Evicting Unlawful Occupiers Under the PIE Act: What Property Owners Must Know

Evicting an unlawful occupier from residential property is one of the most procedurally demanding exercises in South African law. Section 26(3) of the Constitution provides that no one may be evicted from their home without an order of court made after considering all the relevant circumstances, and the statute that gives effect to this protection is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, universally known as the PIE Act. For property owners the Act adds time, formality and cost, but properly understood it also provides a clear and workable route to a lawful eviction order. In this article we explain when the PIE Act applies, what owners may and may not do, the procedure the Act prescribes, and what courts mean when they insist that an eviction must be just and equitable.

When does the PIE Act apply?

The PIE Act applies to unlawful occupiers: in broad terms, people who occupy land or a home without the express or tacit consent of the owner or the person in charge, and without any other right in law to occupy it. Importantly, this is not limited to squatters or land invaders. In Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) the Supreme Court of Appeal held that the Act also applies to so-called holding over: the former tenant whose lease has been lawfully cancelled but who refuses to vacate, and the former owner who remains in occupation after the property has been sold in execution. The practical consequence is that virtually every residential eviction in South Africa must follow the PIE Act procedure.

The Act does not govern commercial premises, where evictions still proceed under ordinary common-law principles, and it does not apply to occupiers of rural land who enjoy protection under the Extension of Security of Tenure Act 62 of 1997, which has its own regime for farm dwellers.

What owners may never do

The starting point is blunt: no person may be evicted from their home without a court order, and carrying out an eviction without one is a criminal offence under the PIE Act. Self-help in all its forms is unlawful, no matter how badly the occupier has behaved. That includes:

• changing the locks or barring access while the occupier is out;
• removing doors, windows or roof sheeting to make the property uninhabitable;
• disconnecting the water or electricity supply to force the occupier to leave;
• intimidating occupiers, physically removing them, or paying others to do so.

An occupier dispossessed in any of these ways can approach a court urgently for a spoliation order restoring occupation, usually with costs against the owner, who may also face a damages claim and criminal prosecution. Self-help almost always prolongs an eviction rather than shortening it.

The eviction procedure, step by step

1. Terminate the right of occupation. Where there is a lease, it must first be validly cancelled, typically after written notice of the breach and a proper opportunity to remedy it. Until the underlying right of occupation has ended, the occupier is not an unlawful occupier and the PIE Act procedure cannot yet begin.
2. Launch eviction proceedings. An application is brought in the magistrates’ court or High Court with jurisdiction over the property, setting out the owner’s title, the basis on which occupation became unlawful, and what is known of the occupiers’ circumstances.
3. Serve the section 4(2) notice. In addition to ordinary service of the court papers, the court must authorise a written notice of the hearing, which must be served on the unlawful occupiers and on the municipality at least 14 days before the hearing. The notice must set out the grounds for the eviction and inform the occupiers of the hearing date, their right to appear and defend the matter, and their right to apply for legal aid.
4. The hearing. The court considers all the relevant circumstances, including the personal circumstances of the occupiers, how long they have been in occupation, and any risk of homelessness.
5. The order. If the court is satisfied that an eviction is just and equitable, it fixes a just and equitable date by which the occupiers must vacate, and a further date on which the sheriff may carry out the eviction if they have not.

The just and equitable requirement

An eviction order under the PIE Act is never automatic. Where the occupiers have been in occupation for less than six months, the court may only grant the order 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. Where occupation has lasted longer than six months, the court must in addition consider whether land has been made available, or can reasonably be made available, by the municipality or another organ of state for the relocation of the occupiers.

In Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) the Constitutional Court made it clear that this enquiry is no formality. The court must engage actively with the specific circumstances of the people affected, and in appropriate cases it may require the parties to attempt mediation before an eviction is granted.

For private owners, the leading authority is City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC). The Constitutional Court confirmed that a private owner is not expected to house unlawful occupiers indefinitely: where an eviction would leave occupiers homeless, the municipality must provide them with temporary emergency accommodation, and the Court granted the eviction while ordering the City to accommodate the occupiers. The practical lesson: where homelessness is a realistic prospect, join the municipality from the outset, or expect the matter to be delayed for a municipal housing report.

Urgent evictions

The Act also makes provision for urgent eviction proceedings where there is a real and imminent danger of substantial injury or damage to persons or property if the occupier is not removed immediately. Relief of this kind is interim in nature and is granted sparingly; the ordinary eviction procedure must still follow in due course.

Practical guidance for property owners

• Keep your paperwork in order: the lease, proof of breach, letters of demand and a valid cancellation form the foundation of any eviction.
• Move early. Eviction proceedings realistically take months, and delay only increases arrears and entrenches the occupation.
• Deal candidly with the occupiers’ circumstances in your papers. Courts expect owners to place what they know before the court.
• Join the municipality whenever homelessness is a realistic prospect.
• Never resort to self-help, whatever the provocation.

Because so much turns on procedure, specialist property litigation advice at the outset will usually save both time and money.

Conclusion

The PIE Act does not prevent evictions; it regulates them. Owners who cancel the underlying right of occupation properly, follow the prescribed procedure carefully, and place full and honest facts before the court can and do obtain eviction orders. If you are dealing with an unlawful occupier, or you are an occupier facing eviction proceedings, please contact us for advice on your specific circumstances.