Phil and Eunice had been renting a small flat for a couple of years. Usually they had no problems paying the rent, and made sure things were always handled on time. But last month, Phil was retrenched unexpectedly, and the couple had financial problems – without Phil’s salary they could barely afford food for the month, they knew they couldn’t afford to pay the rent.
They went to speak to their landlord about their situation, and promised that they would pay double their rent the next month to make up for it. But their landlord got angry and locked them out – even though he had no court order. When they got home from work one night, all their stuff was lying outside the flat and the locks had been changed so they couldn’t get in. AZIKHIPHI! That’s not on! It is illegal to just kick someone out of their house, even if they haven’t paid their rent. But their landlord did it anyway, and now they’re stuck. What can they do?
Scorpion Legal Protection’s advice
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (the PIE Act) says no one can evict you from your home without a court order considering all the circumstances. Even if you haven’t paid your rent, you still have rights. Phil and Eunice’s landlord was wrong to kick them out like that – there is a very specific legal process that any landlord has to follow in order to evict tenants.
The PIE Act states that a landlord must:
- Give the occupiers notice of his/her intention of going to court to get an eviction order
- Apply to the court to have a written notice served on the occupiers stating the owner’s intention to evict the occupiers
- Serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area.
There’s also specific information that needs to be in this notice, it must contain: a statement that says proceedings are being instituted in the court in terms of PIE; the date and time of the court hearing; the grounds for the proposed eviction; that the occupier is entitled to appear before the court and defend their case; and that the occupier can apply for legal aid.
The process of getting evicted
- The landlord will apply to the court to start the eviction process.
- The court will consider the situation and make a decision.
- If the court thinks eviction is fair, a sheriff will serve the tenant and the local municipality with a Notice of Intention to Evict.
- The tenants can oppose, and the matter will be argued in front of a magistrate or judge, who will decide if an eviction order can be granted, and how long the tenants have to move out.
- If the tenants don’t oppose, the court will grant the eviction order.
- If the tenants still refuse to move out, the court can issue a Warrant of Ejectment. This means a sheriff will remove the tenants from the house.
Phil and Eunice’s landlord didn’t follow this process, and what’s worse, he tried to take matters into his own hands by throwing their stuff out and changing the locks. This is called spoliation, and it’s illegal. Spoliation is when the landlord takes the law into his own hands. It includes things like changing the locks, switching off the electricity or water, and physically or verbally threatening the tenants to force them to leave.
Phil and Eunice can take legal action against their landlord by applying for a Spoliation Order against him. If they are successful, the landlord will be forced to give them access to the flat again and may even be liable for the legal fees Phil and Eunice incurred to get the Spoliation Order against him.
Phil and Eunice may, in the meantime, get alternate accommodation and hold their landlord liable for the cost.
Tips:
- Eviction is a complicated legal process, it’s not just as easy as kicking someone out of their house.
- Only the sheriff of the court can carry out an eviction – the landlord can’t remove tenants himself. If you live in a complex, body corporates or trustees are also not allowed to evict tenants.
- If the landlord takes matters into his/her own hands, you can apply for a Spoliation Order at the Magistrate’s Court or High Court.
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* Terms, conditions, limitations and exclusions apply (click here to view the Legal Membership Agreement). This is only basic advice and cannot be relied on solely. The stories, names, characters and incidents portrayed are used in a fictitious manner.