South Africa: Land Invasion And Eviction

The legalities of land invasion

A distinction must be drawn between trespassers and unlawful occupiers. Trespassers are persons that have accessed land without the permission of the land owner or person in control of the land.1 Trespassing is a criminal offence and the land owner or person in control of the land may request that the police remove such person from their property. Land owners or occupiers should not take the law into their own hands and remove the trespassers from their property.

Where a trespasser erects a structure or dwelling with the intention of residing on the property, they are no longer considered to be a trespasser and are now referred to as an "unlawful occupier".

Unlawful occupiers may only be removed from the land in terms of a court order obtained in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 ("the PIE Act"). This process is cumbersome, costly, time consuming and there is no guarantee that the court will award the court order. Evicting unlawful occupiers without a court order is, however, a criminal offence.

An owner of land that intends to evict unlawful occupiers is required to give them at least two weeks written notice of their intention to apply for an eviction order. In the case of land invasions, it may be difficult and burdensome to effect this notice. In considering the application the court must be satisfied that all persons were given adequate notice of the court proceedings, failing which they may dismiss the application. The local municipality must also be notified of the application. In the case of a land invasion, it is suggested that the consent of the court is obtained regarding the manner in which the notice will be served on the relevant parties, many of whom will be unknown to the owner.

This notice must include the date and time of the hearing, the address of the court where the eviction application will be heard, the grounds for bringing the eviction order and indicate that the unlawful occupiers can attend court to oppose the application and that they can seek legal aid. If the court is not satisfied that the unlawful occupiers have been adequately notified, the eviction application may be dismissed.

After the notice period has elapsed the matter will be heard. The presiding officer must consider a variety of factors in considering whether to grant or refuse the eviction order including the rights of children, women, the elderly, disabled persons and the length of time the persons have been on the property. If persons have been on the property for longer than 6 months, the presiding officer must consider if there is alternative accommodation for these persons.

If the eviction order is granted, it will contain two dates: the first date is the date by when the unlawful occupiers must have vacated the land and the second date is the date on which the eviction will be executed on those person that have not vacated the property. The execution of the court order will be conducted by the police.

It must be noted that the above only refers to persons that have invaded land and does not apply to persons who may be present on the property in terms of the Extension of Security of Tenure Act2 or the Labour Reform (Labour Tenants) Act,3 which contain their own requirements.

Precautionary steps in preparation for potential land invasion

Although there may not be an imminent threat of a land invasion, if it occurs, you will need to act quickly. We suggest that you:

  • Contact your local municipality Land Invasion Unit: Most municipalities have established a Land Invasion Unit that is tasked with preventing unlawful land invasions. Contact the municipality in whose jurisdiction the land is situated, identify the responsible person(s) at the land invasion unit and obtain their contact details. In our experience, most land invasions occur over weekend or after hours. It is therefore important that you obtain a cellular telephone number or after hours contact details for the Land Invasion Unit.
  • Public Order Policing Unit: Each police station has a public order policing unit which is responsible for inter alia crowd management and community protests. It is important to identify the responsible person at the Public Order Policing Unit and obtain their contact details. In the event of trespassers, the Public Order Policing Unit will need to be notified as soon as possible to assist in removing persons before they erect dwellings.
  • Developing a procedure, educating staff and reporting: Companies must develop a land invasion procedure that must be communicated to all relevant stakeholders within the company. This procedure should include:

    • Identifying which persons must monitor the land and fences to determine if there is any trespassing or land invasion;
    • Indicating how regularly the land/fences must be monitored;
    • Requiring the relevant persons to keep a log of when the land/fences were checked and to note any irregularities. Photographic evidence of any irregularities should be recorded;
    • Noting any interactions with the trespassers/unlawful occupiers;
    • Developing a code of conduct that should be adopted to minimize any violent incidents. For example, employees should not try to forcibly remove persons or dwellings;
    • Identifying the relevant persons within the company that must be notified as soon as trespassers/unlawful occupiers are identified on the property. These persons' contact details should be included in the procedure;
    • Identifying the relevant person that must immediately open a docket of trespassing/land invasion with the police. This person must have the necessary authority (in terms of internal procedures) to represent the company.
  • Erect notice boards: Erect notice boards indicating that the land is private land and that trespassers will be prosecuted. This is important, particularly where land is not demarcated by a fence.

Steps to take upon land invasion

In the event that your land is invaded, it is important to act quickly and legally. As soon as you become aware of a land invasion, the following steps should be taken:

  • Immediately inform the police: The designated person must immediately notify the police of the trespassing/unlawful occupation. The designated person will be required to complete an affidavit which must (as a minimum) include:

    • His or her name, title and an indication that he or she has the authority to lodge the complaint (i.e. the land owner, person with authority to depose to the affidavit);
    • that the persons unlawfully accessed the property without permission;
    • that the person has no lawful reason to be on the property; and
    • any other relevant information such as the fact that the unlawful occupiers were violent or threatened harm.
  • Contact the Land Invasion Unit: contact the Land Invasion Unit and the POP Unit to assist where persons are trespassing on the property. If the dwellings have been established, the Land Invasion Unit and the POP will not be able to remove the unlawful occupiers and eviction proceedings will need to be launched.
  • Contact your lawyer and launch eviction proceedings: In the event that the Land Invasion Unit and POP are unable to remove the trespassers or the land invasion has progressed to occupation, it will be necessary to launch eviction proceedings in terms of the PIE Act or Extension of Security of Tenure Act or the Labour Reform (Labour Tenants) Act. It is critical that eviction proceedings are initiated as soon as possible to minimize any prejudice and to remove the risk that the presiding officer may refuse to grant the eviction order.
  • Compile all relevant information: The following information will be relevant to the eviction proceedings and should be provided to your attorney as soon as possible including:

    • full details of the persons bringing the application (i.e. the land owner and person in control of the land). This will include the full name, identity or registration number and the physical address;
    • to the extent possible, the full details of the unlawful occupiers;
    • a full chronology of events from the date and time when the unlawful occupiers were identified until the time that the affidavit will be signed. This should include reporting the incidents to the police, any engagements with the unlawful occupiers, any unlawful incidents or any harm suffered;
    • details of any real and imminent danger, injury or damage to person or property that may arise; and
    • details of any hardship the applicants will suffer if the eviction order is not granted as compared against the hardship that will be suffered by the unlawful occupiers if the order is granted.

Footnotes

1. Trespass Act 6 of 1959.

2. 62 of 1997.

3. 3 of 196

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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