Authored By: Bokang Mofokeng
Abstract:
On average in the South African property owner (landlord) has to wait a period of six months (at best), for a legal eviction process to be conducted and concluded. This process includes serving an eviction notice, finding and paying lawyers to institute court proceeding, applying and waiting for a court date (lawyers’ responsibility), waiting for court proceedings to end and being issue a legal warrant of eviction1. Throughout this whole legal process, the unsatisfactory tenant remains in the property and uses its resources (water and electricity), while the relevant municipality holds the landlord financially responsible for those costs as they own the property. The landlord cannot disconnect essential resources (water and electricity) without a court approved interdict allow him/her to do so. This also takes time and costs (lawyer fees to get the interdict)2. For the “smart and savvy” landlord disconnecting such resources (water & electricity) only increases expenses and risk, at that point in time the landlord is already operating from a place of debt (lawyer fees and municipal bills).
The purpose of this legal study is to promote the creation of a legal framework that has authority and is tasked to addressing legal property issues, providing relief on the current legal system in the same manner that the Commission of Conciliation Mediation and Arbitration (CCMA) does with labour issues.
Introduction:
In South Africa the supreme law of the land that lays a foundation for how individuals are treated, and how their rights are exercised is The Constitution3. The South African Consitituion was created in 1993 then further developed and codified in 1996. This marked the end of the Aprartheid era and the beginning of a Constitutional country where everyone has rights. These rights include the ability to be treated fairly and equitably regardless of characteristics such as age, race, gender, sexual orientation and financial capabilities. The Constitutions’ main focus is dedicated to the idea of equality for all starting with ensuring that everyone is entitled to basic human rights. This was done with the purpose of correcting the injustices of the past (Apartheid era)4.
Apartheid can be defined as the time period (1948 to 1994) where the South African government was lead and controlled by racially discriminatory political party called the National Party. The National Party was all-white government that based all its principles and laws on discriminatory racial segregation. These laws were discriminatory towards all “non white” races. The term “non-white” refers to black, Indian, and coloured people. The discrimination and segregation laws controlled where people could live, use public facilities and interact between races. This resulted in White people being able to live in the towns and cities (urban areas) whereas every other race was forced to live in designated areas called Bantustans or homelands which were townships on the outskirts of urban areas. These legal polices were referred to as the 1913 Natives Lands Act 5.
This ties in with current legislation that affects the tenant-landlord relationship because as previously mentioned, The Constitution of South Africa is geared towards ensuring that the injustices and discrimination that occurred during Apartheid are prohibited and never to be repeated without legal consequence. Sections 14- Right to Environment ,24- Right to privacy and 26- Right to housing are a few basic laws that protect tenant and their right to occupation (property)6. A key factor to take note of is that all these rights are afforded to “everyone”. “Everyone” includes tenants that may harmful intentions towards landlords. The focus of this legal study is that the laws that were created to correct and protect the rights of individuals may be seen as a corrective step forward to ensure that the injustices of the past do not occur again, yet it can be argued that these rights do not benefit everyone equally, as from the perspective of a tenant-landlord relationship. The tenants’ interests are prioritised above the landlord. This will be furth explained in the paragraphs that follow.
Main body:
Legal framework:
In the paragraphs that follow, an analysis of the current legislation that is applicable to the landlord-tenant relationship will be analysed and interpreted along with the inputs of journal articles with the purpose of accounting for how they contribute opinions and statements in line with the topic of this study. The main legislations that governs the rental relationship are: The South African Constitution7, The Prevention of Illegal Eviction from Unlawful Occupants of Land Act8, The Extension of Security of Tenure Act9, The Consumer Protection Act10, The Rental Housing Amendment Act11.
Muller and Boggenpoel both confer and agree on the importance of Section 26 of The Constitution12. Section 26 of The Constitution sets out the specifications of each person and their right to housing13. This provides insight on how in the circumstance of occupation being obtained legally impacts the process of removing it (eviction).
Section 26 concludes that no person may be removed from their dwellings of “home” without the necessary court order being provided14. This is confirmed where it states “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”
Muller, G ‘s perspective points out the historical development of Section 26. Further providing evidence of what can occur if this law was not put in place15. This is evident during the apartheid period (1948-1994), Black people were not seen as equals in comparison to White people, therefore they were discriminated against physically, emotionally and economically. The economic discrimination included large scale the forced eviction of black people from urban areas and farmlands with the purpose of hindering or stopping their tenure.
This is an example of what occurs if constitutional rights are not valued, and instead overridden and disrespected. It results in the unfair treatment of a specific group of people (which in this case can be landlords), which is the definition of discrimination. This is why the constitution takes active steps to declare that discrimination is prohibited by law, if not followed- legal consequences will be incurred.
The eviction process is a barrier of entry for entrepreneurs that would like to invest in the property market for rental purposes. The longevity and complications of starting and ending the eviction process tampers with the financial security that the rental property would provide, here’s how.
According to RE/Max and Seruwagi, the court process (eviction process) includes steps such as sending a letter of demand, court application, court hearing resulting in the production of an eviction order16. Sending a letter of demand- This is technically not a court process, as it is done before contacting lawyers and court proceedings, just that it is a requirement to start court proceedings because general procedure is that the landlord needs to prove that going to court is a last resort.
The process of sending a letter of demand involves clearly stating how the tenant has infringed (e.g rental arrears) upon the rental contract. Then giving the tenant 20 to 30 businesses days and opportunity to rectify their infringement. Further including information that, in the circumstance where the tenant does not rectify their infringement, court proceedings will begin.
A court application involves the process where the landlord needs pay a lawyer to take the relevant documents (proof of service, lease agreement and notice of breach- infringement), then compile them into a docket as evidence of the relevant issue at hand to be submitted to the court. This proves the need for the court to hear and adjudicate on the matter. The court application process results in being granted a court date.
A court hearing is the process where the landlord and tenant are represented in court, the judges then hear the perspective of both parties in the following aspects: disputing the validity of the notice or the reason for eviction, claiming hardship caused by the eviction, and offering an alternative solution to rectify the breach- Seruwagi, G17. This part of the process can be lengthy and costly depending on how long it takes for the court to conclude, especially if the tenant disputed their wrongdoings.
An eviction order is provided after the court has concluded that the landlord is being taken advantage of, resulting in an eviction order that stipulated time and conditions of the eviction. The order is given to three parties tenant, landlord and the relevant municipality, so that all impacted parties are aware. If the tenant has not vacated the premises, the landlord (with assistance of a lawyer) needs to come back to the court to request that a sherif of the court in forces the eviction order.
A case that is an additional example is the case of Resnick v Government of the Republic of South Africa and Another18. This case was brought on appeal for the purpose of concluding that the accused be declared an unlawful occupant and evicted. The fact that this case was brought forward on appeal means that the landlord was not successful on his first attempt to get an eviction order granted. Once the judgment was handed down the tenant was only evicted four months later. Reason being that the tenant was a female who had children, leading to the court granting the tenant an extended period of time to occupy the property in the spirit of Ubuntu. The principle of Ubuntu is the idea of having humanity and the ability to show “good neighbourliness and shared concern”.
This case proves the point that the current legislation and courts cater to the interests of the tenant at the expense of the landlord. The reason behind this statement is that the applicant had to go to court twice (first was a failed attempt) and even after a judgement resulting in the eviction order being approved was provided, the tenant still had an additional four months of occupancy to give the respondent time to find a new suitable dwelling. The problem is that all of this occurred at the expense of the landlord as he would have to pay the utility bills and lawyer fees throughout this whole process.
The above steps and examples explain how the eviction process can take a minimum of 6 months to be completed. This is a barrier to market entry for property entrepreneurship, while making life easier for tenants with harmful motives (towards landlords).
The two legislations that generally provide for the eviction process are the PIE19 and The Extension of Security of Tenure (ESTA)20 as per Van Wyk, T and RE/Max 21. The above legislations provide details as the correct procedures to follow and what is considered incorrect and therefore illegal (do’s and don’ts) of eviction.
The RE/Max source includes a further analysis of legislation in relation to eviction in comparison to other sources by accounting for The Rental housing Amendment and The Consumer Protection Act (CPA)22. The CPA focuses on the protection of all consumers’ rights. Five of them are specifically related to tenants and their right to privacy, choice, disclosure of information. This is an additional perspective lawyers need to account for when developing legal strategy for court.
In conclusion the above article’s provide evidence of the importance of constitutional rights, more importantly how it can be seen that they are more beneficial for tenants over landlords. Active changes (e.g. suggested framework) need to be made as the current legal system has gaps (not providing for landlords) and inefficiencies (lengthy waiting periods) to provide for all constitutional rights which includes equality.
Critical analysis:
The research that will be displayed and concluded focuses on the issues that relate to property owners and the lack of support from the justice system in regard to eviction legal and its processes. In South Africa the legal system is an additional barrier of entry into the property market that prevents entrepreneurs from investing. This occurs because a property owners need to wait long periods of time to start and complete the eviction (as mentioned above).
The issue is having to wait for extended periods of time to get a court date and settle the dispute. While you wait for the court process to be conducted and completed, the property owner is financial and reputational strain because of unpaid expenses. The financial strain
discourages entrepreneurs from investing in the property market which has been in recovery since the covid-19 pandemic23. The court delays slow down the recovery processes and economic growth which in turn hinders the whole South African population as cost of living will continue to increase.
The proposed solution is to create a legal framework that has authority to address and adjudicate on legal property matters. This relives the pressure on the legal system, makes the eviction process faster and therefore promotes individuals to invest in the property market herein uplifting the economy.
The purpose of this study is to increase the protection of landlords, while increasing the effectiveness of the current legal system in a manner that promotes economic activity and transactions. The creation of the legal framework (as suggested above) creates more employment opportunities, further increasing economic activity and performance. The use of the suggested framework creates an environment that allows for better implementation of constitutional rights. A more efficient legal system contributes to the increase of general functionality and efficiency of the South African government as a whole, which makes living in South Africa better and stable for all South Africans.
Conclusion:
The purpose of this study is to bring attention to how the law is applied. Section 9 of the Constitution is the Equality clause, it states that “everyone is equal before the law and has the right to equal protection and benefit of the law.24” This means that the law needs to provide for and protect everyone equally. Therefore, both parties in the eviction process (tenants and landlords) need to be provided for by the law. The effectiveness of service delivery in relation to the law (eviction process) is known to take long period of time. This study advocated for the creation of a legal framework that has the authority to hear and adjudicate on property disputes, in the same manner that the Commission of Conciliation, Mediation and Arbitration (CCMA) deals with labour disputes. The creation of this legal framework would reduce the pressure in the legal system in other departments, eventually increasing the functionality and efficiency of the judicial system, which is better for everyone living in the country in line with the intentions of The Constitution.
24 Section 9 of The Constitution of the Republic of South Africa, 1996.
Reference(S):
Legislation:
- The Constitution of the Republic of South Africa, 1996.
- The Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998. • The Extension of Security of Tenure Act 62 of 1997.
- The Rental Housing Amendment Act 35 of 2014.
- The Consumer Protection Act 68 of 2008.
Cases:
- Resnick v Government of the Republic of South Africa and Another 2014 (2) SA 377 (WCC) (South Africa)
Web Resources:
- Crabtree, E. 2023 Eviction – how does it work?, Eviction Specialists. Available at: https://www.eviction-specialists.co.za/blog/eviction-how-does-it-work [Accessed 10 September 2025].
- Barter, H. 2023 Can a landlord cut power if a tenant does not pay? exploring the South African Legal Context – law firm, Barter McKellar. Available at: https://www.bartermckellar.law/property-law-explained/can-a-landlord-cut-power-if-a tenant does-not-pay-exploring-the-south-african-legal-context (Accessed 10 September 2025).
- Businesstech. 2022 South Africa’s property market is recovering – just not in the way you may have expected. Available at: https://businesstech.co.za/news/property/615467/south africas-property-market-is recovering-just-not-in-the-way-you-may-have-expected/ (Accessed 10 September 2025).
- Burger Huyser Attorneys. (no date) How long does an eviction order take to process in South Africa? Available at: https://www.burgerhuyserattorneys.co.za/how-long-does an eviction-order-take-to-process-in-south-africa/ (Accessed 10 September 2025).
- RE/MAX. 2023 The eviction process in South Africa: What you need to know, Available at: https://www.remax.co.za/ask-remax/article/the-eviction-process-in-south-africa-what you need-to know/?click=paid&gad_source=1&gclid=Cj0KCQjw3ZayBhDRARIsAPWzx8pFrDyuCLJB Tf 0_vFFrP5onETsb2t_VXTi-xBvMdvsYMVfj7BgOvFAaAtYgEALw_wcB (Accessed 10 September 2025)
- Seruwagi, G. (no date) South African law on eviction, Gawie le Roux Institute of Law. Available at: https://www.gawieleroux.co.za/blog/south-african-law-eviction (Accessed: 10 September,2025).
Journal Articles:
- Van Wyk, J. The role of local government in evictions. Potchefstroom Electronic Law Journal (PELJ), 14(3), 50-83 (2011). Available at: http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727 37812011000300006&lng=en&tlng=en. [Online]. (Accessed 10 September 2025)
- Boggenpoel, ZT, & Mahomedy, S. (2024). Reflecting on Evictions and Unlawful Occupation of Land in South Africa: Where Do Some Gaps Still Remain?. Potchefstroom Electronic Law Journal (PELJ), 27(1), 1-44 (2024). Available at: https://dx.doi.org/10.17159/1727-3781/2023/v26i0a14687 [Online]. (Accessed 10 September 2025).
- Muller, G. THE LEGAL-HISTORICAL CONTEXT OF URBAN FORCED EVICTIONS IN SOUTH AFRICA. Available at: The legal-historical context of urban forced evictions in South Africa (journals.co.za) [Online]. (Accessed 10 September 2025).
- Smith, C. Eviction – need for a way out. Available at: https://www.saflii.org/za/journals/DEREBUS/2014/83.pdf [online]. (Accessed 10 September 2025).
1 Crabtree, E. 2023 Eviction – how does it work?, Eviction Specialists. Available at: https://www.eviction-specialists.co.za/blog/eviction how-does-it-work [Accessed 10 September 2025].
2 Barter, H. 2023 Can a landlord cut power if a tenant does not pay? exploring the South African Legal Context – law firm, Barter McKellar. Available at: https://www.bartermckellar.law/property-law-explained/can-a-landlord-cut-power-if-a tenant-does-not-pay-exploring-the south-african-legal-context (Accessed 10 September 2025).
3The Constitution of the Republic of South Africa, 1996.
4 The Constitution of the Republic of South Africa, 1996.
5 The 1913 Natives Lands Act.
6Section 14, 24, 26 of The Constitution of the Republic of South Africa, 1996.
7 The Constitution of the Republic of South Africa, 1996.
8 The Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998.
9 The Extension of Security of Tenure (ESTA) Act 62 of 1997.
10 The Consumer Protection Act 68 of 2008.
11 The Rental Housing Amendment Act 35 of 2014.
12 Section 26 of The Constitution of the Republic of South Africa, 1996 & Muller, G. THE LEGAL-HISTORICAL CONTEXT OF URBAN FORCED EVICTIONS IN SOUTH AFRICA. Available at: The legal-historical context of urban forced evictions in South Africa (journals.co.za) [Online]. (Accessed 10 September 2025) & Boggenpoel, ZT, & Mahomedy, S. (2024). Reflecting on Evictions and Unlawful Occupation of Land in South Africa: Where Do Some Gaps Still Remain?. Potchefstroom Electronic Law Journal (PELJ), 27(1), 1-44 (2024). Available at: https://dx.doi.org/10.17159/1727-3781/2023/v26i0a14687 [Online]. (Accessed 10 September 2025).
13 Section 26 of The Constitution of the Republic of South Africa, 1996.
14 Section 26 of The Constitution of the Republic of South Africa, 1996.
15 Muller, G. THE LEGAL-HISTORICAL CONTEXT OF URBAN FORCED EVICTIONS IN SOUTH AFRICA. Available at: The legal historical context of urban forced evictions in South Africa (journals.co.za) [Online]. (Accessed 10 September 2025).
16 Seruwagi, G. (no date) South African law on eviction, Gawie le Roux Institute of Law. Available at: https://www.gawieleroux.co.za/blog/south-african-law-eviction (Accessed: 10 September,2025) & RE/MAX. 2023 The eviction process in South Africa: What you need to know, Available at: https://www.remax.co.za/ask-remax/article/the-eviction-process-in-south-africa-what you-need-to know/?click=paid&gad_source=1&gclid=Cj0KCQjw3ZayBhDRARIsAPWzx8pFrDyuCLJBTf 0_vFFrP5onETsb2t_VXTi xBvMdvsYMVfj7BgOvFAaAtYgEALw_wcB (Accessed 10 September 2025) & RE/MAX. 2023 The eviction process in South Africa: What you need to know, Available at: https://www.remax.co.za/ask-remax/article/the-eviction-process-in-south-africa-what you-need-to know/ click=paid&gad_source=1&gclid=Cj0KCQjw3ZayBhDRARIsAPWzx8pFrDyuCLJBTf 0_vFFrP5onETsb2t_VXTi xBvMdvsYMVfj7BgOvFAaAtYgEALw_wcB (Accessed 10 September 2025) & Van Wyk, J. The role of local government in evictions. Potchefstroom Electronic Law Journal (PELJ), 14(3), 50-83 (2011). Available at: http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727 37812011000300006&lng=en&tlng=en. [Online]. (Accessed 10 September 2025).
17 Seruwagi, G. (no date) South African law on eviction, Gawie le Roux Institute of Law. Available at: https://www.gawieleroux.co.za/blog/south-african-law-eviction (Accessed: 10 September,2025).
18 Resnick v Government of the Republic of South Africa and Another 2014 (2) SA 377 (WCC)
19 The Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998.
20 The Extension of Security of Tenure (ESTA) Act 62 of 1997.
21 RE/MAX. 2023 The eviction process in South Africa: What you need to know, Available at: https://www.remax.co.za/ask remax/article/the-eviction-process-in-south-africa-what you-need-to know/?click=paid&gad_source=1&gclid=Cj0KCQjw3ZayBhDRARIsAPWzx8pFrDyuCLJBTf 0_vFFrP5onETsb2t_VXTi-xBvMdvsYMVfj7BgOvFAaAtYgEALw_wcB (Accessed 10 September 2025) & Van Wyk, J. The role of local government in evictions. Potchefstroom Electronic Law Journal (PELJ), 14(3), 50-83 (2011). Available at: http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727 37812011000300006&lng=en&tlng=en. [Online]. (Accessed 10 September 2025).
22 The Rental housing Amendment Act 35 of 2014 & The Consumer Protection Act 68 of 2008 & RE/MAX. 2023 The eviction process in South Africa: What you need to know, Available at: https://www.remax.co.za/ask-remax/article/the-eviction-process-in-south-africa-what you-need-to know/?click=paid&gad_source=1&gclid=Cj0KCQjw3ZayBhDRARIsAPWzx8pFrDyuCLJBTf 0_vFFrP5onETsb2t_VXTi xBvMdvsYMVfj7BgOvFAaAtYgEALw_wcB (Accessed 10 September 2025)
23 Businesstech. 2022 South Africa’s property market is recovering – just not in the way you may have expected. Available at: https://businesstech.co.za/news/property/615467/south-africas-property-market-is recovering-just-not-in-the-way-you-may-have-expected/ (Accessed 10 September 2025).
