This Act sets out clearly how land can be occupied in an orderly manner. It further explains when and how illegal tenants can be evicted and how to forbid illegal eviction. PIE repeals the Prevention of Illegal Squatting Act of 1951. Section 4 of the PIE provides that “a notice must be given to unlawful occupiers, at least in fourteen (14) days before the hearing”.361 PIE requires that before evicting people a land owner must give them a notice which will
360 Ibid note 359.
361 Section 4 of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998.
give the people an opportunity to get a legal representative if needs be and defend them before the court. The time period given for the notice affords the people a reasonable time to vacate the land.
Improvements or developments made on land illegally occupied are forfeited when the unlawful occupiers are evicted. It is commonly done by a way of demolishing of structures built on the land in question. Lack of land is usually the reason why many developmental structures are demolished because the land which the structures are built on is illegally acquired or occupied. On the 4th of November 2019, the Polokwane Local Municipality demolished rental houses built on ERF 815 at Unit E in Mankweng. The demolishing followed a court case of 2016 between the Municipality and the Illegal occupants. In 2016 the Municipality made an inspection and made a finding that a certain person was building structures on ERF 815-unit E, a site designated for the Department of Education to build a school. The municipality informed the respondents about the position of the ERF in question.
The respondents indicated that they will not refrain from erecting structures on the site. The municipality sought for an order in High Court and was granted an order interdicting and restraining the respondents or any other person from occupying the land and further ordered the respondents to demolish and remove all buildings and other removable property from the ERF within 14 days of the court order. In the event the respondents do not comply with the order, the sheriff was authorised to demolish and remove all property or structures on the ERF. The court order was stayed by the municipality for a period of 2 years, during which the municipality engaged in several communications with the respondents and failed to reach an understanding. And consequently, the sheriff was instructed to demolish as per the court order.
It is rather unfortunate that developments made on land that was illegally acquired are forfeited. This slows down the pace of developing land which is not utilised. There are lengthy procedures of acquiring land, whilst there are quite a number of plots that are not utilised productively. The formalities and procedures thereof are quite complex and as a result developer are hindered from erecting their developmental structures due to complex and conflicting procedures of acquiring land that is not used. The people who are in possession of land are either procrastinating about using the land productively or they do not have financial resources. Perhaps the state need to invest in mechanism of ensuring that developments made on land that is illegally occupied are not necessarily demolished
but rather put in good use that will generate income and ensure that illegal occupants do not lose their investment but are compensated accordingly. Therefore, the money generated from developments made on the land illegally occupied could serve as costs suffered by state when compensating the illegal occupant. However, this should not encourage illegal occupants to develop land that does not belong to them with a hope of recovering their investment when evicted. This measure should be used as a means for redressal.
Furthermore, a land that is demarcated and set aside for a specific purpose by the state or an individual should be clearly marked and indicate the intended purpose. This will assist illegal occupant to be informed of the owners of the land in question, therefore it will place the illegal occupant in mora and render such occupying of land as trespass. Moreover, land set aside for a specific purpose should be timeously utilised to avoid land to lay fallow for a very long time and create an opportunity for illegal occupants to take advantage of. Evicting legal occupiers is a lengthy process that needs to be duly complied with, however there are circumstances where the process itself becomes a hindrance to a landowner to timeously evict illegal occupants and consequently utilise their land productively. Such as in the case of Khauhelo v Mosupa and Another (A252/2014) [2015] ZAFSHC 69 (19 March 2015). The appellant was evicted on the 14 august 2014 after being served with notice of motion. The appellant brought the matter before court alleging that ”the notice of motion did not comply with Rule 55(1)(e)(iii) of the Magistrate’s Court rules in that, according to the said rule, an applicant should set forth a day in its Notice of Motion, not less than five (5) days after service of the application on the respondent which requires of the respondent to notify the applicant whether the application would be opposed, and furthermore, a date should be stated not less than ten (10) days after the lapse of the five (5) day period when the application will be heard. The appellant pointed out that no such dates were set out in the Notice of Motion”.362 The appellant further urged that the respondent should have used Form “1A” of the Magistrate’s Court rule and that there was no request for condonation for the use of the wrong form.
The court held that “there was agreement with the Act and that the purpose of the said Act has been achieved. Nowhere in the said notice, is the date stated whereon the proceedings would be heard as contemplated in Sections 4(2) and 4(5)(b). however, the order declared that the respondents must appear before the court on the 12 November 2013, same was
362 Khauhelo v Mosupa and Another (A252/2014) [2015] ZAFSHC 69 (19 March 2015), saflii.austlii.edu.au.
only to stipulate whether they would use their right to conduct their own cases, alternatively to get an attorney and/or to apply for legal aid. Nowhere is the date of the hearing indicated.
Accordingly, the municipality would never have known when this application was to proceed.
No effective notice was therefore given to them. This is with the exception of the fact that notice had not be offered less than a period of fourteen (14) days”.363
The court further held that “the Magistrate in the circumstances should not have granted the order. The Magistrate should have found that there was improper agreement with the provisions of the Act and could not in the absence thereof have granted an order of eviction”.364 And that the Magistrate should merely have removed the application from the roll. Accordingly, the appeal succeeded with costs. Application of eviction must be properly done following the required procedure, in order to afford the respondent a reasonable time to respond to the application. Failure to follow proper procedure will render the application unsuccessful regardless of your right of ownership of the land.