Property, Person, and PIE: South Africa’s Eviction Dilemma

By Fraser Stockley, Partner at Le Roux Vivier Attorneys (LVA)

Has the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998 (PIE) tipped the scales too far against landowners?

This is a reasonable question considering South Africa’s current legal landscape, where the Constitution seeks to reconcile two often competing imperatives. Section 25(1) guarantees that “no one may be deprived of property except in terms of law of general application,” thereby protecting against arbitrary deprivation.[1] In contrast, Section 26 enshrines the right to access adequate housing and prohibits eviction or demolition of a home without a court order made after considering all relevant circumstances.[2]

PIE reflects these constitutional tensions. Its stated purpose is to prohibit unlawful evictions, provide a fair and regulated process for removing unlawful occupiers, and strike a balance between the rights of landowners and the protection of vulnerable persons. In practice, however, PIE frequently imposes substantial burdens on landowners, turning what might once have been straightforward property disputes into protracted and costly legal battles.

From Ownership to Endurance

Under common law, eviction was relatively straightforward: ownership coupled with unlawful occupation usually entitled the owner to reclaim possession.[3] The enactment of PIE redefined this process, expanding the focus from proprietary rights to personal circumstances and other factors.

PIE applies specifically to natural persons occupying land for residential purposes, including buildings and structures used as homes or shelters.[4] Juristic persons, lacking the ability to inhabit dwellings, fall outside PIE’s scope, leaving commercial evictions to be governed by common law and, where applicable, the Consumer Protection Act.[5]

Eviction proceedings under PIE can be procedurally onerous. The proceedings begin with serving the application on both the unlawful occupiers and the local municipality.[6] Before the hearing, the landowner must bring an ex parte application for the authorisation of a Section 4(2) notice. This notice must then be served at least 14 days before the date on which the eviction application is enrolled for hearing.[7]

Even in unopposed matters, months can pass before an eviction order is granted. If opposed, it can take over a year. Where large-scale occupations or municipal involvement are required, the process may drag on for several years, turning what was once a matter of property enforcement into a prolonged test of endurance for the landowner.

Urgency, in Theory Only?

Section 5 of PIE offers landowners an urgent eviction remedy under exceptional conditions, bypassing Section 4’s standard process. Subsection (1) permits a court to grant an interim eviction order pending final proceedings if: (a) there’s a real and imminent danger of substantial injury or damage to persons or property; (b) the owner’s hardship if relief is denied outweighs the occupier’s if granted; and (c) no other effective remedy exists.[8]

In principle, Section 5 seeks to balance the need for swift protection of property and safety with constitutional safeguards against arbitrary eviction. In practice, however, it often proves illusory.

The evidentiary burden is steep: proving an actual and immediate threat—not just inconvenience or economic loss—is required. Courts interpret “real and imminent danger” narrowly, and hardship comparisons tend to favour occupiers, especially where displacement may result in homelessness.[9] Moreover, the third requirement, namely the absence of any effective alternative remedy, creates a further hurdle. Courts may view negotiation, mediation, or simply awaiting the outcome of a Section 4 application as sufficient alternatives, effectively neutralising the urgency mechanism. As a result, Section 5 offers theoretical relief that is, in many cases, practically out of reach.

State Failure, Private Consequences

PIE envisages an active and meaningful role for municipalities. Sections 4(7) and 4(9) oblige courts to consider whether local government can provide alternative accommodation to unlawful occupiers facing eviction. This duty, rooted in Section 26 of the Constitution and given substance by the Housing Act[10], charges municipalities with the progressive realisation of the right to housing. In practice, however, chronic municipal failure to plan or act shifts this constitutional responsibility onto landowners, prolonging unlawful occupation and eroding the core of their property rights.

Case law underscores this systemic breakdown. In Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue, the High Court declared Johannesburg’s housing policy unconstitutional for excluding indigent occupiers of private land from its emergency housing programme. The failure breached Sections 26 and 9 of the Constitution and resulted in an award of constitutional damages to the landowner—compensation for the state’s abdication of duty.[11]

Likewise, in Skog NO v Agullus, the SCA rebuked the Drakenstein Municipality for failing to provide emergency accommodation to vulnerable farm occupiers. The municipality’s boilerplate explanations about budgetary limits and vague policy planning were dismissed. The Court made clear that municipalities cannot rely on administrative inertia to excuse their constitutional responsibilities.[12]

In Grobler v Phillips, the Constitutional Court censured the Helderberg Municipality for failing to provide relocation assistance to an elderly woman and her disabled son. The Court reiterated that the burden of ensuring access to adequate housing rests squarely with the state and not with private landowners, even those who act with compassion.[13]

Other decisions, such as Cape Killarney Property Investments v Mahamba,[14] City of Cape Town v Rudolph & Others,[15] and Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers of Newtown Urban Village,[16] reveal a troubling pattern: municipalities offering generic, vague, or delayed housing responses that leave landowners and occupiers in limbo. Even where courts have tied the fairness of eviction to municipal capacity, such as in Ark City of Refuge v Bailing,[17] that capacity is often hampered by national funding delays or poor planning.

Collectively, these cases reveal a systemic flaw. When municipalities neglect their housing obligations, whether through poor policy, inadequate planning, or sheer inaction, it is landowners who bear the consequences, stranded in litigation, denied remedies, and left to underwrite a public failure.

 

Spoliation and the Temptation of Self-Help

Further complicating the picture is the doctrine of spoliation. The mandament van spolie protects possession—not ownership—and prohibits a person from taking the law into their own hands, even when reclaiming their own property.[18]

In Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality, the SCA reaffirmed this principle, holding that the destruction of occupiers’ makeshift homes without a court order violated the prohibition against spoliation and the constitutional right to dignity.[19] Even unlawful occupiers are protected against arbitrary removal.

For frustrated landowners, this creates a legal paradox: they cannot retake possession without a court order, and they cannot secure such an order without navigating a system that may take months or years.

Conclusion: Balancing Rights, Rebalancing the System

PIE was born of noble ideals: to protect the dignity of the vulnerable and ensure that evictions unfold within a framework of justice and humanity. Yet over time, its implementation has revealed deep systemic fault lines. Landowners, though not the constitutional duty-bearers, often find themselves trapped in protracted legal processes, subsidising the state’s failure to fulfil its housing mandate.

Courts have rightly centred the Constitution’s promise of housing and dignity. But a more balanced, practicable model is needed—one that upholds both the rights of the person and the legitimacy of property. Without structural accountability for municipalities and reform to PIE’s urgent relief mechanisms, eviction proceedings will continue to mirror South Africa’s broader governance dysfunction: well-intentioned in principle, but unworkable in practice.

The law must serve both justice and certainty. In its current form, PIE too often delivers neither.

[1] Constitution of the Republic of South Africa, 1996, s 25(1).

[2] Constitution of the Republic of South Africa, 1996, s 26.

[3] Chetty v Naidoo 1974 (3) SA 13 (A).

[4] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998, s 1 (definition of “unlawful occupier”).

[5] Consumer Protection Act, No. 68 of 2008.

[6] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998, s 4(1).

[7] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998, s 4(2).

[8] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998, s 5(1).

[9] Dale Hutchison et al., The Law of South Africa (LAWSA), Volume 11(3), 3rd ed, para 298.

[10] Housing Act, No. 107 of 1997, s 9.

[11] Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue [2009] 1 All SA 485 (W).

[12] Skog NO v Agullus [2023] ZASCA 15.

[13] Grobler v Phillips and Others [2022] ZACC 32.

[14] Cape Killarney Property Investments (Pty) Ltd v Mahamba [2001] 4 All SA 479 (A).

[15] City of Cape Town v Rudolph & 49 Others [2003] JOL 11334 (C).

[16] Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers of Newtown Urban Village 2013 (3) BCLR 337 (GSJ).

[17] Ark City of Refuge v Bailing 2011 (1) BCLR 68 (WCC).

[18] Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality [2007] ZASCA 70.

[19] 18 supra.