Understanding your rights when facing eviction

The eviction process is a stressful and intimidating experience that hurts the finances and wellbeing of both landlord and tenant.

In South Africa, evictions are governed by strict regulations to ensure fairness and protect the rights of all parties involved.

We explain the process and legalities around eviction, your rights and protections, the landlord’s obligations, and the assistance available.

What is an eviction, and when is it legal?

An eviction takes place when you’re legally forced to leave the property where you’re staying.

A landlord may initiate eviction if you breach your lease agreement, such as by failing to pay rent, damaging the property, subletting without permission, or engaging in illegal activities on the premises.

The legal framework governing evictions in South Africa

Residential property rentals are subject to the Rental Housing Act (RHA) and the Consumer Protection Act (CPA), which aim to balance the rights of property owners with the protection of tenants.

Additionally, the Constitution of South Africa, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE Act), and the Extension of Security of Tenure Act (ESTA) outline the legal framework for carrying out evictions.

The RHA emphasises fairness in landlord-tenant relationships, requiring landlords to provide adequate notice and ensure any eviction process is conducted legally. Landlords are prohibited from changing locks, disconnecting utilities, and other heavy-handed tactics.

If you face eviction, you’re entitled to receive written notice detailing the reasons. You must be given an opportunity to rectify any breach, such as bringing rental payments up to date, before legal action is instituted.

The CPA provides further safeguards by requiring fairness and transparency in your rental contract. For instance, you have the right to a clear, written lease that complies with statutory requirements, and your landlord must follow proper termination procedures, as outlined in the law.

The PIE Act requires a court order and protects the rights of vulnerable occupants, including the elderly, disabled people, and mothers with young children.

The Constitution of South Africa

Section 26 of the Constitution states that everyone has the right to adequate housing, and protects the public from arbitrary and unjust evictions without a court order.

The PIE Act

This act aims to prevent arbitrary evictions by providing guidelines for the eviction of unlawful occupants.

Under the act, any eviction requires a court order. The tenant’s personal circumstances will be considered, especially in cases involving children, the elderly, or people with disabilities.

ESTA

For tenants living on rural or peri-urban land that they do not own, ESTA offers additional protection; ensuring tenure security by preventing arbitrary evictions and promoting fair treatment. It seeks to balance the rights of landowners with the need to protect vulnerable people from being displaced without due process or alternative accommodation.

Types of evictions

There are several types of residential evictions in South Africa, each with different legal implications. These include the following.

Normal eviction process: Where a residential tenant is formally notified of the intended eviction, the lease is terminated and a court issues a warrant of eviction.

Urgent eviction process: For cases where the tenant presents a threat.

Organs of state specialised eviction process: There are specific procedures for state-owned properties.

Court-ordered evictions

Only a court can authorise a residential tenant’s eviction.

Illegal evictions

An eviction that is not authorised by a court order is illegal. This includes evictions that are carried out through intimidation, threats, or force.

A landlord may not change the locks on a property, disconnect the water or electricity supply, or resort to more reckless actions such as removing doors or roofs in order to evict you.

Landlords’ rights

While tenants have significant protections under South African law, landlords also have rights. These include receiving rental payments on time and in full, recovering unpaid rent through legal channels, terminating a lease under specific conditions, and repossessing the property through a court order.

Landlords have the right to inspect the property with reasonable notice and are required to make repairs and improvements as needed.

Legal process of eviction

Understanding the legal process of eviction is crucial for both tenants and landlords. If the landlord wants to legally force you to vacate their premises, they must have an eviction notice served to you, and you have the right to contest it in court.

The proper process comprises the following key steps:

• Before initiating eviction, the landlord must send you a letter explaining the breach, and asking you to rectify it.
• If you don’t rectify the breach, the landlord can terminate the lease agreement.
• The landlord must inform you of their intention to seek a court order for eviction.
• Thereafter, the landlord may file an application with the court, and an eviction notice will be delivered to you.
• If you contest the eviction, the case will go to court.
• If you don’t have a valid defence, the court will issue a warrant of eviction.
• The sheriff will then execute the eviction order.

Below are more in-depth explanations of some of these elements.

Notice of eviction

A notice of eviction is a formal document that is served in writing, either personally or by registered mail. It is not an eviction order. You can dispute an unfair notice of eviction at the Rental Housing Tribunal.

Default judgement

Should you fail to respond to a summons to appear in court, or miss the court date, the landlord may be granted a default judgement that allows them to enforce the eviction and claim legal costs from you.

Eviction order

If the court rules in favour of the landlord, you will receive a notice specifying when you must vacate the property.

Execution of eviction

If the court grants the eviction order, you must vacate the property, or you will be forcibly removed by a sheriff of the court or police, with your goods either moved into storage or repossessed.

Rights of tenants facing eviction

Tenants have the right to be treated fairly and with dignity throughout the eviction process. You must receive notice before eviction, you can contest the eviction, and you can only be evicted via a court order. You are allowed to seek legal aid if needed.

Below is a breakdown of your rights, in the face of eviction.

Right to adequate notice

The RHA requires that a calendar month’s notice be given to you to pay any overdue rent, or to vacate. If the landlord issues a breach notice due to non-payment of rent, the notice period could be longer.

Right to a fair hearing

You have the right to a fair hearing, at which you can challenge the eviction. The landlord must give proper notice of the hearing date.

Right to alternative accommodation

Landlords have no obligation to provide alternative accommodation for evicted tenants, but the court may consider your circumstances before granting an eviction order. If you are unable to secure your own accommodation, the state may, under certain circumstances, provide temporary alternative accommodation.

Take action to avoid eviction

If you can pay your overdue rent by the due date stated in an eviction notice, you could avoid eviction, thereby preventing further legal consequences and buying time to explore other housing options.

When it comes to eviction matters, speak to your landlord as soon as possible. Keep a written record of your communications, which can be useful evidence in a dispute.

Speaking with your landlord can avoid escalation and costs. Explain your situation and propose solutions, to avoid going to court.

Most landlords would prefer to avoid a lengthy eviction process. If you come up with a workable plan, you may reach an amicable solution.

Seek financial or legal assistance

Financial assistance is available, via government programmes and non-governmental support. This can help you manage rent payments and avoid eviction.

An attorney can help you navigate the eviction process, negotiate with your landlord, and explore options to delay or prevent eviction.

How DebtBusters can help you

Eviction is often linked to broader financial challenges. If debt is among them, debt counselling can assist by reducing interest rates, consolidating debts, and freeing up cash to cover monthly expenses.

As a leading debt counselling company, DebtBusters has an expert team that can work closely with you to assess your financial situation and create a manageable repayment plan.

Contact us today for a personalised debt solution that can help you regain control of your finances.

FAQs

1. What should I do if I receive an eviction notice?

Respond to the notice immediately, and decide whether you’ll contest it in court. Try to negotiate with your landlord. If that fails, seek legal advice.

2. Can I be evicted without a court order?

No. A court order is mandatory for every legal eviction.

3. What are my rights if I cannot afford legal representation?

You could approach a non-governmental organisation such as Ndifuna Ukwazi, Legal Aid, or the university law clinics of Stellenbosch, UNISA or Wits. 

4. How long does the eviction process take?

Evictions can take several months.

5. Can my landlord force me out immediately?

No, the law does not allow it.

6. Does an eviction hurt your credit record?

In South Africa, while an eviction itself may not directly appear on your credit report, associated financial issues can hurt your credit standing. If you fail to pay rent and are subsequently evicted, landlords may report unpaid rent to credit bureaus, leading to a payment flag that can lower your credit score. If the property is listed with The Property Practitioners and Tenancies Bureau (TPN), a credit bureau that collects information on tenants’ rental history, defaults can be loaded against your credit profile which can make it difficult to rent another property.

If the landlord pursues legal action to recover unpaid rent, resulting in a court judgement against you, this can be recorded on your credit report and remain for up to five years, further affecting your creditworthiness.