Article written by Katleho Selepe, Candidate Attorney, checked and released by Dianne Reddy, Associate at Schindlers Attorneys
16 November 2022
- In this current day and age, property owners are faced with the unlawful occupation of their properties, either through a non-paying tenant who refuses to vacate the premises despite lawful cancellation of the lease, or through the illegal occupation of members of the public, commonly referred to as “squatters”.
- The legislature, through the Prevention of Illegal Evictions and Unlawful Occupation of Land Act 19 of 1998 (“the PIE Act”)1 has prescribed the process to be followed when an application for the eviction of unlawful occupiers is brought by the owners of the property. Sections 4 to 6 of the PIE Act encompasses the process that should be utilized by property owner to evict an unlawful occupier, whether it is a non-complying tenant or an unknown third party.
- The High Court of South Africa, Gauteng Division, Johannesburg in the matter of Tony Emmanuel Meme-Akpta and Another v The Unlawful Occupiers of Erf 1168, City and Suburban, 44 Nugget Street, Johannesburg, and Another Case No. 38141/2019 (“Meme-Akpta”)2 was faced with such an application, and had to consider whether an order evicting the First Respondents (“the Unlawful Occupiers”) from the premises in question, as applied for, was justified.
- Briefly, the facts in Meme-Akpta are, the Applicants, who are husband and wife are the registered owners of the property situated at 44 Nugget Street, Johannesburg (“the Premises”). The Applicants are both resident in Nigeria.
- The Applicants took transfer of the Premises on or about 2011.
- The Respondents are about 200 individuals (“the Illegal Occupants”), some of whom have occupied the Premises from 2008. It is common cause that none of the occupiers have a legal right to occupy the Premises.
- The Illegal Occupants oppose the Application, and in their defence aver that they are indigent, and that their eviction would leave them homeless and drive them to the occupation of another property, unlawfully.
- The PIE Act prescribes the procedure to be followed where a landowner seeks to evict illegal occupants from his/her property.
- The prescripts of the PIE Act are devised in a manner that requires the courts to balance the rights of the occupants against those of the landowners. Where all the procedures have been complied with and there is no valid defence for the unlawful occupation, the court must grant an eviction order with an eviction date that is just and equitable having regard to all the relevant factors3.
- “People subject to an eviction from their home are generally of the most vulnerable in any society. It is for this reason that the Act has been enacted. It provides special constitutional protection for people facing eviction4.”
COMPLIANCE WITH THE PIE ACT AND CONSIDERATION OF THE MERITS
- In coming to its decision, the court had to consider in the first instance whether the Applicants have complied with the procedures as prescribed in the PIE Act and thereafter whether the merits of the case justify the granting of the order.
- As to compliance with the procedures prescribed by the PIE Act, the court noted as follows:
12.1. The served Notice of Motion did not have a date on which the eviction application hearing will be held, omission which, on its own, is fatal to the cause.
12.2. From the Return of Service, it is apparent that the eviction application was served by affixing, at what is described therein as the Respondents’ chosen domicilium address, this is untenable as there was never a contract through which the Respondents could elect such address.
12.3. Only the papers instituting the eviction application were served on the municipality with jurisdiction over the Premises, no further processes were served on it thereafter.
12.4. The notice in terms of Section 4(2) was served upon Ms Pretty, “the lady who sells sweets at the main door”.
12.5. The date on the section 4(2) notice, being 18 February 2020 was manually deleted and replaced with 06 May 2020. Service of such notice was authorised through an order by the Honourable Walt JA and made provision for a changing of the hearing date appearing on the notice to be endorsed by the Registrar, should the Sheriff fail to serve the notice timeously.
- From the above it is apparent that the eviction application was not properly served on the occupants, held the court, this is because, the current application being a mass eviction application, usual personal service is unlikely. The Applicants showed an appreciation of such factor and had indicated an intention to apply for substituted service in their papers, however, no such order was ever sought, resulting in an incurable service defect on both the eviction application and the notice in terms of section 4(2) of the PIE Act.
- In most mass evictions, especially where the unlawful occupiers are unknown to the landowners, personal service of the processes on each individual proves difficult. The onus rests on the Applicants to show that all the unlawful occupiers have been afforded sufficient notice of the proceeding eviction application against them.
- An application for substituted service, as provided for in the Rules of Court5, provide for alternative service mechanisms where the standard forms of service are unlikely to serve the purpose or impossible in the circumstances. The Applicants in the current matter did not make use of such alternative mechanisms and could not satisfy the court that all occupants were aware of the eviction application pending against them.
- From the replacement of the initial date on the S4(2) notice, the court concluded that on each occasion where a new date was obtained for the final hearing of the eviction application, the date was merely replaced with the endorsement of the Registrar – although this process is in line with the Honourable Walt JA’s order, its is not the procedure prescribed by the PIE Act.
- Despite all the above-mentioned omissions in terms of procedure, a Notice of Intention to Oppose, and an Answering Affidavit was received, clearly stating that the deponent to the Answering Affidavit was representing only 8 (eight) households.
- The Applicants, however, treated such opposition as being by all occupants, and conducted the eviction proceedings on that basis.
- The procedure applied by the Applicants fails to meet the prescripts per the PIE Act.
- Notwithstanding, the court continued to consider the merits of the matter, and made the following observations:
20.1. In determining a just and equitable date for eviction, a court must consider all the relevant factors, an important consideration in the present matter was the period of occupation of the property.
20.2. From the papers filed of record, it was apparent that some of the occupants had been on the Premises in excess of 10 (ten) years, and the Applicants fail to provide reasons for this extended period of occupation nor for their delay in bringing this application.
20.3. The PIE Act places an obligation on municipalities for their intervention where an eviction order may result in homelessness. The Applicants, however, failed to serve all processes on the relevant municipality, such failure preventing the municipality from being able to meet these obligations.
- The Applicants in the present matter did not comply with the prescribed procedures, and the merits do not warrant the granting of the order sought, held the court.
- In the circumstances, the eviction application was dismissed.
- Strict compliance with the procedures prescribed by the PIE Act is necessary when application for the eviction of unlawful occupiers is made, a failure to comply with these prescripts is fatal to the cause.
- In instances where mass evictions are sought, special measures, particularly regarding service of the processes, must be made adopted through the rules of the relevant court. Service of all processes, on all occupiers, is imperative, as an eviction order will not be granted where it seems that some of the occupiers may not be aware of the pending application.
- The merits of an eviction application must warrant the granting of an order for the eviction of the occupants.
- All processes must be served on the municipality with jurisdiction to enable it to comply with its statutory duty by ensuring that eviction orders do not result in homelessness.
Where there is compliance with the procedures prescribed by the PIE Act, and the merits warrant the eviction of unlawful occupiers, an order to that effect must be granted. The Prevention of Illegal Evictions from and Illegal Occupation of Land Act 19 of 1998.  Tony Emmanuel Meme-Akpta and Another v The Unlawful Occupiers o Tony Emmanuel Meme-Akpta and Another v The Unlawful Occupiers of Erf 1168, City and Suburban, 44 Nugget Street, Johannesburg, and Another Case No. 38141/2019f Erf 1168, City and Suburban, 44 Nugget Street, Johannesburg, and Another Case No. 38141/2019.  Section 4(8) and (9) of the PIE Act.  Meme-Akpta at para 45.  Rule 4(2) of the Uniform Rules of Court and Rule 10 of the Magistrates’ Court Rules.