Page 4 - Notes from LRC's Housing Conference

The right to housing is enshrined in section 26 of the Constitution and provides that:
“(1) Everyone has the right to access housing.
(2) The state must take reasonable legislative and other measures within available resources to achieve progressive realisation of this right.
(3) No one may be evicted from their home demolished without an order of court made after considering the relevant circumstances. No legislation may permit arbitrary evictions.”
C) Legislative reform
The state has enacted legislation to give effect to the rights enshrined in sections 25 and 26 of the Constitution. The Prevention of Illegal Evictions and Occupation of Land Act 19 of 1998 (“PIE Act”) provides for the eviction of people in urban areas, while the Extension of Security of Tenure Act 62 of 1997 (“ESTA Act”) provides for evictions in rural areas, and on farmland. The two pieces of legislation will be discussed below.
A) An overview of the structure of the PIE Act
Section 1: Application and definitions – PIE applies to evictions of people from structures that serve the purpose of housing. It does not apply to someone who uses property for another purpose, such as business. It also does not apply to ESTA occupiers.
Section 4 (2) – 4 (5): Notice (see Cape Killarney Property v Mahamba) – PIE makes provision for procedural fairness. There are two important elements, namely 1) sufficient notice of the application for eviction and 2) 14 days’ notice of the hearing of the application. The judgement in Cape Killarney made it clear that the purpose of procedural protection is to enable people to understand what is happening. If the notice is not in the language that the occupiers understand or they are not given sufficient time to come to court, then there is a defect in the eviction application.
Section 4 (6) – 4 (7): Length of occupation. PIE distinguishes between less than six months and more than six months. PIE makes provision that should an occupier be residing on land in question for more than six months, to ascertain whether land has been made available or can reasonably be made available by a municipality or other organ of state for the relocation of the occupiers. However, should the eviction affect a substantial number of people, the court must consider this factor in determining whether their eviction will result in homelessness.
Section 5: Urgent evictions are not a common occurrence, but we need to be alert. Allows for an eviction order to be executed before the court makes a final decision. Certain circumstances, for example, when people occupy land that is extremely dangerous and children’s lives are at risk. Urgent evictions allow for an urgent order granted to remove people from the situation and come back to court at a later stage to determine if the order must be made final.
2.1.1. THE PREVENTION OF ILLEGAL EVICTIONS AND OCCUPATION OF LAND RIGHTS ACT
4
SUMMARY NOTES FROM THE HOUSING CONFERENCE