Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998
Encyclopedia
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) is an act
of the Parliament
of South Africa
which came into effect on June 5, 1998
, and which sets out to prevent arbitrary eviction
s.
In terms of the Constitution of South Africa
, "No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions." PIE sets out the procedure to be followed in the case of such evictions. In Port Elizabeth Municipality v Various Occupiers
, the Constitutional Court
found that it "expressly requires the court to infuse elements of grace and compassion into the formal structures of the law."
and other common-law remedies for the vindication of ownership rights. PIE has application also where the occupation was lawful to begin with but became unlawful later. Different procedures are set out under PIE for private owners, urgent applications and organs of state. Notice must be given within fourteen days of the hearing and should include the following:
In the case of private owners, the court will consider the length of the occupation. If it has been less than six months, an eviction order will be made only if it is "just and equitable" 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." If it has been more than six months, the eviction order must still be just and equitable, but the circumstances to consider are compounded by the question of "whether land has been [...] or can reasonably be made available [...] for the relocation of the unlawful occupier." An exception to this is "where the land is sold in a sale of execution pursuant to a mortgage."
Urgent applications are granted where harm is eminent "to any person or property if the unlawful occupier is not forthwith evicted from the land,", where "the likely hardship to the owner or any other affected person [...] exceeds the likely hardship to the unlawful occupier," and where no other effective remedy is available.
, an application was brought by the authorities in Cape Town
seeking the eviction of the persons in the Joe Slovo informal settlement under of PIE, arguing that the property was needed for the development of affordable housing for poor people. The High Court granted the order, and the residents appealed to the Constitutional Court on the grounds that they were not unlawful occupiers, having obtained the consent of the authorities, and therefore could not be evicted. The court granted the eviction but ordered that alternative accommodation be provided to the occupiers.
In Port Elizabeth Municipality v Various Occupiers, the municipality sought an eviction order against unlawful occupiers of municipal land, at the behest of adjacent land owners. The High Court granted the order, but on appeal to the Supreme Court of Appeals the order was quashed. The Municipality, in turn, appealed to the Constitutional Court, which held that there is no unqualified constitutional duty on local government to provide alternative housing in terms of PIE "In general terms, however," wrote Sachs J, "a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme."
In Blue Moonlight Properties v Occupiers of Saratoga Avenue
, the respondent, a private landowner, served a notice of eviction on the occupiers. They resisted, claiming protection under PIE and alleging that they were entitled to continue their occupation until the City of Johannesburg Metropolitan Municipality
provided alternative accommodation. The City disputed this duty; the respondents argued that its policy was arbitrary and discriminatory. The issue, then, was whether private landowners are obliged provide alternative accommodation to unlawful occupiers in terms of PIE, or whether the burden should fall on the city. The court found that it should balance the rights of property owners under the Constitution with those of indigents and occupiers, and ruled that the landowners' right to equality would be infringed if the state were to burdening them with providing alternative accommodation without compensation. The obligation to provide access was the City's, and the City could not transfer that obligation to private landowners. The court ordered compensatory relief to Blue Moonlight Properties and found that the City was in breach of its constitutional duty to provide adequate housing on a progressive basis. It was obliged to make monetary payment each month until such accommodation was found.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament
Parliament of South Africa
The Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
of South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
which came into effect on June 5, 1998
1998 in South Africa
-January:* 3 January – Six policemen from the North East Rand Dog Unit set their dogs on three suspected illegal immigrants, allowing the animals to savage the three men as the officers hurled racial insults. The incident was caught on video and televised nationally on 7 Nov. 2000, causing...
, and which sets out to prevent arbitrary eviction
Eviction
How you doing???? Eviction is the removal of a tenant from rental property by the landlord. Depending on the laws of the jurisdiction, eviction may also be known as unlawful detainer, summary possession, summary dispossess, forcible detainer, ejectment, and repossession, among other terms...
s.
In terms of the Constitution of South Africa
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
, "No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions." PIE sets out the procedure to be followed in the case of such evictions. In Port Elizabeth Municipality v Various Occupiers
Port Elizabeth Municipality v Various Occupiers
Port Elizabeth Municipality v Various Occupiers, decided by the Constitutional Court in 2005, is an important case in South African law, with significance especially for post-apartheid property rights and constitutional supremacy...
, the Constitutional Court
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
found that it "expressly requires the court to infuse elements of grace and compassion into the formal structures of the law."
Eviction procedure
The eviction procedure excludes the rei vindicatioRei vindicatio
Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing...
and other common-law remedies for the vindication of ownership rights. PIE has application also where the occupation was lawful to begin with but became unlawful later. Different procedures are set out under PIE for private owners, urgent applications and organs of state. Notice must be given within fourteen days of the hearing and should include the following:
- notification that proceedings have been instituted;
- the date of the hearing;
- the grounds for the proceedings; and
- information as to the right of appearance.
In the case of private owners, the court will consider the length of the occupation. If it has been less than six months, an eviction order will be made only if it is "just and equitable" 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." If it has been more than six months, the eviction order must still be just and equitable, but the circumstances to consider are compounded by the question of "whether land has been [...] or can reasonably be made available [...] for the relocation of the unlawful occupier." An exception to this is "where the land is sold in a sale of execution pursuant to a mortgage."
Urgent applications are granted where harm is eminent "to any person or property if the unlawful occupier is not forthwith evicted from the land,", where "the likely hardship to the owner or any other affected person [...] exceeds the likely hardship to the unlawful occupier," and where no other effective remedy is available.
Case law
In Residents of Joe Slovo Community v Thubelisha HomesResidents of Joe Slovo Community v Thubelisha Homes
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others is an important case in South African property law, heard by the Constitutional Court on August 21, 2008, with judgment handed down on June 10.- Facts :Joe Slovo informal settlement, situated alongside the N2 highway in...
, an application was brought by the authorities in Cape Town
Cape Town
Cape Town is the second-most populous city in South Africa, and the provincial capital and primate city of the Western Cape. As the seat of the National Parliament, it is also the legislative capital of the country. It forms part of the City of Cape Town metropolitan municipality...
seeking the eviction of the persons in the Joe Slovo informal settlement under of PIE, arguing that the property was needed for the development of affordable housing for poor people. The High Court granted the order, and the residents appealed to the Constitutional Court on the grounds that they were not unlawful occupiers, having obtained the consent of the authorities, and therefore could not be evicted. The court granted the eviction but ordered that alternative accommodation be provided to the occupiers.
In Port Elizabeth Municipality v Various Occupiers, the municipality sought an eviction order against unlawful occupiers of municipal land, at the behest of adjacent land owners. The High Court granted the order, but on appeal to the Supreme Court of Appeals the order was quashed. The Municipality, in turn, appealed to the Constitutional Court, which held that there is no unqualified constitutional duty on local government to provide alternative housing in terms of PIE "In general terms, however," wrote Sachs J, "a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme."
In Blue Moonlight Properties v Occupiers of Saratoga Avenue
Blue Moonlight Properties v Occupiers of Saratoga Avenue
Blue Moonlight Properties 039 Ltd v Occupiers of Saratoga Avenue and Another, an important case in South African property law, was heard in the Witwatersrand Local Division by Masipa J on May 30, 2008, with judgment handed down on September 12....
, the respondent, a private landowner, served a notice of eviction on the occupiers. They resisted, claiming protection under PIE and alleging that they were entitled to continue their occupation until the City of Johannesburg Metropolitan Municipality
City of Johannesburg Metropolitan Municipality
The City of Johannesburg Metropolitan Municipality is a metropolitan municipality that manages the local governance of Johannesburg, South Africa...
provided alternative accommodation. The City disputed this duty; the respondents argued that its policy was arbitrary and discriminatory. The issue, then, was whether private landowners are obliged provide alternative accommodation to unlawful occupiers in terms of PIE, or whether the burden should fall on the city. The court found that it should balance the rights of property owners under the Constitution with those of indigents and occupiers, and ruled that the landowners' right to equality would be infringed if the state were to burdening them with providing alternative accommodation without compensation. The obligation to provide access was the City's, and the City could not transfer that obligation to private landowners. The court ordered compensatory relief to Blue Moonlight Properties and found that the City was in breach of its constitutional duty to provide adequate housing on a progressive basis. It was obliged to make monetary payment each month until such accommodation was found.
Books
- H Mostert and A Pope (eds) The Principles of The Law of Property in South Africa 1 ed (2010).
Cases
- Blue Moonlight Properties 039 (Pty) Ltd v Occupiers of Saratoga Avenue and AnotherBlue Moonlight Properties v Occupiers of Saratoga AvenueBlue Moonlight Properties 039 Ltd v Occupiers of Saratoga Avenue and Another, an important case in South African property law, was heard in the Witwatersrand Local Division by Masipa J on May 30, 2008, with judgment handed down on September 12....
2009 (1) SA 470 (W). - Ndlovu v Ngcobo; Bekker and Another v JikaNdlovu v Ngcobo; Bekker v JikaNdlovu v Ngcobo; Bekker and Another v Jika, an important case in South African property law, was heard in the Supreme Court of Appeal on May 23, 2002, with judgment handed down on August 30.- Facts :...
2003 (1) SA 113 (SCA). - Port Elizabeth Municipality v Various OccupiersPort Elizabeth Municipality v Various OccupiersPort Elizabeth Municipality v Various Occupiers, decided by the Constitutional Court in 2005, is an important case in South African law, with significance especially for post-apartheid property rights and constitutional supremacy...
2005 (1) SA 217 (CC). - Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae)Residents of Joe Slovo Community v Thubelisha HomesResidents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others is an important case in South African property law, heard by the Constitutional Court on August 21, 2008, with judgment handed down on June 10.- Facts :Joe Slovo informal settlement, situated alongside the N2 highway in...
2010 (3) SA 454 (CC).
Statutes
- Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.