The law of eviction and the different categories of evictions:
It is vital to establish during the first consultation with a client what category of eviction is involved.
There are different ways of determining the category of eviction and which legislation will apply.
The common law:
The rei vindicatio is the action with which an owner effects eviction. The owner merely has to allege and prove his ownership (by way of the title deed) and the fact that the property is occupied by another in order to succeed with an eviction order. The onus is then on the defendant to allege and prove a right to stay in possession. The owner need not, in addition to his ownership, allege or prove that the occupier’s occupation is unlawful.
When will the common law apply?
– All evictions from commercial properties utilized for commercial purposes, namely offices, businesses, factories, etc;
– All evictions from residential properties not utilized for residential purposes;
– Agricultural land which is not utilized in any way for dwelling/residential purposes.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998, (PIE) and The Extension of Security of Tenure, Act 62 of 1997, also known as (ESTA):
Evict means “to deprive a person of occupation of a building or structure, of the land on which such building or structure is erected, against his or her will”.
PIE applies to all evictions from buildings or structures utilized for dwelling purposes as well as eviction from such land, provided ESTA does not apply. It also applies to evictions in tenancy cases.
In terms of PIE a building or structure includes any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter.
PIE applies to all land, but in order to determine if PIE applies, it is necessary to establish when ESTA applies, because that would exclude PIE.
Structures that do not form the function of a dwelling do not fall under PIE therefore one must revert to common law eviction. It must also be remembered that the zoning of the land is irrelevant, even if commercial property is utilized for dwelling purposes PIE applies.
Holiday homes do not fall under PIE. Therefore PIE only applies to a form of ‘dwelling’
Three important questions should be answered in order to determine whether PIE or ESTA applies:
- Does the land in question (not the building or structures, but the zoning of the land) fall within a proclaimed township?
If yes, ESTA can be discarded because ESTA can never apply to land within proclaimed townships. In terms of ESTA land encircled by townships is excluded.
It is presumed that in any civil proceeding any type of land falls within the scope of ESTA, unless the contrary is proved. Therefore the onus rests on the party who disputes the applicability of ESTA, to prove same.
The onus regarding the applicability of ESTA as far as the category of occupier is concerned, rests with the occupier.
The occupier is assisted by the following presumptions:
– A person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved;
– A person who has continuously and openly resided on land for a period of three years shall be deemed to have done so with the knowledge of the owner or the person in charge.
- Has the occupier who stands to be evicted ever had consent to reside on the land in question? (any consent, also from previous owners, will suffice)
If the answer is “no” – ESTA cannot apply. The person occupying must have had express or tacit consent or another right in law to occupy.
“Consent” means a legal nexus between that person and the owner or person in charge of the land is required. This also includes consent given by a former owner. An example would include an agreement such as a lease will suffice.
” ‘Reside’ means that a person has his home at the place mentioned. It is his place of abode, the place where he sleeps after the work of the day is done. ….It does not include one’s weekend cottage unless one is residing there…. The essence of the word is the notion of ‘permanent home’ “.
Therefore ESTA does not afford protection to every person residing on “land” Skhosana and Others v Roos t/a Roos se Oord and Others 2000 (4) SA 561
- Does the occupier have an income of less than R5000, 00 per month?
If the answer is yes, ESTA applies. If the answer is no, ESTA does not apply and PIE will apply.
Once you have determined that PIE is applicable, the following are the key factors which must be taken into account:
– Who is the unlawful occupier;
– Locus standi;
– Defaulting mortgagors;
– Land invaders and squatters;
– Other unlawful occupiers
Once you have determined that ESTA is applicable, the following are the key factors which must be taken into account:
– Locus standi;
– Different categories of occupiers such as those who occupied the property on or before 4 February 1997; those who occupy the premises after 4 February 1997; employees and vulnerable occupiers such as occupiers that have resided on the land for 10 years or longer; long term occupiers prior to 4 February 1997 and spouses of a deceased occupier who resided on the land for 10 years or longer.
This information was obtained during an eviction and rental claims seminar in September 2014 by Christo Smith from Christo Smith Attorneys in Nelspruit.