Know your rights: when can you be evicted and how?
No-one can be evicted without an order of a court
No-one can be evicted from his or her home without a court order. Archive photo: Ashraf Hendricks
26 April 2018
Every year, hundreds of families are forced out of their homes by government departments, municipalities, private individuals or corporations. Evictions are a common occurrence in South African cities, informal settlements and townships.
What does the law say about evictions?
To answer this question we will need to start with the Constitution, which shapes and gives power to all law in the country.
Section 26 of the Constitution says that everyone has the right to adequate housing and that the state must take reasonable legislative and other measures, within its available resources, to achieve the gradual realisation of the right. This means that the government must enable access to adequate housing over time and within the limits of its resources. The government is not required to provide housing instantly where it has no resources to do so.
Another important part of section 26 states that no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the circumstances. The law does not permit arbitrary evictions. This means that before you are evicted there must be a court order. A court must consider how the eviction will affect the people who will be evicted and evictions cannot be done without good reasons.
To implement this part of the Constitution, Parliament enacted two statutes - the Extension of Security of Tenure Act (ESTA), in 1997, and the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act (PIE) in 1998. ESTA applies only to agricultural land, mainly land outside cities and towns, and has special protections for occupiers of land. PIE applies to all land throughout South Africa. It explains which procedures must be followed to evict people lawfully. PIE applies to unlawful occupiers, people who do not have permission from the owner of the land or home in which they are living.
Unlawful occupiers do have rights, according to PIE and the Constitution. This is very important. And in terms of PIE, an eviction can only be authorised by a court after taking into account the rights of all people involved.
PIE requires a court to consider:
- whether the occupiers include vulnerable people (such as the elderly, people living with disabilities, children and woman-headed households);
- the duration of occupation;
- whether the occupiers will be homeless as a result of the eviction, in which case the state must provide alternative accommodation if the occupiers cannot afford to do so.
Besides PIE, there is also the National Housing Code, which contains the Emergency Housing Programme. This Emergency Programme covers emergencies such as evictions, demolitions, displacements due to conflict or unrest, and people living in life-threatening conditions. The Emergency Programme makes municipalities responsible for providing temporary alternative accommodation to people who would be homeless as a result of an eviction. The Programme states that municipalities must budget for emergency housing situations and must apply to the provincial government for funding.
An eviction is illegal if:
- you are residing lawfully on the property;
- there is no valid court order allowing an eviction;
- a sheriff is not present at the time of the enforcement of the eviction order;
- the owner or landlord intimidates or threatens you to leave, changes the locks, or cuts off the services to the property without a court order (this is called a constructive eviction and is illegal in terms of the Rental Housing Act);
- if you lodge a complaint about an unfair practice, your landlord is not allowed to evict you even if they have obtained a court order (they can only evict after the complaint has been decided, or after three months have passed, whichever comes first);
- you are removed from the property and charged with trespassing: trespass charges are criminal in nature and should not be used as a way to avoid eviction proceedings;
- you are working and living on a farm and the owner terminates your contract and says you must leave.
What about people who occupy land?
An interim interdict obtained against people “threatening to occupy land” is not a legal basis for an eviction. Even if an interim interdict against occupation has been obtained, the owner must still get an eviction order from a court to carry out an eviction.
In other words, if an interdict is granted to prevent people occupying land, and those who have been warned against occupation nevertheless occupy the land, the owner must again approach a court for an eviction order before the eviction can take place.
Now that we have covered unlawful evictions let us take a look at the process for lawful evictions. If any of the steps below are missing, the eviction is illegal.
- There must be discussions between the owner, the unlawful occupiers and the municipality. The discussion must consider how the owner’s interests can be met without an eviction, and whether the municipality has alternative accommodation to which the unlawful occupiers can move.
- If meaningful engagement does not result in a solution, then the owner wanting to evict must approach a court of law.
- Those who are being evicted must be given all the court documents that the owner submitted to court. These documents will contain the personal details of the owner, the reasons why the owner wants to evict and why the owner believes he or she has a right to evict.
- The occupiers must be given a chance to respond to the court documents and to oppose the eviction.
- A Section 4(2) notice must be given to the occupiers. This is a written notice of the eviction over and above the initial court papers which were given to the occupiers. This notice must contain the place, date and time of the court hearing, and the reasons for the eviction, and must inform the occupiers that they have a right to appear in court to oppose the eviction. Most importantly, the notice must contain a list of organisations which can offer legal assistance to occupiers.
- The matter must be heard in a court of law where all the parties present their side of the story. If the occupiers have not received legal assistance, the judge will postpone the matter for another date. If the occupiers will be homeless after the eviction and the owner has not provided the municipality with all the court papers, the judge will postpone the matter until the municipality has been given the court papers and is present in court. The judge can also dismiss the matter if the municipality is not present, which means that this process will have to start from the beginning. One of the important things about being in court to oppose the eviction is that the occupiers have an opportunity to present their personal circumstances to the judge. There could be child-headed households in the community; some people could be homeless if evicted; there may be elderly people, women and children among the occupiers; there may be people living with disabilities or seriously ill people among the occupiers. Household income and the length of time the occupiers have stayed at the place must also be taken into account. Once the court has assessed all these factors and more, the judge will decide whether it is fair and reasonable to order the eviction.
- The eviction order must be given to the occupiers by the Sheriff, who must explain the eviction order. The time frames vary,. However, the occupiers must be given time to move before the eviction is conducted. If the municipality has provided alternative accommodation, the occupiers will be given time to move to that accommodation.
- Finally, the eviction will be carried out by the Sheriff or Deputy Sheriff. They must at all times treat occupiers with dignity and respect. They must not cause unreasonable damage to property and they must carry identification.