The short answer
The landlord must follow the steps in the Prevention of Illegal Eviction Act.
The whole question
We received an eviction order. We are four months behind on the rent.
Only my wife is working. We have two-year-old baby, so my wife and I are in a state. What can we do?
The long answer
Thank you for your email asking what can be done if you receive an eviction order, because of being four months behind with the rent.
The landlord must follow the steps in the Prevention of Illegal Eviction Act, (PIE):
In the first place, your landlord must cancel your lease or permission to live in the premises in writing, and give you a date by which you must leave the property, which must be a reasonable amount of time.
If you have not left the property by the date given, the landlord can go to the Magistrate’s Court or the High Court to start the eviction procedure. The court will give the landlord a date and time for the eviction hearing.
You must be personally given written notice of the eviction hearing by the sheriff at least 14 days before the hearing. This notice must state the date and time of the hearing, the circumstances of the eviction, and it must state that you have a right to defend yourself against the eviction, and provide you with details of your local Legal Aid. The municipality must also be given the same notice.
Both you and the landlord must be present in court on the day of the eviction hearing so that you can tell the court your side of the story. You may have a lawyer from Legal Aid representing you or you can speak for yourself.
Section 26(3) of the Constitution says that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances”. There have been many eviction cases taken to the Constitutional Court over the years and so the law keeps evolving.
The latest Constitutional Court judgment in 2018 has said that before the court can make an eviction order, it must take into account all the relevant facts, so that the eviction order is “just and equitable”. It must take into account the effect of an eviction on the evicted people – for example, whether they would be made homeless. In that case, the municipality must provide emergency alternative accommodation. This is why the municipality must also get the notice of the eviction hearing.
After considering all that, and if it considers that you have no valid defense, the court may grant an eviction order which must state the date that you must leave the property, and the date on which the sheriff can evict you from the property if you have not left by the date ordered by the court.
The eviction process takes a minimum of two to three months from the date of the landlord’s letter of demand and cancellation of the lease, with the minimum 14 day notice period as prescribed by the PIE Act and the Court's allowance of a period of one month for the tenant to vacate the property being taken into account.
In that time, your landlord cannot cut water or electricity, lock you out or try to intimidate you into moving out.
Here are contact details of organisations that may be able to help:
Call the toll-free Legal Aid Advice Line: 0800 110 110 or send a Please Call Me to 079 835 7179.
Email the Legal Resources Centre at [email protected] (Website: https://www.lrc.org.za)
Answered on Feb. 21, 2019, 4:07 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.