EVICTION LAWYERS IN JOHANNESBURG
EVICTION ORDERS & EVICTION LAW IN SOUTH AFRICA
An eviction occurs when a person is legally forced to leave the property they are staying in. Section 26(3) of the Constitution of South Africa states that:
“No one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances and that no legislation may permit arbitrary evictions.”
For an eviction to occur, the occupant should be occupying a property illegally and a court order, otherwise known as an eviction order, should be given against the occupant of the property. An eviction order is a process of legally forcing an occupant of a property to leave the property. In the case where no court order is given, it will be in contravention of section 26(3) of the Constitution and hence an unlawful eviction.
With regards to the process of eviction orders, the question of whether the eviction is residential or commercial needs to be answered as these two processes differ. Residential removals need to comply with the terms set out in that of the PIE Act (The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998) and a commercial eviction, however, must comply with the terms set out in the CPA (Consumer Protection Act 68 of 2008) and not that of the PIE Act.
WHAT ARE THE STEPS IN AN EVICTION APPLICATION?
- The first step is to cancel the lease agreement formally. Once again the tenant must be indeed illegally occupying the property, the lease agreement must have a clause that sets out how the parties can proceed to cancel the lease agreement;
- The second step would be to apply to the court for a service directive that will authorise and set out the eviction application method. This application takes the form of an Ex-Parte Application.
- After receipt of the ex-parte order directing how the application is to be served, the applicant can serve the main application. It is important to address various aspects in your application, such as the occupants’ circumstances such as their age, the number of children they have and their age, any disabilities, households headed by households, and whether granting the order would be equitable.
- The municipality and the occupants will then be given a notice of the pending eviction. The occupants will be allowed to state their case as to why they should not be evicted. Once the landlord and the occupant have finalised their cases, the matter will then be heard before a judge or a magistrate.
- The Presiding Officer will then get the opportunity to determine whether an eviction order may be granted. Certain circumstances will guide the Presiding Officer before finally deciding on the date of eviction.