The short answer
You are protected by the Interim Protection of Informal Land Rights Act and cannot be removed without your informed permission.
The whole question
Someone claims to have bought my stand in tribal land, even though I have a Permission to Occupy (PTO) certificate. A few months ago, the so-called new owner came to the house with the police and an incomplete protection order. What can I do?
The long answer
As the holder of a PTO certificate, you are protected by the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) and you may not be removed from your land without your informed permission.
The law firm Cliffe, Dekker and Hofmeyr wrote in a June 2022 article that even though a PTO was not a title deed, “Occupiers on communal land are regarded as de facto owners of the land and they have existing informal rights that are protected by law.”
Legalwise.co.za clarifies that a person may only be evicted from the property they are staying on if they are considered to be an "unlawful occupier":
“An unlawful occupier is a person who:
stays on a property without the consent of the landlord;
stays on a property without having any right in law to do so; or
is not considered to be an occupier in terms of any other law.”
This is clearly not the case with you if you are a PTO holder. In addition, the municipality and the chief must keep a record of all PTO certificate holders.
The issue of the unsigned affidavit used to secure the protection order:
An affidavit must be signed and stamped by the police officer or court official for it to be a valid document. The affidavit you were shown was not signed and stamped, and only the day and the year were recorded, not the month.
The content of the affidavit was handwritten in Sesotho and said: “Lesedi Mahao (not his real name) a re rogieng ja on abo mareye le dinnywanga o gana gotswa ntswa mo ntlong e re e rekileng o tshedisa go e mshuma."
I do not understand Sesotho, but this is Google's translation into English: "Lesedi Mahao says that he is swearing that he is refusing to move out of the house that he has bought and that he is trying to move it."
This would obviously make more sense if it stated that you refused to leave the house that she had bought, so perhaps that is what it is meant to say.
Perhaps the first thing to do is to go to the municipality and ask how them to explain how it has been possible for your house to have been sold without your knowledge, as you are the PTO holder for the stand. Show them the unsigned and unstamped affidavit used by Amy Leballo (not her real name) to obtain the protection order.
If you do not get any help from the municipality, you will need to get legal advice. You can contact Legal Aid, a means-tested organisation which must assist you with free legal services if your income falls below a certain level. These are the contact details of the Legal Aid SA Free State/North West Provincial Office:
Provincial Executive: Mr Tshotlego Makamedi
Telephone: (051) 412 8040 or (051) 412 8043
Fax: (051) 444 2386
Physical address: Hydro Park Building, 100 Kellner Street, Westdene, Bloemfontein, 9301
There is also a Law Clinic which forms part of the Faculty of Law of the North West University, Potchefstroom Campus, which gives free and advisory legal services. The Law Clinic operates in the provinces of North-West and Mpumalanga. These are their contact details:
Contact person: Ms Omphemetse Mmekoa
Physical address: North-West University, Mahikeng Campus (Corner of Albert Luthuli and University Drive), Mmabatho, 2745
Tel: (+27 18) 389-2062/2060
Contact person: Ms Saritha Marais
Physical address: Main Building F5, North-West University, Potchefstroom Campus, 11 Hoffman Street, Potchefstroom, 2531
Tel: (+27 18) 299-1568
Wishing you the best,
Answered on July 26, 2022, 9:53 a.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.