By Mohammed Moolla
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) came into operation on 5 June 1998.
PIE was promulgated to provide for the prohibition of unlawful occupation and to put in place fair procedures for the eviction of unlawful occupiers who occupy land without permission of the owner or person in charge of such land.
PIE also provides that no one may have their home demolished or be evicted without a court order after considering all the relevant circumstances.
PIE applies to all evictions from buildings or structures utilised for dwelling purposes (see Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA)).
Structures that do not form the function of a dwelling do not fall under PIE (see Shoprite Checkers (Pty) Ltd v Jardim 2004 (1) SA 502 (O) at 506E – 507E and Kanescho Realtors (Pty) Ltd v Maphumulo and Others and three similar cases 2006 (5) SA 92 (D) at 94F).
If commercial property is utilised for dwelling purposes, PIE applies, however, holiday homes do not fall under PIE (see Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA) at 328B – C).
PIE also requires special consideration be given to –
As in our civil law there are three important criteria in any application, namely –
Locus standi
Locus standi is the right to bring the application. In civil application courts we call the parties applicants and respondents. I am referring to the applicant.
Under the definitions at s 1 of PIE, ‘owner’ means ‘the registered owner of land, including an organ of state’.
At common law the rei vindicatio is the action with which the owner effects eviction. The owner merely has to allege and prove his ownership and the fact that the property is occupied by another, in order to succeed with an eviction order. The onus is then on the respondent to allege and prove a right to stay in possession.
The owner need not, in addition to his ownership allege or prove that the occupiers occupation is unlawful (see Graham v Ridley 1931 TPD 476 and Chetty v Naidoo 1974 (3) SA 13(A)).
Ownership in the case of the rei vindicatio is proved by attaching a copy of the title deed or deeds office search.
PIE defines ‘person in charge’ 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.’
Section 4(1) of PIE states ‘an owner or person in charge of land’ may apply for eviction of an unlawful occupier.
PIE defines the ‘unlawful occupier’ as ‘a person who occupies land without the express or tacit consent of the owner or person in charge’.
The following persons have locus standi –
The lessor need not be the owner of the property let and applicants in common law are, therefore, not limited to the owner.
The person, other than the owner must prove locus standi.
Jurisdiction
Section 1 under PIE’s definitions refers to ‘court’ and states: ‘Any division of the High Court or the magistrate’s court in whose area of jurisdiction the land in question is situated’.
The court must ascertain that the property is residential property and whether the structure concerned performs the function of a dwelling.
The High Court and the magistrate’s court have jurisdiction and the amount of the rent and/or the value of the occupation is irrelevant (see s 4(1) of PIE and also Nduna v Absa Bank Ltd and Others 2004 (4) SA 453 (C) at 457C).
The word ‘proceedings’ in s 4(1) of PIE includes proceedings by way of application. Applications may therefore be brought in the magistrate’s court without the issuing of a summons and a final order may be granted on application.
Cause of action
The procedural requirement for PIE laid down in s 4(2), which provides that at least 14 days before the hearing of the proceedings contemplated in subs (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction. This is commonly known as an ex parte application (see Cape Killarney Property Investment (Pty) Ltd v Mahamba and Others [2001] 4 All SA 479 (SCA)).
Eviction proceedings cannot commence unless the lease has been cancelled. Study the lease to determine the procedure. It may be necessary to deliver a notice to place the tenant in mora.
A notice of cancellation must be clear and unequivocal and only takes effect from the time it is communicated to the relevant party (see Morkel v Thornhill (unreported case no A105/2009, 4-3-2010) (Hancke J)).
If the lease is for a fixed term, determine if the Consumer Protection Act 68 of 2008 (the CPA) applies to the lease. Section 14 of PIE limits the landlords’ right of cancellation to the giving of 20 business days written notice of a breach and cancellation may only follow on failure by the tenant to rectify the breach.
If the CPA applies bear in mind that if the lease has expired, it continues automatically on a month to month basis unless specifically cancelled.
Why must the municipality be cited?
Jafta J in the matter of Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat Pietermaritzburg v Daisy Dear Investments (Pty) Ltd and Others [2009] 4 All SA 410 (SCA) at p 411 held that the Municipality is and remains a party with an interest in the outcome of proceedings and therefore needs to joined as party to the proceedings.
The court will be called on before service of the notice to consider the contents of the notice and the suggested manner of service and to endorse his or her approval or disapproval thereof on the application.
Once the ex parte order has been granted the s 4(2) notice may be served on the respondent(s) and the municipality. The service must take place in accordance with the directions of the court and at least 14 days before the hearing takes place. The 14 day period refers to ordinary days and not court days.
What to look for in the s 4(2) notice?
The notice must comply with the requirements of s 4(5), which are set out below:
‘(a) state that proceedings are being instituted in terms of subs (1) for an order for the eviction of the unlawful occupier;
(b) indicate on what date and at what time the court will hear the proceedings;
(c) set out the grounds for the proposed eviction; and
(d) 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 notice may also advise the recipients that they should inform the court of facts relevant to the impact which an eviction would have on the rights and needs of the occupiers, particularly when the occupiers are elderly persons, children, disabled persons and households headed by women (see s 4(6)). There is no authority for this but it is advisable.
Procedure after order for service is granted by magistrate
The applicant or their attorneys will ensure that the ex parte application together with court’s order for service and notice of motion and affidavit with annexures is served personally by the deputy Sheriff on the respondent(s). Service on the local municipality may also be effected by hand.
All the documents are then filed at court.
The applicant is required to place the matter on the roll for hearing by giving the clerk of the court notice of set down five days before the day on which the application is to be heard.
Opposing affidavits and replying affidavits may be exchanged between the parties and served and filed.
Return date
On the day of the hearing of the eviction application, the court will hear evidence on the equity provisions as set out in s 4(6) with regard to elderly people, children, and households headed by women. The court must then in the light of all the facts placed before it make an order as to what it is just and equitable to grant the order for eviction by taking into account the provisions of subss 4(6), 4(7), 4(8) and 4(9) of PIE.
Settlement
In the event of the matter being settled an order may be taken in the form of s 4(8). Refer to the form attached as a precedent to be used, which makes the specific provision that the parties are aware that the order is not appealable (see Fourie NO v Merchant Investors (Pty) Ltd and Another 2004 (3) SA 422 (C) 424 H – J and s 83 Magistrates’ Courts Act 32 of 1944).
Urgent applications
Only an urgent interim application for eviction may be granted under the PIE Act. Urgent applications for eviction may not be granted. This is governed by s 5(1) of PIE.
The following must be satisfied for such an order of eviction to be granted –
‘(a) … real and imminent danger of substantial injury or damage to any person or property … ;
(b) the likely hardship to the owner or any affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier; and
(c) there is no other effective remedy available.’
General matters of interest
In all cases where the right of occupation has not been terminated such as in case of a lease, a reasonable notice to vacate should be given. A period of 30 days is usually regarded as reasonable unless special circumstances apply.
Mandament van spolie is available to unlawful occupiers that are forcefully removed by an owner without a court order (see Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others 2007 (6) SA 511 (SCA) at 519 – 522). The court ordered replacement of destroyed structures. In the case of Schubart Park Residents’ Association and Others v City of Tshwane Metropolitan Municipality and Another 2013 (1) SA 323 (CC) at para 30 the Constitutional Court confirmed that the mandament ‘… should not serve as the judicial foundation for permanent dispossession …’.
Mohammed Moolla BProc (UKZN) is a senior magistrate at the Wynberg Magistrate’s Court in Cape Town.
This article was first published in De Rebus in 2016 (Oct) DR 24.
