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

Updated: Oct 21, 2020

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 ofTheart 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