FAQs

Party and party – this means that the legal costs to be paid by the unsuccessful party will be calculated according to the rates in the rules of that court – but limited to only the necessary steps taken to move the matter forward. This is the lowest cost scale and, in practice, means that you can only recover a small part of the legal cost you have paid your lawyer.

Attorney and client – this means that the legal costs to be paid by the unsuccessful party will be calculated according to the rates in the rules of that court – but is not limited to the necessary steps taken to move the matter forward and includes all attendances by the lawyer. In practice, this means that you can only recover a greater part of the legal cost you have paid your lawyer but not all.

Attorney and own client – this means that the legal costs to be paid by the unsuccessful party will be calculated according to the rates of your lawyer – this would include all attendances by your lawyer at their rates. This is the highest cost scale and enables you to recover all costs paid to your lawyer (unless the steps taken by your lawyer were not needed at all).

A fee is something an attorney charges for professional services rendered or time spent. These are within the control of the attorney and hence the attorney can charge a fixed fee (being a fee that is ‘capped’).

A disbursement is an expense that an attorney incurs on your behalf. These are usually not within the control of the attorney and hence the attorney cannot fix the disbursement (the attorney cannot limit disbursements).

This means that a matter with postponed without a date as it is usually not possible to get a future court date before the matter is postponed. It also allows a court matter to be postponed and then put back onto the “court roll” at a later date and time.

It means that the eviction matter will no longer be heard in court on a particular date and a new court hearing date will need to be obtained for the eviction matter. This does not mean that the eviction matter is cancelled or terminated.

In terms of section 4(2) of the Prevention of Illegal Evictions From and Unlawful of Land Act, the occupiers of the property concerned must be notified of the eviction court hearing date.

In addition, the Courts now require that the occupiers be informed of their rights to oppose an eviction.

In light of the above, the Courts must be approached to have the Court approve (or authorise) a document that indicates the eviction court hearing date and informs the occupiers of their rights and this is the ‘section 4(2) notice’ or the ‘special notice’.

This is a court application that does not need to be served on (delivered to) another person. It is usually used where the court application will not affect the rights or obligations of any person.

This is the exception to the rule that all court papers must be served on (delivered to) all relevant roleplayers.

Only the registered owner (or the person in charge at the time) can evict unlawful occupiers.

Yes! No person can be evicted without an eviction court order. The Prevention of Illegal Eviction and Unlawful Occupation of Land Act makes it a criminal offence to evict (or try to evict) someone without an eviction court order.

Generally speaking, a private land owner (or landlord) is not required to provide alternative accommodation to an unlawful occupier. Only the relevant municipality is obligated to provide ‘access to housing’ and this may include the municipality being obligated to provide alternative accommodation.

The municipality has the obligation to give effect to the right to access to housing. In practice, this means that a private property owner does not need to give evicted occupiers alternative accommodation.

It means that the eviction matter will no longer be heard in court on a particular date and a new court hearing date will need to be obtained for the eviction matter. This does not mean that the eviction matter is cancelled or terminated.

In terms of section 4(2) of the Prevention of Illegal Evictions From and Unlawful of Land Act, the occupiers of the property concerned must be notified of the eviction court hearing date.

In addition, the Courts now require that the occupiers be informed of their rights to oppose an eviction.

In light of the above, the Courts must be approached to have the Court approve (or authorise) a document that indicates the eviction court hearing date and informs the occupiers of their rights and this is the ‘section 4(2) notice’ or the ‘special notice’.

This is the way the court is approached to have the court authorise the notice to be given to the occupiers (commonly called a ‘section 4(2) notice’) warning the occupiers of the date on which the eviction hearing will take place.

This notice also informs the occupiers of their rights and that they should get legal representation before the eviction hearing.

When you become aware that someone is occupying your property (and not paying rent), you should start the eviction process sooner rather than later to limit how much money you could lose.

Also, evictions that are started within the first six months make it easier to obtain the eviction court order because the court does not need to consider whether or not there is alternative accommodation for the occupiers.

The Constitution provides that no eviction may take place without a court order and, in fact, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act makes it a criminal offence to evict any person without an eviction court order.

In all residential evictions in urban areas, the court must be approached (at least) twice for the following:

• To have the court authorise and approve the notice that must be given to the occupiers (commonly called a ‘section 4(2) notice’). This notice warns the occupiers of the date on which the eviction will be heard by the court.
• To get the eviction court order.

Generally speaking, a month-to-month lease agreement is terminated by giving 1 (ONE) calendar month written notice that indicates that the lease agreement is terminated. (Eg: notice is given in January that says that the lease will terminate at the end of February). This is what is contemplated in the Rental Housing Act, 50 of 1999.

A month-to-month lease agreement is where the fixed term has ended and the occupiers are still in the property.

If the lease agreement has a clause that automatically renews the lease agreement for a further mentioned period of time, then the lease agreement is not a month-to-month lease agreement.

You should not remove the property of the unlawful occupier without a court order and without the sheriff being present.

If you do remove the property of the unlawful occupier without a court order, this may constitute an eviction and could constitute a criminal offence.

Additionally, this may constitute ‘spoliation’. The unlawful occupier would be able to approach the courts or the Rental Housing Tribunal to get an order against the landlord that the landlord must restore possession of the property to the unlawful occupier.

You cannot switch off the water and lights without a court order. If you do switch off the water and lights, the tenant will be able to approach the courts (or the Rental Housing Tribunal) for an order that would force you to switch back on the water and lights because you ‘spoliated’ the tenant’s possession and hold you liable for his/her legal costs.

You should not remove the property of the unlawful occupier without a court order and without the sheriff being present.

If you do remove the property of the unlawful occupier without a court order, this may constitute an eviction and could constitute a criminal offence.

Additionally, this may constitute ‘spoliation’. The unlawful occupier would be able to approach the courts or the Rental Housing Tribunal to get an order against the landlord that the landlord must restore possession of the property to the unlawful occupier.

No, an unlawful occupier cannot be simply ‘kicked out’ of the property. It would be unlawful to simply ‘kick out’ the unlawful occupier and also it would be a criminal offence to unlawfully evict an unlawful occupier from any property without an eviction court order.

The Constitution provides that no eviction may take place without a court order and, in fact, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act makes it a criminal offence to evict any person without an eviction court order.