Occupiers who can’t be evicted under the EST Act

The Prevention of Illegal Eviction and Occupation of Land Act 19 of 1998 (PIE Act) provides, inter alia, the procedures for the eviction of unlawful occupiers. Section 1 of the PIE Act defines an “unlawful occupier” as someone 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 the land. This definition expressly excludes a person who is an occupier in terms of the Extension of Security of Tenure Act 62 of 1997 (EST Act). Section 29 (2) of the EST Act states that the provisions of the PIE Act will not apply to an occupier in respect of land which he is entitled to occupy in terms of this Act. Who are occupiers in terms of the EST Act and why are they excluded from the ambit of The PIE Act?

The EST Act

The EST Act has as its aim the provision of measures to facilitate long-term secured land tenure with state assistance. This Act grants occupiers the right to obtain a secured long-term right to occupancy with the permission of the owner, upon request on or after 4 February 1997.

Occupiers of rural land, farms and undeveloped land are specifically protected under this Act. The EST Act does not apply to, inter alia, occupiers living in already proclaimed township areas, land invaders, labour tenants and people using land for mining and industrial purposes and for commercial farming purposes. Occupiers in terms of the EST Act receive a secured right in law to live on and use the land they have been occupying, under permission, for continued periods of time. The occupier thus enjoys protection of this right and as a result such a secured right may not be unreasonably altered or cancelled by the owner or person in charge of the land without notice to, and the permission and/or consent of, the occupier. This includes protection against unfair or arbitrary eviction and, in fact, provides its own specific mechanisms for the eviction of long-term secured occupants, which must be followed.  

Actions such as the removal of a right to occupancy, access to the land, water or electricity, denial of family or visitors on the said land and the prohibition of the use of the land for personal reasons are all forms of evictions in terms of the EST Act and are strictly regulated by this Act when applicable to occupiers classified under and granted rights in terms of this Act.

Conclusion

Many occupiers of land who do so with the proper and necessary consent and permission of the owner are not aware that they possess tenure rights to occupy the land on a long-term basis. Unless such an occupier commits a serious wrong or fails to honour any terms of the agreement with the owner, he/she may not be arbitrarily evicted in terms of any eviction process available to owners, including those available under the PIE Act. Such occupier’s rights are protected and regulated under the EST Act.

References:

Prevention of Illegal Eviction from and unlawful Occupation of Land Act 19 of 1998; www.sarflii.org/za/legis/consol_act/poiefauoola1998627/ (accessed 11 March 2016);

Extension of Security of Tenure Act 62 of 1997; www.justice.gov.za/lcc/docs/1997-062.pdf (accessed 11 March 2016);

People Against Suffering Oppression and Poverty, PASSOP, www.passop.co.za/your-rights/housing-rights-esta (accessed 11 March 2016).