LAW CORNER —Consent to eviction is not really consent

THE manner in which you obtain consent to eviction can lead to the courts not granting the eviction application you are seeking.

Imagine a situation whereby you sell a building which is occupied by a group of people —you manage to get a buyer, who has intentions of upgrading the property to have it leased as a residential accommodation — and you serve a letter on the occupiers, notifying them of the termination of their right of occupation in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act). You then meet up with representatives of the occupiers who consent to the eviction.

In the event of obtaining a court order authorising the service of the eviction application on the occupiers, the occupiers then argue that those who consented to the eviction did not present the majority’s interests, which serves to have the application for eviction postponed. We hear of such stories almost daily.

The law, as it stands, provides that, where parties have consented to an eviction order, the courts are not discharged from their duty in terms of PIE and section 26(3) of the Constitution which state that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances”.

This means that, even in the above-mentioned situation, the court will have to take an active role in deciding eviction matters, although one can obtain an eviction order, placing before the court that there is consent to the eviction.

The court will take into consideration all relevant circumstances, including whether the procedures provided for in the PIE Act were followed, since it’s application is compulsory, or that the person seeking to oppose the rescission of the eviction order actually has instructions from the occupiers concerned that proves consent to eviction.

It is therefore important to bear in mind that consent obtained from the representatives of the occupiers without a mandate proving that the occupiers consent will mean that there is no consent.

— Written by Nolwazi Ngcongo (Candidate Attorney) of J Leslie Smith & Company Inc