Should I stay or should I go? – understanding evictions in South Africa

Introduction

Evictions in South Africa are a sensitive topic for everyone, whether you are the lessor or lessee. South Africa has a variety of laws regulating the fair eviction of both lessees and unlawful occupiers. The initial departure when discussing such legislation tends to have its starting point at the constitutional right of access to housing and property, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), and the Extension of Security of Tenure Act 62 of 1997 (ESTA).

The Constitutional right to access to housing

Section 26 of the Constitution of the Republic of South Africa, 1996 (the Constitution), provides that every person has the right to have access to adequate housing. The right to access housing places a duty on the state to ensure that housing is available and accessible to everyone, rather than guaranteeing everyone the right to immediately receive a house. This duty is to be realised progressively, within the State’s resources, meaning that the state is to ensure, over time, that this right is fulfilled. The section goes on further to state that no person may be evicted from their home, or have it demolished without a court order authorising this and that legislation may not permit arbitrary (otherwise known as unfair) evictions. However, the lessor and lessee, or owner and occupier,ay come to an agreement and consent to an eviction. Nonetheless, the Constitution places a limitation on this right in terms of section 25, which is the right to property.

The Constitutional right to property

The right to property states that no person may be unfairly deprived of their property and that legislation permitting this is not allowed. In effect, this means that another person may not occupy and/or use your property without your consent.

These constitutional rights seem to conflict in the sense that a person may not be evicted without a court order, but every person also has the right not to have others use their unlawful property. In reality, however, the laws serve as a sort of check and balance for one another. The right of access to housing is a duty placed on the state, rather than on private individuals who own property. The lack of housing is an issue that should be taken up with the state rather than the owner of the property being occupied. But, at the same time, when one’s financial circumstances take a turn for the worse, such a person cannot just be immediately removed from where they are living. This is detailed in PIE, which was introduced to prevent unlawful evictions due to the conflict that sometimes occurs due to the reliance on the right to property and the competing right to housing.

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act

PIE is an act that was introduced by the state to prevent unfair evictions. PIE details how evictions are to take place in South Africa and also defines what an “unlawful occupier” is. Unlawful occupiers are defined as those persons who are living in a property that belongs to another person but have no right or consent from the lawful owner to do so. To evict a person, including unlawful occupiers, due process has to be followed, which includes clearly defined timelines for the personal service of each notice on the person being evicted so as to ensure that no person is rendered immediately homeless due to circumstances beyond their control. These seemingly conflicting rights are an issue that has been brought before South African courts for many years. The most recent eviction matter in which it was an issue was Grobler v Phillips.

Grobler v Phillips and Others [2022] ZACC 32:

In 2008, Mr Grobler purchased a property in Somerset West at an auction. Mrs Phillips, a now 85-year-old widow, had been living at that property since 1947 with her son, who suffers from a physical disability. After purchasing the property, Mr Grobler requested Mrs Phillips vacate the property in accordance with his rights as detailed in section 25 of the Constitution. Mrs Phillips, however, claimed to have a lifelong right of use of the property allegedly granted to her by the previous owner. To avoid evicting the retired woman, Mr Grobler made attempts at settling the matter by making various offers, including offering alternative accommodation and relocation costs. This is beyond what is required from an owner of a property, as the duty to provide housing lies with the State. Mrs Phillips declined the offers, and the matter went to court.

Magistrates’ Court

When this matter was brought before the magistrates’ court, it was determined that there was no registered right of use granted to Mrs Phillips and that, due to the lack of consent from Mr Grobler to live in the property, Mrs Phillips had no right to occupy the property. On those grounds, the eviction was granted, but the matter was postponed in order to determine a date for Mrs Phillips to vacate the property, including the consideration of evidence from the local municipality and the social services department in respect of alternative accommodation for Mrs Phillips. It seemed especially necessary to postpone the date for her to leave the property until the reports had been obtained. This was due to her personal circumstances, such as her advanced age, the length of her residence on the property, and her disabled son. This would allow the court to consider all the relevant circumstances. At the next hearing, the date was then determined as 30 August 2017, over a year after the original eviction order had been granted.

Western Cape High Court

Mrs Phillips then appealed to the high court, and the matter was heard in October 2019. At the hearing, Mrs Phillips invoked the provisions of PIE and also relied on a new ground, namely, that she was regarded as an occupier in terms of the provisions of ESTA. The high court found that timeous notice had not been granted to Mrs Phillips, that Mr Grobler had not properly established that Mrs Phillips was an unlawful occupier and found further that Mrs Phillips was an occupier in terms of ESTA and was thus protected under that Act. Her appeal was upheld.

Supreme Court of Appeal

To secure use of his property, Mr Grobler then appealed to the Supreme Court of Appeal (SCA). The SCA found that Mrs Phillips was an unlawful occupier, in addition to the fact that the alleged right that Mrs Phillips had over the premises was not enforceable against successive owners, such as Mr Grobler, and that it should not have been expected that she would be aware of that fact. The SCA took a few factors into consideration, such as the length of her occupation, her advanced age, and the fact that for the greater part of the time, the premises formed part of a farm until it was turned into an urban development. The SCA thus found that Mrs Phillips was not entitled to the rights provided in ESTA but that her rights under PIE remained unchanged. This court thus found that the factors in Mrs Phillips’ favour outweighed those in Mr Grobler’s favour and dismissed Mr Grobler’s appeal.

Constitutional Court

An unhappy Mr Grobler then referred the matter to the constitutional court (CC) on the basis that a landowner cannot be expected to provide housing for others for an indefinite period. This is a recognisable point, as the duty to provide housing is placed on the State, rather than private individuals, and, further, that Mrs Phillips would not have been rendered homeless due to the accommodation that was offered to her by Mr Grobler.

The CC found that Mrs Phillips’ rejection of the offers made to her and her preference to remain in the property owned by Mr Grobler was not a consideration to be taken into account by a court, as unlawful occupants do not have a right of preference over property that they are occupying unlawfully.

The CC held, further, that making offers of alternative accommodation to unlawful occupiers should not be viewed as an obligation on a private owner. Mr Grobler was not obliged by law to provide housing to other persons. The eviction order was subsequently granted, and Mrs Phillips was ordered to vacate the premises.

Conclusion

The CC made an important decision in ruling that this matter should not be interpreted as imposing an obligation on a property owner to provide alternative accommodation to an unlawful occupier. Mr Grobler did so of his own volition. The court case also illustrates the varying approaches in the courts between the two competing rights.

The seemingly conflicting rights in eviction matters, namely, the rights to property, access to housing, and those contained in PIE, are not to be taken lightly, as the weight that the court will attribute to each right cannot always be predicted pre-emptively. One should always seek legal advice before approaching such a matter, regardless of whether you are the owner or occupier.