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Chapter 5 - Land and Housing

LAND

What is the governments land policy?

The government has said that it is its policy and vision to address:

• the racially-based land dispossession of the past
• the need for a more equitable distribution of land ownership
• the need for a kind of land reform that will reduce poverty and create jobs
• security of tenure for all
• a system of land management that will make land available for development, but not harm the environment

To implement this policy or vision, the Government has started a land reform programme. This programme has three elements:

• Restitution to address cases where people lost land after 1913 because of forced removals.
• Redistribution to give those most in need a chance to get land for housing and productive purposes. It caters for urban and rural areas and includes labour tenants, farm workers and people who want to start farming.
• Tenure reform is a process to review all the old policies and laws in order to improve the tenure security of all South Africans.

Land grants

NOTE !
The government gives no more than R16 000 in subsidy money to any one household. If you apply for a grant from the Department of Land Affairs, you cannot get a housing subsidy from the Department of Housing as well.

What is a government grant?

A grant is a sum of money that you do not have to pay back. The government pays the money to help people buy something. It can be to help you pay for land or something else like a well, or fencing. But it is not money in your hand. The money goes directly to the person or agent that is selling the land or the service.

There are five different grants from the Department of Land Affairs to assist with the land reform programme:

• Land Acquisition Grant
• Settlement Grant
• Settlement Planning Grant
• Land Acquisition Grant for local authorities
• Land Redistribution for Agricultural Development grant

See Housing subsidies
See Land Redistribution Agricultural Development (LRAD) Grant

Land Acquisition or Settlement Grants

You can use this grant to buy land or get secure tenure to land you already occupy. You can also use the grant for improvements like housing, water supply, sanitation, internal roads and fencing.

Who can get a Land Acquisition or Settlement Grant?

To qualify for the grant, you have to be a South African citizen living in a household where your combined income is less than R1 500 per month.

A household means a single adult older than 18 with dependants, or two adults with or without dependants.

Households can apply individually or in a group. When households apply as a group, the average household income for the group must be less than R1 500 per month.

NOTE !
You will not automatically get a grant if you qualify.

People who would qualify for the grant are :

• landless people, especially women who need to settle in rural or urban areas
• farmworkers and their families who want to improve their settlement and land tenure conditions
• labour tenants and their families who want to get secure title to land they are living on and to improve it, or to get alternative land
• residents who want to get secure title to the land they are living on
• business people who want rural land for production, like farming or a shop
• people who get land through the land restitution programme
• people who lost land but are not covered by the Restitution of Land Act

See Land restitution: access to land if your land was taken by an apartheid law

Settlement Planning Grant

The same people who qualify for the Settlement Grant also qualify for the Settlement Planning Grant. This grant is meant to assist poor communities to employ planners and other professionals to help them plan their settlement. It can cover services like legal fees, land use planning, and infrastructure planning.

The money gets paid in two instalments to the professional: once the project proposal is complete, and once the detailed settlement plan is done.

This grant is worked out as a portion of the R16 000 that each household in the settlement is entitled to. The amount that is paid to the professionals is deducted from each household's R16 000.

How to apply for a Land Acquisition, Settlement, or Settlement Planning Grant

Contact your nearest office of the Department of Land Affairs and fill in a registration of need form. When you apply as a group, you must elect a representative to make the application on your behalf.

Land Acquisition Grant for local authorities

Many rural towns in South Africa have commonages. Long ago this was used by town people who did not have land, to graze a few animals for domestic use or to grow some crops. People had to pay a small fee to the local authority to use the commonage.

As this practice fell way, the local authorities started to lease out their commonages, mostly to rich farmers. These farmers often paid very little for the land and they used it exclusively for their own purposes. The commonages lost their communal use.

This Land Acquisition Grant is to help local authorities to restore the system of commonages that were used communally. The grant is to buy land to create a commonage, or to add to the existing commonage, so that the poorer residents in the town can use the commonage for grazing animals or planting food.

If there is a need in your community to use a commonage, you must go to your local authority and discuss this option with them. You can also contact the Department of Land Affairs in your province to assist you.

In order to qualify for this grant, your local authority must:

• tell the Department of Land Affairs how much they can contribute to buy the land
• show the Department of Land Affairs their financial records
• give a commitment that the land will be for the poorest residents to lease
• give a list of all the people who will want to use the commonage
• give a plan from the residents explaining how the land will be used

Land redistribution:
Access to land if you do not have land

The purpose of the land redistribution programme is to provide people with land for housing in urban and rural areas as well as land for farming purposes.

The government realises that poor people cannot buy land at normal prices. The government will assist them to buy land using the land grants - and in that way speed up land reform. The government will make state land available and buy land from willing sellers on behalf of applicants. Expropriation, where the state forces the owner to sell, will only be a last resort.

See Land grants

The Land Redistribution for Agricultural Development programme (LRAD)

The Land Redistribution for Agricultural Development (LRAD) is a sub-programme of the land redistribution programme. The agricultural redistribution programme consists of the following parts:

• agricultural development: to make land available to people for agricultural purposes
• settlement: to provide people with land for settlement purposes
• non-agricultural enterprises: to provide people with land for non-agricultural enterprises, for example eco-tourism projects

The aim of redistribution is to ensure the transfer of 30% of all farmland into the hands of people who previously were robbed of their land or prevented from owning land. The time-frame for this is 15 years.

It is not yet the final policy. The following information is taken from a draft document produced by the Ministry for Agriculture and Land Affairs. For more information on the LRAD contact this ministry.

Aims of the LRAD programme

The LRAD sub-programme has two parts:

• the transfer of agricultural land to specific individuals or groups
• commonage projects, to give people access to municipal and tribal land primarily for grazing purposes

LRAD is designed to provide grants to black (African, Coloured and Indian) South African citizens to access land specifically for agricultural purposes. Its objectives are:

• to contribute to the process of redistribution of 30% of the country's agricultural land over 15 years
• to improve nutrition and income of the rural poor who want to farm
• decongest over-crowded former 'homeland' areas
• expand opportunities for women and young people who stay in rural areas

See Land Redistribution for Agricultural Development (LRAD) Grant

Who can apply for redistribution?

You cannot apply if you fall under the restitution programme. Everybody who qualifies for a Settlement or Land Acquisition or LRAD Grant can apply, including:

See Land Restitution 

• the urban and rural landless poor
• farmworkers and their families
• labour tenants and their families
• new farmers
• women
• people who lost land but are not covered by the Restitution of Land Act

See Land Acquisition or Settlement Grants
See Land Redistribution for Agricultural Development (LRAD) Grant

You can apply as an individual, a group of people or as a whole community.

The government can't help everybody immediately, so they have decided to give priority to redistribution projects where:

• the needs of the marginal, particularly women will be addressed
• there are institutions that can implement new programmes quickly and effectively
• the land will be used in an economically sound way
• the local authority has enough money to assist the group
• the environment will not suffer from the development
• there are markets close by to buy the produce from the project, or other job opportunities
• it is possible to provide water and other infrastructure

Land Redistribution for Agricultural Development (LRAD) Grant

You can use this grant to buy land or to make better use of land already occupied. The grant can be used to cover expenses, for example:

• buying land
• making improvements to the land and the infra-structure (for example, buildings)
• short-term expenses, for example, buying machinery, seed and stock.

The grant is available to individuals or groups of individuals. Small farmers can choose to buy land as a group and to hold it as a group or to subdivide it.

How much is the grant?

The grant is available on a sliding scale, depending on the amount that individuals contribute, whether in kind, labour and/or cash.

A person who makes the minimum contribution of R5 000 will receive a  minimum grant of R20 000. If you contribute more than this, for example, your own assets such as machinery, stock or cash, you will receive a higher grant.

The approval of the grant depends on the total costs of the proposed business and the expected profits.

The size of the grant ranges between R20 000 and R100 000 per individual.

What does your own contribution mean?

Your contribution can be made in the following ways :

• Contribution 'in kind' can be the value of assets such as machinery, equipment, livestock
• Contribution in labour can be up to R5 000 per individual
• Contribution in cash can be in the form of your own cash given to the project or money borrowed from a bank.

What projects qualify for an LRAD grant?

The types of projects that qualify for an LRAD grant include:

• Food safety-net projects or subsistence production projects - people wanting land for food crops or to keep livestock, to produce more food for a family
• Equity schemes where those who receive the grant are both workers and co-owners
• Commercial projects, for example, producing food to sell at markets

How can you qualify for a grant?

To qualify for a LRAD grant you have to be:

• A South African citizen and a member of a previously disadvantaged group
• A full-time farmer (except in food safety net projects)
• Living on or near the land and working on it.

How to apply for redistribution

You must go to the provincial office of the Department of Land Affairs. An official will check whether you qualify and give you a Registration of Need form to fill in. If you are part of a group, you must elect a representative who will be your spokesperson and fill in the form on your behalf.

The Department of Land Affairs will allocate somebody from their department to work with you through the rest of the process.

Land restitution: Access to land if your land was taken by an apartheid law

Restitution

In 1994 the Restitution of Land Rights Act was passed. The aim of the Act is to redress apartheid forced removals and land dispossession.

Restitution means giving back the piece of land that you had lost OR another piece of land OR money to compensate you for the loss.

All claims for land restitution had to be given to the Land Claims Commission before 31 December 1998. This means it is now too late for some-one with a land claim to make a claim under the Land Restitution Act.

The Restitution of Land Rights Amendment Bill is currently being debated in parliament. The Bill gives the Minister of Land Affairs the power to buy, obtain in any other manner or expropriate land for purposes of restoring or awarding the land to a claimant (a person who has lodged a claim for the land) or for any other land reform purpose. The Amendment gives the Minister the right to expropriate land that has been claimed, even where the farmer has opposed the claim, where he or she thinks the claim is valid.

Who can claim restitution?

Individuals, communities or descendants of people who lost land rights due to racially discriminatory laws passed by previous governments after 1913, can claim for restitution. Examples of such laws are:

• Native Land Act of 1913
• Native Administration Act of 1927
• Development Trust and Land Act of 1936
• Asiatic Land Tenure Act of 1946
• Group Areas Acts of 1950 and 1966

Community Development Act of 1966

You will not be able to claim restitution if you, your family or your community lost land rights because of:

• racially discriminatory legislation before 19 June 1913
  If you had land taken away from you before 1913, you might qualify for land redistribution. You can approach the Department of Land Affairs to help you.
• the actions of an individual
  If you lost your land because of the actions of an individual, you can get a lawyer to help you.
• the Expropriation Act of 1975, and you were compensated fairly

See Land redistribution: access to land if you do not have land

Forming a group to claim restitution

If there are other people who gave their claims to the Land Claims Commission before the end of 1998, and they are from the same area and have lost their land rights in the same way, it is a good idea to form a group and support the individual claims as a group. This will speed up your claim because it will get a higher priority.

Within the group, people will remember more details and be able to give more information for your claim. Claiming as a group strengthens your negotiation position and improves your chances of getting development funds in future.

Land Claims Commission for restitution of land rights

The functions of the Commission are to:

• assist people who are claiming land
• investigate different claims
• mediate and settle claims, and advise the Land Claims Court
• make recommendations to the Land Claims Court on unsettled claims
• monitor the implementation of Land Claims Court orders
• give priority to claims that affect large numbers of people, those who suffered substantial losses, and those with pressing needs
• inform the public

The Commission can mediate if there are different claims to the same land. If the Commission can mediate the claim and get all the parties to agree to what the best solution is, they pass on this agreement as a recommendation to the Land Claims Court and the Court will then make the agreement a court order.

The Commission also refers the agreement to the Minister of Land Affairs. The Minister must decide whether the proposed solution is feasible.

If a dispute cannot be solved, the Commission must refer the claim to the Land Claims Court to make a final decision.

Appeals

Anyone who does not agree with the decision of the Commission can apply to the Land Claims Court to have the decision reviewed. The Land Claims Court will refer appeals to the Constitutional Court or the Appeal Court.

Land Claims Court

The function of the Land Claims Court is to review all the solutions put forward by the Land Claims Commission. The Court also reviews the Minister's decision on whether the solution is feasible. If the Court accepts the settlement, it is made legally binding through a court order. If there was no negotiated settlement between the parties involved, the Court will hold a hearing and make a decision.

If your claim is successful, the Court can order that you get:

• your original piece of land back
• another, alternative piece of land
• money as compensation
• a combination of land and money
• priority when the government decide about housing and land development progammes

The Court can decide that the land will not be given back if it believes that it is in the public interest for the land ownership to stay as it is, or if it believes that the public will suffer if the land is given back.

Tenure reform

When people talk about 'tenure', they mean the different ways in which you can own or occupy land or housing. When people use the term 'security of tenure' they mean that your right to stay where you are is secure. You cannot be thrown off or evicted easily.

Different kinds of tenure in South Africa

Private ownership

Private ownership means that a person or business owns the house or the land. You have a registered title deed to say that the property is legally yours. You can sell the house or flat or land at any time and recover all the money invested in the property.

Communal ownership

This means people own land or property together as a community or as a group. This can be organised in different ways. Examples are trusts, Section 21 companies, voluntary organisations, and communal property associations.

A group of people can get together and form a communal property association (CPA) to hold land and also to build housing. Members of the group can then pay rent to the association for the land and/or the housing. The association writes its own constitution and the members decide for themselves how they will be organised. There is assistance from the state to set up CPAs.

Renting

You can rent your house or land from its owner. The owner could be a private landowner, the company you work for, the local authority or any other institution. When you rent property, you do not own the house or the land, but you still have a high degree of secure tenure. There are laws that protect the rights of people who rent.

Every month you pay rent to the landowner, company or local authority. You also pay service charges to the local authority. The owner must pay for any repairs your house needs.

Why do we need tenure reform?

Until the 1990s, it was government policy that black people would not own land. In townships and in homelands, land rights were permit-based or 'held in trust'. The land was generally registered as the property of the government or the South African Development Trust.

In many areas administration of this land was inefficient and chaotic, so that people who have lived on the land for generations may find that they have no legal right to the land - even if nobody disputes that they are the rightful owners of the land. Some people have Permission to Occupy certificates. Others do not. This creates legal insecurity and makes it difficult for people to protect their land, whether from confiscation, or from others coming to settle among them. Residents who may have lived on land for decades can find it sold by others who claim to own it.

These difficulties are not only limited to what were black townships and homelands. Many people who moved to the cities built homes in 'white only' parts of South Africa. Their occupation of the land was then unlawful. Over time these settlements became a fact of life, but people who live on occupied land must get legal tenure.

In some areas there are different tenure systems that overlap. Often people were forcibly removed and 'resettled' on land which other people already had rights to.

Many communal systems of tenure are suffering from internal breakdown. Individuals break the group rules and there is no way to discipline them, partly because of legal uncertainty. Some communal systems function democratically, but others do not and the rights of all members of the group are not protected.

Women are particularly discriminated against, not just under communal and tribal tenure arrangements, but also under private tenure systems in terms of family law and inheritance provisions.

Others, like farm workers and labour tenants, were also in very insecure circumstances. They could stay on farms on the condition that they worked there. Losing their jobs meant losing your houses and, in the case of labour tenants, their income.

What kind of reform do we need?

Tenure reform must give everybody the same amount of security wherever they stay. The government's policy is to:

• transform all inferior land rights into legally enforceable rights (the policy is for rights and against permits)
• give everyone the right to choose their own tenure systems (the policy is for choice and against imposition)
• ensure all tenure systems are consistent with the human rights guaranteed in the Constitution. These include rights to equality, freedom from discrimination and the right to decisions based on due process.

The government is still developing the tenure reform programme. The final system will resolve tenure disputes and provide alternative land for people with insecure tenure.

So far, three new laws have been introduced to give people more security off tenure and prevent illegal evictions:

• Land Reform (Labour Tenants) Act 3 of 1996
• Extension of Security of Tenure Act 62 of 1997
• Prevention of Illegal Occupation of Land Act 1998

The Communal Land Rights Bill

Communal tenure of land can happen in various ways. In some provinces, such as KwaZulu-Natal, Limpopo and parts of the Eastern Cape, communal tenure areas are still wholly or partially controlled and run by traditional authorities. In other areas, there are different kinds of arrangements linked to civics, government departments. Most land reform projects taken up to now have used the Communal Property Associations or Land Trusts, which have created private communal ownership systems.

The Communal Land Rights Bill, which is still in the process of being debated and challenged by various people and groups including traditional authorities, applies to the following:

• State land in the former homelands
• Land that belonged to the South African Development Trust
• Land that falls under the Kwa-Zulu Natal Ingonyama Trust Act
• Land bought by or for a community whether registered in its name or not

The Bill aims to give legal security to a person or community whose tenure of land was legally insecure under apartheid.

According to the Bill, communal land and rights to the land must be registered in the name of the community. The land must be occupied or used by members of the community and will be run according to the rules or customs of that community. Ownership of land that is registered in the name of a traditional leader, a communal property association, a trust or any other legal body, must vest in the community on whose behalf the land is held. The community then becomes a formal legal entity. In terms of this, it can hold rights (including rights to the land) and own and use land.

Registering community rule

The community whose communal land is registered in its name must also register its community rules. These rules regulate the administration and use of communal land. These rules are binding on the community and its members. The rules must comply with the Constitution and the Communal Land Rights Bill.

Establishing land administration committees

Each community must establish a land administration committee. The land administration committee must be elected by the community and at least one third of its members must be women. One member of the committee must represent the interests of vulnerable community members including , women, children and the youth, the elderly and the disabled. However, if a community has a traditional council, then this council can operate with the same powers as the land administration committee. However, the traditional council must include one member who represents the vulnerable members of society (women, children, youth, the elderly, disabled).

Individual ownership of land

A person who is a member of a community registered as the owner of communal land, can apply to the community owning the land to have his or her right to land converted into freehold ownership. This means, they would be the owners of the land on which they have been living and it would be registered by the Registrar of Deeds. The community can approve the application with conditions that must be in favour of the community.

Land Rights Boards

The Minister of Land Affairs can establish a Land Rights Board which plays an advisory and supportive role to the Minister and to communities. It must advise the Minister and help communities, make sure communities are following the Constitution and the Communal Land Rights Act and do anything that the Minister says it must do.

Remember: this Bill is still being debated and there may be things that change before it is finally passed by parliament

Land Reform (Labour Tenants) Act

This Act aims to provide protection for the existing rights of labour tenants, and to make more land available for labour tenants, using the Land Acquisition or Settlement Grants.

Who is covered by the Land Reform (Labour Tenants) Act?

All labour tenants are covered by this Act. A labour tenant is a person who:

• lives or has the right to live on a farm
• has or has had the right to grow crops, or graze livestock on that farm or another farm owned by the same farmer. The labour tenant is able to do this, because he or she works for the farmer in return for the right to use the land.
• can prove that their parents or grandparents also lived or lives on a farm, and also grazed animals or grew crops and provided labour to the owner or lessee, in the same way as the labour tenant currently does.

If a labour tenant dies or gets so sick that he or she can no longer work, or leaves the farm voluntarily, he or she can appoint somebody to work in his or her place for the farmer.

NOTE !
A labour tenant does not get any money from the farmer. If you get money from the farmer, you are considered to be a farmworker and not a labour tenant and the Act will not protect you.

What does the Land Reform (Labour Tenants) Act say?

The Act protects labour tenants in the following ways -

• Labour tenants have the right to use the land they occupy, if they continue to provide labour for the farmer.
• Labour tenants can only be evicted by a court order granted in terms of the Act.
• A labour tenants who is 65 years or older may not be evicted for not providing labour.
• If a labour tenant is evicted through a court order, the owner must pay the labour tenant compensation for improvements and crops on the land the labour tenant has occupied and farmed.
• A labour tenant has the right to acquire the land he or she has worked and lived on. This can be negotiated with the farmer, with the assistance of the Department of Land Affairs.

How the Act protects labour tenants against evictions

The Act says that if you were living as a labour tenant on 2 June 1995, you have legal rights on the farm and cannot be evicted without an order from the Land Claims Court.

Labour tenants can only be evicted :

• if they breach the contract with the landowner and stop providing labour
• if there is a complete breakdown of the relationship between the labour tenant and the farmer
• where there is a real danger of damage to the farmer or property
• where the likely harm to the farmer is greater that the likely harm to the labour tenant
• if the farmer urgently needs the land for development that the Land Claims Court believes is more important than the rights of the labour tenant

In all cases, the farmer must apply directly to the Land Claims Court and not to the Magistrate's Court to evict labour tenants.

Labour tenants and the Land Claims Court

The Act says that labour tenants fall in a special category. Magistrate's Courts do not have any say over labour tenancy. If a farmer takes a labour tenant to the Magistrate's Court to have him or her evicted, the labour tenant must make it clear that he or she is not a farm worker but a labour tenant.

The Land Claims Court can do things that other courts can't do. The Land Claims Court can:

• appoint an arbitrator to hear applications of labour tenants who want land
• make orders to transfer land, to give land rights, to give rights to water and other servitudes, to grant compensation, to say whether somebody is a labour tenant or not

Extension of Security of Tenure Act

Who is covered by the Extension of Security of Tenure Act No 62 of 1997?

The Act covers people who live in rural areas, on farms and on undeveloped land. It also protects people living on land that is encircled by a township or land within a township that is marked for agricultural purposes.

The Act also explicitly gives women occupiers the same rights as men occupiers. However, the Act does not cover:

• people who live in a proclaimed or recognised township
• land invaders
• labour tenants
• people using the land for mining or industrial purposes, for businesses or commercial farming
• people who earn more that R5 000 per month gross (before tax deductions)

What does the Extension of Security of Tenure Act say?

The Act says that if you who lived on someone else's land - with permission of the owner - on or after 4 February 1997, you have a secure legal right to live on the land. An owner can not change or cancel these rights without the your consent unless there is a good reason for doing so, or until you have had a chance to answer any allegations made against you.

It sets out the steps you can follow to strengthen your land rights. You can apply for a state grant that can be used to secure tenure rights - either in the form of a development on the land where you are living, or on another piece of land.

See Land Acquisition or Settlement Grants

The Act says you have the right to receive visitors, to have your family live with you, to have access to water, health and education services, to receive post and other forms of communication.

The Act also gives people the right to visit and maintain family graves in rural and peri-urban areas. This right must be balanced with the owner's right to privacy. The owner or person in charge can set reasonable conditions on how this right is exercised.

The Act gives special rights to long term occupiers. If you are older than 60 years, and you have lived on the land for 10 years, or if you become disabled while you were employed by the owner, you can stay on that land for the rest of your life.

The Act protects you against unfair and arbitrary evictions and sets out how disputes over land rights can be resolved with mediation, arbitration or the courts.

See Evictions in terms of the Extension of Security of Tenure Act

Rights and duties of occupiers and owners

The Act spells out clearly what are the rights and duties of occupiers and owners.

Occupiers

Occupiers must:

• respect the fundamental rights of the owner
• prevent visitors from causing damage
• comply with the important and fair terms of the agreement with the owner. This is very important. If occupiers do not fulfil the agreement, they can be evicted without the option of alternative land.

The Act says that occupiers may not:

• harm or threaten other people on the land
• damage property
• help others to build shelters unlawfully on the land

Owners

Owners must:

• respect the fundamental rights of occupiers
• cknowledge the rights that this Act gives to occupiers
• follow the provisions of the Act when they consider ending the rights of occupiers to stay on the land

The Act says owners or persons in charge have the right to:

• set reasonable conditions regarding visits to occupiers' homes and family graves
• terminate an occupier's right to stay on the land, if this is just and fair
• apply for an eviction order
• make an urgent application for eviction in certain circumstances

Evictions in terms of the Extension of Security of Tenure Act

The following actions are all forms of evictions:

• taking away somebody's right to live on land
• taking away somebody's right to use land
• taking away somebody's access to water, if they are staying on the land
• threatening occupiers so that they leave
• stopping them from coming back onto land if they left but planned to come back, for example, they went away for a family visit

The Act protects you against unfair and arbitrary evictions. It says evictions can only happen with a court order, and it must be a lawful eviction. Occupiers may be evicted from land if they:

• do something seriously wrong
• refuse to honour agreements with the owner, such as not paying rent if they agreed that they would pay.

The Act gives women occupiers the same rights as men occupiers. If the eldest male in a household receives a court order to leave the land, it does not mean that his partner must also leave. She has her own rights to the land. If the owner wants her to leave as well, the owner must get a separate court order for her.

When is an eviction lawful?

An eviction is lawful if the following requirements have been met :

• The occupier must get two months written notice that the owner intends to apply for an eviction order.
• The owner must send a copy of this notice letter to the local authority and the provincial office of the Department of Land Affairs. This is so that if it is necessary, the local authority and the Department can start to make arrangements for alternative accommodation for the occupiers, and for mediation, where possible.
• An eviction is only lawful if there is an eviction order from a court.

The eviction must be just and equitable. The court will look at the following questions to decide whether it is just and equitable:

• Was the original agreement between the occupier and the owner fair?
• How did the parties conduct themselves?
• How much is each party going to suffer if this eviction happens or does not happen?
• Did the occupiers expect to stay on the land for a longer period?
• Was there a fair procedure to end the right to stay on the land?

What the court can decide

The court may or may not grant an eviction order, based on the following conditions:

• If the occupier has been on the land on or before 4 February 1997, and has done nothing wrong, the court will not grant an eviction order unless there is alternative accommodation available where the occupiers can enjoy the same quality of life.
• If the occupier has been on the land on or before 4 February 1997, and has done something seriously wrong, the court may grant an eviction order even if there is nowhere else to stay.
• Even if an occupier arrived after 4 February 1997, the owner must still end the right to stay lawfully and fairly, give written notice of two months, and get an eviction order before the occupier can be evicted.

Urgent evictions

The court can give a provisional order for an urgent eviction when:

• there is a real and immediate danger that the occupier might harm someone or something
• there is nothing else that can be done to prevent this harm from happening
• the owner or any other person will suffer more if the eviction does not happen, than the occupier will suffer if the eviction does take place

Compensation if you get evicted

If the court grants an eviction order, the court must order the owner to compensate you for any improvements to the land or property, or for crops you planted which you have not harvested yet.

If you were employed by the owner, you must get all your wages that are due to you.

When can the eviction order be carried out?

The eviction can only take place once:

• your compensation has been paid
• the court has set a date by when you must leave. If you do not leave by the due date, you can be removed.

Who can remove you?

Only the sheriff of the court can carry out an eviction. The sheriff can order other people to assist her or him, but she or he has to be present all the time.

If at any time, the owner or the person in charge forces you off the land, it is criminal offence. They can be jailed or fined for this. You will be compensated for any losses, and have the right to return to the land on terms and conditions decided by the court.

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), No 19 of 1998

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (also called PIE) repeals the Prevention of Illegal Squatting Act (1951). It provides procedures for eviction of unlawful occupants and prohibits unlawful evictions.

The Act applies to the eviction of unlawful occupiers from land throughout South Africa, excluding anyone who qualifies as an 'occupier' in terms of the Extension of Security of Tenure Act - which applies only to rural areas.

You are an unlawful occupier if you stay on land without the express or tacit permission of the owner or the person in charge. Tacit permission is when no-one said you were not allowed to stay there.

Who is covered by PIE?

Everybody is covered by this Act - whether you are living in an urban or a rural area, whether you staying in a house or not.

Evictions in terms of PIE

When is an eviction lawful?

For an eviction to happen lawfully, all the following steps must be followed. If any one of them is left out, the eviction is unlawful, and you can take the person who is evicting you to court.

If you are staying on land without the owner's permission, and he or she wants you to move:

• The owner must give you a letter to tell you to remove your building or structure within three days. This must happen before the owner goes to the court to get an eviction order.
• If you do not remove your structure, the owner must give you notice if he or she is going to court to get an eviction order. You must get at least two weeks notice that the owner is going to court. The notice must say on what date the court hearing will take place and where it will take place. The owner must also give a copy of this notice to the local authority.
• The owner can then go to court to get a court order to evict you.
• You can go to the court hearing and defend yourself. You can take a lawyer to help you.

What the court can decide

The court will only give an eviction order if it is proved that:

• the person who is applying to evict you, is in fact the owner of the land
• you are an unlawful occupier
• the owner has reasonable grounds to ask for your eviction
• the local authority or any other owner of land in the area can make alternative land available for you

Urgent evictions

The Act also allows for urgent eviction proceedings. This will be granted if the owner can show that:

• there is real danger of substantial injury or damage to any person or property
• there is no other way to solve this situation
• the owner is going to suffer more if the occupier stays on the land, than the occupier will suffer if he or she gets evicted In such a case, the owner can go to court and get a final order for the eviction.

If the court grants an eviction order

The eviction order will state a date by when you have to leave the land, and also the date on which the eviction will take place if you do not vacate the land.

The court order may also make an order for your buildings to be demolished.

Who can remove you?

Only the sheriff of the court can carry out an eviction. The court can also authorise somebody to assist the sheriff to evict you. No-one else may evict you. The sheriff must be present all the time during the eviction, demolition or removal.

REMEMBER !
Unlawful eviction is a criminal offence. If anybody evicts you unlawfully, you can take them to court.