Title: The Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill
1- The Prevention of Illegal Eviction from and
Unlawful Occupation of Land Amendment Bill - Presentation to Portfolio Committee on Housing
- Tuesday 3 February 2004
2Background
- Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act, 1998 (Act No. 19 of
1998), hereinafter called PIE, came into
operation on 5 June 1998. - Objectives of PIE
- To prohibit receipt or solicitation of
consideration in respect of unlawful occupation
of land
3Background (Continued)
- To set out processes for the eviction of unlawful
occupiers by owners of land - To provide for evictions on an urgent basis
- To set out process for evictions at instance of
an organ of State - To provide for a mediation process in the event
of a dispute
4Background (Continued)
- To provide for offences and private prosecutions
- To provide for jurisdiction of the Magistrates
Court in eviction proceedings - To provide for the transfer of powers, duties or
functions - To repeal and amend certain laws
- To provide for the making of Regulations.
5Problems arising from the Interpretation and
Implementation of PIE
- Definition of land needs to be widened to
include a portion of land and buildings and
structures on land as well as to make specific
reference to residential and commercial land. - Nothing in Act which prohibits a person from
arranging or organising a person to occupy land
without the owners consent.
6Interpretation and Implementation of PIE
(Continued)
- The prohibition in PIE against receiving money
for arranging or organising the unlawful
occupation of land is too restrictive and needs
to be widened to include all illegal proceeds
related to unlawful occupation - The majority decision of the Supreme Court of
Appeal cases of Bekker and Ndlovu handed down on
30 August 2002 which brought tenants and
mortgagors under the Jurisdiction of PIE
7Judgement in Ndlovu/Bekker Cases
- By a majority of 3 to 2 judges, the Supreme Court
of Appeal held - That tenants who remain in the premises after a
lease has been lawfully terminated are in the
same position as unlawful occupiers of land and
that the procedures in PIE must be followed when
evicting them. - That mortgagors who default on their mortgage
payments and stay in the premises after the Bank
has foreclosed are also in the same position as
unlawful occupiers of land and that the
procedures in PIE must be followed when evicting
them.
8Ndlovu/Bekker (Continued)
- When the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Bill was debated in
Parliament it was not the intention of the
legislators to extend the provisions of the Bill
to include tenants and mortgagors.
9Proposed Amendments to Act
- In view of the Ndlovu/Bekker judgement the Act
needs to be amended to exclude tenants and
mortgagors from the operation of the Act,
because - The judgement has resulted in landlords and
developers withdrawing from the rental housing
market because of the added difficulties in
evicting tenants when the lease has been lawfully
terminated. - It can be argued that the written agreements
between landlords and tenants and mortgagors and
mortgagees (Banks) are violated if landlords or
banks have to comply with the more onerous
provisions of PIE when evicting defaulting
tenants and mortgagors, respectively.
10Proposed Amendments (Continued)
- The proposed amendments to exclude tenants and
mortgagors from the provisions of the Act will - Eviction should occur after an order of court has
been issued.
11Proposed Amendments (Continued)
- Add certainty to the manner in which categories
of unlawful occupiers are to be evicted
unlawful occupiers of land will be evicted under
PIE tenants who hold over will be evicted under
the Rental Housing Act and mortgagors who hold
over will be evicted in terms of the mortgage
agreement. - Generally restore confidence to the housing and
banking sectors.
12Summary of Proposed Draft Amendment Bill
- Definitions of land, Minister, and unlawful
occupier have been amended. - New definitions of occupy and possession have
been inserted. - The application of the Act has been amended to
specifically exclude any proceedings - For the eviction of any tenant or former tenant
or any person occupying land through the title of
such tenant or former tenant
13Summary of Proposed Draft Amendment Bill
(Continued)
- By a mortgagee for the foreclosure of the bond
and the eviction of a mortgagor or of any person
holding title through the mortgagor - To any land acquired by way of a sale in
execution or judicial sale of property. - Prohibition of arranging or organising or
permitting anyone to occupy land without the
consent of the owner or person in charge of the
land.
14Summary of Proposed Draft Amendment Bill
(Continued)
- Prohibition of receiving payment of money as fee
for arranging occupation of land is extended to
include receiving rent. The money or rent
includes membership fees, legal costs,
administration costs, services, services
connection fees or payment for any socio-economic
infrastructure. - Money collected as rental money which was not
paid to landlord is forfeited and paid back to
the landlord.
15Summary of Proposed Draft Amendment Bill
(Continued)
- Some technical difficulties are rectified, such
as deleting any reference to the Court serving
notices when this is clearly not the Courts
duty. - Consequential amendments arising from the above
amendments and additions.
16Other Initiatives of Department of Housing to
Ease the Plight of Evictees
- Department of Housing has developed an approved
Emergency Housing Programme - The Department is also working on a framework to
manage the interface between actions taken at
different spheres of government dealing with
unauthorised occupations and due process for
managing evictions.