Picture: ISTOCK
Picture: ISTOCK

Tenants who fail to pay their rent are a major headache for landlords and although tenants enjoy significant protection in South Africa, there are remedies for landlords who follow the process of law.

Just over 6% of tenants in South Africa were not paying rent as at the end of 2017, says Michelle Dickens, MD of credit bureau Tenant Profile Network, which does a quarterly survey on tenant payments.

The number of nonpaying tenants varies according to rental category. Tenants who fail to pay most often are those paying rent of below R3000 a month (12.35%) and those paying above R25000 a month (6.95%), according to the TPN survey.

Jacques du Toit, a partner at Guthrie & Theron Attorneys in the Overberg, says it is illegal to kick out a tenant and change the locks, even if the tenant has become an illegal occupant.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act stipulates procedures for the eviction of unlawful occupants and prohibits unlawful evictions.

For an eviction to be lawful, certain procedures must be followed, Du Toit says.

The Consumer Protection Act states that before you cancel a fixed-term lease, you must give the tenant at least 20 business days' notice to rectify a material breach of that lease, he says.

But, Dickens says, if your lease agreement makes provision for a month-to-month lease after the initial lease period ends, then there is no need to give 20 business days' notice because the CPA no longer applies.

Du Toit says if a wrtten lease expires and is not formally renewed, the common law applies and you have to give your tenant one month's notice to vacate the property.

Assuming your lease is still in the initial fixed term, on the 21st business day you can send the tenant a letter cancelling the lease. The letter should state they are occupying the property illegally and must vacate the premises within a specific time, which Du Toit suggests should be 48 hours.

Dickens says there are differing views on when you can expect a tenant who is illegally occupying your property to vacate it. She says you can expect the tenant to leave the property immediately because you have already notified them of a breach, given them 20 business days to correct it, and notified them that the lease is cancelled and that they are illegally occupying the property. By granting further time, you are tacitly agreeing that their continued occupation is valid, she says.

Du Toit says he prefers to send a letter informing the tenant that the contract is cancelled and they have 48 hours to vacate, failing which an application for eviction will be made. Should the tenant fail to leave, he says, you need to apply to court to start the eviction process.

The court application must set out the reasons for the application and the personal circumstances of the tenants. If the court is satisfied that it is fair to evict the tenant, it will give a directive as to how the application for eviction must be served. The sheriff then serves the notice of intention to evict on the tenant and on the local municipality.

Du Toit says notice must be served at least 15 days before the date of the court hearing.

The tenant can oppose the application and explain why they should not be evicted. In this case, the matter will be argued before a magistrate or judge, who will decide whether an eviction order can be granted.

If the tenant does not oppose the notice to evict, the court will grant the eviction order. It takes about three months to get an eviction order when tenants do not oppose the eviction. Should a tenant fail to move out despite the eviction order, the sheriff of the Court can be authorised to evict the tenant immediately, Du Toit says.