Durban family ordered to vacate property after not paying rent for over 12 years - IOL

Durban High Court orders family to vacate Newlands East rental property before October 15, 2026.

A Durban family who lived in a Newlands East property for more than 12 years without paying rent has been ordered to vacate the home after the KwaZulu-Natal High Court in Pietermaritzburg found that their lease had been lawfully cancelled.

Judge Sibiya ordered HP, her husband YI, together with their five children, to leave the premises by October 15, 2026.

If they fail to comply, the sheriff has been authorised to carry out the eviction from October 20, 2026. The couple was also ordered to pay the legal costs of the application.

The case concerned a residential property in Newlands East, Durban, owned by FMHC Rental SA NPC, which is under business rescue.

The couple, who are respondents in the application, had occupied the property with their children under a lease agreement concluded in 2014.

According to the judgment, the parties have been involved in extensive litigation over the property since 2014.

The court heard that the couple had not paid rent since 2014. A previous eviction attempt ended in the courts after the applicants cancelled the lease in 2014 without giving sufficient time to remedy the alleged breach.

In 2019, the High Court found that the 2014 cancellation had been unlawful because it was premature. The eviction application based on that cancellation was dismissed.

However, the latest case was based on a new breach and a new cancellation of the lease in 2025.

The applicants issued the couple with a notice of breach after they failed to pay rent by the due date.

The notice gave them a month to remedy the breach. That period expired at the end of May 2025 without the arrears being remedied.

The lease was subsequently cancelled on July 29, 2025, giving the occupants a calendar month to vacate.

The couple argued that the matter had already been decided in 2019 and that the new proceedings were therefore barred by the principle of res judicata.

Judge Sibiya rejected this argument.

The judge said the 2019 case dealt with the legality of the 2014 cancellation, whereas the present application concerned a different breach and the 2025 cancellation.

“The only cancellation that has been determined by the court is that of 2014, and not the cancellation of 2025,” the judgment states.

The court therefore found that the new eviction application was not barred by the earlier judgment.

The wife described herself as the main leaseholder and breadwinner and argued that an eviction would leave the family homeless.

The court was required to consider whether the eviction would be just and equitable under the Prevention of Illegal Eviction (PIE) from and Unlawful Occupation of Land Act.

The judge noted that PIE requires courts to consider the circumstances of occupants, including the rights and needs of children and women-headed households, and the availability of alternative accommodation where an eviction could result in homelessness.

However, the judge found that the respondents had not provided sufficient information demonstrating that they could not afford accommodation or that the eviction would necessarily leave them homeless.

The court also noted an inconsistency regarding their employment status.

While the wife's affidavit stated that she was the breadwinner, the husband told the court that they had been unemployed since 2016. The judge said this information had not been placed before the court under oath.

Judge Sibiya said the property was rental accommodation rather than free housing and that the applicants had no duty to provide free housing to the occupants.

The judgment also noted that FMHC Rental SA was under business rescue and that the respondents' continued occupation without paying rent was contributing to the company's financial difficulties.

“As long as the respondents occupy the property, the applicants cannot get qualifying tenants who will pay as agreed in the lease and the business rescue will not succeed,” the judge said.

The judge concluded that the 2025 cancellation of the lease was lawful and that the respondents had no valid legal basis to remain in the property without paying rent.

Although the family had lived at the property for more than 12 years, the court found that six weeks would be sufficient notice to vacate.

Judge Sibiya said this period took into account the fact that the lease had been cancelled in July 2025, and the respondents had already been required to leave by August 2025.

The court concluded that the eviction would be just and equitable and that the evidence did not establish that the family would be left homeless.

The respondents must therefore vacate the property by October 15, 2026.

If they remain after that date, the sheriff may enforce the eviction from October 20, 2026.