Section 26(3) of the Constitution states that “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”.

Eviction proceedings are governed in South Africa by two Acts, the first being the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE Act”) and the second being the Extension of Security of Tenure Act 62 of 1997 (“ESTA”).

The purpose of both these Acts is twofold, in that it protects an unlawful occupier from being evicted without due process being followed, but also recognises that the landowner also has recourse to approach court for an eviction order in appropriate circumstances.

This note will concentrate more on the process of the PIE Act, which is more commonly applied, as it regulates the eviction of unlawful occupiers from residential property. ESTA, on the other hand, regulates the eviction of occupiers from farms or agricultural land and has different procedures to follow and different requirements before it will find application.

Turning back to the PIE Act, an unlawful occupier is defined as any person who occupies land without express or tacit consent from the landowner or person in charge, or without any other right in law to occupy such land. If this is the case, a landowner may approach court for an eviction order to have the unlawful occupier removed from the property.

A landowner should never resort to self-help or taking the law into their own hands, as an arbitrary eviction of an occupier, even if unlawfully occupying the property, is a serious infringement of the occupier’s Constitutional right to housing. These actions may even see an unlawful occupier going to court for an order that their access to the property, which they are unlawfully occupying, be restored.

When an owner wants to obtain an eviction order, they must bring an application to a Magistrates Court or High Court in whose jurisdiction the property falls. If the owner has a lease agreement with the occupier/tenant, this agreement must first be cancelled, after giving due notice in terms of the lease agreement, before the owner can approach Court with an eviction application.

This eviction application will be issued by the clerk or registrar of the court (in other words, receive a case number and court stamp) and this application must then be served by the Sheriff on the unlawful occupier of the property and also on the municipality who holds jurisdiction. This application, brought in terms of section 4(1) of the Act, is often referred to as the Main Eviction application and should comprehensively set out the grounds for the eviction of the unlawful occupier.

Thereafter, another application must be made, under the same case number, but in terms of section 4(2) of the Act. This is an ex parte application, meaning that the occupier does not receive this application, and it is only heard by a Magistrate or a Judge. This application is often slightly truncated, and the purpose thereof is simply to obtain a form of consent by the Magistrate or Judge to serve a so-called Section 4(2) Notice on the unlawful occupier. This Notice is issued if the Magistrate or Judge is satisfied that the circumstances warrant the eviction of an occupier and giving special consideration to the rights of the elderly, children, disabled persons and households headed by women. In addition, the 4(2) notice must:

  • state that proceedings are being instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier;
  • indicate on what date and at what time the court will hear the proceedings;
  • set out the grounds for the proposed eviction; and
  • state that the unlawful occupier is entitled to appear before the court and defend the case and,
  • where necessary, has the right to apply for legal aid.

This section 4(2) Notice must again be served by the Sheriff on the unlawful occupier, at least 14 business days before the hearing date in Court.

At the hearing, the Court will consider the case of both the owner and the unlawful occupier and be satisfied that there is a proper case, that the unlawful occupier does not have a defence, and that all the requirements of section 4 of the Act have been met. If so, the Court may make an eviction order on the basis that it is just and equitable that the occupier vacate the property, and also give a date or time period on which the occupier may be evicted, if they have not vacated the property by their own volition. The Court may also order that temporary structures or buildings on the land be demolished. The physical eviction process will be done by the Sheriff.

The PIE Act makes provision for an urgent eviction application, if the owner can prove that:

  • there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land;
  • the likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted; and
  • there is no other effective remedy available.

The same procedure in terms of section 4 of the Act as set out above must be followed, except that the notice period on the section 4(2) Notice will be significantly shorter.

It is evident from the above that there are a number of requirements that must be met before a person may be evicted from a property and it is advisable to approach an attorney for assistance, as non-compliance with the Act may lead to time consuming and costly litigation.


This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.