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Marius Scheepers & Company Attorneys |
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Prevention of illegal
Eviction from and Unlawful occupation of Land act, 19 of 1998 (updated
01/03) [ASSENTED TO 2 JUNE 1998] [DATE OF COMMENCEMENT: 5 JUNE 1998] (English text signed by the President) ACT
To provide for the prohibition of unlawful eviction; to
provide for procedures for the eviction of unlawful occupiers; and to repeal
the Prevention of Illegal Squatting Act, 1951, and other obsolete laws; and
to provide for matters incidental thereto. Preamble
WHEREAS no one may be deprived of property except
in terms of law of general application, and no law may permit arbitrary
deprivation of property; AND WHEREAS 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 WHEREAS it is desirable that the law should
regulate the eviction of unlawful occupiers from land in a fair manner, while
recognising the right of land owners to apply to a court for an eviction
order in appropriate circumstances; AND WHEREAS special consideration should be given
to the rights of the elderly, children, disabled persons and particularly
households headed by women, and that it should be recognised that the needs
of those groups should be considered; BE IT THEREFORE ENACTED by the Parliament of the
Republic of South Africa, as follows:- 1 Definitions In this Act, unless the context indicates
otherwise- ‘building or structure’ includes any hut, shack,
tent or similar structure or any other form of temporary or permanent
dwelling or shelter ‘consent’ means the express or tacit consent,
whether in writing or otherwise, of the owner or person in charge to the
occupation by the occupier of the land in question; ‘court’ means any division of the High Court or the
magistrate’s court in whose area of jurisdiction the land in question is
situated; ‘evict’ means to deprive a person of occupation of
a building or structure, or the land on which such building or structure is
erected, against his or her will, and ‘eviction’ has a corresponding meaning; ‘land’ includes a portion of land; ‘Minister’ means the Minister designated by the
State President; ‘municipality’ means a municipality in terms of
section 10 of the Local Government Transition Act, 1993 (Act 209 of 1993); ‘organ of state’ means an organ of state as defined
in section 239 of the Constitution of the Republic of South Africa, 1996 (Act
108 of 1996); ‘owner’ means the registered owner of land,
including an organ of state; ‘person in charge’ means a person who has or at the
relevant time had legal authority to give permission to a person to enter or
reside upon the land in question; ‘unlawful occupier’ means a person who occupies
land without the express or tacit consent of the owner or person in charge,
or without any other right in law to occupy such land, excluding a person who
is an occupier in terms of the Extension of Security of Tenure Act, 1997, and
excluding a person whose informal right to land, but for the provisions of
this Act, would be protected by the provisions of the Interim Protection of
Informal Land Rights Act, 1996 (Act 31 of 1996). 2 Application of
Act This Act applies in respect of all land throughout
the Republic. 3 Prohibition of
receipt or solicitation of consideration in respect of unlawful occupation of
land (1) No person may
directly or indirectly receive or solicit payment of any money or other
consideration as a fee or charge for arranging or organising or permitting a
person to occupy land without the consent of the owner or person in charge of
that land. (2) Any person who
contravenes a provision of subsection (1) is guilty of an offence and liable
on conviction to a fine or to imprisonment not exceeding two years, or to
both such fine and such imprisonment. (3) The court which
convicts any person of a contravention of this section, must order any money
or other consideration received by that person which have been seized, to be
forfeited, and the said money and the proceeds of such other consideration
may be paid to the person or persons from whom the money or other
consideration was received, and where such person or persons cannot be
positively identified, into the National Revenue Fund. (4) If any money has
been received in contravention of subsection (1) but has not been seized or
made available for purposes of confiscation, the court which convicts any
person of a contravention of this section, may order the amount proved to the
satisfaction of the court to have been received by such person to be paid to
the person or persons from whom the money or other consideration was
received, and where such person or persons cannot be positively identified,
into the National Revenue Fund, and such order has the effect of and may be
executed against such person as if it were a civil judgment in favour of that
person or persons from whom the money or other consideration was received or
in favour of the State. 4 Eviction of
unlawful occupiers (1) Notwithstanding
anything to the contrary contained in any law or the common law, the
provisions of this section apply to proceedings by an owner or person in
charge of land for the eviction of an unlawful occupier. (2) At least 14 days
before the hearing of the proceedings contemplated in subsection (1), the
court must serve written and effective notice of the proceedings on the
unlawful occupier and the municipality having jurisdiction. (3) Subject to the
provisions of subsection (2), the procedure for the serving of notices and
filing of papers is as prescribed by the rules of the court in question. (4) Subject to the provisions
of subsection (2), if a court is satisfied that service cannot conveniently
or expeditiously be effected in the manner provided in the rules of the
court, service must be effected in the manner directed by the court: Provided
that the court must consider the rights of the unlawful occupier to receive
adequate notice and to defend the case. (5) The notice of
proceedings contemplated in subsection (2) must- (a) state that
proceedings are being instituted in terms of subsection (1) for an order for the
eviction of the unlawful occupier; (b) indicate on what
date and at what time the court will hear the proceedings; (c) set out the
grounds for the proposed eviction; and (d) state that the
unlawful occupier is entitled to appear before the court and defend the case
and, where necessary, has the right to apply for legal aid. (6) If an unlawful
occupier has occupied the land in question for less 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 the rights and
needs of the elderly, children, disabled persons and households headed by
women. (7) 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. (8) If the court is
satisfied that all the requirements of this section have been complied with
and that no valid defence has been raised by the unlawful occupier, it must
grant an order for the eviction of the unlawful occupier, and determine- (a) a just and
equitable date on which the unlawful occupier must vacate the land under the
circumstances; and (b) the date on
which an eviction order may be carried out if the unlawful occupier has not
vacated the land on the date contemplated in paragraph (a). (9) In determining a
just and equitable date contemplated in subsection (8), the court must have
regard to all relevant factors, including the period the unlawful occupier
and his or her family have resided on the land in question. (10) The court which orders the eviction of any person in
terms of this section may make an order for the demolition and removal of the
buildings or structures that were occupied by such person on the land in
question. (11) A court may, at the request of the sheriff, authorise
any person to assist the sheriff to carry out an order for eviction,
demolition or removal subject to conditions determined by the court: Provided
that the sheriff must at all times be present during such eviction,
demolition or removal. (12) Any order for the eviction of an unlawful occupier or
for the demolition or removal of buildings or structures in terms of this
section is subject to the conditions deemed reasonable by the court, and the
court may, on good cause shown, vary any condition for an eviction order. 5 Urgent
proceedings for eviction (1) Notwithstanding
the provisions of section 4, the owner or person in charge of land may
institute urgent proceedings for the eviction of an unlawful occupier of that
land pending the outcome of proceedings for a final order, and the court may
grant such an order if it is satisfied that- (a) there is a real
and imminent danger of substantial injury or damage to any person or property
if the unlawful occupier is not forthwith evicted from the land; (b) the likely
hardship to the owner or any other affected person if an order for eviction
is not granted, exceeds the likely hardship to the unlawful occupier against
whom the order is sought, if an order for eviction is granted; and (c) there is no
other effective remedy available. (2) Before the
hearing of the proceedings contemplated in subsection (1), the court must
give written and effective notice of the intention of the owner or person in
charge to obtain an order for eviction of the unlawful occupier to the
unlawful occupier and the municipality in whose area of jurisdiction the land
is situated. (3) The notice of
proceedings contemplated in subsection (2) must- (a) state that
proceedings will be instituted in terms of subsection (1) for an order for
the eviction of the unlawful occupier; (b) indicate on what
date and at what time the court will hear the proceedings; (c) set out the
grounds for the proposed eviction; and (d) state that the
unlawful occupier is entitled to appear before the court and defend the case
and, where necessary, has the right to apply for legal aid. 6 Eviction at
instance of organ of state (1) An organ of
state may institute proceedings for the eviction of an unlawful occupier from
land which falls within its area of jurisdiction, except where the unlawful
occupier is a mortgagor and the land in question is sold in a sale of
execution pursuant to a mortgage, and the court may grant such an order if it
is just and equitable to do so, after considering all the relevant
circumstances, and if- (a) the consent of
that organ of state is required for the erection of a building or structure
on that land or for the occupation of the land, and the unlawful occupier is
occupying a building or structure on that land without such consent having
been obtained; or (b) it is in the
public interest to grant such an order. (2) For the purposes
of this section, ‘public interest’ includes the interest of the health and
safety of those occupying the land and the public in general. (3) In deciding
whether it is just and equitable to grant an order for eviction, the court
must have regard to- (a) the
circumstances under which the unlawful occupier occupied the land and erected
the building or structure; (b) the period the
unlawful occupier and his or her family have resided on the land in question;
and (c) the availability
to the unlawful occupier of suitable alternative accommodation or land. (4) An organ of
state contemplated in subsection (1) may, before instituting such
proceedings, give not less than 14 days’ written notice to the owner or
person in charge of the land to institute proceedings for the eviction of the
unlawful occupier. (5) If an organ of
state gives the owner or person in charge of land notice in terms of
subsection (4) to institute proceedings for eviction, and the owner or person
in charge fails to do so within the period stipulated in the notice, the
court may, at the request of the organ of state, order the owner or person in
charge of the land to pay the costs of the proceedings contemplated in
subsection (1). (6) The procedures
set out in section 4 apply, with the necessary changes, to any proceedings in
terms of subsection (1). 7 Mediation (1) If the
municipality in whose area of jurisdiction the land in question is situated
is not the owner of the land the municipality may, on the conditions that it
may determine, appoint one or more persons with expertise in dispute resolution
to facilitate meetings of interested parties and to attempt to mediate and
settle any dispute in terms of this Act: Provided that the parties may at any
time, by agreement, appoint another person to facilitate meetings or mediate
a dispute, on the conditions that the municipality may determine. (2) If the
municipality in whose area of jurisdiction the land in question is situated
is the owner of the land in question, the member of the Executive Council
designated by the Premier of the province concerned, or his or her nominee,
may, on the conditions that he or she may determine, appoint one or more
persons with expertise in dispute resolution to facilitate meetings of
interested parties and to attempt to mediate and settle any dispute in terms
of this Act: Provided that the parties may at any time, by agreement, appoint
another person to facilitate meetings or mediate a dispute, on the conditions
that the said member of the Executive Council may determine. (3) Any party may
request the municipality to appoint one or more persons in terms of
subsections (1) and (2), for the purposes of those subsections. (4) A person
appointed in terms of subsection (1) or (2) who is not in the full-time
service of the State may be paid the remuneration and allowances that may be
determined by the body or official who appointed that person for services
performed by him or her. (5) All discussions,
disclosures and submissions which take place or are made during the mediation
process shall be privileged, unless the parties agree to the contrary. 8 Offences and
private prosecutions (1) No person may
evict an unlawful occupier except on the authority of an order of a competent
court. (2) No person may
wilfully obstruct or interfere with an official in the employ of the State or
a mediator in the performance of his or her duties in terms of this Act. (3) Any person who
contravenes a provision of subsection (1) or (2) is guilty of an offence and
liable on conviction to a fine, or to imprisonment not exceeding two years,
or to both such fine and such imprisonment. (4) Any person whose
rights or interests have been prejudiced by a contravention of subsection (1)
has the right to institute a private prosecution of the alleged offender. (5) The provisions
of the Criminal Procedure Act, 1977 (Act 51 of 1977), apply to a private
prosecution in terms of this Act: Provided that if- (a) the person
prosecuting privately does so through a person entitled to practice as an
advocate or an attorney in the Republic; (b) the person
prosecuting privately has given written notice to the public prosecutor with
jurisdiction that he or she intends to do so; and (c) the public
prosecutor has not within 28 days of receipt of such notice, stated in
writing that he or she intends to prosecute the alleged offence, then- (i) the person prosecuting privately need
not produce a certificate issued by the Attorney-General stating that he or
she has refused to prosecute the accused; (ii) the person prosecuting privately need not provide security
for such action; (iii) the accused is entitled to an order for
costs against the person prosecuting privately if- (aa) the charge against the accused is
dismissed or the accused is acquitted or a decision in favour of the accused
is given on appeal; and (bb) the court finds that such
prosecution was unfounded or vexatious; and (iv) the Attorney-General is barred from
prosecuting except with the leave of the court concerned. 9 Jurisdiction of
magistrate’s court Notwithstanding any provision of any other law, a
magistrate’s court has jurisdiction to issue any order or instruction or to
impose any penalty authorised by the provisions of this Act. 10 Transfer of
powers, duties or functions The President may by proclamation in the Gazette,
either generally or in respect of such area or in such circumstances as may
be specified in the proclamation, provide that any power, duty or function
which in terms of this Act is permitted or required to be exercised, carried
out or performed by any authority or person mentioned in the Act, may be or must be, as the case may be,
exercised, carried out or performed by such authority or person, including a
person in the service of such authority or an organ of state, as may be
specified in the proclamation. 11 Repeal and
amendment of laws, and savings (1) The laws
mentioned in Schedule I are hereby repealed to the extent indicated in the
third column thereof. (2) The Extension of
Security of Tenure Act, 1997, is hereby amended to the extent indicated in
Schedule II. (3) Any law in force
in those parts of the Republic which formerly constituted the national
territories of the entities known as Transkei, Bophuthatswana, Venda, Ciskei,
Gazankulu, KaNgwane, KwaZulu, KwaNdebele, Lebowa and QwaQwa, is hereby
repealed to the extent that such law is inconsistent with or deals with any
matter dealt with by this Act. (4) Notwithstanding
subsection (1), any transit area declared in terms of section 6 of the
Prevention of Illegal Squatting Act, 1951 (Act 52 of 1951), and all by-laws
relating to such transit area, shall continue to exist as if that Act has not
been repealed, until such transit area is abolished by the relevant local
authority. 12 Regulations The Minister may make regulations in respect of any
matter which is required to be prescribed by the Minister in terms of this
Act or which is necessary or desirable in order to achieve the objectives of
this Act, and any such regulation may create offences and provide for
penalties in respect thereof. 13 Short title This Act is called the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act, 1998. Schedule I LAWS REPEALED (Section 11(1)) No. and year of law Short
title Extent
of repeal Act 52 of 1951 Prevention
of Illegal Squatting Act, 1951 The whole Act 24 of 1952 Prevention
of Illegal Squatting Amendment Act, 1952 The
whole Act 62 of 1955 General
Law Amendment Act, 1955 Section 30 Act 76 of 1963 Black
Laws Amendment Act, 1963 Section 12 Act 92 of 1976 Prevention
of Illegal Squatting Amendment Act, 1976 The
whole Act 72 of 1977 Prevention
of Illegal Squatting Amendment Act, 1977 The
whole Act 33 of 1980 Prevention
of Illegal Squatting Amendment Act, 1980 The
whole Act 68 of 1986 Abolition
of Influx Control Act, 1986 Sections 2, 3, 4, 5, 6, 7, 8, 9,
10, 11, 12, 13, 14 and 15 Act 104 of 1988 Prevention
of Illegal Squatting Amendment Act, 1988 The whole Act 80 of 1990 Prevention
of Illegal Squatting Amendment Act, 1990 The
whole Act 108 of 1991 Abolition
of Racially Based Land Measures Act, 1991 Sections 20 and 21 Act 113 of 1991 Less
Formal Township Establishment Act, 1991 Section
31, and that part of the Schedule amending the Prevention of Illegal
Squatting Act, 1951 Act 134 of 1992 Provincial
and Local Authority Affairs Amendment Act, 1992 Section 1 Act 88 of 1996 Abolition
of Restrictions on the Jurisdiction of Courts Act, 1996 Sections 3 and 4 Schedule II LAWS AMENDED (Section 11(2)) 1 Section 29 of
the Extension of Security of Tenure Act, 1997, is hereby amended by the
substitution for subsection (2) of the following subsection: ‘(2) The provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998, shall not apply to an occupier in respect of land which he or she is entitled to occupy or use in terms of this Act.’. |
