In South Africa, the term “home” carries deep constitutional significance. More than a roof over one’s head, it signifies security, dignity, and a sense of belonging. This meaning is entrenched in section 26 of the Constitution, which guarantees the right to adequate housing and prohibits eviction without a court order.
To give effect to this right, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) was enacted. It governs evictions from residential property and imposes strict requirements on property owners who seek to remove unlawful occupiers. While protecting owners’ rights to use their property, the PIE Act emphasises that no one should be rendered homeless without just cause and due process.
The Scope of the PIE Act: When and Where It Applies
The PIE Act applies only to residential properties, including informal dwellings like shacks, huts, and tents, and not to commercial spaces unless these have been used as homes. South African courts have consistently reaffirmed that the PIE Act applies to any space that constitutes a “home,” defined as a place of regular and secure residence with some degree of permanence.
However, not all temporary accommodations qualify. In the 2024 landmark case Stay at South Point Properties (Pty) Ltd v Mqulwana and Others, the Supreme Court of Appeal held that student residences, though called “homes away from home”, do not fall under the scope of the PIE Act.
These are temporary, purpose-specific lodgings that do not displace the student’s primary home, and thus, owners may evict students without following PIE procedures using the common law remedy of rei vindicatio.
Who Has the Right to Evict?
Only certain individuals or entities can initiate eviction proceedings under the PIE Act:
- Registered property owners
- Lawful tenants or lessees with control over the premises
- Executors of deceased estates that include residential property
- Lawful agents acting on behalf of property owners
Who Can Be Evicted?
The PIE Act provides protection even for unlawful occupiers, including:
- Tenants whose leases have expired or been terminated
- Occupants who fail to pay rent or breach lease conditions
- Squatters or informal settlers occupying land without permission
- Occupants of sold or repossessed homes who no longer have legal tenure
However, this protection is not absolute and must be balanced with the rights of owners through court adjudication.
The Eviction Process Under the PIE Act
Notice of Breach or Demand to Vacate
Before initiating court action, a landlord must notify the tenant of any lease violation and give them an opportunity to remedy it. If the breach continues, a notice of termination follows, warning the occupant that their continued stay is now unlawful.
Application to Court
The owner must apply to a Magistrate’s or High Court for an eviction order. This includes:
- A notice of motion and supporting affidavit
- Evidence of lease agreements, breaches, and previous notices
- Service of papers on both the unlawful occupier and the relevant municipality
A Section 4(2) notice must then be authorized and personally served on the occupant at least 14 days before the hearing.
The Court Hearing
The court assesses whether eviction is “just and equitable” by considering:
- The length of occupation
- The age, health, or disability of occupants
- The presence of children or vulnerable individuals
- Availability of alternative accommodation
- The conduct of both parties
Judgments such as Grobler v Phillips (2021) have shown that courts will refuse eviction even where ownership is clear if it would cause undue hardship, especially for elderly or disabled occupants.
Eviction Order and Compliance
If granted, the court specifies a vacate date, usually allowing occupants up to 30 days. If they fail to vacate, the Sheriff of the Court is authorized to remove them, by force if necessary.
Enforcement
The Sheriff may:
- Evict the unlawful occupants
- Remove belongings
- Call upon police assistance
- Demolish structures, if necessary
Vulnerability and Social Justice: Special Considerations
Courts are mandated to give extra weight to the plight of vulnerable groups such as:
- The elderly
- Children
- People with disabilities
- Women-headed households
The presence of these groups does not make eviction impossible, but it does raise the bar of justification significantly. Courts may delay or modify eviction orders to ensure dignified treatment and prevent homelessness.
When the PIE Act Does Not Apply
As seen in the South Point student accommodation case, the PIE Act does not apply when:
- The property is not used as a primary residence
- The occupation is temporary, purpose-specific, or seasonal
- The occupant cannot show that eviction would result in homelessness
Likewise, commercial properties used solely for business, or holiday homes, fall outside PIE’s scope.
Consequences of Illegal Eviction
Property owners who attempt “DIY evictions”, such as changing locks, cutting off water or electricity, or physically removing occupants, face criminal charges, fines, and civil liability. Evictions must be sanctioned by a court and executed through legal channels.
Protecting Your Rights: For Both Owners and Occupants
For Property Owners:
- Always follow PIE procedures
- Retain legal counsel from the start
- Avoid extrajudicial or forceful eviction attempts
For Occupants:
- Respond promptly to notices
- Seek legal aid or advice
- Present your personal circumstances to the court
- Explore mediation or negotiated exits where possible
Conclusion: Balancing Ownership with Humanity
Eviction law in South Africa is not simply about property rights; it is about balancing law with compassion, and ownership with justice. The PIE Act, while seemingly weighted in favour of unlawful occupiers, ultimately reflects South Africa’s constitutional commitment to dignity and fairness for all who call a place home.
For landlords, eviction is a powerful but heavily regulated tool. For tenants and occupiers, legal protection exists, but it is essential to understand and assert these rights appropriately.
In all cases, legal guidance and an empathetic approach are the best path to resolution. For further assistance, consult an attorney at SchoemanLaw.
Recent Comments