The South African Prevention of Illegal Eviction Act | Legal Articles

 

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The South African Prevention of Illegal Eviction Act

The Prevention of Illegal Eviction (PIE) Act applies to all land (any building or structure on municipal, private and state-owned land) throughout the Republic of South Africa, except when the Extension of Security of Tenure Act 62 of 1997 (ESTA) applies.

Prevention-Illegal-Evictions

Who can utilise Prevention of Illegal Eviction Act?

In terms of PIE, a landowner or superior may approach the court.

In the Act, a landowner is defined as, “the registered owner of land, including an organ state” and a ‘superior or person in charge of land’ is defined as, “a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question.”

In terms of the Prevention of Illegal Eviction, who is an illegal occupant?

An illegal occupant is defined as a person who inhabits land without the express consent of the landowner, or without any right in law to occupy such land.

This is exclusive of any person who is a resident in terms of ESTA, and excluding any person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act, 1996.

Besides Prevention of Illegal Eviction, is there another way to carry out an eviction?

Unfortunately, not. PIE was purposely introduced in order to protect tenants rights in South Africa and prevent landowners from taking the law into their own hands.

A common misconception is that landowners are permitted to switch off electricity, change locks or physically remove their illegal occupants from their property. However, should a landowner partake in any of these methods, they may be liable for criminal or civil charges.

How do I start the eviction process under PIE?

In terms of Section 4(2) of PIE, the court must serve a written and effective notice of the proceedings to the illegal occupant and the municipality having jurisdiction 14 days prior to the hearing proceedings.

The court in question will stipulate the rules and procedure for the serving of notices and filing of papers.

However, if the court in question is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of the court, service must be performed in the manner directed by the court: However, the court must consider the rights of the illegal occupant to receive adequate notice and to defend the case.

Section 4(5) of the Act sets out the structure and content of the notice of proceedings contemplated above.

Therefore, the notice must:

  1. state that proceedings are being instituted in terms of subsection (1) of the PIE Act;
  2. indicate on what date and at what time the court will hear the proceedings;
  3. set out the grounds for the proposed eviction; and
  4. state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.

What if the illegal occupant has occupied the land in question for less than six months?

In terms of Section 4(6) of the Act, it is important to note that, if an illegal occupant has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction notice, if it is of the opinion that it is just and reasonable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

What if the illegal occupant has occupied the land in question for more than six months?

However, in terms of Section 4(7) of the Act, if an illegal occupant has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is reasonable to do so, after considering all the relevant circumstances, including:

  • whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, except where the land is sold in a sale of execution pursuant to a mortgage,
  • and including the rights and needs of the elderly, children, disabled persons and households headed by women.

When will the court grant an eviction order?

If the court is satisfied that all the prerequisites of Section 4 of the Act have been complied with and that no valid defence has been raised by the illegal occupant, it must grant an order for the eviction of the illegal occupant, and determine:

  1. Under the circumstances, a just and reasonable date on which the illegal occupant must vacate the land and;
  2. the date on which the eviction order may be carried out if the illegal occupant has not yet vacated the land on the date intended in paragraph (a).

In order to determine a reasonable eviction date, the court must regard all relevant factors, including the period of time that the illegal occupant and their family have lived on the land in question.

Is it possible for the court to make an order for the property to be demolished or removed?

In terms of Section 4 of the Act, the court may order for eviction and the demolition of any dwellings or structures that were occupied by such person on the land in question.

However, in terms of Section 4 of the Act, the eviction of an illegal occupant and the demolition or removal of any dwellings or structures is subject to the conditions considered reasonable by the court, and the court may, on good cause shown, vary any condition for an eviction order.

Is it the landowner’s responsibility to carry out an eviction if the illegal occupant does not vacate after the date ordered by the court?

The sheriff of the court is only person who may carry out the eviction of an illegal occupant.

At the request of the sheriff, a court may authorize any person to assist the sheriff in carrying out an eviction order or demolition subject, to conditions deemed by the court. However, the sheriff must at all times be present during such eviction or demolition.

Basic outline of opposed eviction

  1. the landowner must legally terminate the lease agreement between the parties. The underlying basis for the termination must be legal e.g. the expiration of a lease agreement or a physical breach of the lease agreement by the occupant;
  2. at least 14 days before the court date a Section 4(2) application in the form of a notice of motion and supporting affidavit must be served by the sheriff of the court on the occupant and the relevant municipality. This application will detail the date of the court appearance and advise the occupant when to file their intention to oppose and answering affidavit.
  3. The occupant then has an opportunity to contest the eviction and file their answering affidavit;
  4. The owner then has a final opportunity to file their replying papers;
  5. If the landowner and occupant are unable to settle the matter prior to the court date, the matter will be contended in court, which will then make a decision on the matter.

Van Deventer & Van Deventer Incorporated - Property Lawyers Sandton

The legal requirements under the Prevention of Illegal Eviction Act are sufficiently daunting to require the assistance of a professional.

Contact us for assistance in evicting tenants or illegal occupants of your property.

 

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