Land grabbing – SA style

Stake your claim! ‘Affirmative leasing!’ Owners of rental properties are having their rights to evict non-paying tenants challenged in court. We report on recent court cases.

Is property ownership coming under threat in South Africa? Numerous people unlawfully occupying homes owned by others are resisting attempts to evict them. South Africa’s High Courts are being called on time and again to make decisions where occupants are exercising what might be called an assumed right of “affirmative leasing”.

The issues rise firstly from Section 26(3) of the Constitution Act No.108 of 1996 which reads as follows:No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Two recent cases, where eviction orders were ultimately granted, will give the average home owner an idea of the challenge to his right of lawful possession of his own property. In the first case a contract of lease between the parties was cancelled because the tenant failed to pay the required deposit and certain monthly rentals due. Although the tenant was now in undisputed unlawful occupation, the local Magistrate’s Court refused to evict him. The Court followed what has already become a well-known case in South Africa, Ross v South Peninsula Municipality (a 1999 Cape Provin-cial Division case), reasoning that the mere fact of illegal occupation was not sufficient reason to order eviction. The Cape High Court, following Section 26(3), ruled that some other relevant circumstance justifying eviction had to be proved without defining what those circumstances might be.

When this case went to the High Court (Betta Eiendomme (Pty) Ltd v Ekple-Epoh, WLD), the learned judge found otherwise. He reasoned that an owner of property is not required to provide housing to the public, nor should it be “burdened to carry the can” of an occupant’s claim to housing. The judge added that certain obvious circumstances would justify eviction in almost any case where a normal residence was being unlawfully occupied and no rents were being paid, such as the owner’s obligation to pay rates and taxes and any liability for lights and water expenses incurred by the occupant.

Much of the problem has arisen from the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (commonly known as the “Squatters” Act). This law came in to protect families who for generations had enjoyed undisturbed residence on lands owned by others. It was also particularly concerned to look after the elderly, children, disabled persons and households headed by women and to shield them from arbitrary evictions. In the Betta Eiendomme case the Court, following other decisions, decided that this law has no application to issues arising from lease con-tracts between landlords and tenants. The learned judge concluded that it would be inequitable for an owner to be burdened by an occupier who is, in effect, forcing himself upon him.

In the second case a home owner defaulted on her bond with a local bank which was obliged to foreclose against her and sell the property in execution. Months later the new purchaser took transfer of the property and applied to the local High Court for eviction of the previous owner who refused to vacate the premises. She argued that she qualified as a single woman looking after a household, but the Court, finding that the provisions of Act 19 of 1998 were again not applicable, ordered her eviction. It found that as the new owner was a natural person and intended to house his own wife and children on the premises, she had no right to remain in the home.

These decisions are encouraging and, as long as South Africa’s judiciary remains independent, property owners can expect relief from the courts. The future? One of the judges in these cases commented that we are experiencing a new form of land grabbing in South Africa, Zimbabwe-style. Can people refuse to pay their bonds or their monthly rentals as tenants and expect to remain in the homes they occupy unchallenged? It would be a day of grievous injustice in this country ifhome owners were unable to remove such defaulters from their properties.