The Constitution and anti-eviction law

Section 26 of the Constitution states that everyone has the right to adequate housing. This places an obligation on the state to initiate the progressive realisation of this right as well as to put measures in place, legislation to prevent arbitrary evictions. Essentially, this section is a package of positive and negative obligation to prevent homelessness.

In the 2005 Constitutional Court case Jaftha V Schoeman 2005 (2) SA 140 (CC) the court held that the indignity suffered during the apartheid era as a result of evictions from homes, forced removals and the relocation to land inadequate for housing needs had to be replaced with a system in which the government must strive to provide access to adequate housing for all.

Moreover, the state now has an obligation to refrain from permitting people to be removed from their homes arbitrarily unless the removal can be justified.

A ‘home’ inasmuch as it is not defined in eviction legislation, is understood to be property occupied as a residential dwelling permanently or for a considerable period. A home could also be rented property or property one occupies in terms of employment benefits. Informal dwellings also qualify as homes if they are occupied for residential purposes.

The Prevention of Illegal Eviction From And Unlawful Occupation Of Land Act 19 of 1998 (also known as the PIE Act) ushered in a ray of hope for the often marginalised masses of South Africans who find themselves occupying land intentionally, or when they do so not knowing that the land belongs to someone else.

The PIE Act regulates the eviction procedure in South Africa and ensures that it is done in a just and equitable manner.

What is an eviction?

An eviction is the permanent or temporary removal of persons from property against their will. The Act defines the word ‘evict’ as meaning to deprive a person of a building or structure or the land on which such building or structure is erected, against his or her will. This means that a court will apply its mind to an application for eviction and the defendant has to be given an opportunity to defend themselves against the eviction.

The right to evict vests in the owner or a person in charge of the land or property in question as well as an organ of state within whose jurisdiction the land falls. PIE forces owners of property to evict unlawful occupiers by making use of prescribed legal procedures. Therefore, this requires courts which grant the eviction order to ensure the principles of justice and equality are applied within the framework of the constitution. In Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) the court held that all evictions must be just and equitable.

In an eviction case the parties with the competing interest should preferably attempt to reach an agreement through mediation. To a certain extent this also brings about con- siderable limitation to the property ownership rights, depending on the circumstances of the given case. The owner in conjunction with the government have to ensure that the evictees are provided with suitable alternative accommodation. This is particularly aimed at protecting the elderly, children and people with disabilities from homelessness.

Section 4 to 6 of the PIE act provides for the lawful procedure used in eviction proceedings. An application for eviction can only be successful if certain requirements are met by the Applicant.

First, before initiating formal eviction proceedings, the land owner must engage with the occupiers and attempt to resolve the matter without involving the court. Where the efforts fail, the owner can then approach an attorney who will institute the eviction application.

Second, the applicant must prove that he/she is the owner or person in charge of the land or property in question, if not then that the applicant is an organ of state. The occupiers have to be properly identified and have to be shown to be unlawful occupiers. An unlawful occupier is a person who resides on another’s land or property without the owner’s tacit or explicit consent.

Third, sufficient notice must be given to the occupiers and the municipality within whose jurisdiction the land or property falls. They are generally given six months to find alternative accommodation. If the municipality has been joined to the proceedings, then that six months period is applicable to the municipality.

Fourth, the applicant must show that he/she has the right to evict the occupiers and that the intended eviction is just and equitable, balancing all the parties’ interests.

In opposing the application, the occupiers can then approach an attorney to assist them with their opposition application. In their papers, the occupiers must show that they are not unlawful occupiers of the land or property in question. They will also have to show that evicting them from the said property or land would be unjust – particularly where they do not have alternative accommodation.

For more details, please contact The Assumption Development Centre (Konongendi) or The Rhodes University Law Clinic, 41 New Street, Grahamstown, Telephone 046 603 7656. Fax: 046 603 7665.

• Rights with RULAC is a monthly column.