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
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
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.
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