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 purposes (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.
There are various steps that must be taking for the eviction to be legal:
- There must be discussions between the landowner, the unlawful occupier(s), and the municipality, to assess how the owner’s interests can be met without an eviction, and whether the municipality has alternative accommodation to which the unlawful occupier(s) can move.
- If the landowner still reaches the decision to evict the tenant, then he/she must approach a court of law.
- Those who are being evicted must receive all the court documents that the landowner submitted to court. These documents will contain the personal details of the owner, the reasons why the owner wants to evict, and why the owner believes he/she has a right to evict.
- The occupiers must be given a chance to respond to the court documents and to oppose the eviction.
- A Section 4(2) notice must be given to the occupiers. This is a written notice of the eviction over and above the initial court papers which were given to the occupiers. This notice must contain the place, date, and time of the court hearing, and the reasons for the eviction, and must inform the occupiers that they have a right to appear in court to oppose the eviction. Above all, the notice must contain a list of organisations that can offer legal assistance to occupiers.
- The matter must be heard in a court of law where all the parties present their side of the story. If the occupiers have not received legal assistance, the judge will postpone the matter for another date. If the occupiers will be homeless after the eviction and the owner has not provided the municipality with all the court appears, the judge will postpone the matter until the municipality has been given the court papers and is present in court.