what steps the tenant may have to take, after receiving the notice, in order to effect performance (Nel v Cloete1972 (2) SA 150 (A)).
• To effect cancellation, a further juristic act is required, namely a notice that the lessor cancels the contract. The lessor may combine the two notices to bring about mora and gain a right to cancel in one single act (the Nel case).
• Should the lease agreement contain a Breach Clause, send out a letter which details notice of breach and cancellation of the lease due to breach (such as non-payment of rental).

Step 3: Draft eviction papers (action and application)

• If the lessee fails to remedy breach and the lease has been cancelled, and the tenant remains in occupation of the premises, then proceed with the legal process in terms of the Act and the Rules of Court, without delay.
• Look to establish the correct forum (court).
• Allegations where the client is the owner, the defendant is the possessor and no statutory provisions apply.
• Applicants to prove ownership normally by Title Deed.
• Respondents or occupiers are in unlawful possession at the time of institution of Application.
• It is not necessary to allege wrongfulness or absence of consent, but normally it will be part of the set of facts before the court.

Allegations where the client is not the owner

• The right of the respondent/occupiers – possession, whether contractual or statutory; and
• The termination of the right to possession.
• Remember that a person/occupiers in breach of contract – regardless of the seriousness of the breach – cannot be evicted because of such breach, unless there was a proper cancellation, preferably in writing.
• Continued occupation by the Respondent (or someone occupying through him).
• If the contract entitling occupation has not been terminated, pray for confirmation of cancellation, alternatively thereby cancel.
• The allegations necessary where the Extension of Security of Tenure Act 62 of 1997 has to be applied:
• The Respondent is an occupier as defined in section 1 of the Act.
• The land occupied by the Respondent or occupiers through him is land as defined in section 2(1)(a)/(b).
• Notice of the present proceedings in compliance with section 9(2)(d) of the Act has been given to the defendant, the municipality within whose area of jurisdiction the property is situated, and the head of the office of the Department of Land Affairs in the province where the property is situated.
• The said notice was given only after the right of residence was (validly) terminated in terms of section 8.
• Two calendar months have expired from the time the said notice was served (when the proceedings are instituted).
• If the Respondent or occupiers started occupying only after 4 February 1997
  • where a fixed or determined date was stated in the consent to occupation, particulars of such term, and that it was ‘fair’;
  • where no such date was stated, that eviction would be just and equitable.
• If the Respondent or occupiers were already in occupation on 4 February 1997
  • that fact should be alleged;
  • where reliance is to be placed on a breach of contract, the specific breach (which is material and not remedied despite notice, where applicable) should be set out;
  • where the Respondent’s right to occupy arose solely from his employment, this should be alleged and it should also be alleged that he has voluntarily resigned in circumstances not amounting to constructive dismissal;
  • where none of the circumstances stated in section 10(1) apply, and your client wishes to evict a person who had already occupied on 4 February 1997, you should allege that suitable alternative accommodation is available.
• Remember that in terms of section 17(4) of the Act, the High Court Rules apply even where proceedings are conducted in the Magistrate’s Court.
• Remember to allow at least fifteen days from judgment before executing the order to vacate to enable the automatic review in terms of section 19(3) to be conducted (Land Claims Court Practice Direction 5).
• The institution of action (summons), together with application (notice of motion), is the process to follow in the event that the lessor intends to claim arrear rental and damages coupled with an application for eviction.

Step 4: Action: Summons and particulars of claim // Application – Notice of Motion

Summons: (for recovery of rent or damages)

• The summons may contain an automatic rent interdict to prevent the tenant from removing any of the lessee’s possessions from the property (once default judgment or summary judgment is granted, a warrant of execution is issued and the Sheriff can then sell these possessions at a sale in execution in satisfaction of the arrear rental).
• Particulars of claim to contain prayers for the following (where applicable) –
• confirmation of cancellation of the lease agreement;
• confirmation of rent interdict appearing on face of the summons;
• arrear rental up to date of summons;
• interest on the arrear rental;
• costs (attorney-and-client or party-and-party, as the case may be).

Application: (for the Eviction)

Draft notice of motion containing Part A (ex parte application) and Part B (application for eviction). Part B must be in long form notice of motion.

• Draft affidavit deposed to by the lessor stating, inter alia –
  • the relevant terms of the lease agreement;
  • that the lease agreement was cancelled;
  • the tenant failed to vacate the premises despite the fact that notice of cancellation was given; and
  • the reasons for the requested eviction and why it is just and equitable to evict the unlawful occupant.

Furthermore, the affidavit must contain reference to the two notices, which are attached as annexures to the affidavit and the language of the notices.

Step 5: Section 4 notice in terms of the Act

Sections 4(1) to (5) of PIE lay down peremptory procedural requirements for the obtaining of an eviction order. Sections 4(1) to (5) read as follows:

(1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.

(2) At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.

(3) Subject to the provisions of subsection (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question.

(4) Subject to the provisions of subsection (2), if a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of court, service must be effected in the manner directed by the court: Provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case.

(5) The notice of proceedings contemplated in subsection (2) must –

(a) state that proceedings are being instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier;

(b) indicate on what date and at what time the court will hear the proceedings;

(c) set out the grounds for the proposed eviction; and

(d) state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.

Step 6: The process in terms of the Act

• The notice of eviction proceedings contemplated in section 4(2) of PIE, which must be authorised and directed by an order of court, is in addition to the notice of proceedings in terms of the rules of court as contemplated in section 4(3) of PIE, i.e., the notice of motion;
• The date of hearing of an application is usually only determined after all the papers have been served, and since the section 4(2) notice must indicate the date on which the application will be heard, that has the consequence that an application for authorisation to serve a section 4(2) notice can only be made after all papers have been filed, i.e., after the notice of motion and affidavits have been served in accordance with the rules of court as contemplated in section 4(3).
• The notice in terms of section 4(2) of PIE must inform the recipient of the date on which the eviction proceedings will be heard. The hearing date is determined with reference to the provisions of the Uniform Rules and also the particular practice of the division.
• Rule 55(1) provides that every application shall be brought on notice of motion supported by an affidavit and addressed to the party or parties against whom relief is claimed, and to the registrar or clerk of the court.
• The notice of motion must be in a form similar to Form 1A, which is the equivalent of the long form notice of motion used in the High Court.
• The notice of motion must set a day, not less than five days after service on the Respondent, by which notice of opposition is required to be given, and must stipulate a day on which the application will be heard in the absence of any notice of opposition.

Step 7: Ex parte application (first court hearing)

• Thus the service of the (long form) notice of motion and founding affidavit in terms of section 4(3) of PIE should ordinarily precede the ex parte application to court for authorisation and directions in regard to service of a section 4(2) notice, which will then be served subsequently at a stage when the hearing date has been determined.
• Thus service will be effected twice; initially when the notice of motion and affidavits are served in accordance with the Rules, and subsequently when the section 4(2) notice is served, which contains the hearing date.

Step 8: Service of papers by the Sheriff

Instruct the Sheriff to serve the papers as follows:

• On the defendant/respondent:
  • Rent interdict summons (together with particulars of claim).
  • Application (notice of motion, affidavit and annexures).
  • The section 4 notices;

• On all other occupiers:
  • Application (notice of motion, affidavit and annexures).
  • The section 4 notices;

• On the municipality:
  • Application (notice of motion, affidavit and annexures).
  • Section 4 notices.

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Take note:

• At least 14 days’ notice of the proceedings must be given to the relevant parties.
• Service of the action and application must be made timeously.

Step 9: Index and paginate the court file

• Once you have received the original papers and the returns of service from the Sheriff, index and paginate court and office file.

Step 10: Return date (second court hearing)

• On the return date the court may grant further orders with regard to the postponement or finalisation of the eviction.
• You may have received notice of opposition prior to the court hearing, in which case the matter will be argued as an opposed motion before court.
• Before a court can grant an eviction, it has to consider all the relevant circumstances and be in a position to rule that such an eviction is just and equitable.
• The Applicant/landlord or proxy holder approaches the court on the basis of ownership alone and the unlawful occupation.
• It is then the occupier who may rely on special circumstances and it is their duty to raise and present the special circumstances to the court.
• The court gives special regard to the rights of elderly, children, disabled persons and households headed by women.
• The court may only grant the eviction after considering all the relevant circumstances and has a very wide discretion in ordering the date on which the unlawful occupier is to vacate (Ndlovu v Ngcobo; Bekker and Another v Jika2003 (1) SA 113 (SCA) 17 and 19).

Take note:

• The circumstances to be considered by a court in determining whether an eviction order will be just and equitable are outlined in section 6(3) of the Act.
• At the hearing the unlawful occupier may attend and put forward reasons why he or she should not be evicted.
• The court then has discretion to grant the unlawful occupier time by which to –
  • vacate; and
  • the date on which the eviction is to take place if the unlawful occupier has not vacated as per the court’s order.
• Note the difference in the factors that the court will take into account in terms of subsection 4(6), 4(7) and section 5 of the Act.

Step 11: Court order

• The court order must clearly state on which date the occupiers must vacate the premises and, furthermore, state that if they fail to vacate the premises, the Sheriff will be authorised to remove them from the premises as of a specified date.
• The Sheriff is then empowered by virtue of this order to evict the tenant by force if necessary.
• After an order for eviction has been granted in default, it must be served on the unlawful occupier/s by the Sheriff.
• If the occupiers fail to vacate the property on the date stipulated in the court order, without delay, have the clerk of the court issue no. 30 Warrant of Ejectment. Thereafter, instruct the Sheriff to remove the occupiers of the premises and utilise the services of a locksmith if necessary;
• Provide the Sheriff with Rule 38 indemnity.