Step-by-step guide to residential housing eviction proceedings in the magistrate’s court

July 1st, 2016

By Tamara Klos

In order to evict an unlawful occupier (lessee) from residential property, the procedure in terms of ss 4 and 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the Act) must be complied with. Basically, the lessor has to obtain a court order to evict an unlawful occupier. Sections 4 to 6 of the Act provides for procedure in case of evictions (including for urgent eviction).

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.

The Act does not take away any of the landowner’s proprietary rights but merely prescribes the procedures to be followed before an eviction order can be granted. The Act delays the exercise of the landowner’s proprietary rights until the court has decided whether it is just and equitable to evict the unlawful occupier after considering all relevant circumstances.

Step one: Letter of demand and cancellation

Firstly, it must be established whether the lease agreement has come to an end, whether by cancellation due to breach by the tenant or by due notice given in terms of the lease. The tenant of the property 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. Therefore, the lessee has no right to occupy the property, and is an unlawful occupier.

The first step would be to obtain the signed lease agreement from the client and details of the breach of the tenant. In the event of the tenant failing to pay rental, full details of the arrears must be provided by the client.

Peruse the lease agreement, and in the event of breach of the lease by the tenant, pay close attention to the ‘Breach Clause’ in the written agreement. A typical breach clause should provide for a further cancellation clause. Also, pay attention to the clause, which provides for manner in which notices and legal process must be served and at what address, namely, by e-mail or by post to a specific address, such a clause is usually headed ‘Notices’.

In the case of mora debitoris on the part of the lessee, the lessor has the right to cancel the contract by notifying the lessee that he reserves the right to cancel if the lessee fails to perform (pay the arrear rental, whatever the case may be) by a certain date. The breach clause in the agreement usually stipulates the number of days that must be afforded to the lessee to remedy his or her breach. In the event that no time period is provided for in the breach clause, then the lessor must afford the lessee a reasonable time to perform, taking into account what steps the tenant may have to take, after receiving the notice, in order to effect performance (Nel v Cloete 1972 (2) SA 150 (A)). To effect cancellation, a further juristic act is required, namely a notice that the lessor cancels the contract. The lessor may combine the two notices to bring about mora and gain a right to cancel in one single act (the Nel case). Should the lease agreement contain a breach clause, send out a letter in which notice of breach and cancellation of the lease due to breach (such as non-payment of rental).

However, the KwaZulu-Natal Local Division of the High Court’s recent case law has confirmed that service of proceedings for ejectment constitutes notice to a tenant of a landlord’s intention to terminate the lease agreement (LOT 695 Hibberdene (Pty) Ltd vs Coalition Trading 689 CC (KZD) (unreported case no 414/2013, 30-4-2015) (Thatcher AJ)).

If the lease is for an indefinite period of time on a month-to-month basis (for example), then notice in writing must be sent out with notice of the relevant notice period as prescribed by the lease or one calendar months’ notice (from 1 to the 30/31 of the month), as the case may be.

Step two: Draft eviction papers (action and application)

If the lessee fails to remedy breach and the lease has been cancelled, and the tenant remains in occupation of the premises, then proceed with the legal process in terms of the Act and the Rules of Court, without delay. The institution of action (summons), together with application (notice of motion), is the process to follow in the event that the lessor intends to claim arrear rental and damages coupled with an application for eviction.

  • Action: Summons and particulars of claim

The summons may contain an automatic rent interdict to prevent the tenant from removing any of the lessee’s possessions from the property (once default judgment or summary judgment is granted, a warrant of execution is issued and the Sheriff can then sell these possessions at a sale in execution in satisfaction of the arrear rental).

Particulars of claim to contain prayers for the following (where applicable) –

– confirmation of cancellation of the lease agreement;

– confirmation of rent interdict appearing on face of the summons;

– arrear rental up to date of summons;

– interest on the arrear rental;

– leave to prove damages;

– interest on the damages;

– ejectment of the defendant from the premises (however, must comply with the Act procedures); and

– costs (attorney-and-client or party-and-party, as the case may be).

  • Application: Notice of motion, affidavit, s 4 notice (in two official languages)

Draft notice of motion containing Part A (ex parte application) and Part B (application for eviction). Part B must be in long form notice of motion.

Draft affidavit deposed to by the lessor stating, inter alia

– the relevant terms of the lease agreement;

– that the lease agreement was cancelled;

– the tenant failed to vacate the premises despite the fact that notice of cancellation was given; and

– the reasons for the requested eviction and why it is just and equitable to evict the unlawful occupant.

Furthermore, the affidavit must contain reference to the two notices, which is attached as annexures to the affidavit and the language of the notices.

  • Section 4 notice in terms of the Act

Section 4 notice contains details of the hearing of the proceedings on at least 14 days’ notice to the unlawful occupier and the local authority (municipality) having jurisdiction (written and effective notice of the proceedings). In practise, usually more than 14 days’ notice is given. This is the minimum notice period and the matter has to be set down on the day of the week that the court hears motion proceedings.

Section 4(5) of the Act sets out the structure and content of the notice of proceedings contemplated. The notice must –

– state that the proceedings are being instituted in terms of the Act;

– indicate on what date and at what time the court will hear the proceedings;

– set out the grounds for the proposed eviction; and

– state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.

Draft the notice in terms of the Act in two languages that the unlawful occupier will understand.

The Magistrates’ Courts Rules compel a procedure differing from that in the High Court. In the matter of Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd 2010 (3) SA 327 (SCA), Bosielo JA, found that, as long as the notice achieves the general purpose contemplated by the Act and the Magistrates’ Courts Rules, the fact that the notice does not strictly comply with such provisions is not necessarily fatal. In this case, two notices in two separate documents were not required. The court is obliged to ensure that the notice will be ‘effective’ in the circumstances of the case, having regard to the intent and import of the Act and s 26(3) of the Constitution.

Step three: Issue summons and/or application

Attend on the clerk of the court for issuing of the summons and notice of motion. The action and the application should be issued with the same case numbers. Obtain the soonest possible date in order to attend on the magistrate in chambers for the ex parte application.

Step four: Ex parte application (first court hearing)

This is the first part of the application (Part A of the notice of motion), which is an ex parte application. The purpose of the ex parte application is that the consent of the court must be obtained to proceed with the application for eviction and authorisation for the issuing of the s 4 notices. The magistrate may be seen in chambers.

Step five: Issuing of the notice by the clerk of the court

Once the court has authorised the issuing of the s 4 notices, notices must be given to the clerk of the court for immediate issuing.

Step six: Service of papers by the Sheriff

Instruct the Sheriff to serve the papers as follows:

  • On the defendant/respondent:

– Rent interdict summons (together with particulars of claim).

– Application (notice of motion, affidavit and annexures).

– Both s 4 notices (in each language).

  • On all other occupiers:

– Application (notice of motion, affidavit and annexures).

– Both s 4 notices (in each language).

  • On the municipality:

– Application (notice of motion, affidavit and annexures).

– Both s 4 notices (in each language).

Take note of the fact that at least 14 days’ notice of the proceedings must be given to the relevant parties. Therefore, service of the action and application must be made timeously. Sometimes the papers have to be sent to two different sheriff offices for service as the property and the municipality may not be in the same jurisdiction in respect of which the Sheriff serves.

Step seven: Index and paginate the court file

Once you have received the original papers and the returns of service from the Sheriff, index and paginate court and office file.

Step eight: Return date (second court hearing)

On the return date the court may grant further orders with regard to the postponement or finalisation of the eviction. You may have received notice of opposition prior to the court hearing, in which case the matter will be argued as an opposed motion before court.

Before a court can grant an eviction, it has to consider all the relevant circumstances and be in a position to rule that such an eviction is just and equitable. The owner approaches the court on the basis of ownership alone and the unlawful occupation. It is then the occupier who may rely on special circumstances and it is their duty to raise and present the special circumstances to the court. The court gives special regard to the rights of elderly, children, disabled persons and households headed by women. The court may only grant the eviction after considering all the relevant circumstances and has a very wide discretion in ordering the date on which the unlawful occupier is to vacate (Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) 17 and 19).

The circumstances to be considered by a court in determining whether an eviction order will be just and equitable are outlined in s 6(3) of the Act.

At the hearing the unlawful occupier may attend and put forward reasons why he or she should not be evicted. The court then has discretion to grant the unlawful occupier time by which to –

  • vacate; and
  • the date on which the eviction is to take place if the unlawful occupier has not vacated as per the court’s order.

Note the difference in the factors that the court will take into account in terms of subss 4(6), 4(7) and s 5 of the Act.

Step nine: Court order

The court order must clearly state on which date the occupiers must vacate the premises and, furthermore, state that if they fail to vacate the premises, the Sheriff will be authorised to remove them from the premises as of a specified date. The Sheriff is then empowered by virtue of this order, to evict the tenant by force if necessary.

Step ten: Service of court order by Sheriff (in the event of lessee/unlawful occupiers not being present at court hearing)

After an order for eviction has been granted in default, it must be served on the unlawful occupier/s by the Sheriff.

Step 11: Removal by the Sheriff and warrant of ejectment

If the occupiers fail to vacate the property on the date stipulated in the court order, without delay, have the clerk of the court issue no 30 Warrant of Ejectment. Thereafter, instruct the Sheriff to remove the occupiers of the premises and to utilise the services of a locksmith if necessary. Provide the Sheriff with r 38 indemnity.

Time: The length of procedure

Generally, an eviction can be effected within three months from receipt of instruction. This time period, however, depends on whether the lease has been validly cancelled after the breach of the lease agreement and the date of eviction ordered by the court.

Lastly, follow through with the action procedure in order to obtain judgment: Default or otherwise.

Variation to the steps above

Section 5 of the Act provides for urgent evictions.

Tamara Klos LLM (Cum Laude) (NMMU) is an attorney at Friedman Scheckter in Port Elizabeth.

This article was first published in De Rebus in 2016 (July) DR 26.


De Rebus