The Republic of South Africa’s Constitution recognises the right to sufficient housing as a crucial fundamental human right. Without a judicial order, no one’s possessions may be taken from them or be evicted from their homes. This implies that a landlord must file a court application before evicting a tenant from a property.
More specifically section 26 of the Constitution provides that:
- Everyone has a right to have access to adequate housing;
- The state must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of this right;
- No one may be evicted from their home or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
What am I, as a landlord, to do if a tenant violates the lease?
A landlord may terminate the lease, evict the tenant, and seek back rent arrears and damages from the tenant if the tenant fails to pay rent on time and in full.
A landlord’s first course of action is to issue a formal notice to the tenant, requiring that person to either correct the violation or leave the property. If the breach is not rectified in terms of the timelines stated in the lease agreement, the lease will be terminated.
After notifying the tenant that legal eviction proceedings will be taken, if the tenant still refuses to correct the violation or leave the property, the landlord may write a letter to the tenant to terminate the lease. The lease is terminated because it is now believed that the tenant is occupying the property against the law. The tenant is now regarded as an unauthorized occupier.
An owner may then file an eviction application. The eviction process may be initiated by the owner by going to the High Court or Magistrate’s Court. The date and time the court will hold the eviction application hearing will be disclosed to the owner.
The unlawful occupier, as well as the municipality located in the region of the property, must be personally served with a written notice of the eviction proceeding. This must occur at least 14 working days before the court hearing for the eviction.
What options does a tenant have?
If a landlord forces a tenant to vacate the property without giving them the required notice, the tenant has the legal right to defend themselves against unlawful eviction. Despite owning the property, a landlord does not have the authority to evict a tenant however they see fit. When a landlord denies a tenant access to the property or removes the tenant’s belongings, either through force, intimidation, or another method (such as cutting off utilities or changing the locks), this is known as an illegal eviction.
At a court hearing, the tenant must present a valid defence as to why they should not be evicted. If there are valid defences, a trial date will be set. In the absence of a valid defence, the sheriff will issue an eviction order authorizing the removal of the tenant and the tenant’s belongings from the premises.
The eviction process can take months and you should always contact an attorney to help with this process. Do not take the law into your own hands.
Source: www.golegal.co.za
