Prevention of Illegal Evictions from and Unlawful Occupation of Land Act (PIE)
PIE sets out procedural and substantive requirements that must be satisfied before a court may grant an order of eviction. The procedural protection that PIE affords occupants is that the court (Sheriff) must, 14 days before the matter is due to be heard, serve written notice of the proceedings on the tenant and on the local municipality.
WORMALD NO & OTHERS V KAMBULE 2006 (3) 562 (SCA)
Procedure according to Section 4 of PIE, a land owner seeking eviction must prove:
- Ownership of the land in question;
- That the person occupying the land does so unlawfully;
- That the procedural provisions of PIE have been complied with; and
- That, on consideration of all the relevant circumstances, an eviction order would be deemed just and equitable.
In terms of PIE, a court must grant an order of eviction if the lease has been lawfully terminated and it is of the view that it would be just and equitable to grant the eviction.
Both the High Court and the Magistrates’ Court have jurisdiction to grant evictions under the provisions of PIE. In this instance it is important to note that the value of the property would have no impact on the jurisdiction, however, the value of the occupation would influence jurisdiction. It is not required from the applicant to pre-determine the value of the occupation since this would be something which is to be decided by the Court, on an interlocutory application should the opposing party raise this as a defence. Should a matter be initiated in the Magistrates’ Court and, on interlocutory application, it is decided that the value of the occupation exceeds the jurisdiction of the Magistrates’ Court, the matter will at that stage be transferred to the High Court.
It is important to note that neither the value of the monthly rental nor the value of the total arrears at the time of initiating eviction proceedings would have any impact on the jurisdiction of the Court. This is due to the fact that the agreement has already been cancelled and therefore no further right to occupy exists. Should an interlocutory application be brought to determine the value of the occupation, the court may take into account the value of the monthly rental of the property.
Locus standi under PIE
Locus standi refers to a person’s right to approach a court for relief or to be heard by the court on a specific matter.
The owner of the land
The registered owner of the immovable property will always have the right to initiate eviction proceedings against an unlawful occupier of his/her property. This right can also vest on the executor or the curator bonis of the owner.
Person in charge of land
This person 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”.
This can be a person acting as an agent on behalf of the owner. An agent in this instance refers to a person who holds a power of attorney from the owner and does not refer to an estate agent who rents the property out on behalf of the owner. The person in charge can also be a tenant who sub-leases, and in an instance like this, the tenant would have the right to initiate eviction proceedings against the sub-tenant.
If any of the above persons are cited as the applicant, it is advisable that the owner should be cited as well, to avoid any doubt regarding locus standi.
Locus standi becomes a contentious issue when it comes to property sold in execution by the Sheriff or on an insolvency sale since the majority of these sales give the purchaser occupational right “on the fall of the hammer”. This appears to be sufficient to conclude that the purchaser is the person in charge of land, but until such a time that the property is transferred to the purchaser, the purchaser would not have locus standi. This position was confirmed in RED STRIPE TRADING 68 CC V MAHLOMOLA AND ANOTHER (2011/06)  ZAGPHC 39.
An organ of state
According to Section 6, an organ of state would have locus standi in any eviction proceedings within their jurisdictional area MANGAUNG LOCAL MUNICIPALICTY V MASHALE AND ANOTHER 2006 (1) sa 369 (O).
SECTION 26 OF THE CONSTITUTION AND MUNICIPAL OBLIGATIONS
CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY V BLUE MOONLIGHT PROPERTIES 39 (PTY) LTD AND ANOTHER  ZACC 33
In this case the court decided that evictions of unlawful occupants could take place if the eviction was just and equitable. The court took a number of factors into consideration:
- Whether or not the occupants lived on the land for a long period of time;
- Whether or not the occupation was once lawful;
- Whether the applicant was unaware of their presence when it purchased the property;
- Whether the applicant was at risk of being homeless if the eviction was delayed.
The court also considered whether or not there is an obligation on the city to provide temporary emergency accommodation to the occupiers. The court rejected the City’s argument that the National Housing Code does not oblige it to self-fund the provision of temporary emergency accommodation.
The Court looked at the reasonableness of the City’s policy to give alternative accommodation to occupants in hazardous buildings, but to not provide housing to people evicted out of a privately owned building and who would otherwise be homeless. In this regard the court deemed the City’s policy unreasonable and the Court was not persuaded that the City did not have sufficient funding.
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER V MODDERKLIP BOERDERY (PTY) LTD; TD (CCT20/04)  ZACC 5; 2005 (5) SA 3 (CC; 2005 (8) BCLR 786 (CC)
It was decided in this case that the state does not have a duty to step in and assist the landowner in protecting the property against unlawful occupation, especially where the sheer magnitude of the occupation or the circumstances of the occupiers would make the possibility of a successful eviction worthless.
(Extract from The Landlord’s Guide)
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