Eviction may seem straightforward from a landlord’s perspective: a lease is breached, or consent to occupy has been withdrawn, and the property owner wants their premises back. Yet under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), eviction is never automatic.
South African courts are guided by constitutional principles of housing rights, fairness, and dignity. They carefully assess whether all procedures have been followed, whether municipalities have fulfilled their duties, and whether eviction would be just and equitable.
This means many eviction applications fail or are delayed — not because the landlord lacks ownership, but because the law demands balance.
Key Defences to Eviction
1. Defective Notice
The PIE Act requires a Section 4(2) notice in a prescribed format. If:
- The notice does not include the hearing date,
- It is not served 14 days before the hearing, or
- It omits the occupier’s rights to oppose,
the application is fatally flawed. Courts have consistently refused eviction where notice defects undermine fairness.
2. Municipality’s Role
In many cases, the municipality must file a report on whether alternative accommodation is available. Where eviction would lead to homelessness, courts rely heavily on this input.
If the municipality fails to file a report, the eviction may be delayed or struck off. Courts have stressed that housing rights under the Constitution mean municipalities cannot sit idle.
3. Risk of Homelessness
Section 26 of the Constitution protects the right to access housing. Eviction orders may be denied if:
- Families with children, elderly, or vulnerable members face destitution,
- The municipality cannot provide alternatives,
- Immediate homelessness would result.
In such cases, courts often postpone eviction until suitable arrangements are made.
4. Lack of Urgency
Landlords sometimes apply for urgent eviction to bypass normal procedures. However, urgency must be proven — typically involving danger, damage, or criminal activity.
If urgency is based on mere inconvenience, courts refuse. The law ensures urgency is not a shortcut.
5. Personal Circumstances
Occupiers can present evidence of their situation:
- Long duration of residence.
- Contributions to the property.
- Health or disability factors.
Judges consider these human aspects. Eviction orders may be adjusted, delayed, or refused outright in light of them.
Case Law Illustrations
Barker v Nangu (2024)
The court delayed eviction because the municipality failed to provide a meaningful housing report. The principle: no eviction until municipalities fulfil their duty.
Khoza & Others v Vosloo (2024)
The High Court emphasized that eviction must be equitable, especially when children are involved. The ruling reinforced that courts look at family circumstances before making orders.
Theart v Minnaar (2010)
The eviction failed because notices were defective. This landmark judgment remains a warning that procedural missteps are fatal.
What This Means for Landlords
- Strict compliance is essential. Do not assume ownership is enough.
- Prepare for municipal involvement. Engage them early in the process.
- Expect delays. Courts prefer to postpone than to grant orders that risk constitutional infringement.
- Avoid urgency unless justified. Misusing urgency wastes time and costs.
What This Means for Tenants
- Check notices carefully. Even small defects can make eviction invalid.
- Raise your circumstances. Children, elderly, or health issues matter greatly.
- Insist on municipal accountability. Courts require municipalities to assist.
- Use your right to oppose. Silence may result in default eviction orders.
Conclusion
Defences under PIE are not loopholes — they are the law’s way of protecting dignity, fairness, and housing rights. For landlords, this means patience and proper preparation. For tenants, it means an opportunity to be heard.
At its core, South African eviction law reflects a constitutional principle: eviction is never about property alone — it is about justice in context.
References
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
Constitution of the Republic of South Africa, 1996 — Section 26.
Theart v Minnaar [2010] ZASCA 126.
Shezi v L.V.L & Another [2023] ZAGPJHC 373.
Barker v Nangu [2024].
Khoza & Others v Vosloo [2024].
Blue Moonlight Properties v Occupiers of Saratoga Avenue 2011 (CC).