Issue No. 33
Prevention of Illegal Occupation of Land Bill
30 April 1998
Most South Africans do not own the land on which they live. For too many years, families have been evicted unfairly, with no regard for their rights as individuals. This Bill, in conjunction with the Extension of Security of Tenure Act, will address the rights of the landless to fair treatment.
KEY POINTS OF THE BILL
- The purpose of this legislation is to create a fair and transparent procedure for disputes regarding the occupation of land.
- This legislation recognises that owners of land have the right to prevent people from occupying their land without their permission.
- It will create a balance between just and equitable action which will protect the rights of both landowner and occupant.
- It will protect the poor and landless from cruel and arbitrary action by landowners, while providing landowners with a fair and legal procedure for preventing illegal occupation of their land or property.
REPEAL OF UNJUST APARTHEID SQUATTING LAWS
This Bill repeals the prevention of Illegal Squatting Act of 1951 and sections of other Acts which dealt with land occupation.
ACCESS TO COURTS
The most significant aspect of this Bill is that no evictions can take place without a court order. This supports the provision of section 26(3) of the constitution that sates that ” 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. No legislation may permit arbitrary evictions.” The constitution also says that no one may be deprived of property except in terms of the law.
RIGHTS OF OCCUPIERS OF LAND
If the people occupying the land have been on the land or in the property for more than six months the courts must consider
- whether there is other land available, either from the municipality or other state sources, or another land owner
- the needs of the elderly, disabled children or women heading households
If the court decides that all these requirements have been met it must grant an eviction order that gives a reasonable date for the occupier to vacate the land.
The court can also make an order for the demolition or removal of any building on the property.
It can also grant the request from the sheriff to authorise someone to assist the sherif to carry out an order of eviction.
RIGHT TO APPEAR IN COURT
In all court applications for evictions the occupiers of the land have the right to appear before the court and defend the case. If necessary they have the right to apply for legal aid.
The legislation requires that the occupier of the land be given at least 14 days notice that the owner has instituted eviction proceedings. But in exceptional circumstances this can be waived, if there is the likelihood of injury or damage to property if the occupier is not evicted immediately, or there is the probability of hardship to the owner or anyone else which will exceed the hardship to the occupier of the land, if the occupier is not evicted immediately.
UNLAWFUL EVICTIONS WILL BE A CRIMINAL OFFENCE
If a landowner evicts a person without an eviction order, the landowner will be guilty of an offence and can be prosecuted. On conviction, the offender can receive a jail sentence of up to two years and or a fine. Any person who has been illegally evicted will be able to lay a charge against the landowner.
NO MORE SQUATTER BARONS
Included in this Bill is a provision which makes it illegal for anyone to demand or receive payment for arranging or allowing someone to occupy land without the permission of the owner. This will allow the law to act against unscrupulous “squatter barons” who take money from landless people, desperate for a place to live. People convicted of this offence will be liable for a fine and or a prison sentence of up to two years.
KEY POLITICAL MESSAGES
- The ANC is committed to protecting the rights of all. This Bill protects the rights of the landless and the rights of landowners.
- The most vulnerable of our citizens will be protected from vindictive and arbitrary eviction. By making illegal evictions a criminal offence the ANC again shows its commitment to improving the lives of the disadvantaged of South Africa.
- In this legislation the ANC reaffirms its commitment to the most needy of South African citizens, without unfairly undermining the interests of property owners.
- The ANC once again proves that it is committed to reconciling the needs of interest groups who under the old regime were regarded as irreconcilable.
- South Africa has a sad history of disregard for the rights of the landless. This legislation will create the legal framework for the protection of these rights as laid down by our constitution.