EVICTION OF A TENANT AFTER TERMINATION OF A LEASE OF RESIDENTIAL PREMISES

Abstract

This Note examines the procedure to be followed to evict a tenant of residential premises where the lease has terminated but the tenant refuses to vacate. Attention is given firstly to the position at common law. The provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“the PIE Act”) are discussed next, together with the judgment in Ndlovu v Ngcobo; Bekker v Jika (2003 1 SA 113 (SCA)) which held that the eviction of a tenant (being a natural person) from a dwelling is no longer
governed by common law but by the provisions of the PIE Act. The focus then falls on the Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill 2008 which, amongst others, seeks to undo the Ndlovu judgment, subject to certain exceptions. It is argued that the Bill fails to distinguish between the various categories of landlords in the residential letting market, and as a result fails to recognize that certain tenants rightfully qualify for protection under the PIE Act. The note concludes by analyzing the position should the PIE Amendment Bill become law. It is submitted that although the PIE Act would as a general
rule no longer govern the eviction of tenants from dwellings, the provisions of section 26(3) of the Constitution will still apply. This provides that “no one may be evicted from their home … without an order of Court made after considering all the relevant circumstances”. The application of the section is examined in the context of eviction proceedings instituted by landlords of
residential premises.