Out-Law Analysis 3 min. read

The strict parameters to securing eviction orders in South Africa

Recent rulings have highlighted the strict parameters land owners must operate within to secure the eviction of those that occupy their property unlawfully in South Africa.

In South Africa, the contentious issue of land occupation is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act), which seeks to regulate the eviction process and establish rights and responsibilities for both landowners and occupants.

Recent legal cases and interpretations shed light on the complexities within this legal framework, raising questions about whether the law favours occupants over owners or if it is the way the law stands that presents challenges to owners seeking to evict their tenants.

Urgent relief

In the case of White Wall Trading (CC) and Another v Biyela and Others ruled on by the South Gauteng High Court in Johannesburg last month, the court considered an urgent application brought under the PIE Act.

The applicants, who were the owners of the relevant properties at the heart of the dispute, argued for the eviction of occupiers of their properties, who had occupied the properties without their consent. The applicants’ case for urgent relief relied on the fact there had been fires within Johannesburg’s central business district and the fact that they lacked access to their own properties and that there was a lack of maintenance of the buildings. This, they claimed, meant the conditions at the buildings were dangerous and posed a risk to the lives of occupiers. However, the occupants contested these claims, presenting an architectural engineer’s report highlighting safety deficiencies and recommending improvements.

The court dismissed the application emphasising the failure of the applications to prove the need for urgency – with the occupiers having been in occupation of the building since 2010 – and noted unresolved previous applications. In its ruling, the court held that the hardship to the owners of the properties did not exceed the hardship to the occupiers if the court were not to grant an order for eviction. The ruling underscores the necessity of meeting procedural requirements and demonstrating urgency as mandated by the law.

Though the case may suggest the courts’ leniency towards illegal occupants, deeper scrutiny reveals broader issues surrounding the application of law. The same can be said of the case of Graceful Blessing (Pty) Ltd v Zander Burger Properties (Pty) Ltd, which is a clear case of breach of contract.

That case revolved around the cancellation of a lease agreement by a property owner, which the commercial tenant objected to on the basis that it was not properly done. After cancelling the lease, the owner changed the locks of the premises. The tenant sought relief from the courts to have its possession restored.

The court, in arriving at its decision, had to consider whether the owner was entitled to cancel the lease and had the right to change the locks. The court held that a commercial lease agreement between commercial parties which allows the lessor to eject the lessee by means other than a court process goes against public policy and is therefore unconstitutional. While there is the right to contract, it must be balanced with the rights contained in South Africa’s constitution and may not run contrary to the public policy.

Enforcement and protection

While legislation and case law govern how the rights of owners and occupants are to be balanced, challenges persist in enforcement and protection. The case of Grobler v Phillips and Others exemplifies how adherence to due process and legal process can safeguard the rights of the owners.

In this case, the Constitutional Court of South Africa emphasised that an unlawful occupier does not have the right to refuse eviction based on personal preferences or a desire to remain in the property unlawfully. The court’s decision balanced property rights with social justice, considering individual circumstances while upholding legal principles. The ruling highlighted that if due process is followed and the rights contained in South Africa’s constitution are adhered to, and the law of general application is observed, the owner will be protected. 

Implications for land owners

There is a delicate balancing act between the commercial rights of land owners and the human rights of occupants. This is reflected in South African law. While legislation such as the PIE Act provides a framework for regulating eviction processes, challenges arise in application and interpretation. This, coupled with the crippling abilities of local municipalities to enforce their own bylaws, means that landowners will have to comply strictly with the letter of the law if wishing to secure a successful eviction order.  

Co-written by Boipelo Moamogoe of Pinsent Masons

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