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Chapter 10 - Land and Housing

LAND

What is the government’s 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 carry out this policy or vision, the Government has implemented a land reform programme consisting of three elements:

• Land Restitution to address cases where people lost land after 1913 because of forced removals; the cut-off date for applications for land restitution was December 1998.
• Land 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.
• Land Tenure reform is a process of reviewing all the old land policies and laws in order to improve the tenure security of all South Africans.

Laws that apply to the land reform programme

The following are some of the most important laws relevant to the land reform programme that have been passed by the government.

Interim Protection of informal Land Rights Act (No 31 of 1996) (IPILRA)

This Act aims to protect people with insecure tenure from losing their rights to land while land reform is being introduced. The Communal Land Rights Act of 2004 will add to the IPILRA.

Communal Land Rights Act (No 11 of 2004) (CLRA)

The CLRA proposes new land tenure forms for people living in old homelands and other communal land. The Act is not yet in operation. (See CLRA)

Communal Property Associations Act (No 28 of 1996)

This Act enables communities or groups to acquire, hold and manage property under a written constitution.

Land Reform (Labour Tenants) Act (No 3 of 1996)

This Act protects the rights of labour tenants and enables them to acquire permanent land to live and work on.

See Land Reform (Labour tenants Act)

Extension of Security of Tenure Act (No 62 of 1997) (ESTA)

This Act gives people who lived on someone else's land on or after 4 February 1997 with permission from the owner, a secure legal right to carry on living on and using that land. It specifies clearly what the landlord must do before he or she can evict a tenant.

See ESTA.

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

This Act sets out how land can be orderly occupied. It explains when unlawful occupiers can be evicted and how to prohibit unlawful eviction. This Act repeals the Prevention of Illegal Squatting Act of 1951.

See PIE.

The Transformation ofCertain Rural Areas Act No 94 of 1998

This Act aims to allow for the transfer of 1.7 million hectares of land to the communities consisting of 70 000 people in the former 'coloured reserves' in the Western Cape, Northern Cape, Eastern Cape and Free State.

Land redistribution

All claims for land restitution had to be submitted to the Land Claims Commission before 31 December 1998. The Land Claims Court is still in the process of reviewing the claims. The Recent Restitution of Land Rights Amendment Act gives the Minister of Land Affairs extra powers to expropriate land for purposes of settling restitution claims.

Land redistribution and land grants

Land Redistribution aims 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.

A grant is a sum of money that you do not have to pay back. The government pays the money to help people pay for land or something else on the land like a well or fencing. It is not money in your hand. The money goes directly to the person or agent that is selling the land or the service. The government gives no more than R16 000 in subsidy money to any one applicant/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.

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

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 R2 500 per month per applicant/household. 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 R2 500 per month. It is important to understand that you will not automatically get a grant if you qualify.

People who could 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

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 their animals or grow 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 who often paid very little for the land. The Land Acquisition Grant is to help local authorities 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 crops.

If there is a need in your community to use a commonage, you must go to your local authority or the provincial Department of Land Affairs and discuss this option with them.

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

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.

Land Redistribution for Agricultural Development (LRAD)programme

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 had land taken from them or were prevented from owning land. The time-frame for this is 15 years.

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

Who can apply for land 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:

• 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

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 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 through having a registered title deed.

Communal ownership - This means people own land or property together as a community or as a group. This can be organised as a trust, Section 21 company, voluntary association or communal property associations (CPA).

Renting - You can rent your house or land from its owner and pay them a monthly fee.

Laws that give people security of tenure

Tenure reform must give everybody the same amount of security wherever they stay. Three laws have been introduced to give people more security of tenure and prevent illegal evictions:

• Communal Land Rights Act of 2004 (CLRA)
• Land Reform (Labour Tenants) Act 3 of 1996
• Extension of Security of Tenure Act 62 of 1997 (ESTA)
• Prevention of Illegal Occupation of Land Act 1998 (PIE)

The Communal Land Rights Act (CLRA)

The CLRA was passed by Parliament in 2004.

What does the CLRA say?

- Transfer of title and land administration

The Act applies to state land in the old homeland provinces, and all land reform land, including land currently owned by trusts and Communal Property Associations whether within the old homeland boundaries or not. It says that the Minister of Land Affairs may give ownership and title of such land to “communities”, who will own the land as “juristic persons” governed by registered community rules. The Act establishes land administration committees to administer and allocate land owned by communities. Where traditional councils exist, they may exercise the powers and functions of the land administration committee. If a community has a recognized traditional council, then this council can take on the powers and functions of the land administration committee.

The Act defines community loosely as “a group of people whose rights to land are derived from shared rules determining access to land held in common by such group”. The Department of Land Affairs says there are 892 communities with approximately 20, 000 people per community, who would be affected by the Act. The Traditional Leadership and Governance Framework Act states that existing tribal authorities will be seen to be traditional councils, but requires them to followthe requirement that 40% of their membership be elected, and 30% be women, within one year of the Act commencing.

- “New order” rights

The Act provides for the registration of “new order rights” in the name of a “community or person”. The title will be transferred to the “community” as a whole but within the community new order rights, (which are not the same as title, but would be registered) will be vested in individual ‘persons”. (It is not clear under what circumstance new order rights would be vested in “communities”.)

The Act sees a process whereby existing “old order” rights, such as Permission to Occupy Certificates, are converted to “new order” rights and registered. PTOs are the most common record of formally allocated individual land rights. However, ‘old order rights’ are not limited to PTOs, it also includes tenure rights that are ‘formal or informal’ and rights that come from ‘law, including customary law, practice or usage.’ The content of “new order” rights is not set out in the Act. They are deined as rights “confirmed, converted, conferred or validated by the Minister”.

- Comparable redress

A person who holds an old order right that cannot be made legally secure, may apply to the Minister for an award of “comparable redress”. The award could be alternative land, money, or a combination of the two. This provision follows the Constitution, which states that where tenure cannot be made secure, then ‘comparable redress’ must be provided.

- Land rights enquiry

Before there can be a transfer of title, or a conversion of old order rights to new order rights, or to the award of comparable redress, the Minister must institute a land rights enquiry. S/he appoints an official or consultant to conduct the enquiry and submit a report.

- Determinations by the Minister

Based on the report of the land rights enquiry, the Minister makes a determination. S/he determines the location and extent of the land to be transferred to a community or person. S/he determines whether all the land should be transferred to “the community” or whether the land should be sub-divided into portions and individually owned, or whether some of the land should be communally owned, some individually owned, and some remain state owned.

The Minister determines whether old order rights should be confirmed or converted into ownership or new order rights, and s/he determines the nature and extent of new order rights and who the holders of new order rights should be. The Minister also determines when old order rights should be cancelled, and whether the holder should be awarded comparable redress.

In making determinations the Minister must take into account the Integrated Development Plan of each municipality, and after consultation with local government, s/he may reserve part of the communal land to the state, including to the municipality.

- Communal general plan and register

After making a determination the Minister must have a communal general plan prepared, approved and registered and a communal land register opened. S/he must also transfer, through a Deed of Communal Land Right or a similar deed, the new order rights to the person or people who are entitled to these rights. The holder of a registered new order right may apply to “the community” for permission to upgrade his or her right into freehold ownership - at the holder’s cost.

-Land Rights Boards

The Minister can appoint Land Rights Boards to advise her or him and to advise and assist communities. The DLA says it sees one board per province with a staff of about 5 people. The Board will be made up of people from government departments, two representatives from the Provincial House of Traditional Leaders, one member nominated by the commercial or industrial sector, and seven from affected communities. A third of the Board members must be women.

-Kwa Zulu-Natal Ingonyama Trust Land

The Act preserves and incorporates the KwaZulu-Natal Ingonyama Trust land. The Act makes the Ingonyama Board the Land Rights Board for Kwa Zulu Natal, and gives it extended powers in respect of Ingonyama land (otherwise the Ingonyama Board would have found its powers cut back to the advisory function that Land Rights Boards fulfil in other provinces).

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.

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

See Dealing with land claims and other land reform disputes - the Land Claims Court.

Extension of Security of Tenure Act (ESTA)

Who is covered by ESTA?

ESTA 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 specifically gives women occupiers the same rights as men occupiers. However, the Act does not cover:

people who live in a proclaimed or recognised township

• 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 than R5 000 per month gross (before tax deductions)

What does ESTA say?

The Act says that if you have lived on someone else's land - with permission of the owner - on or before 4 February 1997, you have a secure legal right to live on the land. An owner can not change or cancel these rights without 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.

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 ESTA

The following actions are all forms of evictions:

• where the contract of employment is terminated and the person agrees to leave
• taking away somebody's right to live on land
• taking away somebody's right to use land
• taking away somebody's access to water ad electricity, 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. An eviction may be fair and 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.

In cases where the eviction is fair, a landlord must follow the requirements of the law in getting an occupier to leave the property, for example, by giving the required notice. However, if the occupier refuses to leave, the landlord must then get a court order to enforce the eviction. If the occupier disputes the eviction then the reasons for this must be raised in the court. The Act protects people who believe they have been unfairly evicted.

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. An eviction will not be lawful if the correct notices have not been given.
• 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 must be done in order to warn the municipality and the Department that they might need 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 also 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? To decide if it was fair, the court will ask:
• are there valid grounds for ending the right?
  
• did the owner inform the occupiers of allegations against them in a way they could understand it?
  
• did the occupiers have a chance to reply to the allegations?
  
• did the occupiers have enough time to reply?
  
• if there is an enquiry, another occupier, or person from an organisation that the occupier belongs to, must be allowed to help the occupier to state his or hercase
  
• if there is an enquiry, the owner must inform the occupier of his or her decision after the enquiry in writing
  
• if the right to stay on the land is threatened, the owner has to remind the occupier that the occupier has the right to take the matter to court if they disagree about the outcome of the enquiry
  

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.

An eviction order given by a magistrate’s court must go to the Land Claims Court for automatic review of the magistrate’s decision. In other words, the eviction order issued by the Magistrates Court must be confirmed by the Land Claims Court before it can be enforced.

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 or someone under their supervision, can carry out an eviction. 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) provides procedures for eviction of unlawful occupants and prohibits unlawful evictions. The main aim of the Act is to protect both occupiers and landowners.

An unlawful occupier is a person who occupies land without the express or tacit permission of the owner or the person in charge. Tacit permission is when the owner is aware of the occupant being on the land or premises but does nothing to stop this.

Who is covered by PIE?

Anyone who is an unlawful occupier, which includes tenants who fail to pay their rentals and bonds, is covered by PIE. It excludes anyone who qualifies as an ‘occupier’ in terms of the Extension of Security of Tenure Act

Evictions in terms of PIE

When is an eviction lawful?

For an eviction to happen lawfully, certain procedures must be followed. If any one of them is left out, the eviction is unlawful. So, if an owner wants to have an unlawful occupier evicted, they must do the following:

• give the occupier notice of his/her intention of going to court to get an eviction order.
• apply to the court to have a written notice served on the occupier stating the owner’s intention to evict the occupier. The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area. The notice must contain the following:

- a statement that says proceedings are being instituted in the court in terms of PIE
- the date and time of the court hearing
- the grounds for the proposed eviction
- that the occupier is entitled to appear before the court and defend the case
- that the occupier can apply for legal aid

• The unlawful occupier can go to the court hearing on the day it is set down and defend themselves if they believe the eviction is unfair.

A person who wants to defend the court action should approach the Justice Centre at the Magistrate’s court for assistance. An occupier threatened with eviction can apply for legal aid assistance and representation.

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.

Dealing with land claims and other land reform disputes - the Land Claims Court

The Land Claims Court (LCC) specializes in dealing with disputes that arise out of laws that underpin South Africa’s land reform programme. These are the Restitution of Land Rights Act, the Land Reform (Labour Tenants) Act and the Extension of Security of Tenure Act (ESTA). The LCC has the same status as the High Courts. Any appeal against a decision of the LCC lies with the Supreme Court of Appeal, and if appropriate, to the Constitutional Court. The LCC can hold hearings in any part of the country if it thinks this will make it more accessible and it can conduct its proceedings in an informal way if this is appropriate.

See Labour tenants and the Land Claims Court.