WHAT IS AN EVICTION SECTION 4(2) NOTICE AND WHY IS IT NEEDED FOR AN EVICTION?

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All evictions from residential property in urban areas are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (also called the “PIE Act”). The PIE Act requires that certain procedures be followed in order to evict someone from urban residential property.

In particular, section 4(2) of the PIE Act reads as follows:

“At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.”

In light of section 4(2) of the PIE Act, the respective court must ensure that a written and effective notice must be given to the occupiers and the courts have interpreted this to mean that the court must consider the proposed section 4(2) notice and ensure that it gives effect to the rights of the occupiers.

Accordingly, attorneys now approach the courts for the authorisation of a section 4(2) notice and this can be done in an ex parte application (this means that the occupiers are not given a copy of the application). Upon considering the proposed section 4(2) notice that court provides judicial oversight over the eviction process and ensures that the eviction is not being sought in secret.

The common aspects that the courts want addressed in the section 4(2) notice are the following, namely that:

  1. The occupiers are informed (again) of the date on which the eviction will be heard by the court.
  2. The occupiers are informed of their rights to be in court when the eviction is heard.
  3. The occupiers are informed of their right to obtain legal representation.
  4. The occupiers are informed of the reason(s) that the property owner (or person in charge) is seeking an eviction.
  5. The occupiers are informed of their right to place their circumstances before the court.

When the court is satisfied with the contents of the section 4(2) notice, the court authorises it to be served upon the occupiers in a manner that the court deems effective and likely to come to the attention of the occupiers.

In light of the above, the section 4(2) notice serves the purposes of alerting the occupiers of their rights and of the eviction hearing date in order to give effect to the rights in the Bill of Rights and ensure that the occupiers have been given an opportunity to participate in the eviction process.

Owing to the requirements for a section 4(2) notice, an eviction matter cannot proceed without the section 4(2) notice being served on the occupiers and it is an absolute requirement for the court to even consider granting an eviction court order.

Disclaimer: The above should not be accepted as legal advice, and you are encouraged to seek legal advice.

Prepared by Bruce Barkhuizen, Attorney and Notary.