Evictions made easy as PIE

VICTION procedures have become extremely complicated and cumbersome, not only for the layperson, but also for those in the legal profession.

The next few articles will be dedicated to explaining these procedures as simply as possible.

Generally, a person occupies a property in terms of a contract.

It does not automatically mean that when the contract ends, the owner of the property may remove the tenant.

Neither can the landlord put locks on the doors to deny the tenant access to the property.

It is necessary for the landlord to get an order for the tenant’s eviction, which must be executed by the sheriff.

In the past the landlord merely had to issue a summons, in which he claimed that the tenant was in unlawful occupation of the property.

If the court was satisfied that the landlord had proved the tenant was in unlawful occupation, the court granted judgment in favour of the landlord for the tenant’s eviction.

Since the enactment of The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act), the law requires the landlord to do much more than in the past.

The landlord is not only required to issue summons, but has to simultaneouly bring a PIE application.

Such an application is brought by a landlord against a person occupying their residential property.

In it the landlord claims for an order of eviction of an unlawful occupier.

This has now made the process much more complicated.

Section 1 of the PIE Act defines an unlawful occupier as: “A person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land.”

One of the reasons PIE was promulgated was to prevent unlawful or illegal occupation and to create a fair method to evict unlawful occupiers by owners of property.

It protects the rights of the registered owner of the property by recognising the owner’s rights over the property and affording them a fair and legal solution to regain control over their property.

The PIE Act also shows special consideration for the tenant and protects the tenant’s right to adequate housing.

This other pertinent consideration is derived from a provision in our constitution.

In terms of Section 26(3) of the constitution: “No one may be evicted from their home, or have their home demolished, without an order of the court made after considering all the relevant circumstances.

“No legislation may permit arbitrary evictions.”

Parliament was obliged to recognise the right to housing as a fundamental right and therefore created The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) in order to enact and enforce the above provision.

Prior to this act and the constitution, it was permissible to demolish certain homes without a court order.

Parliament and the courts found a solution, which could assist both the land owner and the tenant or occupier, and which would not infringe on any basic human rights.

This led to the current position taken by our legal system, which is that no person/s may be evicted from any land or home without a court order sanctioning the said eviction.

The PIE Act also expressly states in its preamble that special consideration should be taken towards the rights of people who are elderly, disabled, very young and to households headed by women.

The term “special consideration” does not mean the above-mentioned parties are exempt from eviction proceedings.

It does, however, mean the court would approach the matter with caution when dealing with an eviction involving one or more of these parties.

When an eviction is sought, the courts are obliged to investigate all the relevant circumstances.

This is especially necessary when the prospective evictee is in a vulnerable position.

When you think of the term “PIE”, I’m sure for most people the last thing that comes to mind is an act in our legal system, but the introduction and practise of this act is significant in enforcing our constitution and affording people the basic right to adequate housing.

Tymara Samuel is currently employed at Siven

Samuel & Associates.