KNOW YOUR LAND RIGHTS

An eviction is when you are removed from your home against your will. This can take the form of a demolition of an occupied structure or the removal of your belongings that were in your occupied structure. If you are locked out or have your water or electricity cut off this can also be an eviction.

The government has created a law that protects people from being removed from their homes illegally. This law is known as the Prevention of Illegal Evictions and Unlawful Occupations of Land Act (PIE). This law applies to unlawful occupiers and is there to protect unlawful occupiers from being evicted illegally.

An unlawful occupier is a person that builds and/or lives in a home on land that does not belong to them and without the permission of the landowner (the landowner can be the government or a person). In order for the structure to be considered occupied and the person it belongs to, an occupier, it must be completed. An incomplete structure does not give you protection under the Prevention of Illegal Evictions and Unlawful Occupations of Land Act.

Secondly, the structure must be factually occupied, this means that someone must actually live in it. The presence of your belongings can help to show this but your physical presence inside your home is complete proof and gives you full protection under the law.

PIE in Section 4 of the Act sets out how a legal eviction should be conducted. These are the steps that must be followed: 1. After noticing that there are unlawful occupiers on his/her land, the landowner must go to court and file for a court order to evict the unlawful occupier. At the court he/she must state the reasons why he wants to remove the unlawful occupiers.

2. The landowner must then tell the occupiers that he has gone to court to get an eviction order for them to move off the land. The landowner must also tell the occupiers the date the of the court hearing. This can be done by giving the occupiers the court papers and also reading out the papers to the occupiers in a language(s) the occupiers understand.

3. The occupiers will have the opportunity to go the court on the date and tell the court why they have decided to move on the landowner’s land without his permission. If the occupiers do not have a lawyer and cannot afford one, then they can go to Legal Aid and get a lawyer for free. The court will take into strong consideration the circumstances of the occupiers. These circumstances will include if there are: • Children or child headed households • Women headed households, • People living with disabilities • The elderly • If the occupation is close to places of work or public transport • The earnings of the occupiers

4. When the court will then decide after hearing both sides whether the occupiers must be evicted or not.

5. If the court decides that the occupiers must be evicted the court will give the occupiers a date on which they must leave. If they do not leave by the date provided, then the landowner can evict the occupiers.

6. A sheriff of the court must be present at the eviction and he must present the eviction order to the occupiers. If a sheriff is not there, then it is illegal.

An illegal eviction is when occupiers are removed from their homes without a court order or a sheriff of the court present. An interdict is not a court order.

An interdict is a document issued by a court to prevent or to stop something from happening. A landowner for example can get an interdict to prevent people from living on his land but this interdict cannot be used to remove people who have already occupied the land.

Step 1:

a) Show that you know your rights and the law. Let whoever is carrying out the eviction know that Section 26(3) of the Constitution prevents an eviction without a court order and that the PIE Act process has not been followed.

b) Get a copy of the court order. If there is no court order, explain that you know that it is unlawful to evict someone without a court order in terms of Section 26(3) of the Constitution and the PIE Act. Say you are going to contact the sheriff and the police and report an unlawful eviction.

c) If there is a court order, ask for a copy or write down the name of the court, the name of the judge or the magistrate and the case number. Carefully inspect the court order, see if it applies to specific property and occupiers who are being evicted.

Step 2:

a) Collect information. Gather as much information as possible on the people present and involved in the eviction, including the owner, managing agent or sheriff and any police officer or private security. Do this by getting the badge numbers and names of the police officers. Also take down the names of any witnesses of the evictions.

b) Take photos and videos. If possible take photos and videos of any structures being demolished, before and after the demolition, as well as any damaged possessions or injuries sustained during the eviction.

Step 3:

a) Try and get hold of a lawyer as soon as possible. This person should be someone whom you trust. Tell the people who are trying to evict you, that you are calling a lawyer and that they cannot carry on with the eviction until your lawyer arrives.

b) Alert the police. Alert the police to the fact that an unlawful eviction is taking place without a court order or sheriff present. Take a note or photos of the officer’s badge numbers and threaten to report them if they are participating or fail to stop an unlawful eviction.

c) Contact journalists and politicians. Contact journalists and try and get them to come to the eviction to monitor and report on the situation. You can get an NGO to assist you in getting in contact with journalists.

d) Get help from your neighbours and community members. Ask your neighbours to assist you in trying to organise a public meeting and try to get as many community members as possible to the site of the eviction to try and stop it from happening.

a) You can apply to a Magistrate Court or a High Court for an urgent interdict (court order that prevents someone from doing something) to stop forever from conducting the illegal eviction.

b) You can also go to court to get a spoliation order, to allow you reoccupy your home if the owner does not allow you to do so. A spoliation order can be obtained on an urgent basis, on the same day as the eviction, after hours or over weekends.

c) When you apply for an interdict or a spoliation order, you will have to do an affidavit giving as much detail as possible about the people carrying out the eviction and anyone else who was present, how it occurred, and what the impact has been on you, your family, your community. This includes things such as your possessions that got damaged and lost in the process of the eviction as well as what other arrangements you had to make while you were dispossessed of your home. You can show the judge pictures and videos.

d) If you get an interdict and/or a spoliation order and the people evicting you ignore it, then they are in contempt of court. In this case, you can also go back to court and ask the judge to have people arrested.

e) You can open a criminal case against the people that conducted the eviction or gave the instructions to evict.

An occupier cannot be arrested for occupying. Occupying is not a crime. It is unlawful because there is no law that allows people to occupy but it is not a crime.

An illegal eviction is a crime. Section 8 allows for people conducting an illegal eviction to have criminal charges laid against them. If found guilty by a court they can be fined or be imprisoned for up to two years.