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PP Smit Attorneys

South African landlords often make one critical mistake: treating every occupier who refuses to leave a property the same. The law clearly distinguishes between a tenant and an unlawful occupier, and confusing the two can derail the entire eviction process.

The starting point is simple: does the person have lawful consent or a legal right to occupy the property? If yes, they are a tenant. If not, they are an unlawful occupier. This single distinction determines which law applies, what notices must be served, and how the court will deal with the process. Getting it wrong can result in delays, failed applications, and unnecessary costs while the occupier settles in, as if they’ve just signed a long-term lease.

The Law Determines the Difference

A tenant occupies a property under a lease agreement, whether it’s written or implied. This relationship is governed by the Rental Housing Act. Tenants have enforceable rights, including proper notice agreements, access to dispute resolution, and protection against unfair eviction.

An unlawful occupier is someone who occupies property without consent or legal right. This is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). This doesn’t only refer to squatters. It can include former tenants, family members, or anyone who has overstayed their rights to the property.

A common risk landlords and agents overlook is the holdover tenant. If a lease expires and the tenant stays on without renewal, they can become an unlawful occupier. However, if rent is accepted after expiry, a new periodic lease may arise, pulling the matter back under the Rental Housing Act. This detail often determines the outcome in court.

The Legal Route to Eviction

For a tenant, the eviction process starts with a proper termination of the lease. You must issue a valid written notice that clearly sets out the breach and allows the tenant enough time to respond or seek remedies. In many cases, the case may first go to a Rental Housing Tribunal for mediation. Once this process is followed, then only can you approach the court for eviction.

For an unlawful occupier, the process is strictly governed by the PIE Act. You must apply to the court and serve a section 4(2) notice at least 14 days before the hearing. The court then decides whether the eviction is just and equitable based on all relevant circumstances.

Some evictions can’t wait for a standard process to be followed. For example, if someone breaks in over a weekend, moves their furniture into your property, and starts presenting it as their new home, immediate legal action may be necessary. In such cases, a section 5 urgent eviction is available, but only where you can prove both real urgency and exceptional circumstances. Courts will look closely at the facts and won’t grant urgent evictions just because the situation is inconvenient or frustrating.

Risks That Delay Evictions

DIY evictions are illegal. Changing locks, removing possessions, cutting off water or electricity are acts that constitute spoliation. The occupier can immediately approach a court for a mandament van spolie (spoliation order), which will restore them to possession, often within 24 to 48 hours, regardless of whether they had any right to be there in the first place. You will also face potential civil liability.

Procedural mistakes are just as costly. Incorrect or poorly drafted notices, or failing to follow the correct process, can stall your case for months and set you back to square one. Each delay increases legal costs and prolongs the loss of income.

Evidence You Will Need

Your case is only as strong as your evidence. Here’s what you need to prove:

For a tenant eviction:

  • Lease agreement (written or proof of a tacit agreement)
  • Full rental payment history
  • Proof of breach (e.g. missed payments)
  • Valid notices issued
  • Record of communication or attempts to resolve

For an unlawful occupier:

  • Proof of ownership or authority to evict
  • Details of how the occupation started
  • Copies of notices served
  • Supporting reports (police or municipality where relevant)

Under PIE, the court will also consider the occupier’s personal circumstances, including vulnerability, presence of children, and availability of alternative accommodation. These factors directly influence whether an eviction is granted and how long it may take.

Practical Steps for Property Owners

Start by correctly identifying the occupier’s legal status. If there is any doubt, confirm this with an attorney before taking any action. Follow the correct legal process without deviation. Each step must comply with the applicable law.

Finally, act early. The longer someone remains in occupation, the more difficult the eviction process becomes. Long-term occupation strengthens the occupier’s position under PIE and increases the likelihood of delays.

Understanding the difference between a tenant and an unlawful occupier is not a technical detail. It is the foundation of a successful eviction.

 

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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Carla Cloete

Director | Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the PP Smit team as a professional assistant.

Carien Hamman

Attorney & Notary | LLB

Carien grew up and matriculated in the picturesque town of Ceres, whereafter she furthered her studies at the University of Stellenbosch and obtained her LLB degree in 2015. She completed her articles at VanderSpuy Cape Town in 2017 and stayed on as an associate litigant after being admitted as an attorney during early 2018. Carien loves the countryside and thus ventured back to Ceres where she joined Joubert Van Vuuren Inc. for a year. However, when she was presented with the opportunity to enjoy both the country- and the seaside, she couldn’t resist and joined PP Smit Attorneys at the beginning of 2022 as an avid litigator. When she is not at the office, Carien enjoys long walks, wine tasting, and exploring the area with her family and friends.

Harmann Potgieter

Attorney | LLB | NQF 7

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with PP Smit Attorneys as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys, and not too long after that, he grabbed the opportunity to work at PP Smit Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director of the firm, where he practices in the Litigation department. Jandré additionally joined the company of PP Smit Attorneys during the same year. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity he joined the company of PP Smit Attorneys during 2006. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he moved to Vredenburg and joined Swemmer & Levin, where after he joined the company of PP Smit Attorneys during 2006.. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking.

Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. In 2004, he also joined the company of PP Smit Attorneys.

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners.