Understand the Eviction Process
Now that you are here, you might be thinking that AutoEvict is the solution to your problem but still, you might be wondering how the full eviction process works. Well, we broke it down for you in a few simple steps.
Phase 1
In the event that your tenant breaches the lease agreement, such as failing to make rental payments or maintaining the property, you can send them a Letter of Demand. A Letter of Demand is a letter to the tenant demanding a certain action.
When you send out a Letter of Demand to your tenant, you should ask the following question: Do I have a fixed-term lease agreement in place? If the answer is “Yes”, you must allow the tenant 20 business days to rectify the breach. If you are on a month-to-month agreement, then the tenant only has 7 calendar days in which to remedy the breach.
You can read more about the difference between business days, calendar days and court days here.
If the notice period expires without the tenant rectifying the breach, you have the option to cancel the lease agreement by sending the tenant a Letter of Termination, commonly referred to as a cancellation letter. In the event that the tenant still refuses to vacate the property, they become unlawful occupants, and you can proceed to phase 2 of the eviction process.
Please note that if there is no existing lease agreement, and the property’s occupants have no legal right to reside there, you should issue them a 30-day calendar notice to vacate.
Phase 2
If the unlawful occupants persist in occupying the property, you can initiate an eviction process through the Court. To do this, you need to submit two crucial documents: a Founding Affidavit and a Notice of Motion.
The Founding Affidavit is a legally sworn written statement that is submitted to the Court by the party instigating the legal proceedings, which, in this case, is you. This document holds a central role in the eviction proceedings and outlines the facts and circumstances surrounding the eviction. It includes details concerning the tenant, the rental agreement, breaches of the agreement (such as non-payment of rent or other violations), and any attempts to resolve the issue through negotiation or communication.
The affidavit must be signed and sworn before a commissioner of oaths, such as a lawyer or notary, to confirm its accuracy and truthfulness. This is crucial, as making false statements in a sworn affidavit can lead to legal consequences.
The Notice of Motion serves as your formal application to the Court to obtain an order for the tenant’s eviction. It specifies the specific relief or order you are seeking from the Court, which, in this case, is likely an eviction order. This section references the Founding Affidavit as the supporting document containing the details of the eviction case. Once the Notice of Motion is filed with the Court, a copy is typically served to the unlawful occupant, affording them an opportunity to respond to the eviction application by filing opposing affidavits and presenting any legal defenses they may have.
After these documents are prepared and signed, they are filed with the Court as part of the eviction application. The Court will review the documents, and if they meet the necessary legal requirements, they will issue a summons to the unlawful occupant, commencing the legal process. The unlawful occupant will then have an opportunity to respond, and the matter will progress through the Court system.
Phase 3
Should the unlawful occupant choose not to oppose the eviction order, but still fail to vacate the property, you may proceed with an Ex parte application. “Ex parte” is a Latin term that means “on behalf of one party” or “by one party.” An Ex parte application is one in which only one party (usually the Applicant or, in this case, you) appears before the court, and the other party (usually the Respondent or, in this case, the unlawful occupant) is not present or given notice of the Ex parte proceedings.
An Ex parte application in the context of eviction proceedings is one in which the Applicant, or in this case, you, approaches the Court for an order authorising the content and form of a further eviction notice which must be served upon the occupant in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). This notice is referred to as a Section 4(2) notice, which outlines the requirements and procedures for notifying occupant about their impending eviction. This Notice must be served to the occupant no later than 14 calendar days before the hearing, by the Sheriff. It must also be served to the relevant Municipality. The eviction process will then proceed to phase 4.
Phase 4
During phase 4 of the eviction process, a Notice of Set Down is prepared. A Notice of Set Down is a formal legal document used to schedule a Court hearing related to an eviction case. This notice informs all involved parties, including the occupant, and the Court, about the date, time, and location of the Court hearing where the eviction matter will be addressed. Note that the Notice of Set Down is drafted and served upon the occupier in phase 3, along with the Ex parte documents. Under phase 4, the papers are indexed and paginated and formerly set down for hearing on the provisional Court date that was obtained. Basically getting the Court file in order for hearing.
On the day of the court hearing, you must be present in person. The occupant can choose to appear or not. If he does not, then an order should be granted in his absence by the Presiding Officers, provided that all aspects of procedural compliance have been met. Based on the evidence presented in the aforementioned documents, the Presiding Officer will make a determination on whether to grant an Eviction Order in your favour or not, as well as how long the occupiers should be afforded to vacate the property.
Phase 5
If the Presiding Officer rules in favour of eviction, but the occupants still fail to vacate the property, a Court Order will be handed to the Sheriff, who will proceed with the physical eviction of the unlawful occupants.
Opposed Eviction
In cases where an occupant receives an eviction notice and wishes to oppose it, they have 10 court days to file a Notice to Oppose with the Court. After submitting this notice, they are granted an additional 15 days to provide relevant evidence and justification for why the eviction order should be dismissed through an Answering Affidavit.
An Answering Affidavit is a legal document filed by the Respondent (the occupant), in response to a Court case. It is used to provide the party’s response to the allegations, claims, or arguments made by the opposing party (you) in their founding affidavit.
In the context of eviction proceedings in South Africa, when a landlord initiates an eviction by filing a Notice of Motion and a founding affidavit, the occupant, as the respondent, may file an answering affidavit to present their side of the case and address the landlord’s claims.
Once the occupant has submitted his answering affidavit, the landlord has the chance to submit his replying affidavit. A Replying Affidavit is typically submitted by the party who initiated the legal proceedings (you) in response to the answering affidavit submitted by the opposing party (the occupant). Thereafter you, as the owner of the property, may proceed with an Ex parte application in phase 3.