Chapter 25 of the Bill of Rights declares that: “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”
Having said this, it is also imperative to indicate that no law is without interpretation, and is also subject to limitations.
Private property owners enjoy both personal and public protection of their rights, interests and legal obligations.
When faced with illegal occupants evading their private property, the only permissible and legal way is to bring an application for the eviction of the occupants, this is done in a court where the property is situated in terms of the Prevention of illegal eviction Act (commonly known as the PIE ACT).
The same situation applies to the municipality when land or property belonging to it is being unlawfully occupied. It is also trite law that the municipality prior or instituting legal action conducts an evaluation on the occupants to determine if they are suitable candidates for alternative accommodation.
At the conclusion of such a report this is submitted to court in support of the application for eviction.
It is illegal and unlawful for the owners to take action upon themselves to violently remove the illegal occupants. The illegal occupants have to be given three months (calendar days) notice of eviction, prior to being evicted.
In terms of the issues between the landlord and tenants surrounding private property, the Rental tribunal is the appropriate body to adjudicate on issues surrounding property rights, unfair treatment and abuse.
The applicant lodges a complaint which is supported by relevant documents, the respondent parties are then formally served via summons calling upon them to respond to the allegations. A formal enquiry is then conducted to decide which version is true based on a balance of probabilities.
It is imperative when securing property for rental to ensure the following:
Rights of tenants/lessees:
- The agreement must be in writing
- Both parties must sign and receive a copy each
- All special conditions to the agreement must be recorded and form part of the agreement
- Ingoing inspection to be conducted prior to entering the premises to ensure all defects are recorded to avoid liability at a later stage.
- Security deposits to be invested on behalf of the tenant.
Rights of the Landlord/lessor:
- To ensure that the property is maintained in accordance with the code of conduct.
- To receive rental timeously.
- To conduct regular checks on the property where prior notice is given to the tenant.
South African property law is inundated with amendments to the laws surrounding property, due to the number of issues being experienced the most noticeable amendment being that at each given junction the municipality must be cited as a party to any eviction proceedings with the exception of commercial evictions.
The citation of the municipality allows the parties to seek intervention by the municipality for alternative relief such as alternative low cost housing, vacant land for building property or any other measures deemed necessary.
Ashwin Rughbeer is an attorney