However, with the Q2 2023 PayProp Rental Index revealing that the number of tenants in arrears has risen to an alarming 18.4% - the highest figure recorded since 2021 - many have found themselves with no choice but to seek legal recourse.
While unpaid rent is just cause for ousting a problematic tenant, Grant Smee, managing director of Only Realty Property Group stresses that landlords must do their research and have an intimate knowledge of the law before initiating eviction proceedings.
“The Rental Housing Act of 1999 governs the relationship between landlords and tenants in South Africa, outlining the rights and responsibilities of both parties,” he explains. “Under this Act, tenants can only be evicted for valid reasons recognised by the law, which constitute a breach of a lease agreement.”
These include:
“As grounds for a legal eviction are based on a breach of the lease agreement, it’s important to note that the 2022 Rental Housing Amendment Act requires that all lease agreements be in writing, which is the responsibility of the landlord,” says Smee. “Any lease agreements that have been verbally agreed upon are not binding and therefore will not hold up in court.”
Under the Act, evictions cannot be based on discriminatory reasons, such as race, gender, ethnicity, religion, or sexual orientation. “The court will also dismiss any eviction applications that appear to be retaliatory from the landlord – i.e. as retaliation for a tenant asserting their legal rights or complaining about poor living conditions.”
Tenants also cannot be evicted for requesting repairs and withholding rent until these repairs are made, forming a tenant’s association or refusing to pay an unauthorised rental increase.
“If a landlord fails to follow proper eviction procedures, as outlined below, the eviction can be deemed unlawful and challenged by the tenant in court, even if the reasons for the eviction are valid,” Smee stresses.
The Prevention of Illegal Eviction and Unlawful Occupation of Land Act No. 19 of 1998 (PIE Act) outlines the proper procedures for evicting illegal occupants as follows:
To secure a successful eviction order, landlords must ensure that they have sufficient documentation and evidence that complies with the legal requirements. Given the complexity of the process, Smee recommends securing legal representation to navigate the court process.
“Evictions can quickly become ugly, and cool heads must prevail. Stick to proper procedures and don’t resort to illegal measures like changing the locks, switching off water and electricity or throwing out the tenant’s possessions before the court’s official judgement.
“Even in the case of an unopposed eviction, your legal costs can range between R25- to R35,000, excluding the mandatory sheriff fees. This is why it's essential to thoroughly review a prospective tenant's rental application before signing a lease.
“This includes assessing their credit score, contacting references, and, in cases of uncertainty, conducting a background check. Sometimes the red flags aren’t so apparent so it’s crucial to perform due diligence,” he concludes.