Land Amendment Bill 2005: Prevention of Eviction
5 May 2005
PIE has been a matter of concern for the social housing sector for the last few years and clarity has only recently been obtained as to what the implications of both the Act and its Amendments might be for the Sector – both SHIs and tenants and if it is the death knell of the sector or a piece of legislation that can legitimately be disregarded.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act [PIE], was promulgated in 1998 in response to the 1958 Prevention of Illegal Squatting Act [PISA] 52 of 1958. Essentially PISA made ‘squatting’ a criminal offence and allowed landowners to go through a truncated eviction procedure. It gave the power and authority and left the informal dwellers with very little legal cover. PIE attempts to protect all parties in these situations– thus landowners should still be able to control their land but informal dwellers as all South Africans, should not “be evicted from their homes without an order of court made after considering all the relevant circumstances (South African Constitution, Section 26 [3]. It further tries to protect the vulnerable and marginalised by forcing courts to consider the situations of those who are being evicted. Thus “the rights and needs of the elderly, children, disabled persons and households headed by women” are considered by the court when deciding on an eviction. Furthermore in cases where occupiers have been dwelling in a particular space for more then six months the court also has to think about where these individuals/households are going to go and if provision has been made for them. Either through an organ of state, municipality or private owner
The provisions listed in the legislation were felt by many to be far too cumbersome, difficult to manage, and in some cases almost impossible to affect. There was also an associated fiscal burden on behalf of the landowners; either by beginning eviction proceedings or through having to find alternative accommodation for those they had evicted. The majority felt that the interests of the informal dwellers were being protected while the landowners were being penalised best and openly t a rgeted at worst. The Constitutional issue of having the right to do with one’s property as one wished was also clearly being contravened.
It looked like the situation would worsen in 2003 with two Supreme Court of Appeal decisions; Ndlovu versus Bekker and Bekker and Another versus Jika. In these two cases the Court extended the definition of illegal occupiers to include defaulting tenants and mortgagees who are in unlawful occupation of property. Thus landlords and banks would have greater difficulty in evicting their tenants for non-payment and bank foreclosures would have a far more difficult time evicting mortgagees. Not only would the process be more difficult and the expense a good deal higher but vulnerability and alternative accommodation would also be a consideration that the banks, lending institutions, corporate and social landlords would have to consider. In a sense it threatened the viability of the rental sector in South Africa. The Minister of Housing responded to both the outcry and the call for common sense by publishing the‘Draft Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill’ on the 27th August 2003. The Draft Amendment was intended to reassure the rental sector by narrowing the definition of who the Act applied to and what exactly constituted an “unlawful occupier”. According to this amendment defaulting tenants and mortgagees who could not meet their obligations would not be protected by the PIE Act. On the publishing of the Amendment the entire sector breathed a sigh of relief.
Subsequently the 2003 Act has been expanded upon and was put before the National Assembly on the 15th March 2005. The Amendment has some new features that are not in the 1998 Act or the 2003 draft Amendment. There are three main areas of difference between the Act and the Amendment namely; an extended definition of land , which now includes buildings, structures or land; draws a distinction between those who have been occupying land for more than six months and those occupying for lease and the legal considerations it has for each; the last point is the one that affects SHIs most directly and that is the debate over the inclusion of tenants and mortgagees who default.
According to the new amendment section 2, which now substitutes section 2 of the Act 19 of 1998 reads:
[1] This Act applies in respect of all land throughout the Republic
[2] This Act does not apply to a person who occupied land –
a. as a tenant
b. in terms of any other agreement; or
c. as the owner of land and who continues to occupy the land in question despite the fact that the tenancy a g reement or agreement has been validly terminated or the person is no longer the owner of the land.
[3] Notwithstanding subsection [2], a court may order that this Act applies if the court is satisfied that any act or omission by the owner or person in charge of land was calculated to avoid the application of this Act.
Thus the Act does not and cannot apply to those who default on either rents or mortgages unless the landlord, bank, owner etc has not abided by the law in terms of contract termination or eviction legislation or regulation at which point some of the relevant points of the Act come into affect. The implication of the social housing are huge in terms of the fact that evictions, as long as they are properly undertaken, are legal. Since evictions or the knowledge that evictions can be used as a last resort are one of the fundamental insurances that an SHI has in terms of managing its tenants and stock. The Amendment also acts an indication to the rental sector that their rights and concerns are a concern of government and are not being neglected. The sector can thus breathe a sigh of relief safe in the knowledge that not only is their livelihood protected and enshrined in law but so is their future.
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