How does the PIE Act protect tenants?

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) protects you in three ways. It makes a court order compulsory before anyone can be removed from a home. It gives you formal notice and the right to be heard before that order is made. And it forces the court to weigh your personal circumstances, not just the owner's title deed, before deciding whether the eviction is just and equitable.

It gives effect to the constitutional rule that no one may be evicted from their home without a court order made after considering all the relevant circumstances.

Who the PIE Act protects

The Act protects "unlawful occupiers", which sounds worse than it is. You become an unlawful occupier the moment you no longer have a legal right to be there, which happens when a fixed-term lease runs out, when a lease is properly cancelled for arrears, or when the person who let you stay withdraws permission. You do not have to have done anything wrong.

It covers tenants, former tenants, family members living in a home, people occupying land informally, and people who stayed on after a property was sold or repossessed. While your lease is still valid you are a lawful occupier and cannot be evicted at all, so the first question in any eviction is always whether the lease was properly ended.

The Act does not apply to everyone. Occupiers of farm land who have consent to live there are usually dealt with under the Extension of Security of Tenure Act 62 of 1997 instead, and the PIE Act does not cover people evicted under a mortgage sale in execution in the same way. If you live on a farm, get advice specific to that Act.

The notice you must receive

An eviction under the PIE Act is a court application, not a letter. The owner brings the application, and the court itself must authorise a written notice of the hearing. That notice is then served on you and on the local municipality, usually at least 14 days before the court date.

The notice must tell you the date and place of the hearing, the grounds on which the eviction is sought, and that you have the right to appear, to defend the matter and to apply for legal aid. If you never received a proper notice, that is a real ground to ask the court to postpone or dismiss the application.

The municipality is notified for a reason. It may have to report on whether alternative accommodation is available, and in many urban matters the municipality is joined as a party for exactly that purpose.

What "just and equitable" means in practice

This is the heart of the Act. The court cannot grant an eviction simply because the applicant owns the property and you are behind on rent. It must be satisfied that removing you is just and equitable in all the circumstances, and it must consider the rights and needs of the people in the household.

The Act singles out the elderly, children, people with disabilities and households headed by women. Courts also look at how long you have lived there, whether you have anywhere else to go, your income, whether you are working, and whether the municipality can provide temporary emergency accommodation.

Where you have occupied the property for more than six months, the court must additionally consider whether land has been or can reasonably be made available by a municipality or another organ of state for relocation.

Two outcomes follow from this. The court may refuse the eviction, usually where the household would be left homeless and no alternative has been arranged. More commonly, the court grants the eviction but sets a date some weeks or months ahead, so you have a realistic period to move.

A PIE application step by step

It helps to know what the owner has to do, because each step is a point at which you have rights.

1. The lease is ended. By expiry of the fixed term, or by written cancellation after a breach notice. Where the Consumer Protection Act 68 of 2008 applies, that breach notice usually gives 20 business days to fix the problem.
2. The application is drafted. The owner's affidavit sets out ownership, how the lease ended, and what is known about the occupiers. It is issued at the magistrate's court or High Court.
3. The court authorises the notice. This is a separate step. A judge or magistrate signs off the PIE notice before it can be served.
4. Service. The sheriff serves the notice on you and on the municipality at least 14 days before the hearing.
5. Opposition. You file a notice that you intend to oppose, and then an answering affidavit setting out your circumstances.
6. The hearing. The court hears both sides and decides whether eviction is just and equitable, and if so, by what date.
7. The order and the sheriff. If you are still there after the date in the order, the sheriff may remove you. Nobody else may.

An unopposed application commonly runs two to four months from breach notice to sheriff. An opposed one usually takes six months or more, and longer where the municipality has to report.

A worked example

Names and figures are illustrative.

Mandla, his wife and their three school-going children have rented a house in Soweto for four years at R6 500 a month. Mandla is retrenched, falls four months behind, and the landlord sends a written breach notice, waits 20 business days, and cancels the lease. Two months later the sheriff serves a court-authorised PIE notice on Mandla and on the City of Johannesburg, giving a hearing date three weeks away.

Mandla does not ignore it. He phones Legal Aid South Africa the same day, qualifies on the means test, and a legal aid attorney files an answering affidavit. It sets out that three minor children live in the house, that the family has been there for more than six months, that Mandla is now earning a reduced income from piece work, and that they have found nowhere affordable to move to. It asks the court to consider whether the municipality can offer emergency accommodation.

The court finds that the landlord is entitled to the property, but that an immediate eviction would not be just and equitable. It grants the order with a date to vacate four months ahead, in the school holidays, and directs the municipality to report on emergency housing before then. The landlord still gets the house back, and also obtains judgment for the arrears. Mandla's family gets time to plan rather than a truck at the gate.

Documents to gather

If you have received a PIE notice, collect these before you see an attorney or Legal Aid:

• the lease and any renewal, or notes of the verbal agreement
• every rent payment record, including partial payments
• the breach notice and the cancellation letter, with the dates you received them
• the court papers exactly as served, including the notice and the affidavit
• identity documents and birth certificates for everyone living in the home
• proof of income, or of unemployment, for each adult
• medical records for anyone who is ill or has a disability
• evidence of your efforts to find alternative housing, such as enquiries and rejections
• any correspondence with the municipality about housing

What to do this week

1. Read the notice and write the hearing date on a calendar you look at every day.
2. Phone Legal Aid South Africa on 0800 110 110 and ask for an appointment at the nearest justice centre.
3. Write a one-page summary of your household: who lives there, ages, income, health, how long you have been there, and where you have looked for alternative accommodation.
4. Gather the documents listed above into one folder.
5. If the landlord has locked you out or cut services, report it to the Rental Housing Tribunal in your province immediately. That is unlawful and separate from the eviction. See Can a landlord evict me without a court order?.
6. Attend court on the day even if you have no lawyer yet, and ask the magistrate for a postponement to get representation.

Common mistakes and what they cost

Not opposing. Most evictions that go badly for tenants are the ones nobody opposed. An unopposed order is often granted on the first day with a short date to vacate.

Moving out because of the notice. The notice is not an order. Leaving before the court has decided gives up rights the court might have protected.

Treating the arrears as cancelled. The PIE Act deals with removal, not the debt. The rent you owe remains claimable, usually in the same proceedings, and ignoring that side of the case can leave you with a judgment you never contested.

For landlords, skipping the municipality. An application that does not notify the municipality, or that gives the court nothing about the occupiers' circumstances, is routinely postponed or dismissed.

Occupier's rights and owner's rights

The occupier may: receive a court-authorised notice; oppose the application and be heard; apply for legal aid; have children, age, disability and household circumstances considered; be given a realistic date to move; ask for the municipality to report on emergency accommodation; be removed only by the sheriff and only after the date in the order.

The owner may: bring the application once the lease has ended; claim arrear rent and damages for holding over; ask the court for a costs order; ask for a date to vacate; call on the sheriff if the occupier stays past that date.

After the order

Only the sheriff may carry out an eviction, and only after the date in the order has passed. A landlord, a security company or a private eviction contractor may not remove you or your belongings. If someone tries, that is a matter for the police and for an urgent court application.

If you were not at court when the order was granted and you have a real defence, ask an attorney or Legal Aid about applying to rescind the order. Act quickly, because the date to vacate keeps running.

What this means for landlords

The Act is not a bar to eviction, it is a process. Owners who follow it properly do get their properties back. The mistakes that cost landlords time are cancelling the lease badly, failing to serve the authorised notice correctly, not joining the municipality where the court expects it, and putting no evidence before the court about the occupiers' circumstances. Doing it properly the first time is usually faster than doing it twice.

LawMatch is not a law firm and this page is general information, not legal advice about your situation.