Unlawful Occupants and Just Evictions

UNLAWFUL OCCUPANTS OF LAND JUST AND EQUITABLE EVICTION

 

  1. INTRODUCTION REMARKS AND BACKGROUND

The scenario where an occupant of land refuses to vacate the property is a precarious one for any Landowner.

The situation becomes all the more dire when these occupants are not paying the Landowner any remuneration in lieu of the occupation of the land in question. Naturally, the aggrieved Landowner will seek recourse so as to capitalise on their investment.

The purpose of this article is to explore certain factors considered by the courts, in light of recent case law, when granting, or dismissing, an eviction order.

II.       THE PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT 19 OF 1998

The cited legislation, known simply as the PIE Act, ensures that eviction processes follow the correct, if sometimes timeous, process of lawfully evicting an illegal occupant of land.

Of interest, especially to this article, is Section 4(7) of the PIE Act which states, among others, that if an unlawful occupier has occupied the land in question for more than six months at the time when the eviction proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it would be just and equitable to do so, after considering all the relevant circumstances.

The ‘relevant circumstances’ alluded to in Section 4(7) include the age of the occupiers, their needs and rights, whether children or disabled persons reside in the premises and whether a woman is the head of the household.

The corollary of the cited Section is that a court will dismiss an Application for Eviction if the circumstances surrounding the eviction are not just and equitable, after considering the mentioned factors.

 

III.      RESNICK V GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER 2014 (2) SA 337 (WCC)

The Resnick case, heard in the Western Cape High Court before a full bench, provided the legal practitioner with some insight into how the courts apply Section 4(7) of the PIE Act.

In the mentioned case, Resnick was a single mother living with two of her children on land owned by the government. Although the government initially leased the land to Resnick, she failed to keep up with payments and was duly evicted from the property on the authority of a Magistrate’s Court.

Resnick thereafter appealed to the High Court for an order to set aside the eviction.

  1. THE FINDING OF THE COURT

The High Court dismissed the Application of Resnick, finding that the eviction was lawful.

The Court found that a just and equitable order, as referred to in Section 4(7) of the PIE Act, also meant that the occupants had to be given a significant time to search for alternate accommodation.

The court furthermore found that, in contemplating what would be a just and equitable order, that this principle did not trump illegality, as Resnick was illegally occupying the land. A finding contrary to this one would effectively mean that Resnick could remain on the property indefinitely without paying any form of rent to the government.

  1. OPINION AND CONCLUSION

The High Court, acting as a court of Appeal in this instance, was correct, in our opinion, in its ruling.

Unlawful occupants do indeed enjoy the protection of the PIE Act to a certain extent. However, finding in favour of Resnick would have lead to mass confusion and undesirable results for Landowners.

It is interesting to note that the High Court, however, did consider the financial position of Resnick in not granting an order as to costs when dismissing Resnick’s Application. The empathy of the court is evident in this order.

The eviction process may be an arduous one yet, as can be seen from the Resnick case, the courts still do come to the aid of aggrieved Landowners.

It is, however, imperative that eviction proceedings be initiated as soon as possible against unlawful occupants of land and that the Landowner in question seeks the assistance of an attorney when doing so.     

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