When will court order be considered to be just and equitable in eviction of unlawful occupiers?

In the recent months we have seen a group of people occupying state owned land and private owned land or property. We have witnessed some political parties advocating these illegal occupations. This has been area an of interest for many writers, lawyers and authors.

The Prevention of Illegal Eviction from and Unlawful Occupation Act 19 of 1998 (hereinafter “PIE Act”) plays a big role when people unlawfully occupying the land or property belonging to others are unlawfully evicted.

The object of PIE Act is to provide for the prohibition of unlawful eviction and procedures to be followed for eviction of unlawful occupants. PIE Act set out procedural and substantive requirements that must be satisfied before a court may grant an order of eviction.

The point in question is when a court order will will be regarded as just and equitable in eviction of unlawful occupiers. There is no doubt this issue will touch on the constitutional rights of the lawful owners and the unlawful occupants.

In terms of section 4 (2) and (5) of PIE Act, the unlawful occupiers have the right to receive adequate notice and to defend the case, furthermore the proceedings must state that the proceedings are being instituted for an order for eviction of the unlawful occupiers; indicate on what date and time the court will hear the proceedings; set out the grounds for the proposed eviction; and state that the unlawful occupier is entitled to appear the court and defend the case and where necessary he has the right to apply for legal aid.

In terms of section 4(7) of PIE Act If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.

Section 4(8) provides that if the court is satisfied that all the requirements of section 4 have been compiled with and no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier with a date on which unlawful occupier must vacate the land or property.

The court will always have regard to all relevant factors including period the unlawful occupiers and their family have resided on the land in question.

The court in giving a just and equitable order will consider section 26(3) the Constitution of 1996, which provides that 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 and no legislation may permit arbitrary evictions. There is no doubt that PIE Act gives effect to this provision with regard to the just and equitable order of court.

The court in many occasions held that for order of eviction to be considered just and equitable all relevant factors must be considered including but not limited to: real and imminent danger of substantial injury if respondents not evicted; no other effective remedy available; and balance of hardship to the owner or any other affected person if an order for eviction is not granted and any alternative accommodation available to unlawful occupants. Factors to be considered will depend on the facts and circumstances of each matter.

The court in the case of City of Cape Town V Rudolph and others (2003) 3 ALL SA 517 (C) held that the procedural protection by PIE Act is governed by sections 4(2), 4(4), 4(5) and 6(6) and that the purpose and effect of these provisions is to afford respondents in eviction proceedings a better opportunity to put their case before the court than they would have had under the ordinary rules of court.

The court further held that the substantive protection relates to the circumstances in which a court may grant an order and terms of the eviction order if such order is made. Sections 4(6), 4(7), 6(1) and 6(3) provide in effect that a court may only grant an eviction order if it is of the opinion that it would be “just and equitable” to do so. In making that determination, the court is required to consider all relevant circumstances including, but not limited to, those specified in the above sections and the constitution.

In conclusion, an order will be just and equitable for the eviction of unlawful occupants if the order is consistent with the constitution and the procedural and substantive protections are followed. Furthermore the PIE Act has given the court discretion in relation to making a just and equitable order after considering all the relevant facts and circumstances.