Should a Landlord have a social conscience?

In terms of the South African common law, ownership is regarded as the most extensive and absolute real right that an owner of property has with regard to his property. Under common law, all the owner needs to prove in court is that he or she is the owner of the property and that someone else occupies the property. The onus is then on the other person to allege or establish a right (such as a lease or builder’s lien) to continue to hold the land.

Section 26(3) of the Constitution of the Republic of South Africa 108 of 1996 (“the Constitution”) reads as follows: “No person may be evicted from their home without an order of court made after consideration of all the relevant circumstances

In order to ensure that legislation is in compliance with the provisions of the Constitution, several legislative reforms have been introduced since the commencement of the Constitution during 1997.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) came into operation on 5 June 1998. The purpose of PIE is to provide for the prohibition of unlawful eviction, to provide for procedures for eviction of unlawful occupiers, to repeal the Prevention of Illegal Squatting Act 52 of 1951, other obsolete laws and to provide for matters incidental thereto.

Section 8(1) of PIE provides that no person may evict an unlawful occupier except on the authority of an order of a competent court. PIE defines an “unlawful occupier” as:

“A person who occupies land without the tacit consent of the owner or person in charge, or without any other right to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act 1997, and excluding a person whose informal right to land, but for the provisions of this Act, would be protected by Provisions of the Interim Protection of Informal Land Rights Act 1996 (Act 31 of 1996).”

PIE makes provision for three eviction procedures, namely:

an eviction procedure for individuals (section 4)
an urgent eviction procedure (section 5) and
an eviction procedure for a state organ (section 6)
On 30 August 2002 The Supreme Court of Appeal delivered the judgements of Peter Ndlovu v Mpika Lawrence Ngcobo and Charles Alfred Bekker and Michael John Bosch v Jimmy Rodgers B Jika.

In Ndlovu’s case, the tenant’s lease was terminated lawfully, but he refused to vacate the property. In Bekker’s case, a mortgage bond had been called up, judgement was taken, the property was sold in execution and transferred to the purchaser, but the erstwhile owner refused to vacate the property. Both the former tenant and the former occupier resisted the relief sought against them, relying on the protection of PIE.

In this judgement the majority of the Court held that PIE was applicable to all cases where a party sought the eviction of another from a property. Effectively the majority found that the definition of “unlawful occupier” applied to all people who were in unlawful occupation of any land. The Court found that PIE also applied to people who had originally occupied land lawfully, but whose occupation had become unlawful.

The Court, however, held that a commercial tenant (for example a business) does not fall under PIE, as a building or structure does not perform the function as a dwelling or shelter for humans. The Court held that the Landlord was not without recourse and could still apply for the eviction of a tenant, although the means for applying for eviction were more cumbersome.

In terms of our Supreme Court Act, the judgement of the Majority of the Supreme Court of Appeal is the final and binding judgement of the Court. As a result we have to accept the ruling until such time as the courts change the judgement or Parliament changes the definition of “unlawful occupier”.

PIE places a huge responsibility on the shoulders of a lawful owner of land to meet the provisions and follow the procedures in terms of PIE. A lawful owner of land is in terms of PIE entitled to evict unlawful occupiers, but eviction can only take place if the owner of land meets the stipulated requirements in PIE. These requirements include for example suitable alternative accommodation and taking into consideration of the rights and needs of the elderly, children, disabled persons and households headed by woman. This results in the right of the lawful owner of land being weighed against the “rights” of the unlawful occupiers.

The question arises whether the state, in promulgating this Act, has not shifted their social responsibility to provide for and tend to the needs of the elderly, children and disadvantage people onto individual landowners. Simply put, should landlords be compelled by law to have a social conscience with regard to their own property being occupied by hardship cases?

RECENT DEVELOPMENTS

On 27 August 2003 the Department of Housing published the draft Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill, 2003 (“the draft bill”) in the Government Gazette for public information, discussion and comment. Interested persons and institutions have been invited to submit written comments on the draft legislation to the Director-General, Department of Housing on or before 29 September 2003.

In terms of the proposed amendments to PIE, the definition of “unlawful occupier” would exclude any person who having initially occupied land with the express or tacit consent of the owner or person in charge, thereafter continues to occupy once such consent has been withdrawn.

It is further expressly stated in the proposed amendments that PIE will not apply in respect of any proceedings:- for the eviction of any tenant or former tenant or any person occupying land through the title of such tenant or former tenant; by a mortgagee for the foreclosure of the bond and the eviction of a mortgagor or of any person holding title through the mortgagor;

to any land acquired by way of a sale in execution or judicial sale of property. The onerous provisions of PIE will no longer apply for the benefit of tenants whose tenancy has come to an end (whether or not they are residential or commercial tenants). It will also not apply to mortgagors, where the bondholder in respect of property has foreclosed on a bond or in respect of any land acquired by way of a sale in execution or judicial sale of property. In the result the legislation, if passed by Parliament, will effectively address the concerns of landlords and bondholders arising from the abovementioned judgment.

Article from: www.hofmeyr.co.za