How to evict non-paying tenants

By | Evictions, Rent, Tenants

Evicting a non-paying tenant is a legal matter that should be handled to avoid incurring losses. This is how an eviction can be done.

Reprinted from, by Kayla Ferguson – 2024-01-23

While it can be a lengthy process to evict tenants who fail to pay their rent, there are procedures in place to make sure that both the tenants’ and the landlords’ rights are protected. Following the necessary steps is key to a hassle-free eviction process.

Legal provisions

Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa explains that both the tenant and the landlord must play fair with respect to their rental agreement.

“It is crucial to abide by the contractual agreements and, if not, to then proceed with the required legal procedures stipulated in this regard. It is only when people deviate from this that issues start to occur,” he notes.

Tenants are protected by two pieces of legislation, namely: the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998 (PIE Act), and the Rental Housing Act of 1999 (RHAct) as amended. The first sets out the process for evicting tenants, and the second makes it a criminal offence for a landlord to simply cut the supply of electricity or water, change the locks, confiscate tenants’ belongings, or stop a tenant from having access to the property.

“It is vital to always play by the rules. While you might think you can get a non-paying tenant out quicker if you change the locks or defer to other intimidation tactics, the truth is that this will most likely only provide the tenant with ammunition to use against you in the court proceedings. This will only drag things out further and cause more unnecessary complications and delays,” says Goslett.

Although it might be forgivable for the odd late payment if it’s a bank or financial system-related problem, a landlord cannot be so lenient if their tenant gets into the habit of paying their rent late.

How to go about the eviction

“Because the monthly payment date forms part of the rental agreement – which must also comply with the Consumer Protection Act – when a tenant doesn’t pay on time, they are technically in breach of contract. Legally, this means that a landlord should send the tenant a formal letter explaining that they have 20 business days to make the payment, and if they don’t pay their rent in that time, their lease will be cancelled,” Goslett explains.

If the tenant fails to pay what is due within the stipulated timeframe, the landlord can legally terminate the lease and ask them to leave. If the tenant refuses, the landlord can then take out a court order to evict the tenant for breach of contract.

“This process can take up to six months, during which your tenant can stay in your property and will probably still not pay rent. Once the eviction is granted, the tenant is usually given at least another 14 days to find new accommodation before the eviction order is executed,” says Goslett.

Because the eviction process can be so lengthy, Goslett suggests taking steps as soon as possible to prevent too great a loss of income. “The longer you take to act on a late or missed payment, the longer it will be before you can legally evict a tenant who continues to miss payments.”

To guard against this, landlords are encouraged to work with a professional RE/MAX rental agent who can thoroughly screen potential tenants and minimise the risk of late or missed payments.

“It can be tempting to go it alone in the mistaken belief that handling the property rental yourself will save you money. Also, when we’ve found the perfect tenant, it’s impossible to think that something might go wrong – until it does. It is better to get expert help from the very beginning than to try and navigate these challenges on your own,” Goslett concludes.

For more information on evicting a non-paying tenant

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or if you need help evicting a non-paying tenant.

Further reading:

Illegal eviction practices – understanding and combating them

By | Evictions, Tenants

Know your rights as a tenant

Feeling at the mercy of commercial landlords while searching for rental properties? You’re not alone. Especially in the fiercely competitive rental markets like the Western Cape, landlords may take undue advantage. However, as a tenant, you must remember that the law offers considerable protection. Knowing your rights and the responsibilities of the landlords can safeguard you from illegal eviction practices. Tenants have rights, and landlords have responsibilities (though they also have rights, and tenants also have responsibilities). Of course, ultimately the party with ownership status has more influence over the fate of the property than the party that rents it. But that does not mean a landlord can take the law into their own hands. The vast majority of landlords are honest and respectful of their tenants. After all, it’s a commercial relationship that works best when all parties are satisfied with their interaction. However, it does happen that a landlord occasionally ignores legal requirements and abuses their position. If you find yourself facing an illegal eviction, what are your rights and what can you do about it?

What constitutes illegal eviction in South Africa?

Tenants may only be evicted from a property by means of a court order. Any eviction other than one authorised by a court is illegal.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (PIE) contains specific regulations that govern the eviction process. Any action that contravenes these regulations is deemed to be an illegal eviction and the courts take this very seriously. But what might an illegal eviction look like? What are some of the things a landlord might do that are in breach of the law?

Common illegal eviction tactics used by landlords

All of the activities below are illegal, but unfortunately they do occur. If you experience any of these behaviours, keep a record of the incident and the date and time. We’ll say more about how to deal with these practices below.

Lockouts: Landlords may not change locks, deny tenants access to their homes or unlawfully dispossess them from the property to force them out. This is illegal and is a violation of the tenant’s rights to the property. The tenant’s rights continue to be in force even if they are in arrears with rental payments.

Utility disconnections: Cutting off essential services like water, electricity, or gas is strictly prohibited without following the proper legal channels.

Verbal or threatening behaviour: A landlord cannot verbally or physically force a tenant to leave their home without obtaining a court order for eviction.

Harassment: Continually disturbing or harassing tenants with the intention of making their living conditions unbearable is illegal and tenants have the right to seek a protection order against their landlord if this happens.

Seeking a legal solution: the spoliation order

If any of these actions lead to dispossession, i.e., being removed from the home, depending on the circumstances tenants may bring an urgent application to court and ask for a “spoliation order”. Spoliation means “the wrongful deprivation of another’s right of possession”. If the Magistrate is satisfied that the tenant has been unlawfully dispossessed without the landlord following the necessary legal procedure, an order will be granted for possession to be reinstated.

If the landlord attempts to evict a tenant illegally, they could face a heavy fine or be required to pay damages to the tenant. In the worst case scenario the landlord could potentially wind up in jail, facing serious criminal charges.

Your rights as a tenant – safeguards against illegal eviction

The provisions of the Rental Housing Act are clear on the rights of tenants. The tenant’s rights against the landlord include the right not to have:

  • Their person or home searched
  • Their property searched
  • Their possessions seized, unless the landlord has first obtained an order of court

A written lease cancellation or eviction notice must first be served by the sheriff on the tenant. This notice has to offer the tenant a minimum of one month to vacate the property. A court date is then set and a deadline given for filing an opposing affidavit, if the tenant wants to oppose the eviction. A landlord cannot evict a tenant without going through this correct procedure.

Dealing with illegal eviction practices – a step-by-step guide

If you are being harassed or victimised by your landlord, you are not helpless. Legal recourse is available. But you must not respond with equally unlawful behaviour. Instead, stay calm and be methodical in your approach.

Document everything: Keep a record of all communication and incidents related to the eviction, including notices received, dates, times, and any evidence of harassment or illegal actions.

Seek legal advice: Consult with a qualified attorney to understand your rights and the legal avenues available to you.

Lodge a complaint: Report any illegal eviction practices to the Rental Housing Tribunal, Department of Human Settlements, or your local municipality. They can provide guidance and resolve disputes.

Court intervention: If none of the above gives satisfactory results, consider applying for an urgent interdict at your local court to protect your rights and prevent the eviction until a proper court hearing takes place.

Illegal eviction practices are a violation of tenant rights and can cause significant distress. Don’t panic. Know your rights and understand the legal process. This will enable you to deal effectively with the situation.

For further information

If you are being subjected to illegal eviction practices, our specialist eviction lawyers can help. Simon Dippenaar & Associates, Inc. helps landlords and tenants maintain healthy working relationships but, when necessary, we can assist with eviction, ensuring it is effected legally and ethically. Contact one of our eviction attorneys on 086 099 5146 or if you think you are being treated unfairly or unlawfully by your landlord.

Further reading:

Evicted families take “eco-friendly” property developer to court

By | ESTA, Tenants

Reprinted from GroundUp, by Kimberly Mutandiro – 2023-07-26

  • In 2022 the homes of 15 families on Tilly’s Farm in Mogale City were unlawfully demolished by Dutch-South African property company MaxxLiving.
  • People living on the farm claimed land tenure rights and the company was ordered to build them brick houses within 90 days.
  • But a year later, the families are still in temporary structures.
  • Lawyers for Human Rights has applied for a ruling that the developer is in contempt of court. The matter has been reserved.
  • MaxxLiving says it will build the houses but gives no timeframe.

Last year GroundUp reported how the homes of 15 families living on Tilly’s Farm in the Mogale City Municipality had been unlawfully demolished by Dutch-South African property company MaxxLiving.

They took the developer to court, claiming land tenure rights under the Extension of Security of Tenure Act (ESTA). In July 2022, the Land Claims Court ordered MaxxLiving to build them brick houses within 90 days.

Lawyers for Human Rights (LHR) had to launch an urgent application in the Land Claims Court (Johannesburg) to compel the developer to provide temporary homes in the meantime.

The families still live in those temporary structures. A total of R100,000 compensation, which the court ordered to be paid by 30 September 2022, was only paid in November 2022. The families say the amount, which was shared by 25 households, was too small to make up for their damaged possessions.

They are sharing just one chemical toilet. They have one water tank, but it runs dry and is sometimes not refilled for a week.

The families say the water tank they depend on is not refilled for a week sometimes

The first toilet provided by MaxxLiving on the left is full. A second toilet was added, shared by about 25 people

“To think that we once had warm homes. They should just build our homes,” said Violet Moloto, who has lived on the farm since 1995.

This is the second winter the residents are enduring since their houses were bulldozed.

Moloto said all her possessions were taken from her at the time of the demolition, and the R4,000 she received in compensation was far too little.

Because they have no electricity, the families have now built additional shacks, where they cook and warm themselves as winter bites.

Wilson Kgatla said his chickens had been killed during the demolition. “The fact that they are taking a long time to build is making the pain even worse.”

“I have no family and the house which was demolished was all I had,” said Wilson Sehlako, who has lived on Tilly’s Farm since 1989. “All l wish is for my house to be built.”

Lerato Katla, who grew up on the farm, says the nine members of her family are crammed into two shacks. The temporary accommodation can be seen behind her.

Contempt of court proceedings

David Dickinson of LHR said the property developer had argued that it had no money at present to build the homes, but had failed to provide proof of this. He said the developer had assets which could be sold.

The families first launched a contempt of court application in August 2022, and Justice Brian Spilg gave the developer until November 2022 to build the houses.

On 18 July 2023, the families went back to court, asking that the property developer be found in contempt of court. Judgment has been reserved.

Tilly’s farm families say they are struggling since their lives were disrupted and their homes bulldozed.

Margaret Makgomola, the first applicant in the case and a resident since 1988, says she has been left feeling broken. As the former preschool teacher at the old farm’s crèche, she’d hoped to open her own crèche at the site.

“The developer promised to leave the crèche standing,” she said.

But the crèche was also demolished. Makgomola sometimes visits the ruins; for her it was much more than just a crèche. Now she has fixed her hopes on at least getting a house as ordered by the court.

Her temporary shack is too small and her possessions are becoming ruined standing out in the open.

“We feel unsafe, because the property developers just do as they please. It’s as if they are above the law and we would be lucky if they even build the houses,” says Makgomola.

Margaret Makgomola, the first applicant in the case and a resident since 1988, says she has been left feeling broken.

Development forges ahead

On 18 July the residents protested outside MaxxLiving premises while the contempt of court hearing was being held in the Land Claims Court.

In a memorandum addressed to Arthur Bezuidenhout, director of MaxxLiving, they complained: “You have made excuses and excuses that you do not have money to rebuild our homes, but we can see with our own eyes that you continue to build luxury homes on the site where our homes once stood.”

MaxxLiving’s flagship “innovative modular wooden, off-grid and CO2-friendly property development” has forged ahead, with a total of 11 new homes and foundations for more, according to court papers.

Bezuidenhout told GroundUp he is committed to building homes for the Tilly’s Farm families and that the residents would still get homes, but he could not give a timeframe.

He said bad publicity had damaged on the project, causing cash constraints.

“We are from the Netherlands, and we are a Dutch-based company aiming to fix with innovative solutions a housing problem in South Africa.”

“We are building homes in wood. It allows us to build fast, with quality and it allows us to build model homes. The purpose of this development is to showcase how we can build quality homes with wood, better than brick and mortar.”

He said the company had engaged with the Minister of Human Settlements.

He said his good intentions had been misunderstood by the families who refused to move to land he had offered them.

“We are against RDP homes and informal settlements. Our model is the future of social homes if the government joins in,” he said.

The MaxxLiving flagship development in Mogale City

Groundup has been awaiting comment from Mogale City Municipality since Monday.

For further information

Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or if you need help with tenants’ rights or landlords’ responsibilities.

Further reading: