The process of Eviction in South Africa
Category Information
The process of eviction
Legal action and eviction in South Africa can be a bit of a minefield. Owners and Management companies should be clear in the process so as to minimise cost and time and maximise efficiency,
The type of action or application brought by an Attorney and the forum in which it will be pursued shall depend on the circumstances of the particular matter.
Eviction matters can be heard in the High Court and in a Magistrates Court with jurisdiction. Jurisdiction will depend on the value of the occupation and not the value of the property itself. A lease agreement may also have a clause consenting to the jurisdiction of a specific court.
In cases where a factual dispute can be foreseen, an Action procedure should be followed. An action procedure requires the issuing of a Summons, requiring the unlawful occupier to respond within ten days regarding his intention to defend the action. If undefended a default judgement may be awarded. A defended action may take much longer to finalize.
Application procedures may be finalized quicker and is initiated by means of Notice of Motion (founding affidavit).
An Ex Parte application is applicable in both Action and Motion proceedings, at the close of pleadings or before service of the main action of the application, to authorise the Notice in terms of section 4(2) of PIE. The unlawful occupier and the Municipality must receive notice of proceedings at least 14 days prior to the date thereof(Section 4(2) of PIE).
A claim for Damages and Eviction must be separated.
Actions for Commercial Evictions - can also be pursued in a Magistrates court with jurisdiction or in the High court. The normal Court Rules apply - no other requirements are imposed.
Evictions in terms of ESTA - only applicable to non-urban land or land in an urban area that is used for agricultural purposes - applies to occupiers with tacit or express consent or another right in law to occupy the land in question. The land must not form part of a township and the occupier must earn less than R 5000 per month - if all three criteria are present, ESTA will apply.
Evictions in terms of PIE - apply specifically to unlawful occupiers with no consent and no right to occupation and apply to any land and in all cases where ESTA does not apply.
If the action or application is successful a Warrant of Ejectment may be issued.
www.lawyer.co.za
Author: Source - www.lawyer.co.za