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ESTA Series: Eviction under the Extention of Security of Tenure Act

Determining whether the Extention of Security of Tenure Act or the Prevention of Illegal Eviction Act applies to a particular set of circumstances is paramount. We believe that our blog “Application of the Extention of Security of Tenure Act (ESTA)” will greatly assist in this process.

Occupiers may only be evicted in terms of an order of a court, issued in terms of ESTA.

A court is only allowed to grant such an order if:

  • The occupier’s right of residence has been terminated (read more)
  • The occupier has not vacated the land with the period of notice given by the owner
  • The conditions for an order for occupiers, respectively before and after 4 February 1997 has been met
  • The occupier, the municipality and the head of the relevant provincial office of the Department of Rural Development has received not less than two calendar month’s written notice of the intention to obtain an eviction order

The court is enjoined to appoint a probation officer to submit a report in respect of the availability of alternative accommodation, the effect the eviction will have on the constitutional rights of any affected person including the rights of children and their education as well any undue hardships which the eviction may cause.

We will not deal with the requirements for eviction of persons, who had been occupiers on 4 February 1997 in this blog, but due regard should be had of the fact that specific requirements are prescribed by the Act in respect of these occupiers.

The following specific requirements are prescribed in respect of a person who became occupiers after 4 February 1997:

  • In instances where it was an express term of the consent that the consent would terminate on a specific date, the court may on termination of the consent, grant an eviction order, if it is just and equitable to do so;
  • In circumstances other than what is referred to above, the court may grant an order for eviction if it believes that it is just and fair to do so, more specifically, by having regard to:
    • The period of occupation
    • The fairness of the terms and conditions of any agreement between the parties
    • Whether suitable alternative accommodation is available to the occupier
    • The reason for the eviction
    • The balance of the interest of the owner and the occupier.

What happens when the court issues an eviction order?

The court when granting an eviction order shall determine a date, which it believes, will be just and fair under the circumstances.

The owner shall only be entitled to physically evict the occupier after the period, determined by the court has expired.

In this ESTA Series: Extention of Security of Tenure Act has highlighted the fact that eviction proceedings undoubtedly involve complicated and protracted litigation. Procuring the services of an experienced attorney is an undoubted necessity in successful eviction proceedings.