New eviction laws still fail homeowners in South Africa

Proposed amendments to South Africa’s illegal eviction law fail to adequately protect property rights and could unfairly shift the burden of unlawful land occupations from the government onto private landowners.

The proposed Prevention of Illegal Eviction (PIE) Amendment Bill has been welcomed for narrowing the scope of the Act.

However, critics argue it still fails to adequately protect property rights and could shift the burden of unlawful land occupations onto private landowners.

The proposed Bill seeks to clarify the original purpose of the PIE Act by limiting its application to unlawful occupiers who entered land without legal permission, rather than people who initially occupied property lawfully.

Sentinel Homes managing director Renier Kriek explained that the amendment addresses an unintended consequence of the current Act.

He noted that PIE was introduced to protect vulnerable squatters from arbitrary eviction following the end of apartheid.

However, the legislation’s broad wording led the courts to extend its protections to former tenants, homeowners, and mortgagors whose legal right to occupy a property had expired.

If enacted in its current form, he said the Bill would make it clear that PIE does not apply to people who originally occupied a property under a legal lease, mortgage, or ownership agreement once that right has ended.

The Bill’s memorandum states that this reflects Parliament’s original intention and is designed to clarify the Act’s scope following the court ruling.

While the Bill has received praise from some, critics have cautioned that it could have negative consequences for property owners in South Africa. This includes the Freedom Front Plus Northern Cape’s MPL, Theo Joubert.

If passed, Joubert warned that property rights would not be sufficiently protected. “This is clearly evident in the written submission made by the Freedom Front Plus (VF Plus) yesterday.”

“The party endorses the objective of promoting human dignity and legal certainty, but besides failing to sufficiently protect property rights, the Bill also has several flaws relating to practical matters.”

An uphill battle for homeowners

Over the past two decades, Joubert said, the existing PIE Act has evolved into a system that increasingly saddles private property owners with the financial and legal burden of unlawful land occupations.

Meanwhile, government organs have failed to fulfil their constitutional obligations. “The proposed legislative amendments inadequately address this imbalance.”

“The Freedom Front Plus maintains that both the right to housing and property rights are constitutionally enshrined rights.”

However, this does not mean that the one right may be enforced in a way that, in effect, violates the other, Joubert clarified.

“Section 25 of the Constitution protects property rights and remains a cornerstone of economic growth, food security, investor confidence and individual freedom.”

A particular cause for concern, in the Freedom Front Plus’s view, is that the Amendment Bill leaves leeway for the government’s duty to provide alternative housing to be shifted onto private landowners.

In contrast, he noted that the Constitutional Court has already confirmed that this responsibility lies with the government, not with landowners.

“The Freedom Front Plus, therefore, proposed that the Act should clearly provide for a 14-day period within which unlawful and unestablished land occupations can be terminated with the assistance of the police.”

“Currently, the police frequently refuse to act because such matters are regarded as civil disputes. Consequently, landowners often cannot obtain legal relief before occupations become established.”

In addition, the Freedom Front Plus proposed that adjacent owners, community organisations and other interested parties should have the right to make eviction applications.

In the party’s view, all relevant government organs should also be obliged to participate in court proceedings.

“Furthermore, public office-bearers who facilitate unlawful land occupations or deliberately fail to act should also be held criminally liable,” Joubert said.

“The Freedom Front Plus remains committed to dignified housing solutions, but will keep opposing legislation that erodes the rule of law, shifts government failures onto ordinary citizens and undermines property rights.”