An eviction happens when a person is legally forced to leave the property he/she is staying on. According to the Constitution, no person’s property may be taken away from him/her and that no person may be evicted from his/her home without a court order. This means that a landlord/landlady (person in charge of a property) must apply to court before evicting a person from the property.
The law does not permit arbitrary evictions. Section 26 of the Constitution says that no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the circumstances. A court must consider how the eviction will affect the people who will be evicted, and evictions cannot be done without valid reason.
For a person to be evicted from a property, he/she must be considered to be an unlawful occupier. The following behaviours describe an unlawful occupier:
- Staying on a property without the landlord’s consent
- Staying on a property without having any right in law to do so
- Not being considered an occupier in terms of any other law
When a landlord cancels or withdraws his/her consent previously given to an occupier to stay on his/her property, the occupier is then considered unlawful. There are numerous other instances of unlawful occupiers, such as squatters and default mortgagors (mortgagors who fail to perform an obligation secured by the mortgage).
When a landlord wants to evict a person using his/her property for housing purposing (e.g. staying in his/her flat), they must use the procedure provided for in the Prevention of Illegal Eviction from and Unlawful Occupation of Property Act (PIE Act).
This Act explains which procedures must be followed to evict people lawfully. PIE applies to unlawful occupiers, people who do not have permission from the owner of the home in which they are staying. It is important for a landlord to follow the PIE procedure, rather than taking the law into his/her own hands (e.g. cutting the electricity supply to the property or intimidating the unlawful occupier in the hopes that they will leave).
Landlords must be aware that unlawful occupiers have rights according to PIE and the Constitution. Regarding PIE, an eviction can only be authorised by a court after taking into account the rights of all people involved.
The PIE Act requires a court to consider:
- Whether the occupiers include vulnerable people (e.g. the elderly, people living with disabilities, and children)
- The period of occupation
- Whether the occupiers will be homeless as a result of the eviction, in which case the state must provide alternative accommodation if the occupiers cannot afford to do so.
See below for cases in which eviction is illegal:
- The tenant is residing lawfully on the property
- There is no valid court order allow an eviction
- A sheriff is not present at the time of the enforcement of the eviction order
- The owner or landlord intimidates or threatens their tenant to leave, changes the locks, or cuts of services to the property without a court order
- The tenant is removed from the property and charged with trespassing (trespass charges are criminal in nature and should not be used as a way to avoid eviction proceedings).
- The tenant is working and living on a farm and the owner terminates his/her contract