Prevention of Illegal Evictions from & Unlawful Occupation of Land Bill [B89b-97]: deliberations

PUBLIC SERVICES SELECT COMMITTEE
30 March 1998.
PREVENTION OF ILLEGAL EVICTIONS FROM & UNLAWFUL OCCUPATION OF LAND BILL [B89B-97]: DELIBERATIONS

Chair: Ms JL Kgoali
Present: Mr Mushwana, Mr Sulliman, Ms. Khobe, Ms Lamani, (ANC)
Mr Groenewald and Adv van der Walt (Freedom Front)
Mr Mokotjo, Mr Henry and Mr Fisher (NP).
Departmental officials and law advisors: Mr Wallace, Mr Thatcher and Mr Prinsloo

The committee formally considered B89B-97: the Prevention of Illegal Evictions from and Unlawful Occupation of Land Bill, as amended by the National Assembly. The matter was set down for plenary debate in the NCOP for the following day, the 31 March, 1998 which obliged the committee to finalise their deliberations on the bill.
The commitee passed the bill with one amendment to Section 3, with the Freedom Front and the Democratic Party dissenting.

Fisher (NP) raised a question about the tagging of the bill as a section 75 bill as it was introduced by the Minister of Housing and housing is an issue of concurrent national and provincial responsibility. The Chairperson replied that it mainly deals with land, which is why the tagging was correct.

Everyone agreed to the Preamble.

In the definitions section the Freedom Front raised problems with the definition of "consent". They are unhappy that it includes tacit consent and said that consent to be on someone else's land should always be written consent. Mushwana (ANC) said that a court would look at all the surrounding circumstances to determine tacit consent and it would factually still have to be consent, although not written. The Freedom Front said that the bill would completely destroy private ownership and for this reason they would not support it. The department clarified the meaning of "tacit consent". The onus would be on the owner to prove that he or she had not provided tacit or express consent. There have been many cases - particularly in Gauteng and Kwazulu-Natal - where landowners take some money from people allowing them to live on their property. They later kick them off their land and as there is no written agreement the tenants cannot show consent - the so called "farming of people". Courts will look at the issue from an evidentiary point of view. The term "tacit consent" is an accepted legal term and courts will look at various factors to determine whether there actually was consent.

Section 2 - The application of the Act - was accepted without debate.

Section 3 - The prohibition of receiving money for arranging the unlawful occupation of land. The department explained that with the process of urbanisation many unsophisticated people move to the cities. They do not want to penalise these people, rather they want to penalise the people who exploit them by offering them land for a sum of money when the land is in fact owned by someone else. The bill says that a court must order that the money so paid be forfeited and must be paid back to the person who paid it and only if that person can't be identified will the forfeited money be paid to the state. The committee debated whether the court should have a discretion. They were particularly concerned about the situation where the person paying the money knew that it was for the illegal occupation of the land and in this instance the committee did not feel that the court should be obliged to order the money paid back to the person who paid it. The committee amended the bill to say that the court must order forfeiture but it may (ie introducing a discretion) order that this be paid back to the person who paid it.

Section 4 - Eviction of unlawful occupiers. This section starts by saying that applications for the eviction of an unlawful occupier must be carried out in terms of this bill - ie that this bill will override all other laws or even the common law with regard to eviction orders. The committee, but particularly the Freedom Front members of the committee, were concerned that other common law remedies would no longer be applicable. In particular they were concerned that this would override the Trespassing Act and that it would limit the options for a landowner who found people, for example, who have moved into his/her house while they were away on holiday. In terms of the common law occupiers would have very few procedural rights and it was explained that one of the purposes of the bill was to establish a fair procedure for eviction of unlawful occupiers.

The Chair then said that she had received a note from Mary Honey from the Legal Resources Centre requesting permission to address the committee. She had made this request previously and had been directed instead to check whether there would be any provincial hearings on the bill. There had not been any so instead she was again asking to address the Select Committee. The committee agreed that she should be permitted to speak.

Mary Honey (LRC) raised two main concerns with the bill:
The first referred to section 4 - the main section that deals with the eviction of unlawful occupiers. This only provides for "written and effective notice" 14 days before the hearing of proceedings. No provision is made for notice that proceedings will be instituted. She proposed an additional 14 days giving notice of the intention to institute proceedings and stressed that particularly in rural areas, the 14 days notice of a hearing is insufficient for them to organise legal representation. The second concern related to the distinction made between unlawful occupiers who have occupied land for less than 6 months and those who have occupied land for more than 6 months. Only in the latter case is the court specifically asked to consider whether alternative land is available. She believes that a court should in all instances consider the issue of alternative land and that the two categories should be collapsed into one. Unless this is done the bill may be unconstitutional as the constitution says that people cannot be evicted without a consideration of all circumstances. All relevant circumstances must include the availability of alternative land.

The committee's response was that they felt 14 days plus 14 days was too long. On the second issue they didn't believe that an owner should have to lead evidence regarding alternative land.

The committee then resumed their discussion about the exclusion of common law remedies. Some people argued that the bill as it stood was fine as there was a clause allowing for urgent proceedings, when the normal procedures and time limits could be dispensed with. The Freedom Front did not believe this solved the problem as the urgent proceedings will only be used if there is "real or imminent danger of substantial harm". They believed that it will be almost impossible to evict under the urgent proceedings. The department raised the possibility of the bill saying that no other laws, except the Trespass act, will apply but Mushwana (ANC) disagreed with this amendment. He said that he believed the procedure proposed in the bill would be adequate.

There was some discussion whether sections 4(6) and (7) should specify the rights of the elderly, children, the disabled and households headed by women. In the Bill courts are enjoined to consider their rights before granting an order of eviction and Henry (NP) believed that this could be abused. Sulliman (ANC) disagreed saying that the rights of these groups are specifically enshrined in the constitution, they are vulnerable groups and it is appropriate to specify their rights in this section.

No one had problems with section 6 - Eviction at the instance of the state.

Section 7 - Mediation, Ms Lamani said that her province had raised an issue around whether the mediator should be appointed by the Director-General of the provincial administration of the province (as per the Bill) or the MEC. The department replied that if it is given to the MEC it would be an administrative burden. The appointment of a mediator is an administrative action that should be dealt with by the administrative head. Sulliman raised the issue that this is a section 75 bill and therefore a national responsibility and wondered why this responsibility was being given to a provincial official. The department did not think that the fact it was a section 75 bill made any difference. No amendments to this section were proposed.

No comment was made to any of the remaining sections of the bill.

The North-West raised a problem that the province never received the Bill.

The committee agreed to the Bill with the one amendment. The Freedom Front indicated that they would be opposing the bill.