The Eviction of Unlawful Occupants in South Africa

Written by Herman Bonnet
11 November 2022

The Landlord – Tenant relationship is perhaps one of the most challenging relationships to navigate and manage.  It is indicated that South Africa has a sharp increase in rental disputes as fewer people will become homeowners during their lifetime.  It is, therefore, crucial to understand each party’s contractual consequences and rights to this relationship.

  1. How is the relationship between the Landlord and Tenant formed?

For this relationship to exist, some form of agreement should be entered into between the parties. The agreement will only be binding between the parties once they are in the same mind as to the terms of the lease agreement. The aforementioned will occur once the duration of the lease, identity of the tenant, payment of the rent and the rental property is defined.

It is a common misperception that if the agreement is not reduced to writing and signed, no agreement exists between the parties.

Once the terms of the lease agreement have been agreed to (either in writing or verbally), the Landlord has the duty to provide the Tenant access to the leased property. If the property is designated to be a dwelling, the property must be habitable for people.

  1. Is it Possible to end the Relationship between Landlord and Tenant?

Various ways exist for the relationship to be terminated; however, the default position is through the expiry of the agreement and the parties agreeing not to renew the lease agreement.

However, should the Tenant be in breach of the terms of the agreement, either by failing to make payment of the rental or damaging the property, the Landlord will be within his rights to cancel the lease agreement; the Landlord must notify the Tenant in writing of the breach and should the Tenant not remedy same within a reasonable time, the Landlord may elect to terminate the lease agreement.

Notice to vacate is a means whereby the Landlord notifies the Tenant that the lease is terminated, and the Tenant should vacate the dwelling by a certain day. Similarly, a Tenant intending to vacate the dwelling is required to inform the Landlord of the intention to do so.

The terms of the notice to vacate cannot be withdrawn unless the other party agrees to the withdrawal thereof.

  1. What are the Consequences of a Notice of Termination of a Lease Agreement?

The consequence of the termination of the lease agreement is that the Tenant will have no right to occupy the property from the date provided in the termination to vacate. If the Tenant fails to vacate the property before the aforementioned date, they will be in unlawful occupation of the property.

  1. Can both the Landlord and Tenants be Wrong and in Breach of the Agreement?

It is a rear occurrence, but instances have been recorded where the Landlord has not registered the dwellings with the Local Municipality for the use of utilities, and the Tenant refuses to vacate the leased property.

In the case of Schogeveld and another vs Occupiers of Paradise Park Holiday Resort and others [2022] JOL 56203 (WCC), the Landlord and Tenants were in breach of the lease agreement. In this case, the Landlord did not abide by the basic conditions of habitation, and once the agreements were terminated, the Tenants did not vacate the property.

The intended use of Paradise Park was initially earmarked as a caravan park and camping site. The owner, without the consent and authorisation of the Overstrand Municipality, allowed the occupants to erect rudimentary timber structures, which evolved into more permanent structures. The owner of Paradise Park allowed the occupants to erect these structures on the condition that the Park’s rules were met and that each dwelling pays the monthly rent.

During 2010, Overstrand Municipality noticed the increase in residents at Paradise Park and increased the sewage connection points to the property from 2 to 312. The increased billing of Paradise Park by the Overstrand Municipality resulted in the initial legal dispute between the owner and the municipality.

The High Court ruled in favour of the municipality. The owner of Paradise Park was ordered to comply with all the statutory and regulatory requirements for town development. The owner of Paradise Park could not afford to proceed with the necessary improvements to comply with the court order.

The situation faced by the owner of Paradise Park resulted in an additional set of problems; the owner of Paradise Park increased the monthly rental of the occupants in an effort to raise the funds for the development; however, some of the occupants disputed this increase in rent and refused to make further payments. This resulted in the property not being developed in terms of the statutory and regulatory requirements.

The only option available to the landowner was to seek an order in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (hereinafter referred to as “The PIE Act”) in the hope of restoring the intended and registered use of Paradise Park.

The Western Cape High Court ruled that the occupiers of Paradise Park, somewhat 295 dwellings, should vacate the property within three months. This order comes after a 10-year-long legal battle in respect of the occupation and use of the Paradise Park property.

  1. How can a Tenant be Evicted from a Property?

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 Act has its roots in our constitution, which provides that “no one may be evicted from their home or have their home demolished without an order of Court after the Court has considered all the relevant circumstances”.

If a Landlord wants to evict tenants from the property, an application in terms of The PIE Act will have to be made.

  1. What Needs to be Proved in Order to Evict a Tenant?

In order to be successful with an eviction of unlawful occupiers, the applicant should prove that:

  • the person against whom the eviction order is sought is in unlawful occupation of the property; and
  • there are reasonable grounds to evict the Tenant and an eviction order will be just and equitable.

With the latter, two further sub-enquiries will have to be considered by the Court:

  • should the order for eviction be granted, and if so, a date on when the order may be executed; and
  • the Court may also consider any other conditions that may be relevant.

From the set of facts in the Paradise Park lawsuit discussed above, it is clear that the eviction of unlawful occupiers of land can be complex and can easily result in a long and complicated legal battle.

It is, therefore, essential that a Landlord should gain legal assistance from an Eviction Specialist Attorney – not only to assist in the drafting of the contract for the lease of the property but also when legal steps are to be taken when terminating the lease agreement. Contact one of Burger Huyser Attorneys’ Eviction Specialists should you require assistance.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE