1) Executive summary
- No eviction without a court order. Section 26(3) of the Constitution prohibits any eviction or demolition without a court order granted after considering all relevant circumstances. Arbitrary evictions are not allowed.
- Which law applies depends on who the occupier is and where they live:
- Urban and most residential settings: the PIE Act (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998). Courts must decide if an eviction is “just and equitable” after weighing all circumstances (including alternative accommodation for vulnerable occupiers)
- Farm/rural occupiers with consent: ESTA (Extension of Security of Tenure Act 62 of 1997). Different procedures and stronger tenure protections apply; the Land Claims Court has specialist jurisdiction.
- Landlord–tenant disputes: Rental Housing Act (RHA) and Rental Housing Tribunals address unfair practices; lodging a complaint temporarily bars eviction for up to three months or until a ruling (moratorium), while rent remains payable.
- Former tenants count as “unlawful occupiers.” PIE applies after a lease ends and the tenant “holds over.”
- Municipal joinder & emergency housing. In cases where eviction may cause homelessness, municipalities may need to join to provide temporary emergency accommodation
2) Core legal framework and when each law applies
Constitution (s 26)
- S 26(3): Court-ordered evictions only; consider all circumstances; no arbitrary evictions. This governs all evictions.
PIE (Act 19 of 1998) – urban & most residential contexts
- Applies to all “unlawful occupiers”, including former tenants whose leases were lawfully cancelled/expired.
- The court must decide if the eviction is “just and equitable.”
ESTA (Act 62 of 1997) – farm/rural occupiers with consent
- Protects occupiers on rural/farming land whose occupation stems from consent. Eviction needs compliance with notice and fairness safeguards; matters often run through the Land Claims Court (or a Magistrates’ Court with LCC oversight/appeal).
Rental Housing Act (RHA) & Tribunals
- Establishes provincial Rental Housing Tribunals to resolve unfair practice disputes.
- Key moratorium: From complaining about a ruling or three months (whichever first): landlord may not evict, tenant must keep paying the pre-complaint rent, and landlord must maintain. (RHA s 13(7); Tribunal rulings are deemed Magistrates’ Court orders.)
- Courts frequently stay eviction cases where a genuine unfair-practice dispute is before a Tribunal
Consumer Protection Act (CPA) – cancellation & notices for fixed-term leases
- Often applies to fixed-term residential leases with natural-person tenants where the landlord acts in the ordinary course of business. CPA requires 20 business days’ notice to remedy breach before cancellation (s 14 & Reg 5) and sets rules on early termination and reasonable penalties. But the CPA does not apply to all leases (e.g., certain private/once-off leases, juristic-person tenants, etc.). Courts have reached different outcomes on applicability, so assess facts carefully.
3) Lawful grounds & pre-eviction steps for landlords
Establish a lawful basis to end the tenancy
- Lease breach (e.g., arrears, unlawful use) → give contractual and statutory notices; if CPA applies, give 20 business days to remedy before cancelling.
- Expiry of fixed term → if CPA applies, observe renewal/notice rules (automatic month-to-month unless otherwise agreed, etc.).
- Month-to-month → give proper calendar-month notice per lease/common law (and local by-laws if relevant).
Check the correct forum & statute
- Urban/former tenants: prepare a PIE application in the Magistrates’ Court or High Court with jurisdiction. (PIE applies to holdovers.)
- Farm/rural consent occupiers: follow ESTA procedure; mind the Land Claims Court role.
If there’s a Tribunal complaint (RHA)
- Confirm whether the tenant (or you) complained. If so, the moratorium in RHA s 13(7) restricts eviction until ruling or 3 months—but the tenant must keep paying rent; you must maintain.
- Avoid self-help
- No lockouts, no changing locks, and no cutting utilities to force a departure. Use the courts. (Tribunals can even issue spoliation/interdicts.)
4) PIE procedure (standard & urgent)
Standard PIE process (private land) – section 4
- Terminate the right of occupation lawfully (cancel the lease/expiry with proper notices).
- Issue court proceedings and obtain a section 4(2) notice: at least 14 business days before the hearing, served by the sheriff on the occupier(s) and the municipality; the notice must set out ground(s) and the hearing date. (Justice)
- Court conducts a “just and equitable” inquiry: considers duration of occupation, personal circumstances (children, elderly, female-headed households), availability of alternative accommodation, and the public interest (health/safety). Landmark guidance: Port Elizabeth Municipality v Various Occupiers; Changing Tides.
- If granted, the order will set vacate dates and conditions (and may direct municipal emergency accommodation where appropriate).
Urgent eviction – section 5 PIE
If there’s imminent harm to persons/property and no other remedy, the court may grant an urgent eviction with truncated notice—still ensuring fairness. Use sparingly and with strong evidence.
5) ESTA procedure (farm/rural)
- Section 8 & 9: termination must be just and equitable; eviction requires statutory notices to the occupier, municipality and Department of Agriculture/Land Affairs; courts must consider long-term residence, age, children, and alternative accommodation. Proceedings go to the Land Claims Court (or Magistrates’ Courts with LCC oversight).
6) Practical checklists
For landlords (urban/residential: PIE track)
- Paperwork: lease, breach notices, CPA notice (if applicable), cancellation letter, arrears schedule.
- Confirm statute: PIE vs ESTA; check for Tribunal complaint (RHA s 13(7) moratorium).
- Join the municipality if homelessness is a risk; gather info on occupiers’ circumstances.
- Serve PIE s 4(2) notice (14 business days; sheriff; include municipality).
- Hearing: present evidence on why eviction is just and equitable; propose staggered dates and reasonable conditions.
- Execution: the sheriff enforces the order; no self-help. (Cutoffs/lockouts risk spoliation/interdicts.)
For tenants/occupiers
- Engage early; document payments, vulnerabilities (children, elderly, employment).
- Consider RHA complaint for unfair practices; this may pause eviction temporarily (keep paying rent!).
- Raise constitutional and PIE factors (duration, alternative accommodation, fairness).
- If farm/rural with consent: assert ESTA protections; seek legal aid/clinic support.