It is quite commonly known that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998, (the “PIE act”) regulates almost all evictions from immovable property, however the PIE act may have a shortcoming which may permit the circumvention of the PIE act in certain, although very limited, instances.
The point of departure would be section 4(1) of the PIE act which reads as follows:
“(1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier”.
From the above extract, it is quite clear that the PIE act altered to the common law with regard to the eviction of “unlawful occupiers”, which the PIE act defines to mean:
“a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land …”.
From the aforegoing, it is patently clear that the PIE act only regulates the eviction of “unlawful occupiers”, however the PIE act does not regulate the hypothetical eviction of lawful occupiers. This theme is continued in section 8(1) of the PIE act which reads as follows:
“(1) No person may evict an unlawful occupier except on the authority of an order of a competent court.”
Again, section 8(1) does not make the eviction of a lawful occupier, without a court order, a criminal offence.
In light of the above, it is very clear and indisputable that the eviction of a lawful occupier is not regulated by the PIE act at all. It is quite possible that the legislature reasoned that a lawful occupier would be entitled to approach the courts for the protection of his or her right to occupy and hence would not need the protection of the PIE act. Sadly, the theoretical circumvention alluded to below may also limit those instances in which a lawful occupier would be entitled to approach the courts for protection of his or her right to occupy.
Notwithstanding the attempts to protect unlawful occupiers, it is the very treatment of occupiers in the PIE act which opens up a theoretical manner in which the PIE act could be circumvented. Briefly, the theoretical circumvention of the PIE act is the result of the specific wording used in the PIE act and the ranking of rights, as will be alluded to below.
It is quite commonly known in the conveyancing profession that rights can be ranked to allow a particular party’s rights to prevail over the different party’s rights. In particular, this commonly takes place in the realm of real rights of security in respect of immovable property – the humble mortgage bond.
It sometimes happens that a mortgage bond is registered in favour of bank A and then a new, or second, mortgage bond is registered in favour of bank B. In the second mortgage bond’s deed it will be expressly recorded that the second mortgage bond does not prejudice the rights emanating from the first mortgage bond. In essence, the rights emanating from the first mortgage bond prevail over those of the second mortgage bond.
Also, in the realm of commercial law certain rights are often subordinated in favour of third-party’s rights to entitle the third-party to performance prior to the rights holder of the subordinated rights. This is particularly common where a financial institution lends or advances money to a company and requires that all shareholder loans be subordinated to the loan given by the financial institution.
As alluded to above, the ranking of rights is commonplace within our law and, as such, it is theoretically possible for a landlord could reserve the right to occupy the entirety of a property in favour of a third-party and contractually provide that such right of occupation shall rank above that of the tenant and that the third-party would be entitled to take occupation upon demand. This would have the result of the third-party’s right of occupation prevail and supersedes that of the tenant and hence entitling either the third-party to evict the tenant despite the tenant being in lawful occupation of the property.
As a consequence of the tenant being in lawful occupation of the property, the PIE act would not be applicable where there has been a ranking of the right to occupy the entirety of a piece of property.
It can be argued that the theoretical scenario mentioned above might be an abuse of form over substance and hence the courts may very well rule that a landlord intentionally refrained from terminating the right of occupation of a non-paying tenant in order to evict the tenant in terms of our common law rather than have to comply with the onerous provisions of the PIE act.
Admittedly the theoretical scenario mentioned above would require:
- The convergence of a number of factors rendering the likelihood of the circumvention of the PIE act unlikely. Nevertheless, a court (in particular a Magistrates Court, being a creature of statue) may very well be obligated to evict a lawful occupier in terms of our common law should such factors converge; and,
- A Judge or Magistrate to be willing to consider such a set of facts and have an understanding of the ranking, or subordination, of rights.
In closing, I do point out that the above circumvention of the PIE act is only theoretical and there is yet to be case law on such a set of facts – although it would be interesting to see how such a set of facts is dealt with by our courts.
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