The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (also called PIE) provides procedures for eviction of unlawful occupants and prohibits unlawful evictions. The main aim of the Act is to protect both occupiers and landlords. PIE is different from ESTA because it deals with unlawful occupiers of residential land, while ESTA deals with the eviction of lawful or previously lawful occupiers of rural or per-urban land.

An unlawful occupier is a person who occupies land without the express or tacit permission of the owner or the person in charge. Tacit permission is when the owner is aware of the occupant being on the land or premises but does nothing to stop this.

WHO IS COVERED BY PIE?

Anyone who is an unlawful occupier, including tenants who fail to pay their rentals and bonds, is covered by PIE. It excludes anyone who qualifies as an ‘occupier’ in terms of the Extension of Security of Tenure Act.

EVICTIONS IN TERMS OF PIE

When is an eviction lawful?

For an eviction to happen lawfully, certain procedures must be followed. If any one of them is left out, the eviction is unlawful. If an owner wants to have an unlawful occupier evicted, they must:

• Notify the occupier of their intention to go to court to get an eviction order.
• Apply to the court to have a written notice served on the occupier stating the owner’s intention to evict the occupier. The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area. The notice must contain the following:
  • A statement that proceedings are being instituted in the court in terms of PIE
  • The date and time of the court hearing
  • The grounds for the proposed eviction
  • That the occupier is entitled to appear before the court and defend the case
  • The occupier can apply for legal aid
• The unlawful occupier can go to the court hearing on the day it is set down and defend themselves if they believe the eviction is unfair

 A person who wants to defend the court action should approach the Justice Centre at the Magistrate’s court for assistance. An occupier threatened with eviction can apply for legal aid assistance and representation.

What the court can decide

The court will only give an eviction order if it is proved that:

• the person who is applying to evict you is in fact the owner of the land
• you are an unlawful occupier
• the owner has reasonable grounds to ask for your eviction
• the local authority or any other owner of land in the area can make alternative land available for you

If the court is satisfied that all the requirements have been complied with, and that there is no valid defence that has been raised by the unlawful tenant, it will grant an order for eviction and provide:

• the date on which the unlawful occupier must leave the land, having regard to all relevant factors, including the period the unlawful occupier and their family have lived on the land; 
• the date when the eviction order can be carried out if the unlawful occupier has not vacated the land on the given date. 

The court can also make an order for buildings or structures that were occupied by the unlawful occupier on the land to be demolished and removed. 

In addition to the legal requirements for an eviction to take place, the Constitutional Court has also set out best practices that are important to take into account before an eviction takes place. These practices were included in a series of judgements including: Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others; Occupiers of 51 Olivia Road, Berea and 197 Main Street, Johannesburg v City of Johannesburg; Abahlali Basemjondolo Movement SA v Premier of KwaZulu Natal and Others;  and Occupiers of Erven 87 & 88 Berea v De Wet and Another. The best practices include:

• Evictions must be conducted in a humane manner
• The State must provide temporary alternative accommodation in certain instances, such as where those who are evicted are unable to secure their own accommodation
• Every property owner must engage meaningfully with people who are going to be evicted, individually and collectively, before starting the eviction process
• Eviction processes should not discriminate against an individual or group of people such as migrants and non-nationals

EXAMPLE 

In the case of South African Human Rights Commission v City of Cape Town 2021 2 SA 565 (WCC), questions and concerns relating to government’s responses to evictions during COVID-19 were raised. Even though the COVID-19 state of disaster no longer exists, questions continue to be raised about evictions.  This case dealt with the City of Cape Town’s use of the remedy of ‘counter-spoliation’ to evict families from several informal settlements and demolish shacks without getting a court order. ‘Counter-spoliation’ is a legal remedy that allows people to forcibly re-take possession of property unlawfully taken from them. The court found that the City’s conduct was unlawful and unconstitutional. 

The City of Cape Town disputed that the claimant in this case was an occupant of the structure and for this reason, claimed they were entitled to summarily evict him and demolish his structure.  However the court found that once a person is present on land with the intent to construct a shack, and they demonstrate this intention by beginning to erect a structure, they are seen to be in ‘possession’ and the land owner must get a court order to remove them as required by PIE. This case demonstrates the need for any owner, person or body considering an eviction to ensure that all the correct legal processes are followed. This may include getting a court order and finding alternative accommodation for the occupiers. 

Urgent evictions

The Act also allows for urgent eviction proceedings. This will be granted if the owner can show that:

• There is a real danger of substantial injury or damage to any person or property
• There is no other way to solve this situation
• The owner is going to suffer more if the occupier stays on the land than the occupier will suffer if he or she gets evicted. In such a case, the owner can go to court and get a final order for the eviction.

If the court grants an eviction order

The eviction order will state a date by which you have to leave the land, and also the date on which the eviction will take place if you do not vacate the land. The court order may also make an order for your buildings to be demolished.

Who can remove you?

Only the Sheriff of the Court can carry out an eviction.