What Happens if I Do Not Pay my Rent In South Africa?

Recently, the unpredictability of life has been on full display and many South Africans have found themselves in dire straits. Unemployment and inconsistent work hours have brought on an economic crunch that many are feeling the effects of in their day-to-day lives. This tumultuous scenario may have left you unable to stay up to date with certain payments. What will happen to you if you do not pay your rent in South Africa?

Simply put, if you do not pay your rent, the landowner can begin the legal process of removing you from the premises. Many individuals may be unable to pay for their rent, either temporarily or even, for the foreseeable future. So what does this mean?

The owner of the property is allowed to begin eviction proceedings against anyone considered an unlawful occupier. An individual who can not, or will not, pay their rent is included in this definition. It is extremely important to remember that various procedures are required to formally evict an individual and it is still illegal for property owners to take the law into their own hands and evict a person themselves with no due process.

There are also some extenuating circumstances that may apply to individual cases that could impact the court rulings but before going into any more detail, it is perhaps best to define our terms…

What is an Unlawful Occupier?

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998, often referred to as the PIE Act (which makes it sound funny, but it’s really not) comprehensively defines an unlawful occupier as any individual living on a property without the consent, express or tacit, of the landowner.

In other words, if the property owner does not give you their permission to live on their land, you can be considered an unlawful occupier and may be subject to eviction procedures.

If you are unable to pay your rent, the owner may revoke their permission, making you an unlawful occupier, however, many landlords may offer some sort of a grace period during which they will allow you to continue living on the property until you are able to make your payments.

The time of this grace period will vary depending on the landlord, although it is always a good idea to create a written agreement in the form of a lease that specifies this period.

Remember to discuss this matter with the landowner beforehand so that both parties are aware of the situation.

Can a Legal Tenant become an Unlawful Occupier?

Perhaps you have been living on the property for some time with the consent of the owner and you have always managed to pay your rent on time… until now. Can the owner terminate your lease and treat you as an unlawful occupier?

Yes, this is a possibility. Even if you were once a legal resident on the property, the landlord can still revoke their consent and label you as a trespasser.

A case from the Supreme Court of Appeal entitled Ndlovu v Ngcobo dealt with this very matter. The defendant was an individual who had previously lived on the property legally, however, their contract with the landlord was terminated and they became an unlawful occupant.

The defendant refused to vacate the property alleging that they still had some form of legal possession over the land. This act is referred to as ‘holding over’. The court disagreed with their claim and the party was removed from the premises.

It’s important to note however that there are some special circumstances that the courts may consider when validating the eviction process. Depending on these circumstances the court may end up ruling in favour of the tenant over the landowner.

What Circumstances may Impact an Eviction?

Section 4(7) of the PIE act, details the special circumstances that may impact a court’s ruling, namely –

• Timing – If the tenant has spent MORE than 6 months on the property the court will consider whether or not alternative accommodation is reasonably available for the renter. If land, either provided by the state or by another landowner, is not readily available, the court may grant an extension to the renter in question.
• Demographics of the household – Regardless of how long the renter has lived on the property, if their household consists of children, disabled persons or the elderly, special provisions will often be made to ensure the rights of these groups which will often take the form of deadline extensions.
• Households headed by women – The PIE act also makes provisions for tenant families that are headed by women, these families may also find favour in the courts and receive various leniencies.

Do I need to pay my rent during the pandemic and can I be evicted during a lockdown?

The Covid-19 pandemic has fundamentally changed how we live our lives and function as a society. Many individuals are struggling to find a stable income and are thus unable to pay their rent as they did before. This begs the question, do you still need to pay rent during these uncertain times?

Sadly, rent is still required during the pandemic. Many citizens have noted the kindness shown by many homeowners who have lessened prices or given extensions to their tenants but this act of goodwill is up to the property owners and they are not required to provide these leniencies.

If however, you find yourself unable to pay rent during a lockdown period, you should keep in mind that a recent amendment to section 27(2) of the Disaster Management Act has made it illegal to evict a tenant while a lockdown is taking place.

Even so, please note that similar amendments are being made daily and this ruling may not still apply when you are reading this article.

What is the Process when Evicting Tenants?

As mentioned previously, there is a legal process to remove tenants from a landowner’s property.

• The landowner CANNOT remove a tenant without first giving said tenant formal notice of their intentions.
• These intentions must also be made known to the relevant courts who must also provide both parties with official documentation and rulings with regard to the eviction.
• Tenants must also be given a chance to make their case in court after receiving adequate notice of the relevant court dates.

If you’re a masochist with a lot of extra time on your hands you can read through Section 4 of the PIE act to familiarise yourself with all the Dos and Don’ts of eviction procedures.

Just remember, a landowner cannot remove you from their property without first going through all the legal channels, and they can never forcibly remove you from the property themselves except for in scarce scenarios, for example, if the owner believes you pose an imminent threat to another person on the property.

What can I do if my Landlord is Trying to Evict me?

Every case of eviction is different and only a court ruling can definitively decide whether a renter has a right to stay on a property or not. If you are faced with eviction the best possible choice is to immediately seek the aid of a lawyer to ensure that your rights are upheld.

There’s only one tiny little issue. Lawyers are really, really expensive. If you’re struggling to make your rent payments, odds are you don’t have the extra cash to spend on a lawyer, in that case, it’s wise to familiarize yourself with the law regarding the eviction process.

Make sure you’re present in court on the right day at the right time and make your case known to the judge. Again, your landlord is not allowed to evict you themselves, they must engage in formal legal proceedings.

Keep in mind, there are 3 common types of behaviour in these situations that are illegal that may cause the court to rule in your favour if the landlord attempts them –

• The landlord is not allowed to get physical with you. If the court rules in favour of the owner and you refuse to leave, the police will be called to escort you from the premises. This is not done by the landowner or any accomplices.
• The landlord cannot lock you out of the house/property. There is a specific procedure when evicting a tenant and it is illegal for the owner to simply change the locks and remove your valuables.
• The landlord may not sell or give away your possessions. Even if the judge rules in their favour, the owner may not take possession of your belongings.

In Conclusion – What happens if I cannot pay my Rent in South Africa?

Being unable, or unwilling to pay your rent is a valid reason for eviction. If the owner of the property revokes their consent and begins the legal process of eviction, you may become an unlawful occupant and be removed from the area.

The owner is not allowed to simply remove you on a whim however and an oftentimes lengthy legal procedure is first required. You are within your right to demand formal written notice as well as a court ruling before you are removed.

If you or any member of your party is disabled, a child or elderly, this may cause the judge to grant you some form of leniency or extension. Additionally, if the household is headed by a woman, these same provisions may be made.

If you have lived on the property for more than 6 months, the court may ensure that there is adequate alternative housing available before you are removed. Always remember that the homeowner is not allowed to remove you physically, remove your possessions or lock you out of the property.

If you have the money, it would be extremely beneficial to hire a lawyer to defend your case, however, if this is impossible, it is equally beneficial to know your rights on the matter and ensure that any eviction action is done legally. You are still required to pay rent during the Covid-19 pandemic but, at the time of writing, you may not be evicted during a lockdown.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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