1. Who is an “unlawful occupier” in terms of the PIE Act?
An “unlawful occupier” is defined as a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997 or a person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act, 1996.
2. Who can apply to court for an eviction order in terms of the PIE Act?
An owner or a person in charge of the land in question may approach the court. An “owner” means the registered owner of land, including an organ of state and a “person in charge” means a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question.
3. What procedure must be followed to apply for an eviction order?
Section 4 (2) of the PIE Act makes provision that at least 14 days before the hearing of the proceedings, the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction. The procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question. If a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of the court, service must be effected in the manner directed by the court; provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case.
In terms of Section 4 (5) the notice of proceedings contemplated in subsection (2) must—
(a) state that proceedings are being instituted in terms of subsection (1) for an order
for the eviction of the unlawful occupier;
(b) indicate on what date and at what time the court will hear the proceedings;
(c) set out the grounds for the proposed eviction; and
(d) state that the unlawful occupier is entitled to appear before the court and defend
the case and, where necessary, has the right to apply for legal aid.
If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that 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.
If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances including, except where the land is sold in a sale of execution pursuant to a mortgage, 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, and including the rights and needs of the elderly, children, disabled persons and households headed by women.
If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine—
(a) a just and equitable date on which the unlawful occupier must vacate the land
under the circumstances; and
(b) the date on which an eviction order may be carried out if the unlawful occupier
has not vacated the land on the date contemplated in paragraph (a).
4. What happens after the court grants an eviction order?
The court order will have a date by which the unlawful occupant muct vacate the said property and if he fails to do so, the Sheriff will be authorised to remove him from the premises. Section 4(10) provides that the court which orders the eviction of any person may make an order for the demolition and removal of the buildings or structures that were occupied by such person on the land in question. Subsection (11) further provides that a court may, at the request of the sheriff, authorise any person to assist the sheriff to carry out an order for eviction, demolition or removal subject to conditions determined by the court; provided that the sheriff must at all times be present during such eviction, demolition or removal.
For more information regarding the PIE Act, please contact Madeleine Pretorius.