After the Supreme Court of Appeal (SCA) decision in Ndlovu v Ngcobo; Bekker and Others v Jika 2003, it was hoped that fears of the demise of the residential property letting market - and pressure from the major banks and landowners - would result in an amendment to the Prevention of Illegal Eviction and Unlawful Occupation of Land Act ("PIE"). Proponents for change wanted PIE's application to exclude former tenants and mortgagors who refused to vacate land after their leases were cancelled or their bonds foreclosed.

PIE required the court adjudicating an application for an eviction order to consider whether the eviction is "just and equitable", having regard to various factors. The Act changed the common law position that an owner could evict an unlawful occupier simply on the basis that he or she was the owner, and the occupier in unlawful possession, of the property.

The SCA held that "unlawful occupiers" include tenants and mortgagors who originally lawfully occupied the property but whose previously lawful possession subsequently became unlawful.

The pressure from the major banks and landowners did result in an Amendment Bill being published in March 2005. The Memorandum to the Amendment Bill submitted that the outcome of the decision of the SCA was neither desirable nor what had been intended. It proposed that PIE be amended so it applied only to persons who unlawfully invade land without the prior consent of the landowner, i.e. squatters, and specifically excluding defaulting tenants and mortgagors.

However, the Amendment Bill came under serious fire. Critics argued that the intention of PIE was to protect all vulnerable persons, and not only squatters, from unlawful eviction. The proposed exclusion of tenants from PIE would prevent vulnerable tenants from protection against unscrupulous landlords, or tenants, creating the potential for a repeat of past abuses.

The portfolio Committee on Housing withdrew the Bill earlier this year, and there is no indication when amendments to PIE will be considered again. It is unlikely to he anytime soon.

In the interim, residential landlords should:

• abide by PIE's somewhat complex and time-consuming procedures to evict a defaulting tenant
• screen tenants carefully
• insist on at least two months' security deposit to cover the time it takes to obtain an eviction order under PIE
• be vigilant and act speedily once a tenant is in default

Nonetheless, landlords can take some comfort in recent court decisions. The courts, it seems, are becoming increasingly impatient with tenants' deliberate and prolonged unlawful occupation of properties without any substantive reason, and will not hesitate to grant eviction orders, together with appropriate costs orders, against defaulting tenants.

 

This article is reproduced with the permission of its author, Natasha Kapp of Jan S De Villiers

First published by: De Rebus - The SA Attorneys Journal

www.derebus.org.za