The Eviction Process

An Outline of the South African Eviction Process

Section 4(7) of the Prevention of Illegal Eviction Act (PIE) states that if an unlawful occupier has occupied land for more than six months at the time when eviction proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so.  Relevant factors which must be taken into account are the availability of alternative accommodation and the rights and needs of the elderly, children, disabled persons and households headed by women.

Section 4(8) of PIE states that if the Court is satisfied that all the requirements of Section 4 have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction process. The word “must” is of particular significance as PIE does not provide the Court with discretion as to whether an eviction order may be granted in these circumstances. In other words, if all the requirements of Section 4 have been met with no valid defence, the Court is obliged to grant an order for eviction.

The Court is then tasked with determining a just and equitable date for eviction. The determination of the date can therefore only be done after the Court has decided to grant an eviction order. In order to determine a just and equitable date for vacation, the Court must have regard to all relevant factors, including the period the unlawful occupier and his or her family have resided on the land in question. In City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others (SCA) [2012] ZASCA 116, the Supreme Court of appeal dealt with the relationship between Section 4(7) and Section 4(8) of PIE.

The Court held that:

“the first enquiry is that under s 4(7), the court must determine whether it is just and equitable to order eviction having considered all relevant circumstances. Among those circumstances the availability of alternative land and the rights and needs of people falling in specific vulnerable groups are singled out for consideration. Under s 4(8) the court is obliged to order an eviction ‘if the requirements of the section have been complied with’ and no valid defence is advanced to an eviction order. The provision that no valid defence has been raised refers to a defence that would entitle the occupier to remain in occupation as against the owner of the property, such as the existence of a valid lease. Compliance with the requirements of section 4 refers to both the service formalities and the conclusion under s 4(7) that an eviction order would be just and equitable. In considering whether eviction is just and equitable the court must come to a decision that is just and equitable to all parties.  

Once the conclusion has been reached that eviction would be just and equitable the court enters upon the second enquiry. It must then consider what conditions should attach to the eviction order and what date would be just and equitable upon which the eviction order should take effect. Once again the date that it determines must be one that is just and equitable to all parties.”

How long will it take to evict someone from my property?

In light of the above, it is clear that there are no hard and fast rules when it comes to how long court eviction process proceedings take.  Some tenants are evicted within 3 months.  Some matters, especially those involving occupants deemed to be vulnerable, drag on for years.  What is apparent, is that the parties will always be better off reaching a negotiated settlement, rather than going to court.