WHETHER THE LAW PERTAINING TO EVICTION IS CONSISTENT AND EFFICIENT? Research question:

Comparative analysis of the three methods of eviction used in SA 1. REI VINDICATIO 2. PIE 3. ESTA

Scope …

1. BACKGROUND CONSITUTION: Section 25(5) demands a broadening of the access to land. Section 25(6) promotes security of tenure Section 26(3) states that “no one may be evicted from their home without an order of court made after considering all the relevant circumstances”.

Distinction of the three methods of eviction: 1.REI VINDICATIO: Definition: Is a real remedy which can be instituted by the owner to reclaim his property from anyone who is in unlawful physical possession thereof.

Requirements: 1.The owner must prove that they are actually the owner. 2.The property must exist and be identifiable. 3.The property must be in the defendant’s physical control.

President of the Republic of South Africa v Mooderklip Boerdery 2005 (5) SA 3 (CC) para 55: “[The Act] especially requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern.” 2. THE PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND ACT 19 OF 1998

Preamble: PIE applies to unlawful occupiers of homes Section 1: an unlawful occupier is a person who occupies land without the express or tacit consent of the owner or person in charge

Three procedures for eviction: 1. Section 4: Sets out the normal procedures where the owner or person in charge of the property wants to bring an application. 2. Section 5: Eviction brought under urgent circumstances. 3. Section 6: Eviction brought by an organ of state for land situating in their jurisdictional area.

Court will consider whether it is just and equitable to do so taking into consideration all the relevant circumstances. If the unlawful occupiers have been on the land for more than six months then the court must consider whether there is other land available. The court needs to pay special attention to the elderly, children, disabled persons and households headed by women.

Section 1: an occupier means a person residing on the land which belongs to another person and who has consent, but excludes: (a) a person using the land for industrial, mining, commercial or commercial farming purposes, but includes a person who works the land themselves or doesn’t employ any person who isn’t a family member. (b) A person who earns more than R5000/month. 3. THE EXTENSION OF SECURITY OF TENURE ACT 62 OF 1997

Two -stage procedure: 1.Termination of the right of residence 2.Eviction granted by an order of court

Special considerations: 1.Occupier whose right arises solely from their employment 2.An occupier who is 60 years old or older and can’t supply labour due to Ill health, injury or disability and has been residing on the land for more than 10 years. The occupation of land may be terminated on any lawful ground provided that it is just and equitable to do so.

Section 10: Occupied land before 4 February 1997 Breached duties regarding rights and duties of the occupier which are material Occupier breached a material and fair term of the agreement Occupiers breach is so fundamental that it being remedied is impossible Occupier voluntarily resigns Suitable alternative accommodation is available Owner will be seriously prejudiced Has to be just and equitable

Section 11: Occupied land after 4 February 1997 Fixed term agreement Just and equitable to do so

2 months warning Compliance with substantive requirements Failure to vacate premise Urgent proceedings

SUMMARY: Rei vindicatio only applies to commercial premises PIE to urban areas of unlawful occupiers ESTA to rural areas of occupiers

Conclusion…

Bibliography: Primary Sources: 1.Bekker v Jika [2001] 4 All SA 573 (SE). 2.Ndlovu v Ngcobo, Bekker v Jika 2003 (1) SA 113 (SCA). 3.President of the Republic of South Africa v Modderklip Boerdery 2005 (5) SA 3 (CC). Secondary Sources: 1.Francois du Bois Wille’s Principles of South African law 9 th edition (2007) Juta & Co, Cape Town. 2.Mostert and Pope The Principles of the Law of Property in South Africa (2009) 3.Silberberg and Schoeman The law of Property 5 th edition (2006)