PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND AMENDMENT BILL, 2005
1. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (PIE Act), which came into operation on 5 June 1998, was enacted to firstly repeal the former Prevention of Illegal Squatting Act, 52 of 1951, which was deemed to be both draconian and unconstitutional, and secondly to put in its place a law which was aligned to the new constitutional dispensation.
The objectives of the Act are:
* To provide for the prohibition of unlawful occupation;
* To set out procedures for the eviction of unlawful occupiers, including urgent proceedings and evictions at the instance of an organ of State;
* To prohibit receipt or solicitation of consideration in respect of the unlawful occupation of land;
* To allow for the mediation of disputes in terms of the Act; and
* To provide for offences.
Since the inception of the Act in 1998, illegal land invasions have been on the increase and it has become evident that more and more loopholes were being found to escape the provisions of the Act. Some of its provisions were also causing interpretation and implementation problems to, inter alia, the courts and local authorities.
In light of the problems experienced, the Department prepared a draft Amendment Bill, which was submitted to Cabinet during August 2003.
On 20 August 2003, Cabinet resolved that –
The Bill was published in Government Gazette No 25391 on 27 August 2003, with the Department receiving comments from various institutions and role players
The comments were duly considered, and a revised draft Bill was prepared and submitted to Cabinet for approval. On 1 December 2004 Cabinet approved the Bill and its introduction into Parliament.
2. Interpretation and Implementation problems which necessitated this amendment to the PIE Act:
2.1 The continued unlawful occupation of buildings, particularly high-rise buildings has resulted in the need to amend the definition of "land" to include same.
2.2 Section 3 of the Act prohibits the receipt or solicitation of consideration in respect of the unlawful occupation of land. These provisions are, however, not wide enough, and need to be expanded so that consideration includes fees, costs, rental etc.
2.3 In the Supreme Court Appeal case of Ndlovu, Ngcobo, Bekker & another v Jika, the Court handed down judgment which brought tenants and mortgagors under the scope of the application of the Act. The Court held that tenants who remain in the premises after a lease has been lawfully terminated, and defaulting mortgagors who stay in the premises after the bank has foreclosed, are in the same position as unlawful occupiers, and PIE therefore applies to eviction proceedings against them.
This was never the intention of the legislature when the Act was promulgated, and it has had a negative influence on both the rental housing market, and the attitude of financial institutions, as it effectively nullifies the written agreements entered into with mortgagors.
It is for these reasons that section 2 of the Act must be amended to exclude tenants and mortgagors from the application of the Act. The proposed amendment will:
* not deny tenants and mortgagors their constitutional right to be evicted only in terms of an order of court, after taking into consideration all relevant circumstances;
* Add certainty to the manner in which unlawful occupiers are to be evicted. Unlawful occupiers of land will be evicted in terms of PIE, while mortgagors who hold over will be evicted in terms of the mortgage agreement. Tenants who hold over will be evicted in terms of the Rental Housing Act, 50 of 1999, and although there are currently problems with the enforceability of Rental Housing Tribunal rulings, the Act is presently being amended to address this problem.
2.4 The proposed amendment to section 2 may, however, cause a problem in that landowners may try to circumvent the Act by entering into simulated lease agreements with unlawful occupiers, only to terminate it shortly afterwards.
In this regard the Bill seeks to amend section 2 even further, by empowering a court to order that the Act applies to eviction proceedings if it finds that an act or omission by a landowner was calculated towards avoid the Act.
2.5 In its current form, the Act differentiates between persons occupying for less than six months and persons occupying for more than six months, and it prescribes different criteria to be taken into account by a court in eviction proceedings, depending on the duration of the occupation.
This clearly constitutes an unequal protection of rights, and the Bill seeks to rectify this situation by amending sections 4 and 6, so as to remove the six month distinction.
The said amendments also addresses the concerns raised by the courts (as in for instance the Supreme Court of Appeal case of Baartman & others v Port Elizabeth Municipality) that the Act is attempting to place a limitation on the circumstances which a court can take into account, by providing that a court may take into consideration all relevant circumstances.
2.6 Currently, the Act incorrectly places the burden of giving notice of a person’s intention to institute eviction proceedings on the court, and the Bill seeks to rectify this by placing the responsibility on the person who institutes the proceedings.
2.7 Lastly, the amendments to section 2 has necessitated minor changes to section 6, that being the deletion of the reference to "mortgagor".
3. In conclusion, the Bill can be summarised as follows:
3.1 The definition of "land" is amended to include buildings and other structures on land;
3.2 Section 2 of the Act is amended to clarify the application of the Act and to exclude tenants and mortgagors from its scope;
3.3 The ambit of the prohibition on the receipt or solicitation of consideration in respect of unlawful occupation of land is widened;
3.4 The Act is constitutionally aligned with the removal of the distinction between occupying for more, or less, than six months, as well as recognising the right of the courts to take into account all relevant circumstances without limitation;
3.5 Technical difficulties, such as the duty to give notice of intended eviction proceedings, are clarified; and
3.6 Consequential amendments, arising from the above, are effected.
NOTE: Mr Vawda, although this does not form part of the presentation, we thought it prudent to provide you with the info set out below, should a question in this regard be raised.
Constitutional Court judgment in the matter of Modderklip v the President of the Republic of South Africa & others, handed down on 13 May 2005. Although the matter dealt with the unlawful occupation of the farm Modderklip, the judgment was not premised on the PIE Act, but on certain constitutional principles.
The Court held that the constitutional right to have access to the courts (section 34 of the Constitution) was not fulfilled, in that the State did not provide the necessary mechanism to allow for the execution of the eviction order which had been granted in the court of first instance, and that the State’s conduct was unreasonable in the circumstances. In this light the court also found that the fact that the State did not take reasonable steps to assist Modderklip, entitled it to compensation for damages. Insofar as the unlawful occupiers are concerned, the court ruled that they should remain on the land until the State can provide alternative accommodation.