The Department of Housing hereby publishes the draft Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill, 2006 for public information, discussion and comment.
Department of Housing Office No.
I Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments.
To amend the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 so as to amend and include certain definitions; to qualify the application of the Act; to amplify the provisions relating to the prohibition of certain acts and to create offences in that regard; to better regulate the granting of a court order for eviction; to amend the procedures for the eviction of unlawful occupiers; and to provide for matters connected therewith.
Squatting Act, 1951, and other obsolete laws: and to Drovide for matters incidental there to.
Amendment of section Iof Act 19 of 1998 2.
of the Local Government Transition Act, 1993 (Act No.
Substitution of section 2 of Act 19 of 1998 3.
This Act applies in respect of all land throughout the Republic.
and who continues to occupy the land in question despite the fact that the tenancy or agreement has been validly terminated or the person is no longer the owner of the land.
Notwithstanding subsection (2), a court may order that this Act applies if the court is satisfied that the plight of a person is of such a nature that any act or omission by the owner or person in charqe of land was calculated to avoid the application of this Act.
Substitution of section 3 of Act 19 of 1998 4.
[Prohibition of receipt or solicitation of consideration in respect of unlawful occupation of land] Prohibition of certain acts directly or indirectly receive or solicit payment of any money or other consideration as a fee or charge for arranging or organising or permitting a person to occupy land without the consent of the owner or person in charge of that land[.
practice constructive eviction.
is guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding two years, or to both such fine and such imprisonment.
where such person or persons cannot be positively identified, into the National Revenue Fund, or in the case where the land is administered or controlled bv into the relevant municipal operatina account.
where the land is account, and such order has the effect of and may be executed against such person as if it were a civil judgment in favour of that person or persons from whom the money or other consideration was received or in favour of the State.
in whose areas of iurisdiction the land is situated.
and any other orqan of state having an interest in the proceedings may ioin by the substitution for subsection (3) of the following subsection: "(3) Subject to the provisions of subsection (2), procedure for the serving of notices and filing of papers in terms of this Act is as prescribed by the rules of the court in question."
the riqhts and needs of the elderly, children, disabled persons and households headed by women: and the constitutional riqhts and duties of all affected persons includinq the State.
by the deletion of subsection (7).
The court which orders the eviction of any person in terms of this Act may the retention or demolition and removal of improvements to the land or buildinns or of materials used in such and the payment of compensation for any or standing crop obtained bv one party from the other.
the hardship caused to each park and the circumstances in terms of subsection (6).
Amendment of section 5 of Act 19of 1998 6.
there is no other effective remedy available.
Before the hearing of the proceedings contemplated in subsection (l), the court must give written and effective notice of the intention of the owner or person in charge to obtain an order for eviction of the unlawful occupier must be given served on to the unlawful occupier and the municipality in whose area of jurisdiction the land is situated.
of the organs of state referred to in subsection (2)!
The procedure for the servina of notices and filling of papers in terms of this Act is as prescribed bv the rules of the court in question. Subiect to the provisions of subsection (2), if a court is satisfied that service cannot convenientlv or expeditiouslv be effected in the manner provided in the rules of the court, service must be effected in the manner directed bv the court: Provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case.
and state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary has the right to apply for legal aid.
Amendment of section 6 of Act 19 of 1998 7.
the period the unlawful occupier and his or her family have resided on the land in question; and the availability to the unlawful occupier of suitable alternative accommodation or land.
required by the context.
Amendment of section 7 of Act 19 of 1998 8.
"(1) If the municipality in whose area of jurisdiction the land in question is situated is not he owner oq does not administer or control the land the municipality may, on the conditions that it may determine, appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle any dispute in terms of this Act: Provided that the parties may at any time, by agreement, appoint another person to facilitate meetings or mediate a dispute, on the conditions that the municipality may determine."
Executive Council designated by the Premier of the province concerned, or his or her nominee, may, on the conditions that he or she may determine, appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle any dispute in terms of this Act: Provided that the parties may at any time, by agreement, appoint another person to facilitate meetings or mediate a dispute, on the conditions that the said member of the Executive Council may determine.
This Act is called the Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Act, 2006.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No. 19 of 1998), hereinafter referred to as "the Act", came into operation on 5 June 1998. The intention of the Act was to provide for the prohibition of unlawful eviction, and to put in place fair procedures for the eviction of unlawful occupiers who occupy land without the permission of the owner or the person in charge of such land.
However, since its inception, various interpretation and implementation problems have been identified, and this Amendment Bill seeks to address these issues.
2.1 The Bill substitutes the Long Title of the Act to reflect the amendments proposed by the Bill.
amending the definition of land to include buildings and structures on land.
is also amended to prohibit the practice of "constructive eviction". The phrase constructive eviction means any act or omission, including the deprivation of access to land or to essential services or other facilities related to land, which is calculated or likely to induce a person to vacate occupied land or refrain from exercising access to land.
currently provides that money or other considerations received by a person in contravention of section 3, must upon conviction of such person be repaid to the person from whom it was received, or if the person cannot be positively identified, into the National Revenue Fund. In this regard two issues have been identified and is addressed in the proposed amendments. Firstly, the reference to money or other consideration is not wide enough and should also include any assets acquired with such money. Secondly, it is deemed necessary to, where land is administered or controlled by a municipality, any money should rather be paid into the municipal operating account and not the National Revenue Fund.
of the Act incorrectly provide that "the court must servelgive written and effective notice.". This is clearly not the function of the court and it is proposed to amend the section suitably.
is amended to align its provisions pertaining to the giving of notice regarding eviction proceedings with that of the Extension of Security of Tenure Act, 1997 and the Land Reform (Labour Tenants) Act, 1996, whilst section 4(10), which deals with the content of a court order for eviction, is also aligned with the corresponding provisions of the mentioned laws.
of the Act currently draw a distinction between persons occupying for less than six months and persons occupying for more than six months. In cases of occupation of less than six months, the Act prescribes certain criteria which a court may take into account when deciding whether or not to issue an eviction order, whilst the Act prescribes different criteria in cases of occupation in excess of six months.
of the Constitution. The proposed amendments to the said sections remove the six months distinction and provide for a single set of criteria to be applicable in all cases of unlawful occupation.
which provides that a court may only grant an order if it is satisfied that it is just and equitable to grant the order taking into consideration the speed and scale of the unlawful occupation.
As a consequence of the amendments to section 2 of the Act, the Bill seeks to amend section 6 accordingly.
or not the "owner of land. This phrase is problematic in that although a municipality may in certain cases for all intents and purposes be the "owner" of certain land, the formality of transfer of ownership in the Deeds Office may not have been finalised.
Legal Resources Centre.
Bill has been subject to extensive consultation with the Department of Land Affairs as well as a thorough workshop held with relevant government departments and bodies.
Due to the substantial changes made to-the earlier version of the Bill, it will again be published in the Gazefte for public comment.
6.1 The State Law Advisers and the Department of Housing are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which he procedure set out in section 74 or 76 of the Constitution applies.