1. 1 BRIEFING TO PORTFOLIO COMMITTEE ON HOUSING ON THE PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND AMENDMENT BILL (BILL 11-2005) DATE:25 JULY 2005

2. 2 BACKGROUND The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“Pie Act”) came into operation on 5 June 1998. PURPOSE OF PIE ACT Repeal the Prevention of Illegal Squatting Act, 52 of 1951, and Put in place a constitutionally aligned law.

3. 3 OBJECTS OF PIE To provide for the prohibition of unlawful occupation; To set out procedures for the eviction of unlawful occupiers, including urgent proceedings and evictions at the instance of an organ of State; To prohibit receipt or solicitation of consideration in respect of the unlawful occupation of land; To allow for the mediation of disputes in terms of the Act; and To provide for offences.

4. 4 Since inception of PIE, certain provisions caused interpretation and implementation problems, which necessitates an amendment to the Act. First draft Amendment Bill prepared and submitted to Cabinet during August 2003. On 20 August 2003, Cabinet resolved that: The Bill be published for public comment; The Bill be amended, if necessary, in light of comments received; and The Bill then be resubmitted to Cabinet for final approval.

5. 5 The Bill was published in Government Gazette No. 25391 on 27 August 2003 for comment. Comments were considered, and a revised draft Bill was prepared and submitted to Cabinet for approval. Cabinet approved the Bill and its introduction into Parliament on 1 December 2004.

6. 6 Problems which necessitated this amendment Bill: Unlawful occupation of buildings, particularly high-rise buildings has resulted in the need to amend the definition of “land” to include same. Section 3 of the Act prohibits receipt of solicitation of consideration in respect of unlawful occupation of land. These provisions require expansion so that consideration includes fees, costs, rental, etc. Supreme Court of Appeal Case of Ndlovu, Ngcobo, Bekker and another v. Jika, brought tenants and mortgagors under the scope of the Act.

7. 7 -The Court held that PIE Act applies to eviction procedures of: * Tenants who remain in premises after a lease has been lawfully terminated, and * Mortgagors who stay in the premises after the bank has foreclosed. -This was never the intention of the legislature when the Act was promulgated, and caused problems such as: * Reluctance by Developers to invest/enter the Rental Housing Market; and * Nullify mortgage agreements between banks and mortgagors. -To rectify the problem, section 2 of the Act must be amended to exclude tenants and mortgagors from its application.

8. 8 -The proposed amendment will: *Not deny tenants and mortgagors their constitutional right; * Add certainty to the manner in which unlawful occupiers are to be evicted, i.e. Unlawful occupiers of land will be evicted in terms of PIE; Mortgagors who hold over will be evicted in terms of the mortgage agreement; and Tenants who hold over will be evicted in terms of the Rental Housing Act, 50 of 1999. (Existing problems with the enforcement of Tribunal rulings are being addressed.) Give a discretionary power to Courts in cases where landowners try to circumvent the Act by entering into simulated lease agreements with unlawful occupiers, only to terminate it shortly afterward.

9. 9 ●The Act differentiates between persons occupying for less than six months and persons occupying for more than six months which constitutes an unequal protection of rights. ●The Bill seeks to rectify this situation by removing the six month distinction. ●These amendments also addresses the concerns raised in the Supreme Court of Appeal case of Baartman & Others v. Port Elizabeth Municipality, that the Act cannot limit the circumstances which a court may take into account in eviction proceedings.

10. 10 ●Sections 4(2) and 5(2) of the Act incorrectly places the burden of giving notice of a person’s intention to institute eviction proceedings on the court, and the Bill seeks to rectify this by placing the responsibility on the person who institutes the proceedings. ●Lastly the amendments to section 2 of the Act has necessitated minor changes to section 6, that being the deletion of the reference to “mortgagor”.

11. 11 In conclusion the Bill can therefore be summarised as follows: The definition of “land” is amended to include buildings and other structures on land; Section 2 of the Act is amended to clarify the application of the Act and to exclude tenants and mortgagors from its scope: The ambit of the prohibition on the receipt or solicitation of consideration in respect of unlawful occupation of land is widened; The Act is constitutionally aligned with the removal of the distinction between occupying for more, or less, than six months, as well as recognising the right of the courts to take into account all relevant circumstances without limitation; Technical difficulties, such as the duty to give notice of intended eviction proceedings, are clarified; and Consequential amendments, arising from the above, are effected.