Warning to South Africans who want to evict unlawful tenants

South Africa’s eviction process is highly complex, and landlords who incorrectly evict tenants, even though they may be there illegally, risk lengthy delays, costly penalties, and even criminal liability for unlawful eviction.

VDM Attorneys’ Hannah van Deventer explained that in South Africa, evicting someone is not as straightforward as issuing a warning or removing them by force.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) regulates the procedures and requirements for carrying out lawful evictions.

“The Act applies when a person occupies land or property without permission and the owner or lawful occupier seeks to regain possession,” Van Deventer said.

“While it protects the rights of landowners, it also ensures that unlawful occupiers are not evicted arbitrarily or without due consideration of their circumstances.”

PIE was introduced to replace common-law evictions with a regulated process that balances property rights with constitutional protections.

It requires a court order for residential evictions, ensuring occupiers receive notice and a hearing and that the court deems the eviction “just and equitable”.

“PIE does not legalise unlawful occupation,” Van Deventer said. “Rather, it prevents illegal evictions by compelling owners and landlords to follow the correct legal steps when reclaiming possession.”

This is a critical distinction – an occupier may be in unlawful possession, but the eviction itself can only proceed lawfully if the process laid out in the Act is followed.”

The Act specifically applies to situations where a person occupies land or residential property without the express or tacit consent of the owner or person in lawful control.

It is most commonly invoked in cases involving informal settlements, backyard dwellers, tenants who remain after their lease has ended, or unauthorised occupiers of vacant residential properties.

Importantly, the Act does not apply to cases where the tenant occupies a property legally, for example, where their lease is still valid.

Requirements for a lawful eviction

Van Deventer explained that the Act sets out strict requirements that must be met before a court will consider granting an eviction order.

At a minimum, there needs to be a court order and proper notice before the eviction can take place. The occupant must also be given the opportunity to present their case in court, and the eviction must be just and equitable.

“Even if the occupation is unlawful, the court will only grant an eviction if it is satisfied that doing so would be just and equitable, considering all relevant factors,” she said. These factors include:

• The length of time the person has occupied the property
• Whether children, elderly individuals, or vulnerable persons are affected
• Whether alternative accommodation is available
• The conduct of both the owner and the occupier

According to Van Deventer, serving the notice is one of the most important procedural steps in an eviction under the Act.

“A failure to comply with these formalities can lead to delays or dismissal of the eviction application – regardless of whether the occupation is unlawful,” she said.

“The notice must be served at least 14 calendar days before the hearing date and must be properly filed with the court. It must also be served on both the unlawful occupier and the relevant local municipality.” The notice must include:

• The names of the parties involved
• The date, time, and place of the court hearing
• The grounds for the eviction
• A statement that the occupier has a right to appear before the court and oppose the eviction
• A directive to the municipality to provide a report on whether the eviction is just and equitable, and whether alternative accommodation is available
• Steps taken to find alternative accommodation (where applicable)

“Courts take non-compliance with these requirements seriously. If the notice is not properly drafted, served, or timed, the eviction application may be postponed or struck from the roll entirely.”

“Given the risk of procedural missteps, it is advisable to engage experienced property lawyers to handle the eviction process and ensure compliance with PIE’s strict notice requirements.”

Illegal evictions can lead to delays, costs and criminal charges

Van Deventer said that PIE particularly emphasises protecting vulnerable groups and long-term occupiers. Even though someone is an unlawful occupant, some considerations can heavily influence whether the court will grant an eviction.

Some of the key considerations include:

• Occupiers residing for more than six months: In such cases, the eviction will only be granted if it is just and equitable and if suitable alternative accommodation is available or has been arranged.
• Children, elderly persons, and households headed by women: Where the eviction would result in undue hardship for these groups, this will factor heavily into the court’s assessment.
• Municipal obligations: Municipalities are expected to actively assist the court by reporting on the availability of emergency or alternative housing and whether the occupiers fall within any priority housing categories.

Van Deventer stressed that evicting occupants without a valid court order is strictly prohibited, even if the occupier has no legal right to be on the property.

“Landowners who attempt to forcefully remove occupants – by changing locks, cutting electricity, using threats or physical force – not only violate the Act but also expose themselves to serious legal consequences,” she said.

She explained that unlawful evictions can have severe consequences for property owners. “A court may order that the evicted person be allowed back onto the property, even if their occupation was unlawful to begin with,” she said.

“This can cause frustration and delay for the owner, and often makes the situation more difficult to resolve.”

Occupiers being removed without due process may also claim damages against the landowner or any party involved in the unlawful eviction.

In certain circumstances, illegal eviction methods may even constitute criminal conduct, particularly where force or intimidation is involved. “For these reasons, compliance with the PIE Act is not optional,” van Deventer said.

“Any person with rights in property – whether a landlord, property manager, developer, or private owner – must approach eviction lawfully. Missteps can lead to both financial and reputational harm, regardless of the merits of the case.”