The PIE Act – Eviction of unlawful occupants
Having a slice of PIE (Act) – Eviction of unlawful occupants
It is now the third month in a row the tenant has failed to pay his rental, and it does not look like this tenant will ever be in a position to make up the outstanding rent. Can you quickly evict the tenant and replace him with a new one, or is it not quite that easy? What does our law say? In this case the PIE Act holds all the cards.
South Africa’s history is one where the majority of people have been deprived of land, and have experienced a lack of access to housing.
Section 26(3) of our Constitution provides that no person may be evicted from their homes, or have their homes demolished, without an order of court, made after considering all the relevant circumstances.
In October 2000, the Constitutional Court handed down its landmark judgment in Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC). Irene Grootboom, a housing rights activist, was made famous when the Constitutional Court found in her favour and held that the South African Government had not met its obligation to provide adequate housing for the residents of Cape Town’s Wallacedene informal settlement. The ruling provided clear legal support for housing-rights campaigns in South Africa.
The PIE Act
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) governs the eviction process in the event of a land invasion. The aim of the PIE Act is to protect both the occupiers and the landowners. All residential tenants are covered by PIE, including illegal occupants and defaulting tenants. Satisfactory grounds for eviction under the PIE Act exist when an occupier –
- did not make payment of rental/s;
- is a nuisance to the neighbours;
- causes damage to the property;
- has a fixed lease, which has not been renewed, has subsequently expired, and has been properly terminated in terms of the provisions of the lease agreement; or
- has breached provisions of an existing lease agreement.
An application under the PIE Act can only be made if the occupant of the property is considered to be in illegal occupation. In the event of a breach of any provision of the lease agreement, the provisions of the breach clause of the lease agreement should be followed.
In addition to basic requirements such as proper notice of the eviction proceedings being served on the persons concerned, three major principles have been established by the South African courts in their interpretation of the PIE Act.
The first principle is that people should generally not be evicted into a situation of homelessness. Temporary alternative accommodation should be provided to those facing homelessness by the relevant public authorities, usually municipalities.
The second principle is that people facing eviction from their homes should be given a meaningful opportunity to participate in the resolution of the eviction dispute. This can take the form of mediation (where a third party tries to assist the parties to reach an agreement), or more structured processes involving in-depth negotiations between municipal officials, private landowners, communities and the organisations supporting them.
The third general principle is that evictions, which might lead to homelessness, are never just private disputes – they always involve the state – whose duty to provide emergency housing may be triggered by an eviction. When there is a possibility of people, being left homeless, relevant organs of state (usually municipalities) must be joined as necessary parties to the legal processes for eviction.
What is a ‘home’?
To date, the Constitutional Court has not finally decided the question of what constitutes a ‘home’. The question of whether a structure is a home must be decided by a court, which properly evaluates the background and circumstances of the people who built the structure, and the reasons for its construction. The Socio-Economic Rights Institute of South Africa (SERI) made the following argument: ‘The primary factor of whether an informal settlement is a “home” must surely be what else is available to the person who constructed it. If the person who constructed the informal settlement was homeless before, and would be homeless if it was demolished, it requires little imagination to conclude that the shack itself – however modest or ill-furnished – is his or her home’.
So what can a lessor do to evict?
Firstly, it is important to seek legal advice and ensure that you have a well-drafted lease agreement. Evicting unlawful occupiers with a well-drafted lease agreement is hard enough, not to add further complications with a sloppy contract that is vague and ambiguous. Needless to say, a verbal lease agreement is never a good idea.
Secondly, and unfortunately, it is important to be patient when dealing with these matters. Sometimes it may even be beneficial to help the unlawful occupiers relocate, even though this might put you out of pocket in the short term.
Thirdly, landlords should consider requiring a deposit of at least two months rental to cover monies due by defaulting tenants.
Lastly, pre-screening of potential tenants is vitally important. A little upfront due diligence can go a far way in helping to identify bad tenants and avoiding time-consuming eviction processes at a later stage.
The eviction process
The question is how quickly can you evict a tenant and replace him/her with a new one, for example considering that every month you are suffering a loss of rental, potential damage to property and legal costs. Unfortunately, the current procedure to evict a tenant in our law is not built for speed and often appears to favour the unlawful occupier. Acquiring an eviction order can be quite time consuming and frustrating.
The initial step to take when a breach of a lease agreement occurs is for the owner to send a written notice to the tenant informing him/her of such breach and requesting that he/she rectifies/remedies the breach within a specified period. For this reason, it is of the utmost importance that a lease agreement meets all legal criteria and includes the necessary clauses providing the landlord/owner with protection.
In terms of the Consumer Protection Act 68 of 2009 (“CPA”), the landlord is required to give at least 20 business days’ notice to the tenant to rectify the breach before the agreement may be cancelled.
Should the tenant not adhere to the initial notice, the lawful steps to follow are shortly as follows:
Step 1 – Eviction notice/demand
An eviction notice or demand warns the occupant of the intended eviction and provides the occupant with 30 days to vacate the premises. The Sheriff of the Court may serve this letter, by hand at the premises or by registered post. This notice has to be served before any further steps can be taken.
Step 2 – Court application for eviction
A court application has to be brought by way of a notice of motion with a founding affidavit by the owner setting out the facts of the matter and details regarding the breach of the lease agreement. This application is served by the Sheriff on the occupant and on the relevant municipality and sets out the court date and the dates when the occupant should file their opposing papers, should they intend opposing the eviction.
Step 3 – Appearance in court for hearing of eviction application
The court will consider all relevant facts relating to the eviction application, for example the rights and needs of the elderly, children, disabled persons and households headed by women. The courts have a discretion to grant an eviction order or not and will then provide the occupant sufficient time to vacate the property. Should the occupant fail to vacate in that period, the Sheriff is authorised to remove the occupant and all belongings from the property at the costs of the occupant.
PIE makes provision for urgent applications that can dramatically shorten the time to evict an unlawful occupier. A heavy burden of proof is placed on the owner in these cases and even more so, when the vulnerable groups aforementioned are involved, whose hardship, in the event of an eviction order being granted, may outweigh the rights of the owner.
Summons and interdict
Recovering the rental owed to you and the actual eviction of the tenant are two different court procedures. The landlord will have to issue summons with an automatic rent interdict. This process can be started simultaneously with the eviction application, provided the lease has been properly cancelled.
Despite the progress made by the legislature and judiciary to ensure that no South African is left homeless, land evictions are still rampant.
Although PIE is intended to help protect vulnerable and easily exploited groups, it does in effect mean that unlawful occupiers could stay in your property for an indefinite period in accordance with what the courts deem as being just and equitable under the circumstances.
It is thus important to seek legal advice, not only to ensure you have a well-drafted lease agreement from the get-go, but also to ensure that the eviction process is lawful and carried out correctly.