Can a tenant win an eviction in South Africa?

Can a tenant win an eviction? 

It depends. Usually no, but sometimes they can.

When can they?

When the landlord has not followed the legal eviction procedure.

Can you give examples of this?

When the landlord does not properly deliver written notices, otherwise known as eviction letters, to the tenant, before going to court.

When the landlord does not make out a case in his eviction application that it is just and equitable for the tenant to be forcibly removed from the property.

When the landlord unjustifiably infringes upon the tenant's rights.

What kind of tenant rights can the landlord infringe?

Their rights given to them in terms of a valid lease agreement, the overriding laws such as the Rental Housing Act, some times the Consumer Protection Act, and ultimately, the Prevention of Illegal Evictions Act.

Are there any other property laws that could apply?

Yes, depending on the legal relationship between the landlord and tenant, other laws can apply, such as ESTA.

When does ESTA apply?

See this article for more.

What can a landlord do to ensure he wins against the tenant?

Eviction law is not about winning or losing. It is about striking a balance between opposing legal interests in the most fair and equitably way possible.

Does this mean that you are not willing to fight for a landlord to get their property back?

Definitely not.

How so?

It just means that one must appreciate the underlying purpose of eviction law, in the resolution of the eviction equation.

What is the underlying purpose?

Where a tenant does not fix their breach of the lease, the property owner deserves to get his property back from the tenant, but needs to do so in a legal way, by following the legal eviction process.

That way, he will always "win" in terms of regaining possession his property, but done in a way that appreciates any vulnerability and humanitarian concerns.

How does a landlord appreciate these concerns?

He does not need to actively do this per se, but needs to passively observe this, by appointing a legal advisor and representative who can apply the laws designed to respect these concerns.

What does then mean for the landlord?

He needs to appoint a specialists eviction attorney who can apply the eviction laws in the most efficient way possible, to accelerate the inevitable outcome of getting his property back by order of court. This way time, energy and stress can be best saved.

How long does an eviction take?

In general, it can take 6 weeks to 3 months, if all goes perfectly. Longer, if there are delays in the process, by role players along the way like the court, or sheriff, and if documents go missing.

What if the tenant opposed the process?

Then the hearing date will be pushed out by a month or two (depending on the individual court queue).

What can be done to curb the delays by the tenant opposing the process?

A legal strategist needs to be appointed to proactively manage the opposed process in a way to encourage timeous settlement of the matter out of court.

How does he do this?

There are leverage points in the litigation process/procedure that can be used to a litigators advantage; there is also a cost benefit analysis that can be put to the tenant - if they can be persuaded that they can save themselves a legal cost order by not opposing the eviction, then the matter can be settled in a shorter time by agreement, savings costs.

Who can we contact to get help with legal advice, strategy and representation with the eviction equation?

You can contact us at SD Law, as we are a law firm, operating nationally, offering landlords and tenants legal advice, and representation with the eviction process.

How do I get help? 

The first best step is to call us on +27 (0) 86 099 5146 or email us at [email protected] to set up an initial hour consultation by phone.

Then we can explain the exact process that needs to be followed for a landlord or a tenant to successfully resolve the eviction equation.

Any final thoughts? 

Like a divorce, there are no winners per se in evictions; the issues usually stem from social and economic problems, and these are what the eviction laws and processes are designed to redress, that is, in a just and equitable way for all.