Your tenant is causing havoc – how do you secure an urgent eviction order?
Under the current alert level of the Disaster Management Act (Adjusted Alert Level 4), eviction orders can be applied for and granted but not implemented. They must be “stayed”, or suspended, until either the Disaster Management Act is withdrawn or such time as the government announces otherwise. However, there are exceptions. An eviction order can be effected if it is just and equitable to do so. In some circumstances, an eviction is urgently required. What is the process for securing an urgent eviction order?
Determining “just and equitable”
We’ve covered the rules that currently apply to evictions in detail in a recent blog post. Here’s a reminder. A landlord wishing to evict a tenant must have regard for:
- The need for everyone to have a place of residence and services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons
- The impact of the disaster on the parties
- Whether affected persons will have immediate access to an alternative place of residence and basic services
- Whether adequate measures are in place to protect the health of any person in the process of a relocation
- The occupier’s behaviour, e.g. if they are causing harm to others
- The steps the landlord has taken to make alternative arrangements of payment of rent to preclude the need for relocation
“Harm or threat”
A normal eviction takes between six and 12 weeks to finalise. An urgent eviction can be requested in instances where the landlord can prove there is a danger of imminent harm or threat to the property if the tenant is not evicted immediately. This harm or damage may not be to the landlord or the property itself; there can be the risk of damage to any person or property, as long as the harm has commercial value. For example, the harm could impact on neighbours or the communal area in a sectional title unit.
A question of balance
In considering an application for an urgent eviction order, the judge will consider the likely hardship to the property owner (or any other affected person) versus the likely hardship to the unlawful occupier. The landlord will have to prove to the court that there is no other effective remedy available. A court will not issue an urgent eviction order lightly and all other possible solutions must be explored and exhausted before making the application. An urgent eviction order is a last resort.
An urgent eviction application, like a normal eviction application, can be brought in both the High Court and the Magistrate’s Court. The Constitutional Court has upheld the constitutionality of urgent evictions but has cautioned against the abuse of tenants. Any landlord seeking an urgent eviction must comply with all elements of the law before proceeding with the application.
For further information
SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you need to apply for an urgent eviction order, or just want advice on lease agreements or other aspects of tenant relations, contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email email@example.com.