How to evict a tenant who is not paying rent

You evict a tenant who is not paying rent by cancelling the lease properly and then applying to court for an eviction order under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act). There is no shortcut. Changing the locks, switching off the electricity, removing the front door or sending people to intimidate the tenant is unlawful no matter how much rent is owed, and it can cost you far more than the arrears. A tenant in a home, even a tenant who has not paid for months, can only be removed by the sheriff acting on a court order.

This guide is written for landlords. It is also fair to tenants, because a landlord who cuts corners usually ends up back at the start.

Why self-help eviction is unlawful

The Rental Housing Act 50 of 1999 makes it an unfair practice for a landlord to lock a tenant out, cut off services or otherwise force a tenant out without following the law. The PIE Act goes further and makes it a criminal offence to evict someone from a home without a court order. A tenant who is locked out can approach the court urgently for an order restoring possession, and can claim damages. Courts take a dim view of landlords who take the law into their own hands, and the tenant's arrears are no defence.

If you have already changed the locks, the safest course is to restore access immediately and start the proper process.

The lawful process, step by step

1. Check the lease. Find the clause dealing with breach and cancellation. It will usually say how many days the tenant has to fix a breach after written notice. If the tenant is a consumer under the Consumer Protection Act 68 of 2008, which covers most residential leases, the Act requires you to give written notice of the breach and 20 business days to put it right before you may cancel.
2. Send a written breach notice. State the amount in arrears, the months it covers, the date by which it must be paid, and that the lease will be cancelled if it is not. Deliver it to the address the lease names for notices, and keep proof.
3. Wait out the notice period. If the tenant pays the full arrears in time, the breach is cured and the lease continues. You may not cancel for a breach that has been remedied.
4. Cancel the lease in writing. If the arrears are not paid, send a cancellation letter. From that date the tenant has no right to stay and is an unlawful occupier under the PIE Act. You can offer a short period to move out voluntarily, and many tenants do.
5. Apply to court. If the tenant stays, you apply to the magistrate court or High Court with jurisdiction over the property. Your affidavit sets out the lease, the arrears, the breach notice, the cancellation and the fact that the tenant is still there.
6. Serve the PIE notice. The court authorises a notice of the hearing, which the sheriff serves on the tenant and on the municipality. The notice must reach them at least 14 days before the hearing, and it tells the tenant the grounds for the application and that they may appear and defend.
7. The hearing. The court considers whether the tenant is an unlawful occupier and whether eviction is just and equitable in all the circumstances. It looks at how long the tenant has been there, whether there are children, elderly or disabled people in the household, and whether the tenant has somewhere to go. A tenant who can afford to pay but chooses not to is in a very different position from a family that has lost its income.
8. The order. If the court grants the eviction, it fixes a date by which the tenant must leave and a later date on which the sheriff may remove them if they have not.
9. Execution. Only the sheriff may carry out the order. You do not attend with friends and a bakkie.

A worked example

The names and figures are illustrative.

Thabo owns a flat in Pretoria let to Mrs Pillay on a 12-month lease at R8 500 a month. She pays nothing in March or April. On 5 May Thabo emails and posts a breach notice stating that R17 000 is outstanding and giving her 20 business days to pay. She pays R3 000 and stops answering messages. On 3 June, the notice period having run, Thabo sends a cancellation letter and asks her to vacate by 30 June.

She does not. In July Thabo instructs an attorney, who issues an application in the magistrate court. The sheriff serves the PIE notice on Mrs Pillay and on the municipality. At the hearing in September Mrs Pillay explains that she lost her job in February and that her two children attend a nearby school. The magistrate finds that she is an unlawful occupier, that Thabo has been patient, and that it is just and equitable to grant the eviction, but gives her until the end of the school term to leave. By then the arrears are around R60 000, and Thabo pursues them separately. Had Thabo changed the locks in May, he would probably have faced an urgent application to restore her possession, a damages claim and possibly a criminal complaint, and would still have had to start the eviction from scratch.

What to do this week

1. Reread the lease and find the breach clause and the address for notices.
2. Prepare a rent statement showing every payment and every shortfall.
3. Send the written breach notice today. Every day of delay is another day of arrears.
4. Speak to the tenant. A payment plan, or an agreed move-out date with the arrears written off, is often cheaper than a court application that takes months.
5. Do not touch the locks, the electricity, the water or the tenant's belongings.
6. Get a quote from an attorney for an unopposed eviction so you know the cost before you commit.

Documents to gather

• the signed lease and any renewal or addendum
• a full rent statement and bank statements showing the payments actually received
• the breach notice and proof of delivery
• the cancellation letter and proof of delivery
• every message from the tenant about the arrears, especially any admission or promise to pay
• the title deed or proof that you own or control the property
• the incoming inspection report, for the damage claim that often follows

Realistic timeline

An eviction for arrears is never quick, and anyone who promises otherwise is selling something.

• Notice and cancellation: roughly one to two months, depending on the lease and the Consumer Protection Act notice period.
• Preparing and issuing the application: two to four weeks once the attorney has your documents.
• Service and the first hearing: the PIE notice must be served at least 14 days before the hearing, and court dates depend on the court's roll. Allow one to three months.
• If the tenant opposes: add several months for affidavits and argument.
• After the order: the court sets the vacate date, which may be weeks or months away in a hard case.

Five to nine months from the first missed rent to an empty flat is normal in an unopposed matter. An opposed matter can take a year or more.

Common mistakes and what they cost

Locking the tenant out. An urgent court order restoring possession, a costs order against you, a possible damages claim and a possible criminal charge. Then you start again.

Cancelling without a proper breach notice. The cancellation is invalid, the lease is still alive, and the court application fails. Months lost.

Accepting rent after cancellation without saying why. Taking money can be read as reviving the lease. If you accept a payment, write to the tenant the same day saying it is accepted towards arrears and occupation, without withdrawing the cancellation.

Forgetting the municipality. The PIE notice must go to the municipality as well as the tenant. Miss it and the hearing is postponed.

Expecting the eviction to recover the money. An eviction order gives you the property back. The arrears are a separate money claim.

Tenant's rights vs landlord's rights

The tenant may: stay in the property until a court orders otherwise; receive a proper written breach notice and the time to remedy it; cure the breach by paying the arrears in full within the notice period; receive the PIE notice and appear at the hearing; ask the court to consider the household's circumstances; and approach the court urgently if locked out.

The landlord may: demand rent on time; give notice of breach and cancel the lease if the breach is not remedied; apply to court for eviction; claim the arrears, holding-over damages and interest; deduct arrears from the deposit at the end; and list a defaulting tenant with a credit bureau after giving the required notice.

If you cannot afford an attorney

Most landlords use an attorney for the court application, and an unopposed eviction is a routine matter with a fairly predictable cost. See what property and tenancy matters cost and use our court fees calculator for the disbursements.

If you cannot afford one, you have some options.

• The Rental Housing Tribunal in your province is free. It cannot order an eviction, but it can rule on the arrears and on any counter-complaint the tenant raises, and a Tribunal ruling can help your court application.
• The Small Claims Court can hear your claim for the arrears up to its limit, without lawyers. Check our small claims calculator.
• Legal Aid South Africa on 0800 110 110 mainly helps people who cannot afford representation, and may be able to advise you. See our Legal Aid page.
• If a managing agent has mishandled the rent or the deposit, you can complain to the property practitioner regulator that oversees estate agents.

Frequently asked questions

Landlords ask whether they can evict without an attorney. You can bring the application yourself, but the PIE Act procedure has traps and a defective application is dismissed with costs. They ask whether a month-to-month tenant needs the same process. Yes. The way the lease ends is different, but once the tenant is in unlawful occupation the PIE Act applies to every home. They ask whether they can switch off the prepaid electricity. No. See Can a landlord cut off my electricity?.

Related reading: How does the PIE Act protect tenants? and Can a landlord evict me without a court order?.

LawMatch is not a law firm and this page is general information, not legal advice about your situation.