The Eviction Process | Residential

To provide some insight into the South African eviction procedure, the process followed by SSLR Inc. in residential eviction matters is briefly outlined below.

 

1. Cancellation

The process must begin with the lease agreement being correctly cancelled. Even if a signed, written agreement has not been put in place, the lease agreement must still be cancelled for reasons of law. This ensures that in the eyes of the court, the property is clearly being occupied illegally and that the right of the occupant to remain on the premises has been terminated.

It is important to note that if the lease is for a fixed period and involves any one party who is a natural person, in accordance with Section 14 of the Consumer Protection Act, the agreement can only be legally cancelled after a notice has been delivered to the occupant, allowing for 20 business days to remedy the breach of the lease agreement.

 

2. Application for Eviction

Only once the occupant is in illegal occupation with the right to occupy the premises being terminated, can we proceed with an eviction application. The application is twofold, in that the main eviction application must be supplemented with an additional ‘ex-parte’ (only 1 party) application. This process is regulated by “The Prevention of Illegal Evictions from, and Unlawful Occupation of, Land Act”, or “PIE” for short.

During both the main and supplementary applications, all notices, court documents and applications are served on the occupants and the local municipality by the Sheriff of the Court. We duly instruct the Sheriff to serve all documents on an urgent basis.

The Eviction Process | Non-Residential

To provide some insight into the South African eviction procedure, the process followed by SSLR Inc. in non-residential eviction matters is briefly outlined below.

 

1. Cancellation

The process must begin with the lease agreement being correctly cancelled. Even if a signed, written agreement has not been put in place, the lease agreement must still be cancelled for reasons of law. This ensures that in the eyes of the court, the property is clearly being occupied illegally and that the right of the occupant to remain on the premises has been terminated.

It is important to note that if the lease is for a fixed period and involves any one party who is a natural person, in accordance with Section 14 of the Consumer Protection Act, the agreement can only be legally cancelled after a notice has been delivered to the occupant, allowing for 20 business days to remedy the breach of the lease agreement.

 

2. Application for Eviction

Only once the tenant is deemed to be in illegal occupation and the right to occupy the premises has been terminated, can we proceed with an eviction application. The application will include a claim for the ejectment of the tenant from the premises, and may also include, depending on the circumstances of the case, a monetary judgement for the arrears rental owing by the tenant, in addition to damages suffered by the landlord as a result of early cancellation of the lease agreement.

The application will be issued at Court to obtain a case number and a hearing to be set for a date in 4 to 6 weeks. The application will then be served by the Sheriff of the Court on the tenant at the premises.

Collection Of Rent Arrears & Damages

Combined Summons & Rent Interdict Summons 

1. Letter Of Demand

With an arrears rental collection matter, we need to start the process by delivering a Letter of Demand in which payment of the outstanding amount is required within 7 days, or as may be otherwise stipulated in the lease agreement.

 

2. Combined Summons

We will then proceed with a Combined Summons in which we will plead the agreement in Court and initiate a claim for the outstanding amount owing to you.

In cases where the tenant is still occupying the premises, we proceed with a Rental Interdict Summons, in which the tenant is interdicted from removing any assets from the property in accordance with the landlords’ hypothec, as an additional security for the landlord.

The summons will be delivered to the Court for issuance, after which it will be served on the debtor by the Sheriff of the Court.

The tenant then has then 10 business days from service of the summons to defend the matter, by serving a document called a Notice of Intention to Defend.

If the tenant does not defend the matter we can proceed with a Request for Default Judgement, in which the Court is asked to grant the appropriate judgement against the tenant. If this is successful we can proceed to issue a warrant of execution and attach the assets of the tenant. Such assets will then be sold on auction by the Sheriff, in order to recover the outstanding amount.

Should the matter be defended, we will proceed with an Application for Summary Judgement, in which we state that the tenant does not have a valid defence – and that the objective of defending the matter is purely to create a delay. The court will then hear our argument as well as that of the tenant, to decide whether to grant our order or allow the tenant leave to defend. If the tenant is granted leave to defend, the matter will proceed to trial. We endeavour to avoid this, due to cost and timing issues, as a trial will usually take about 2 years to finalise.

 

 

Frequently Asked Questions

What is the duration of a typical residential eviction?

From information provided here, it should be clear that there is no “typical” eviction. Duration of different eviction applications may vary as time periods are dependent on several factors. For instance:

The Court approached – If the application is being issued out of the Magistrates’ Court; the application will take approximately 6 – 8 weeks, if the matter is unopposed. Should the application be issued out of the High Court; the application will take approximately 8 – 10 weeks, if the matter is unopposed. We take into consideration a number of factors when choosing a Court, such as the location of the property and foreseeable difficulties in obtaining judgment due to circumstances surrounding the matter. Approaching the High does not incur additional cost as we do all our appearances ourselves.

Unopposed or Opposed applications – Occupants are allowed to contest the matter, for whatever reason, even if the defence is unfounded. If opposed, we can expect the matter to be finalised over following time periods: In the Magistrate’s Court, approximately 3 to 5 months – and in the High Court, more or less 6 to 10 months, depending when the court is in recess.

Final Eviction Order
Once a final eviction order is given, the Courts may grant a period of time for the occupiers to secure alternative accommodation. This time period is not prescribed in legislation and can vary depending on circumstances surrounding the matter. In our experience the time period can range from immediate eviction to up to 3 months leave to find alternative accommodation.

What is the duration of a non-residential eviction?

Duration of different eviction applications may vary as time periods are dependent on several factors. For instance:

The Court approached – If the application is being issued out of the High Court, the application will take approximately 4 to 6 weeks if the matter is unopposed. We take into consideration a number of factors when choosing a Court, such as the location of the property and foreseeable difficulties in obtaining judgment due to circumstances surrounding the matter. Approaching the High Court does not incur additional cost as we take charge of all our appearances ourselves.

Unopposed or Opposed applications – Tenants are entitled to oppose the matter for whatever reason, even if the opposition is unfounded. If opposed, we can expect the matter to be finalised in the High Court in about 6 to 8 months, depending when the Court is in recess.

Final Eviction Order
Once a final eviction order is granted, a Court order can be issued within 10 court days, allowing for court orders to be typed. We can then issue warrants of execution at Court, which we subsequently deliver to the Sheriff to be executed.

The Sheriff of the Court is the only person that can legally execute the eviction.

What happens if occupants disregard the eviction order and refuse to vacate?

If the occupant does not vacate the premises by the date given in the Eviction order, the Sheriff is instructed to remove occupants from the premises, using whatever means at their disposal.

Is recovery of arrears rental and damages included in the eviction process?

It is not part of, but done alongside the eviction process. In the likely event that you wish to institute legal action against the occupant for recovery of arrears rentals and/or damages suffered; a separate summons is issued. This prevents the eviction from being delayed and can be instituted at any time before, during or after the eviction order has been granted. In the Magistrate’s Court, a Rent interdict summons can be issued, allowing the sheriff to provisionally attach certain goods, while also providing an indication of their value.

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