A quest for a uniform set of rules regulating eviction proceedings in South Africa

Abstract

The hypothetical premise around which this study revolves is that, from a procedural angle, there are no comprehensive court rules regulating evictions in South Africa, notwithstanding the existence of various substantive laws pertaining to evictions. The study is also informed by the perceived inconsistent elements in the existing eviction-related laws, which have a propensity to confuse litigants both in the High Court and the Magistrates’ Courts. The current general procedures that regulate processes in civil courts, including the commencement of evictions up to the execution of ejectment orders, are comprehensively analysed and demonstrate a necessity for stand-alone uniform eviction procedures. Provisions of various substantive eviction laws seem to be incorporated or infused in some civil procedural laws and practice directives regulating eviction proceedings in South African courts but to a very limited and unsatisfactory extent, leaving room for the creation of a uniform regulatory framework. Both pre-democratic and post-constitutional eviction regulatory frameworks are evaluated in the thesis, and shortcomings identified. Certain inadequacies in this regard are validated by the research findings. The secondary objective of the study is to concentrate on developing mechanisms towards improving the shortcomings ascertained. This is done mainly through reference to and comparative analysis of laws and procedures on evictions in selected foreign jurisdictions namely, the United Kingdom and the two states of Arizona and Texas in the United States of America. The study confirms that there is a lacuna for procedural rules of court dedicated to evictions in South Africa. Should such rules be developed, as is suggested, then at least two alternative formats are recommended and discussed.