The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (“PIE”) applies to everyone who occupies land without the express or tacit consent of the owner or the person in charge. One cannot simply evict someone that is illegally occupying their land.
PIE makes it a pre-requisite to have a court order before any eviction takes place. PIE applies to both people who occupied land lawfully at some point in the past but who no longer have the consent of the owner to occupy the land in question as well as people who took unlawful occupation from the outset.
An unlawful occupier includes anyone who occupies land unlawfully, including tenants who fail to pay their rentals and bonds.
The first step an owner of land or property has to take in the eviction procedure is to give notice to the occupier of their intention of going to court to obtain a court order.
The second is to apply to court, ex parte, to have written notice served on the occupier, stating that the owner intends to evict the occupier.
Third, this notice must be served at least 14 days before the eviction hearing in court in terms of section 4(2) of PIE. Further to this, the notice must also be served on the municipality that has jurisdiction in the area.
In terms of section 4(5), the notice of proceedings as mentioned above must -
- state that proceedings are being instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier;
- indicate on what date and at what time the court will hear the proceedings;
- set out the grounds for the proposed eviction; and
- 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.
The court will usually grant an eviction order only if it is just and equitable. The factors the court shall consider include whether the person making application to court for an eviction order is in fact the owner of the land, the occupier is occupying the land unlawfully, the owner has reasonable grounds in support of the eviction and finally the local authority (municipality) or any other owner of land can provide alternative land and accommodation.
Tenants have been known to argue that their rights are infringed when a lease is cancelled. It is therefore imperative that a landlord acts quickly because a tenant who remains in occupation of property for more than 6 months after the lease has been cancelled, the landlord may be requested to find alternate accommodation.
Once the court order is granted, the unlawful occupier is required to vacate the property immediately, failing which the Sheriff is instructed and empowered by virtue of the Court Order to evict the occupier. If, at the same time eviction proceedings commenced, summons was issued for arrear rental and judgment has been obtained, the Sheriff can simultaneously attach the occupier’s goods to satisfy the debt, which goods are then sold in execution.
PIE was introduced to regulate the eviction procedure and to balance the owner’s property rights and the occupant’s right to access housing. Landowners cannot take the law into their own hands and deal with unlawful occupiers the way they see fit but through the correct legal process, relief can be sought.
Written and by Caitlin Askew, Bouwer Kobeli Morabe Attorneys