Good news for South Africans with squatters on their properties

The Prevention of Illegal Eviction (PIE) Amendment Bill narrows the Act’s scope to focus on true squatters, while making it easier for property owners to evict former lawful occupiers who remain after their legal right to stay has ended.

According to Sentinel Homes managing director Renier Kriek, the proposed PIE Amendment Bill deserves to be celebrated for at least one very important reason.

“PIE was enacted to prevent arbitrary evictions and protect vulnerable unlawful occupiers, but it was aimed at squatters,” he said.

“Its moral purpose was clear: to replace the harsh apartheid-era approach to ‘illegal squatting’ with a constitutional framework that respected dignity, housing need and judicial oversight.”

However, Kriek explained that the text of the PIE Act went beyond its apparent purpose due to sloppy drafting.

Since “unlawful occupier” was defined broadly and in the present tense, the courts held that PIE applied only to people who entered land unlawfully.

It also applied to people who originally occupied lawfully – tenants, mortgagors and owners – but whose legal right to remain had ended.

That was the result in the case of Ndlovu v Ngcobo; Bekker and Another v Jika. The Supreme Court of Appeal held that ex-tenants and similar “holders over” fall within the PIE Act’s ambit.

“The court’s interpretation was understandable as a matter of statutory language,” Kriek said. “But as housing policy, it was deeply problematic. The amendment corrects that problem.”

The Amendment Bill, if passed in its current form, will make it clear that PIE does not apply to a person who occupied land as a tenant under another agreement, or as an owner, where that legal basis for occupation has ended.

Its memorandum expressly records that PIE was not originally intended to apply to tenants, mortgagors, and owners who had occupied under prior agreements.

The memorandum also states that the amendment is needed to clarify the Act’s scope after Ndlovu v Ngcobo; Bekker and Another v Jika.

“This is not an attack on housing rights,” Kriek said. “It is a better understanding of them. Section 26 of the Constitution protects access to adequate housing.”

However, he noted that housing access is not served by making eviction harder for people already in the formal housing market, who are, on average, a relatively wealthy minority.

“It is also served by ensuring that landlords, lenders and investors are willing to make housing available in the first place,” he said.

Lack of housing and affordability

When the law makes it too risky, slow or expensive to recover property after a lease, mortgage or ownership right has ended, the consequences are predictable, Kriek explained.

What follows are stricter screening, higher deposits, higher rentals, less credit, more vacant units and less appetite to supply affordable rental housing.

“And in the 23 years since Ndlovu and Bekker, we have seen the consequences manifest in a stifling affordability crisis and a severe lack of housing access in the market,” he said.

“The people most harmed are not always the occupiers already in possession. Often, they are the ordinary South Africans still trying to get access, the have-nots outside the system. That is the moral point.”

Before clarification, Kriek said the effect of the PIE Act, when applied to holders, is that South Africa’s legal system has systematically favoured the haves over the have-nots.

“A tenant had access. A mortgagor had access. An owner had access. A person occupying under contract had access,” he explained.

“Their rights must be respected, but they are not in the same position as people who never had lawful access to land or housing at all.” He stressed that PIE should protect the vulnerable from arbitrary eviction.

It should not be used to grant extraordinary procedural protections to holders at the expense of future tenants, first-time buyers, and low-income households seeking to enter the formal housing market.

“The amendment restores PIE to its proper purpose: as a statute designed to regulate the eviction of a vulnerable group, namely, squatters,” he said.

“Making this change additionally protects the have-nots, not merely the haves who already got through the door of the formal housing markets.”

Kriek added that the change also promotes housing access by reducing unnecessary regulatory risk, thereby increasing the available capital for expanding housing supply.

“And it brings the law closer to the real promise of section 26: more South Africans gaining access to adequate housing, not fewer,” he said.