Consumer Information

Author : EAAB on – The Prevention of Illegal/Unlawful Occupation Act

EVICTIONS  [Illegal Eviction]

Q.  Does the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 afford the former owner of land protection against eviction, where he or she refuses to vacate the property after the bondholder has foreclosed and sold the property in execution to a new owner?

In other words, must the new owner comply with the provisions of the Act when seeking an eviction order against the former owner, who is now for all intents and purposes an unlawful occupier?

Q.  Does the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 afford a former lessee protection against eviction where he or she refuses to vacate the premises after the lessor has lawfully cancelled the lease?

Read:  The Prevention of Illegal/Unlawful Occupation Act

Case Study

The Estate Agency Affairs Board’s Comments on the recent judgement handed down by the Bloemfontein Supreme Court of Appeals in the matter of Ndlovu and Others Vs. Bekker and Others

The recent judgment of the Supreme Court of Appeal in Ndlovu and Others v Bekker and Others (judgment delivered 30 August 2002) has given rise to much concern on the part of property owners, not to mention landlords and letting agents. The perception exists that lessors of immovable property will now find it extremely difficult to obtain eviction orders against defaulting lessees, and that a situation may arise where a lessor has no choice but to put up with an unlawful occupier indefinitely after cancellation of the lease. Predictions of doom and gloom for the rental housing market abound.

At common law a property owner is entitled to an eviction order if it can be established firstly, that he is the owner of the property and, secondly, that the person in occupation has no right to remain in possession thereof. Accordingly, if the common law applies it is relatively easy for a lessor to obtain an eviction order against a lessee who continues to remain in possession of the premises after cancellation of the lease. Similarly, it is relatively straightforward to obtain an eviction order against the former owner of a property in situations where the current owner took transfer of the property after having bought it at a sale in execution.

The above-mentioned Act aims at affording unlawful occupiers some protection against eviction. Section 4[6] stipulates that if an unlawful occupier has occupied the land in question for less than six months at the time when proceedings for eviction are initiated, a Court may grant an order for eviction only if it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women. Where the land in question has been unlawfully occupied for more than six months at the time when eviction proceedings are initiated, the Court must, in addition to the aforesaid considerations, take into account whether land has been made available [or can reasonably be made available] by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier. This additional consideration need not be taken into account when the land is sold in a sale of execution pursuant to a mortgage. The period of the occupation is calculated from the date the occupation becomes unlawful.

The Judgment can be viewed here: