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Eviction

One of the fundamental human rights entrenched in the South African Constitution is to have access to adequate housing.1 It is for this reason2 that the legislature has enacted statutes such as the Extension of Security of Tenure Act 1997,3 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (commonly referred to as ‘PIE’).

These statutes do not take away the rights of owners of land and buildings, but put procedures in place to ensure that people are not evicted – and, possibly, put onto the street – without a number of checks and balances being satisfied.

A person residing on land which belongs to another person, who has consent (or another right in law to do so) has certain rights of ‘tenure’ – i.e. to stay there. He cannot be evicted against his will.4 He is referred to in the Extension of Security of Tenure Act 1997 as an ‘occupier’.

In terms of PIE, an ‘unlawful occupier’ means a person who occupies land without the express or tacit consent of the owner (or person in charge) or without a right in law to be in occupation.

A. Occupiers

  1. It is an offence to evict an occupier except by a court order.5

B. Unlawful occupiers

  1. It is a crime to receive or solicit (directly or indirectly) any money or other consideration as a fee or charge for arranging, or organising, or permitting a person to occupy land without the consent of the owner or the person in charge.6

  2. It is an offence to evict an unlawful occupier except on the authority of a court order.7

C. State officials and mediators

  1. It is an offence to obstruct, or interfere with a State official in the performance of his duties under either of the Acts.8
  2. It is also an offence to obstruct, or hinder a mediator in the performance of any duties under these Acts.9
  1. Section 26(1) of the Constitution. 

  2. Section 26(2) provides that ‘the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right’. 

  3. As amended; the latest amendment was effected by Act 4 of 2011. 

  4. This does not apply if the person uses or intends to use the land mainly for industrial, mining, commercial or commercial farming purposes, or to a person who has an income in excess of R5 000 per month. 

  5. Section 23(1). 

  6. Section 3(2) read with section 3(1) of PIE. 

  7. Section 8(1) of PIE. 

  8. Section 23(2) of the Extension of Security of Tenure Act; section 8(3) read with section 8(2) of PIE. 

  9. Section 23(2) of the Extension of Security of Tenure Act; section 8(3) read with section 8(2) of PIE.