Residential Eviction (PIE or ESTA)

Residential evictions in South Africa are primarily regulated by two key pieces of legislation: the Extension of Security of Tenure Act 62 of 1997 (ESTA) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The proper application of these Acts is crucial to ensuring legal compliance and safeguarding the rights of both property owners and occupiers. This article provides an overview of the circumstances under which an application should be brought under PIE or ESTA.

Application of PIE:

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) is applicable in urban areas and serves to protect unlawful occupiers from arbitrary eviction by ensuring due legal process is followed.

Criteria for PIE Applicability:

The property in question is located in an urban or rural-urban area, excluding rural farmland.The occupier resides on the property without the owner’s consent, thereby rendering their occupation unlawful.The property is utilized for residential purposes.

Procedural Requirements Under PIE:

Issuance of a section 4(2) notice, formally informing occupiers of pending eviction proceedings.Submission of an application to the court for an eviction order.Consideration by the court of whether the eviction is just and equitable, taking into account alternative housing options and the rights of the occupiers.

Relevant Case Law:

Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7: This judgment underscored the obligation of the courts to consider the needs of vulnerable individuals before granting eviction orders.

City of Johannesburg v Changing Tides 74 (Pty) Ltd [2012] ZASCA 116: The Supreme Court of Appeal clarified the responsibility to provide alternative accommodation where appropriate.

Application of ESTA:The Extension of Security of Tenure Act (ESTA) applies to individuals who occupy land with the consent of the owner or person in charge, primarily in rural or peri-urban areas. ESTA aims to provide long-term tenure security to vulnerable occupiers, such as farmworkers and their families.

Criteria for ESTA Applicability:

The property is situated in a rural or rural-urban area, not an urban setting.The occupier has express or implied consent to reside on the property at the time that the legislation was enacted.The occupier earns below the prescribed income threshold (currently R13,625 per month).The occupier does not have alternative accommodation available.

Procedural Requirements Under ESTA:

Service of a notice of intention to evict, providing the occupier with an opportunity to respond.Application to the court for an eviction order following compliance with prescribed legal procedures.Judicial assessment of whether the eviction is just and equitable, considering factors such as the duration of occupation and personal circumstances.

Relevant Case Law:

Molusi and Others v Voges NO and Others [2016] ZACC 6: This case highlighted the procedural safeguards under ESTA, emphasizing the requirement for a fair eviction process and adequate alternative accommodation.

Hattingh and Others v Juta [2013] ZACC 5: The Constitutional Court stressed the need to balance the rights of occupiers with those of property owners.

Conclusion:

Determining whether ESTA or PIE applies depends largely on the location of the property and the occupier’s legal status. PIE is applicable to urban areas where occupation is unlawful, whereas ESTA governs rural or rural-urban properties where consent has been granted. A thorough understanding of these legal frameworks is essential to ensuring lawful and fair eviction proceedings that uphold property rights while respecting the dignity of occupiers.

Author – Ruan de Villiers