PROPOSED AMENDMENTS TO THE PIE ACT AND WHAT THEY COULD MEAN FOR PROPERTY OWNERS
The Department of Human Settlements has recently published proposed amendments to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (the “PIE Act”) and has invited public comment on the proposed amendments.
The proposed amendments seek to address several issues that have arisen since the commencement of the PIE Act, including the increasing prevalence of unlawful land occupations and hijacked buildings, the financial burden placed on municipalities to provide alternative accommodation, and concerns raised by property owners, developers, and investors regarding the effectiveness of the current legal framework.
A New Criminal Offence
One of the more significant proposed amendments is the introduction of a new criminal offence relating to the incitement to unlawfully occupy another person’s property.
The proposed amendments, if enacted, would make it a criminal offence for any person to incite, arrange, organise, or permit unlawful occupation of land without the consent of the owner, organ of state, or person in charge of that land, even where no money or other consideration changes hands. A person convicted of such an offence may be liable to a fine not exceeding R2 000 000.00, imprisonment for a period not exceeding two years, or both such fine and imprisonment.
The introduction of this offence is a welcome development for property owners as it seeks to criminalise conduct commonly associated with organised land invasions and unlawful occupation syndicates. In principle, this may provide property owners with an additional remedy through the laying of criminal charges with the South African Police Service.
Importantly, the proposed amendments do not criminalise unlawful occupation itself. The proposed offence is directed at persons who incite, organise, facilitate, or permit unlawful occupation, rather than the unlawful occupiers themselves.
Increased Government Involvement in Eviction Proceedings
It is currently common practice for municipalities to be joined to eviction proceedings instituted in terms of the PIE Act. However, the proposed amendments would go further by requiring the relevant provincial department of human settlements to also be joined as a party to eviction proceedings, in addition to the relevant municipality and any other organ of state having an interest in the matter.
Although this amendment seeks to ensure greater governmental involvement in eviction matters, it will likely increase both the complexity and cost of eviction proceedings for property owners.
There is also a practical concern that does not appear to have been fully considered in the proposed amendments. In many eviction applications, courts require municipalities to provide reports dealing with, amongst other things, the availability of alternative accommodation for unlawful occupiers. In practice, obtaining such reports is frequently difficult, time-consuming, and delay-causing, often requiring further court intervention to compel compliance by the municipality.
Accordingly, the involvement of the provincial department of human settlements may create an additional layer of procedural complexity and could contribute to further delays and increased legal costs in obtaining eviction orders.
Broader Judicial Powers
The proposed amendments also seek to expand the powers of courts when granting eviction orders.
In terms of the proposed amendments, a court may grant an eviction order that includes orders relating to:
- The retention, demolition, or removal of structures or improvements erected on the land.
- The retention, tending, or harvesting of standing crops.
- Compensation by one party to another for improvements, structures, materials, or standing crops obtained from the other party.
- The provision of alternative accommodation to unlawful occupiers as a condition for eviction.
Importantly, the proposed amendments further provide that where a court orders compensation to be paid by one party to another, the eviction order may not be executed until such compensation has either been paid or guaranteed to the satisfaction of the court.
The proposed amendments also permit a court, where appropriate, to order that an eviction may not be carried out until the relevant municipality, organ of state, or another landowner joined to the proceedings has made alternative accommodation available to the unlawful occupiers.
At the same time, the proposed amendments expressly provide that a court may grant an eviction order without requiring the provision of alternative accommodation where the court considers it reasonable to do so in the circumstances.
Potential Concerns
There are, however, aspects of the proposed amendments that may create practical difficulties for property owners and materially affect the practical enforceability of eviction orders.
The first concern relates to situations where a court orders that alternative accommodation be provided to unlawful occupiers before an eviction may be carried out, but the municipality or relevant organ of state fails to provide such alternative accommodation. In such circumstances, the failure or inability of the municipality to provide alternative accommodation may effectively delay the enforcement of the eviction order indefinitely, potentially requiring further litigation to resolve.
The second concern relates to compensation for structures or improvements erected on the property by unlawful occupiers. Although the proposed amendments require courts to consider factors such as whether the improvements were made with the consent of the owner and the terms of any agreement between the parties, the proposed amendments do not expressly preclude a court from ordering compensation for improvements that were erected without the owner’s consent where the court considers it just and equitable to do so.
The practical implication is that a property owner could, in certain circumstances, be ordered to compensate unlawful occupiers for structures or improvements erected unlawfully on the property, even where the occupation itself was unlawful and contrary to the wishes of the property owner.
Conclusion
The proposed amendments represent a significant development in South African eviction law and appear to seek a balance between the constitutional protections afforded to unlawful occupiers and the rights of property owners affected by unlawful occupation.
Certain aspects of the proposed amendments, particularly those aimed at addressing organised land invasions and unlawful occupation syndicates, are likely to be welcomed by property owners and investors. However, other aspects may increase the procedural complexity, costs, and delays associated with eviction proceedings.
Given that the proposed amendments remain in the public comment phase of the legislative process, it is possible that further amendments and refinements will still be made before the Bill is enacted.
Recommendations
Given the general trajectory of the proposed amendments to the PIE Act, it would be wise to review your residential lease agreement to ensure that the agreement provides a strong base to launch your eviction proceedings from and to minimise the risk of a court granting an order requiring compensation or ordering that the tenant be evicted only once alternative accommodation can be provided.
The first recommendation is to require the tenant to disclose, in writing, where the tenant will live should the tenant need to vacate the property. In the event of eviction proceedings, this information can be used to demonstrate to the court that the tenant already has alternative accommodation, and hence there should be a lesser need for the court to intervene and order that the municipality, an organ of state or another property owner provide alternative accommodation.
The second recommendation is ensuring that your residential lease agreements expressly contain suitable terms to the effect that: the tenant is not permitted to erect, cause or permit any and all alterations, additions and/or improvements to be made to the property, or any party thereof, without the express, prior and written consent of the property owner; and; the tenant shall not be entitled to any compensation whatsoever for any and all alterations, additions and/or improvements made to the property regardless of whether or not consent was granted and the tenant shall have no right of retention in respect of the property.
Comment on the Proposed Amendments
The Department of Human Settlements is currently accepting public comments on the proposed amendments.
Comments may be submitted as follows:
Email: PIE.AmendmentBill@dhs.gov.za
Hand: delivered at 240 Justice Mohammed, Sunnyside Pretoria,0001, For attention: Ms Lisa Masilo
Post: The Director- Department of Human Settlements, Private Bag X644, Pretoria
Disclaimer: The above should not be accepted as legal advice, and you are encouraged to seek legal advice.
Prepared by Bruce Barkhuizen.