By Tamaryn Campbell – Attorney, Conveyancer and Notary Public
In order to evict an unlawful occupier from the residential property, the procedure in terms of Section 4 and 5 of the Prevention of Illegal eviction from and Unlawful occupation of Land Act 19 of 1998 must be complied with.
The main purpose of 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.
Procedure:
Step 1: Letter of demand and cancellation
It must be established whether the lease agreement has come to an end. The tenant must be an unlawful occupier, meaning that the lease agreement has come to an end, yet the tenant remains in unlawful occupation of the property without the consent of the landlord.
In terms of Section14 of the Consumer protection Act, Rental Housing Act and Prevention of Illegal eviction Act, one must specify what the breach is and/or the reasons for termination. Then one must allow them 20 working days to remedy the breach. If they fail, then another letter must be sent stating that there is a cancellation. Thereafter, the eviction application is launched.
Step 2: Draft the eviction papers
If the lessee fails to remedy breach and the lease has been cancelled, and the tenant remains in occupation of the premises then one should consult attorneys who will proceed with the legal process without further delay.
Step 3: Issue summons and/or application
The attorney will attend court and request the clerk to issue the summons and notice of motion.
Step 4: Ex Parte application
This is the first part of the application. The purpose of this application is that the attorney obtains the consent from the court to proceed with the application for eviction and application for the issuing of the Section 4 Notices.
Step 5: Issuing of the notice by the clerk of the court
Once the court has granted the above, same will be given to the clerk of the court for immediate issuing.
Step 6: Service of papers
The Sheriff will be instructed to serve the necessary papers.
Step 7: We attend to the index and paginating of the court file
The above is done when all original papers and returns of services was received from the Sheriff.
Step 8: Return date (second court hearing)
The court may grant further orders with regards to the finalisation of the eviction. Before the court will grant the eviction, it must consider all the relevant circumstances and be in a position to rule on the application. Special circumstances may be presented by the occupier.
Step 9: Court order
The court order will clearly indicate on which date the occupier must vacate the premises. If they fail, the Sheriff will remove them. If the order has been granted, it must be served by the Sheriff on the unlawful occupier.
Step 10: Service of court order
The Sheriff will serve the court order if the unlawful occupier is not present at the hearing.
Step 11: Removal by the Sheriff
If the unlawful occupier fails to vacate the property on the date stipulated in the court order, a Warrant of ejectment will be issued. The Sheriff will then attend to the removal of the unlawful occupier/s.
This is a short summary of the process. We urge you to seek legal advice should you need assistance with the above.
