The Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill Presentation to Portfolio Committee on Housing – Tuesday 3 February 2004

Background Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No. 19 of 1998), hereinafter called “PIE,” came into operation on 5 June Objectives of PIE: –To prohibit receipt or solicitation of consideration in respect of unlawful occupation of land;

Background (Continued…) –To set out processes for the eviction of unlawful occupiers by owners of land; –To provide for evictions on an urgent basis; –To set out process for evictions at instance of an organ of State; –To provide for a mediation process in the event of a dispute;

Background (Continued…) –To provide for offences and private prosecutions; –To provide for jurisdiction of the Magistrate’s Court in eviction proceedings; –To provide for the transfer of powers, duties or functions; –To repeal and amend certain laws; –To provide for the making of Regulations.

Problems arising from the Interpretation and Implementation of PIE Definition of “land” needs to be widened to include a portion of land and buildings and structures on land as well as to make specific reference to residential and commercial land. Nothing in Act which prohibits a person from arranging or organising a person to occupy land without the owner’s consent.

Interpretation and Implementation of PIE (Continued…) The prohibition in PIE against receiving money for arranging or organising the unlawful occupation of land is too restrictive and needs to be widened to include all illegal proceeds related to unlawful occupation The majority decision of the Supreme Court of Appeal cases of Bekker and Ndlovu handed down on 30 August 2002 which brought tenants and mortgagors under the Jurisdiction of PIE

Judgement in Ndlovu/Bekker Cases By a majority of 3 to 2 judges, the Supreme Court of Appeal held: –That tenants who remain in the premises after a lease has been lawfully terminated are in the same position as unlawful occupiers of land and that the procedures in PIE must be followed when evicting them. –That mortgagors who default on their mortgage payments and stay in the premises after the Bank has foreclosed are also in the same position as unlawful occupiers of land and that the procedures in PIE must be followed when evicting them.

Ndlovu/Bekker (Continued…) When the Prevention of Illegal Eviction from and Unlawful Occupation of Land Bill was debated in Parliament it was not the intention of the legislators to extend the provisions of the Bill to include tenants and mortgagors.

Proposed Amendments to Act In view of the Ndlovu/Bekker judgement the Act needs to be amended to exclude tenants and mortgagors from the operation of the Act, because: –The judgement has resulted in landlords and developers withdrawing from the rental housing market because of the added difficulties in evicting tenants when the lease has been lawfully terminated. –It can be argued that the written agreements between landlords and tenants and mortgagors and mortgagees (Banks) are violated if landlords or banks have to comply with the more onerous provisions of PIE when evicting defaulting tenants and mortgagors, respectively.

Proposed Amendments (Continued…) The proposed amendments to exclude tenants and mortgagors from the provisions of the Act will : –Eviction should occur after an order of court has been issued.

Proposed Amendments (Continued…) –Add certainty to the manner in which categories of unlawful occupiers are to be evicted: unlawful occupiers of land will be evicted under PIE; tenants who hold over will be evicted under the Rental Housing Act and mortgagors who hold over will be evicted in terms of the mortgage agreement. –Generally restore confidence to the housing and banking sectors.

Summary of Proposed Draft Amendment Bill Definitions of “land”, “Minister”, and “unlawful occupier” have been amended. New definitions of “occupy” and “possession” have been inserted. The application of the Act has been amended to specifically exclude any proceedings: –For the eviction of any tenant or former tenant or any person occupying land through the title of such tenant or former tenant;

Summary of Proposed Draft Amendment Bill (Continued…) –By a mortgagee for the foreclosure of the bond and the eviction of a mortgagor or of any person holding title through the mortgagor; –To any land acquired by way of a sale in execution or judicial sale of property. Prohibition of arranging or organising or permitting anyone to occupy land without the consent of the owner or person in charge of the land.

Summary of Proposed Draft Amendment Bill (Continued…) Prohibition of receiving payment of money as fee for arranging occupation of land is extended to include receiving rent. The money or rent includes membership fees, legal costs, administration costs, services, services connection fees or payment for any socio-economic infrastructure. Money collected as rental money which was not paid to landlord is forfeited and paid back to the landlord.

Summary of Proposed Draft Amendment Bill (Continued…) Some technical difficulties are rectified, such as deleting any reference to the Court serving notices when this is clearly not the Court’s duty. Consequential amendments arising from the above amendments and additions.

Other Initiatives of Department of Housing to Ease the Plight of Evictees Department of Housing has developed an approved Emergency Housing Programme The Department is also working on a framework to manage the interface between actions taken at different spheres of government dealing with unauthorised occupations and due process for managing evictions.