Welcome to our final post on residential eviction. In this post we will consider the question, “When will the court evict?” The law that governs residential eviction in our country is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). In our first post, we asked some of the basic questions relating to PIE and eviction. In our second post, we discussed how the process of eviction should look as it is being carried out. If you find yourself here without having read the first two posts, we recommend that you start at post 1 and then read post 2 before reading this post.
When will the court evict?
A court must be satisfied that the procedures set out in PIE have been properly followed. We discussed this element in post 2. It has to consider all relevant circumstances to the case. These circumstances need to convince the court that it would be just and equitable to grant the eviction order. There should be no valid defence that has been raised by the unlawful occupier.
The owner approaches the court based on the fact that s/he is the owner of the property and the occupier is unlawfully occupying. The occupier has the opportunity to raise any special circumstances to the court. The duty is upon the occupier to raise these special circumstances. The court must take into consideration especially the rights of the elderly, children, disabled persons and households headed by women. Only after considering all the relevant circumstances will the court evict if it would be just and equitable to do so.
When will the court evict? Choosing dates
If the court grants an eviction order, it has to set a just and equitable date by which the unlawful occupant must leave the land by themselves. It has a wide discretion in determining this date. The court must also set a date on which an eviction can be carried out if the occupier has not left the land by the first date. In determining these dates, the court must consider all relevant factors. This includes the period the unlawful occupier and his or her family have resided on the land in question.
Who carries out the eviction on that second date?
The landowner is not allowed to carry out the eviction if the unlawful occupier fails to vacate by themselves. The sheriff of the court is the only person who may carry out the eviction. The court may, at the sheriff’s request, authorise the sheriff to be accompanied by another person to help carry out an eviction. But the sheriff must at all times be present for the eviction.
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