Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill: Department briefing

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Meeting report

 

HOUSING PORTFOLIO COMMITTEE
25 May 2005
PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL OCCUPATION OF LAND AMENDMENT BILL: DEPARTMENT BRIEFING

Chairperson:
Ms Z Kota (ANC)

Documents handed out:
Committee Clerk’s minutes for meeting of 16 March 2005 (Available on request)
Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill [B11 - 2005]
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998
Department PowerPoint presentation on the Bill

SUMMARY
The Department provided a presentation on the Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill. This included highlighting the aims of the present Act, which were to prevent the illegal occupation of land and set out the processes through which evictions could be enforced. Various problems and complications had arisen with the Act, which included a court ruling that tenants and mortgagors, who remained illegally on land, were covered by the application of the Act. The Amendment Bill would address these problems by providing for the following amendments:
- the definition of land would be amended to include high-rise buildings;
- Section Two of the Act would be amended to exclude tenants and mortgagors from the scope of the Act;
- the provisions for the prohibition of receipt or solicitation of consideration in respect of the unlawful occupation of land would be extended to include rents, fees and costs;
- the distinction, in the Act, between illegal occupiers who had been on land for more than six months, and those who had been on land for less than six months, would be removed; and
- technical difficulties, such as the duty to give notice of intended eviction proceedings, would be clarified.

During the deliberations, Members raised various questions and concerns. These included how the removal of the six-month distinction would effect landlords and municipalities; whether altering the definition of land to include high-rise buildings would cover absconding landlords; how defaulting tenants and mortgagors would be evicted once they were removed from the auspices of the Act; when and how a municipality would be expected to provide alternative land for illegal occupiers; whether the Amendment Bill was balanced; and whether the SA Local Government Association (SALGA) had been consulted during the drafting. The Committee decided not to pass the Amendment Bill at the meeting, as Members felt that they needed more time to thoroughly consider the possible implications of the Amendment Bill. The Department noted that the Amendment Bill was an important piece of legislation, and needed to be passed as soon as possible. The Committee reassured the Department that it would fast track the work, which it needed to do on in order to pass the Amendment Bill.

MINUTES

Department briefing
Ms H Pieterse (Department Acting Director, Legal Framework) began by providing background information on the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act of 1998. The Act provided for the prohibition of unlawful occupation; set out procedures for the eviction of unlawful occupiers; prohibited the receipt or solicitation of consideration in respect of the unlawful occupation of land; allowed for mediation of disputes; and provided for offences.

Ms Pieterse highlighted that since the inception of the Act in 1998, the rate of illegal land invasions had increased. Illegal occupiers were also using loopholes in the Act to remain on illegally occupied land. In the light of this, the Department had prepared a draft Amendment Bill, which was submitted to Cabinet in August 2003. On 20 August 2003, Cabinet resolved that the draft Amendment Bill should be published for public comment, amended if necessary, and resubmitted for final approval. Comments on the proposed Amendment Bill were received from 24 organisations. As a result of the public comments, the Amendment Bill was revised and resubmitted to Cabinet. Cabinet then approved the Amendment Bill, and it was introduced into Parliament on 1 December 2004.

Ms Pieterse commented that certain problems with the Act necessitated the Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Bill. One such problem was that the illegal occupation of high-rise buildings had made it necessary to alter the definition of land to include high-rise buildings. It was also discovered that the provisions of Section Three of the Act, which prohibited the receipt or solicitation of consideration in respect of the unlawful occupation of land, were not broad enough. The provisions of Section Three, therefore, needed to be expanded in order to ensure that the definition of consideration included, amongst others, fees, costs and rentals. Another problem was that a Supreme Court of Appeals judgement had brought tenants and mortgagors under the scope of the application of the Act. Indeed, the Supreme Court had ruled that tenants that remained on the premises, after a lease had been lawfully terminated, were in the same position as illegal occupiers. This had not been the intention of the legislature when the Act was promulgated. Section Two of the Act, therefore, needed to be amended to exclude tenants and mortgagors from the application of the Act. Once the proposed amendments were effected, defaulting tenants would be evicted in terms of the Tenants Act, and defaulting mortgagors would be evicted in terms of the Mortgagors Act. These proposed amendments would not deny an illegal tenant their right to only be evicted by an Order of the Court. Ms Pieterse added, however, that the proposed amendment of Section Two could result in possible problems. For example, a landowner may attempt to enter into a simulated lease with an unlawful occupier, only to terminate the lease in order to evict the occupier. In this regard, the Amendment Bill also aimed to further amend Section Two, by empowering the Courts to rule that the Act applied, if it was discovered that a landowner had taken measures to avoid the Act.

Ms Pieterse stated that, in its current form, the Act differentiated between persons that illegally occupied land for less than six months, and those persons who had illegally occupied land for more than six months. The Act prescribed that different criteria should be considered by the Court depending on the duration of the occupation. This constituted an unequal protection of rights, which was unconstitutional. The Amendment Bill aimed to rectify this by removing the six-month distinction. This would entail amending Sections Four and Six of the Act. Ms Pieterse added that the proposed amendments addressed the court’s concerns, which were that the Act attempted to limit the circumstances that a court could take into account in an eviction case. The Amendment Bill addressed this by stipulating that the courts could consider all the relevant circumstances.

Ms Pieterse highlighted that the Act incorrectly placed the burden on the court to provide notice of a person's intention to institute eviction proceedings. The Amendment Bill would seek to rectify this by placing the burden on the person that instituted the eviction proceedings.

Mr A Vawda (Acting Director General: Department of Housing) stated that the Amendment Bill aimed to maintain the balance between the protection of illegal occupiers' rights and the promotion of good governance. He added that the Amendment Bill was part of a package of legislation, which would include amendments to the Rental Act.

Discussion
The Chairperson enquired whether, before deliberation, any Members had general comments or questions on the Amendment Bill.

Mr A Steyn (DA) stated that he was concerned about the proposed changes to treat all illegal occupiers in the same manner, regardless of how long they had illegally occupied land. At present it was simpler and cheaper to evict illegal occupiers who had been on the land for less than six months. He enquired whether, once the Amendment Bill was passed, a landlord would have to go through a drawn out, and costly process, to evict an illegal occupier, even if the illegal occupier had only been on the land for one week.

Ms Pieterse replied that the Amendment Bill proposed that all illegal occupiers, no matter how long they had been on the land, should be treated in the same manner.

Mr D Dlali (ANC) asked whether there were implications of removing the distinction. For example, how would this affect the eviction process?

Mr E Raath (Legal Adviser: Department of Housing) stated that under the Act, the court had to consider whether alternative land was available to an illegal occupier who had occupied land for longer than six month. If an illegal occupier had been present on the land for less than six months, then the Court did not have to consider whether alternative land was available. However, under the Amendment Bill, all illegal occupiers, regardless of the time spent on the land, would be entitled to this consideration. This would not necessarily increase the expense, or length, of the eviction process.

Mr Vawda added that the Department’s interpretation of the Act was that it was easier to evict people who had recently occupied land illegally. However, the understanding of the courts was that this was unconstitutional. The Amendment Bill addressed this. Nonetheless, all cases of land invasions were still unacceptable and illegal.

The Chairperson asked the Committee to deliberate the Bill clause by clause.

Clause One: Definition of land
Mr Dhlamini (IFP) commented the he was concerned with the situation in the Johannesburg Central Business District. Many of the landlords of the high-rise buildings had absconded in an attempt to avoid paying their rent, water and electricity bills. He asked whether the change to the definition of land, under Clause One of the Amendment Bill, would address this situation.

Mr Steyn felt that the definition of land, to include high-rise buildings, specifically dealt with the illegal invasion of such buildings, and not with the issue of landlords absconding.

Mr Raath responded that the municipality, or the relevant state organ, would be in a position to obtain the necessary eviction order if a building had been abandoned.

Mr Dlali felt that the amendment to the definition of land, to include high-rise buildings, particularised high-rise buildings. It was not only the illegal occupation of high-rise buildings that was problematic.

Clause Two: Application of the Act
Mr D Mabena (ANC) highlighted that the Amendment Bill aimed to remove tenants and previous owners from the auspices of the Act. He enquired what recourse a new owner would have if an old tenant, or the previous owner, illegally remained on the land.

Mr Raath responded that the categories of people excluded from the Act, by the Amendment Bill, would be covered in other legislation. For example, defaulting tenants would be covered under the Rental Housing Act, and defaulting mortgagers would be covered under mortgage agreements. These categories of people could then be evicted through these agreements or relevant Acts. Added to this, a new owner could use the common law to evict tenants, or a previous owner, who remained illegally on the land. Of course, an Order of the Court would still be required in any eviction case.

Mr Mabena asked what the purpose of the Act, and Amendment Bill, was if one could simply use the common law to evict a previous owner who refused to move or an illegal tenant. Who was the Act and Amendment Bill directed at?

Mr Vawda responded that the original intention of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act was to repeal the Illegal Squatting Act of 1952. The present Act also had two broad aims, which were the prevention of illegal occupation of land, and to set out the process through which evictions could be enforced. In the interim, tenants and previous owners, who illegally remained on the land, were conflated into the Act through the application of the Courts. This had caused difficulties and hence the Amendment Bill had been drafted. The eviction of previous owners and tenants, who illegally remained on the land, would fall under other pieces of legislation, once the Amendment Bill was passed. Nonetheless, evictions could still be conducted through the common law.

Mr G Schneemann (ANC) highlighted that there were plans to amend the Rental Housing Act. He asked what implications this would have for landlords who wished to evict tenants prior to the amendment of the Rental Housing Act.

Mr Raath answered that there would be no negative implications for landlords. The common law would still apply. One aspect of the Rental Housing Act was that a person could approach a tribunal to evict tenants. However, the enforcement of tribunal rulings was problematic.

Mr Dlali enquired why the Department had not drafted an amendment, to the Rental Housing Act, to ensure that the tribunal's decisions could be enforced.

Mr Raath responded that the amendments to the Rental Housing Act would aim to strengthen its enforceability.

The Chairperson felt that the Amendment Bill was silent on the matter of the prevention of the illegal eviction of occupiers, who were not on the land because of choice, but were rather on the land because of adverse socio-economic circumstances. The Amendment Bill had not provided procedures for municipalities to deal with such situations. There needed to be a balance, and the government needed to ensure that it made land, and housing, available to such people.

Mr Vawda responded that reaching a balance was important. One needed to fulfil the obligations of the Constitution, and at the same time ensure that mechanisms were in place for good governance. In many cases eviction were necessary, yet one had to ensure that those evictions were fair. Mr Vawda added that the package of legislation, around land and housing issues, needed to address the gaps and government obligations. Mr Vawda noted that in the Grootboom case, the Court had considered whether the public authority had made alternative land available. The Department had made significant interventions in policy around making alternative land available. One intervention related to the emergency mechanism that would respond to the Grootboom ruling. The other intervention was the adoption of a programme to upgrade informal settlements, which was announced by the Minister.

Mr Vawda noted that with regards to the case of Ndlovu, Ngcobo, Bekker and another vs Jika, the Court stated that it had merely applied the Act. The Judge noted that if there were problems, or contradictions, in the Act, then it was not the Court’s responsibility to address them, but rather the legislature’s. Hence, the Amendment Bill was drafted. However, the Bill still aimed to maintain a fair balance.

Clause Three: Prohibition of receipt or solicitation in respect of unlawful occupation of land
Mr Steyn noted that in Clause 3, the wording stated that: "The Court must order...". Mr Steyn questioned whether one could prescribe to the Court. Should the wording of the clause perhaps rather state "may"?

Mr Smuts (State Legal Advisor) responded that he would examine the matter and inform the Committee and Department on the findings.

Mr Steyn noted that under Clause 3(3)(c) it stated that if a person illegally received money for allowing another person to illegally occupy municipal land, the money received should be forfeited "into the relevant municipal operating account". Mr Steyn enquired what would happen in a case where the land was privately owned.

Mr Smuts replied that privately owned land was covered by Clause 3(3)(a), which stated that the forfeited money went "to the person or persons from whom the money, assets or other consideration was received".

Clause Four
Mr Steyn stated that under Clause 4(b)(3) the wording stated "by the rules of the Court in question". Yet, under Clause 5(a)(2), the word "Court" had been replaced with "the person who institutes proceedings". He enquired why there was this difference.

Mr Raath responded that the Department would examine the matter. Mr Vawda added that the person who instituted the proceeding needed to serve the notice in a particular way.

Mr Steyn replied that this needed further clarification.

Clause Five
Mr Steyn noted that Clause 5 (2) stated that: "the person who institutes the proceedings must be give written and effective notice". He enquired what was meant by "effective" and how would a Court interpret this.

Mr Raath responded that the term "effective" was the phrase that was used in Court proceedings.

Clause Six
Mr Steyn noted that Clause Six dealt with the exclusion of the differentiation of illegal occupiers who had, or had not, been on the land for at least six months. He enquired whether the constitutionality of the distinction had been tested. He was concerned that if the distinction was removed, then the municipalities would have to undertake lengthy, and costly, processes to find alternative land for illegal occupiers, even though the occupiers may have only been on the land for a very short period. Added to this, the removal of the distinction clause could have a negative impact on the housing programme. Mr Dlali asked at what stage would alternative land have to be made available for any evicted illegal occupiers.

Mr Raath answered that with regards to the removal of the distinction, it was only the consideration of alternative accommodation that was added. It was also the Court’s decision regarding the stage at which alternative land should be made available.

Mr S Abram (ANC) noted that under Clause Six, it stated that the Court needed to consider whether there was the availability of suitable alternative accommodation, or land, for an unlawful occupier. Mr Abram felt that this was too broad. Mr Abram asked who was supposed to determine the availability of other land. Similarly, what was considered "suitable"? One person’s definition of suitable accommodation could be very different from another person’s view on suitable accommodation. He felt that the courts might find difficulty in applying this aspect of the proposed Amendment Bill.

Mr Raath responded that, with regards to determining the definition of suitable alternative accommodation, the Amendment Bill aimed to allow the courts to use their discretion. Mr Vawda added that the court would enquire from a municipality whether they had applied themselves properly in attempting to find alternative suitable accommodation. In instances where municipalities had been unable to find other accommodation, or land, the court would enquire why. The Act also dealt with the scenario where people staged land invasions to further their own goals. Therefore, the Act created a balance.

Memorandum on the objects of the Amendment Bill
The Chairperson stated that she was concerned that there seemed to be a movement away from the earlier intention of the Amendment Bill. For example, there seemed to be a focus on buildings. Municipalities were also having difficulty providing alternative land to people, due to financial constraints, and the challenges of the country. The Amendment Bill needed to take this into account.

Mr Steyn highlighted that the Amendment Bill would not replace the present Act, it would only amend it. The concern that the Chairperson had in terms of land would still be covered by the original Act.

Mr Dlali commented that it appeared that SALGA had not been consulted during the draft phase of the Amendment Bill. The Department needed to consult with SALGA on the Amendment Bill.

Mr Abram asked whether the consultations with the 24 organisations were undertaken before drafting of the Amendment Bill.

Mr Raath replied that the draft of the Amendment Bill was published in 2003 for public comment. The Department received inputs from the 24 organisations, and altered the Amendment Bill accordingly.

The Chairperson adjourned the meeting for ten minutes to enable the various parties to meet to decide whether the Committee should adopt the Amendment Bill.

On returning from the adjournment, the Chairperson highlighted that the ANC felt that more time was needed to consider the Amendment Bill. This was the case because ANC Members felt that unintended consequence could arise out of the adoption of the Amendment Bill. The Amendment Bill was a good piece of legislation, but it was critical that the Committee performed a thorough job. The Chairperson appealed to the opposition Members to allow for more time to consider the Amendment Bill.

Mr Steyn enquired what the ANC had identified in the Amendment Bill that may lead to unexpected consequences. Mr Steyn added that the Amendment Bill needed to be dealt with soon. The rental market had been negatively effected by some of the courts' application of the present Act. The Amendment Bill also had to be passed before the Department could amend the Rental Housing Act. Mr Steyn then stated that if unintended consequences were going to arise out of the Amendment Bill, then the DA would agree to the ANC's request for more time to examine the Bill.

Mr Steyn requested that if major amendments were suggested to the Amendment Bill these be distributed to the other parties before the next Committee meeting.

The Chairperson responded that any suggested amendments would be provided to the DA, for discussion, prior to the meeting.

The Chairperson observed that the State Legal Advisor had stated that they would investigate, and provide answers to the various questions that were raised during the deliberation. This indicated that there were a number of issues that needed to be examined. The balance of the Amendment Bill needed to be properly addressed. If the Amendment Bill was not thoroughly considered by the Committee, a problem could possibly arise during the Amendment Bill’s implementation.

Mr Steyn requested that the Department also establish the constitutionality of distinction between illegal occupiers, who had been one the land for six months, or more, and those illegal occupiers who had been on the land for less than six months.

The Chairperson noted it would not be possible to have the Amendment Bill before Parliament by 2 June. She stated that she would liaise with Parliament about the Committee's request for more time to consider the Amendment Bill. The Chairperson then suggested that perhaps the Committee meeting on 1 June could be used to address the Amendment Bill. The Committee also wanted to interact with the State’s Legal Adviser around the Amendment Bill before 1 June.

Mr Vawda stated that there were multilevel negotiations underway, with community organisations and banks, as part of the Comprehensive Human Settlement Plan. The Department’s policy initiatives attempted to accommodate many of the issues being negotiated. He also felt that the Amendment Bill accommodated the views of many stakeholders, including the Legal Resources Centre. As such, the Department felt comfortable with the way that the Amendment Bill had been crafted. Mr Vawda added that as the Director-General, he was obliged to steer the Amendment Bill through. If the Amendment Bill was delayed, it could possibly affect the negotiating process and disrupt the sequence of amendments that were needed in other pieces of housing legislation. The negotiating partners, specifically the banks, wanted to see the type of commitment that the Amendment Bill offered. In the light of this, the Department felt that the Amendment Bill needed to be fast tracked, so that the Department and Ministry could meet the goals of their broader time frame. Mr Vawda commented that, along with the State Law Advisor, the Department would make some of the alterations to the Amendments Bill, which were suggested by the Committee. This would possibly allow for the Committee's work on the Amendment Bill to be completed in one week. Perhaps, the Amendment Bill could then be presented, and read, in Parliament by the 7 June deadline.

The Chairperson responded that the Committee had taken the concerns of Mr Vawda seriously. She would examine the Committee’s programme in order to promptly deal with the outstanding issues around the Amendment Bill. This would enable the Amendment Bill to be placed before Parliament as soon as possible, perhaps even by the 7 June deadline.

Mr Schneemann asked how soon the alterations to the Amendment Bill would be completed. He also enquired if the Committee could receive these amendments before the next committee meeting. This would allow the Committee to be prepared, and would avoid the need for a further discussion on the Amendment Bill.

The Chairperson suggested that the Committee work on the Amendment Bill on 30 and 31 May. This would enable the Committee to possibly adopt the Amendment Bill on 1 June 2005.

The meeting was adjourned.

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