Can A Tenant Stop An Eviction Order Once It Has Been Issued In South Africa?

A tenant in South Africa can stop an eviction order after it has been issued through three procedural routes: rescission of a default judgment under Rule 31(2)(b) or Rule 42 of the Uniform Rules of Court, an appeal to the full court of the relevant division of the High Court, or an application to suspend execution pending appeal. Each route carries its own deadline — rescission under Rule 31(2)(b) must generally be brought within 20 days of acquiring knowledge of the order, and a notice of appeal within 20 days of the order being handed down. A pending appeal does not automatically stay execution.

Burger Huyser Attorneys’ general litigation practice handles all three routes across the firm’s Gauteng branches.

What “Stopping” an Eviction Order Actually Means

“Stopping” an eviction order is not a single action — it is one of three legally distinct mechanisms, each with its own form, deadline, and court.

Route	What it does	Best suited to
Rescission	Undoes a default judgment where the tenant did not appear or did not file a notice of intention to defend in time.	Tenants who never entered the merits because of a procedural default.
Appeal	Challenges the order on its merits before a higher court.	Tenants who disputed the merits at the original hearing but lost.
Stay of execution	Freezes the warrant of execution so the sheriff does not carry out the eviction while the rescission or appeal is being decided.	Tenants facing imminent removal by the sheriff.

All three are typically run in parallel: rescission or appeal as the substantive challenge, stay as the practical protection while the challenge is heard.

Route 1 — Rescission of a Default Judgment

Rescission is the route where the eviction order was granted because the tenant failed to appear, failed to file a notice of intention to defend, or filed late. The tenant is asking the court to set the order aside so the matter can be argued on the merits.

In Magistrate’s Court proceedings, the application is brought under Rule 31(2)(b) of the Uniform Rules of Court (rescission of a default judgment) or under Rule 42 (relief from an order granted in the absence of a party). In High Court matters, the equivalent provisions sit in the Uniform Rules of the High Court.

To succeed under Rule 31(2)(b), the tenant must show both:

• A reasonable explanation for the default — work commitments, illness, postal failure, mistaken legal advice, supported by documents where available.
• A bona fide defence on the merits — more than a bare denial.

A plausible reason for missing the court date, without a defence to put before the court, will not be enough. The application must be brought within 20 days of acquiring knowledge of the order; outside that period, condonation explaining the delay must be filed alongside.

Route 2 — Appeal to a Higher Court

An appeal is the right route where the tenant disputes the order on its merits — for example, where the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) requirements were not met, procedural fairness is challenged, or the order was substantively unjust.

Original court	Appeal court
Magistrate’s Court	Provincial division of the High Court with jurisdiction over that magistrate’s district (in Gauteng, the Gauteng Division sitting at Pretoria or Johannesburg).
High Court (single judge)	Full court of that division.
High Court (constitutional issue, leave refused)	Constitutional Court under section 167(6) of the Constitution.

A notice of appeal must be filed within 20 days of the order being handed down in the Magistrate’s Court, or within the period set by the court rules in High Court matters. Late filing requires condonation. The notice must be accompanied by the record on appeal and the parties’ written reasons. For matters raising a constitutional issue under section 26 of the Constitution, the tenant can apply directly to the Constitutional Court for leave to appeal under section 167(6) of the Constitution.

The firm’s general litigation practice, run under Director Nadine Roesch-Prinsloo at the Roodepoort branch and Director Herman Bonnet at the Pretoria branch, handles the record-compilation work and the briefing of counsel.

Route 3 — Stay of Execution / Suspension of the Warrant

The warrant of execution is the document the sheriff acts on; once it has been issued, the sheriff is entitled to proceed on the scheduled date regardless of any other paperwork the tenant has filed.

Stay of execution rests on the common-law power of the court to grant a stay in the interests of justice. The Constitutional Court has held that execution may be stayed where it would render an appeal moot or cause irreparable harm — most clearly in Mandela Bay Metropolitan Municipality v Herholdt.

These applications are routinely enrolled on the urgent roll where execution is imminent. The court weighs the strength of the underlying challenge, the balance of prejudice between the tenant’s section 26 right to housing and the landlord’s right to recover possession, and whether the tenant has any other reasonable alternative. The court will often grant a stay on conditions — for example, occupation rent paid into court or security provided pending the outcome.

Common Reasons These Applications Fail (and How to Avoid Them)

Common failure	Why it sinks the application	How to avoid it
Late filing	The 20-day deadlines are strict; condonation is hard to obtain.	Instruct an attorney the same day the order is served.
No defence on the merits	Rescission is not a tactical pause.	Identify the merit dispute (rent paid, defective notice, PIE Act non-compliance) before filing.
No separate stay application	An appeal does not automatically pause execution.	File the stay at the same time as the rescission or notice of appeal.
Inconsistent affidavits	The explanation, defence, and condonation grounds must align.	Use one master chronology across every affidavit in the file.
Filing in the wrong court	Skipping the Magistrate’s Court where the matter was heard.	Rescission goes to the same court that granted the order.

The Constitutional Dimension: Section 26 and “Just and Equitable”

Section 26 of the Constitution guarantees the right of access to adequate housing and prohibits arbitrary evictions. The Constitutional Court has held that an eviction without procedural fairness or without a just and equitable order is constitutionally invalid. Section 26 is not a defence to a valid order, but it is the lens through which a challenged order is examined.

What to Bring to the Attorney for a First Consultation

1. The eviction order (the written judgment, not just a notice from the sheriff).
2. The warrant of execution (if issued) and the scheduled execution date.
3. The original pleadings and all correspondence with the landlord or the landlord’s attorneys.
4. Proof of any payments made and identity document.
5. Documentation explaining the default — medical certificates, proof of postal failure, employment records.

Cost and Timeline: What to Expect

Route	Typical timeline	Cost profile
Rescission	Two to three months to hearing date, if filed within the 20-day window.	Most cost-effective route — the typical starting point.
Appeal	Three to nine months from filing to judgment.	More involved — full record, counsel briefed.
Stay of execution	Days, if enrolled urgently and execution is imminent.	Carries its own fee for the urgency preparation.

Fees are quoted on a per-route basis after the eligibility review, with a transparent cost conversation up front.

Court Selection and Filing Routes in Practice

The substantive law is national — the PIE Act, the Uniform Rules of Court, and section 26 apply uniformly — but the right filing court depends on where the original eviction was heard. Magistrate’s Court orders are challenged by rescission under Rule 31(2)(b) or Rule 42, and by appeal to the provincial division of the High Court with jurisdiction over that magistrate’s district.

For Gauteng matters, the Gauteng Division of the High Court sits at both Pretoria and Johannesburg. The firm’s Centurion, Pretoria, Bedfordview, and Linden/Randburg offices all fall within its catchment. Tenants handed a notice from the sheriff should treat the deadline as the priority fact — the 20-day rescission window starts running from the date the order is brought to their attention.

Why Use a Specialist Litigation Attorney for an Eviction Challenge

Eviction-challenge work sits at the intersection of motion-court procedure, appellate procedure, and constitutional law. The lawyer handling the file needs to draft a founding affidavit that satisfies Rule 31(2)(b) on both prongs, compile a compliant record on appeal, and argue a stay application on urgent roll — often all in the same week.

Need to stop an eviction order urgently? Contact Burger Huyser Attorneys’ general litigation practice on 011 888 0246 (Linden/Randburg head office) for an urgent intake. Same-day consultations can usually be arranged at the branch closest to the court where the matter is enrolled. Bring a copy of the eviction order, the warrant of execution (if issued), your identity document, and any correspondence with the landlord. The firm fields this work across its Gauteng branches — Midrand 010 022 4082, Sandton 011 253 3080, Roodepoort 011 668 0030, Bedfordview 011 201 7190, Alberton 011 439 3990, Pretoria 012 471 5700, Centurion 012 644 3990. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).

Frequently Asked Questions

Can a tenant stop an eviction order once it has been issued in South Africa?

Yes — by rescission of a default judgment under Rule 31(2)(b) or Rule 42, by noting an appeal to a higher court, or by applying for a stay of execution. Tenants usually run a stay alongside the substantive challenge because a pending appeal does not on its own stop the sheriff.

How long does a tenant have to apply to stop the eviction order?

For rescission under Rule 31(2)(b), the application must generally be brought within 20 days of the tenant acquiring knowledge of the order; a notice of appeal must be filed within 20 days of the order being handed down. Outside those periods, condonation is required.

Does filing an appeal automatically stop the eviction?

No. A pending appeal does not by itself suspend the warrant of execution — the tenant must separately apply for a stay of execution, on an urgent basis if the sheriff has already been instructed.

What if the tenant never received the eviction application?

A textbook ground for rescission under Rule 31(2)(b). The founding affidavit must set out when the tenant first became aware of the order, why they did not defend in time, and a bona fide defence on the merits.

How much does it cost to stop an eviction order through an attorney?

Costs depend on the route. A rescission application is the most cost-effective; an appeal is more involved.

Can a tenant stop an eviction order without an attorney?

Tenants may file personally, but the work must comply with the Uniform Rules of Court, and a single missing annexure can stall the application.

What happens if the tenant ignores the order and stays in the property?

Carrying out the eviction physically is the sheriff’s job. The tenant risks an unlawful removal — itself a criminal offence — if they physically resist.

Can a tenant appeal to the Constitutional Court on a section 26 ground?

Yes, where the eviction raises a constitutional issue under section 26 and the High Court has refused leave to appeal, the tenant can apply directly to the Constitutional Court under section 167(6) of the Constitution.