PROPERTY: The ABC’s of eviction

The issue of evictions has received a lot of media attention in recent times with the Lwandle eviction saga in Cape Town causing great tension. This has been exacerbated by a lack of understanding by government of established eviction legislation and principles with the Human Settlements Minister Lindiwe Sisulu going so far as to call for a moratorium on evictions, “until there is a clear understanding of the laws and basic human rights requirements that must be met.” This is sheer ignorance and explains why government is increasingly taken to task by our courts for bungling evictions. Just recently the Constitutional Court handed down a scathing judgment against a new trend of “pre-emptive” evictions by local governments. Basically, municipalities obtain interdicts in advance in respect of properties that are at risk of being occupied and then use these interdicts to circumvent eviction legislation when putting indigent people off the land. While it is true that the eviction legislation that is in place can be very frustrating and can be seen as providing an unreasonable amount of protection for illegal occupiers of land one cannot ignore the fact that the potential evictees have rights, like all other citizens, and that the eviction process must allow for such rights not to be unreasonably infringed.

Evictions from residential properties in South Africa are largely governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. Because this name is quite a mouthful, lawyers simply refer to this legislation as “PIE.” The Act itself is mercifully short but it is quite clear and is backed up by a sizable body of case law providing clarity and guidance on the interpretation of the Act. Essentially the Act prohibits the eviction of an unlawful occupier without a court order. This is to avoid abuses by unscrupulous landlords but can unfortunately be abused by unscrupulous tenants.

The Act applies to all “unlawful occupiers” of residential property, excluding farmworkers who live on farms, who have their own special legislation. An “unlawful occupier” is any person who occupies land without the express or tacit consent of the owner or person in charge of the property, or without any other right in law to occupy such land. It will be noted that the Act provides a remedy not only for owners of land, but also persons “in charge” thereof. These are persons who have the requisite legal authority to allow people to occupy the land, such as an agent of the owner.

The Act meticulously describes the court process to be followed and states that a court must grant an order for eviction if the landlord followed the correct process and the unlawful occupier has no defence, if the court regards it just and equitable to do so. The court must also have regard for the rights and needs of the elderly, children, disabled persons and households headed by women.

Where people have occupied a property for a period of more than six months, the court must also consider whether alternative housing is available to the unlawful occupiers – this could be provided by the state or by another landowner, such as a new landlord. It should be noted that the Act does not place a duty on the landlord to provide alternative accommodation. He need merely show that such accommodation is available to the unlawful occupier.

While it is true that the laws on eviction are not perfect and are open for abuse by unlawful occupiers, the laws are certainly not confusing or unclear as the Minister seems to think and, if anything, they provide too much protection to unlawful occupiers rather than too little. It is rather government’s ignorance of the law that needs to be addressed than the law itself.

#Eviction #landlord #tenant #unlawfuloccupant #home #PIE #ConstitutionalCourt