PIE, the Prevention of Illegal Eviction from an Unlawful Occupation of Land Act, is an act of Parliament which came into effect on June 5, 1998, and which sets out to prevent, among other things, arbitrary evictions. Similarly PIE protects landlords from unlawful occupation.

This may all change if the complainants of the Maphango and 17 Others v Aengus Lifestyle Properties case before the constitutional court have their way. There are currently 11 constitutional court judges contemplating this case. Those with property investments, landlords in poorer residential communities in particular, have their eyes cocked toward the outcome.

PIE governed landlords rights could be permanently altered. TrudieBroekmann, commercial director for Gunstons Attorneys’, has been quoted as saying: “But community and human rights organisations representing indigent tenants are hoping that the judgement will provide extended security of tenure for the urban poor, who often “fall between the cracks” because housing law does not protect them.”

Aengus Lifestyle properties bought a rundown block of flats in Braamfontein with the view to renovatingit; this isn’t a slumlord at work here but a legitimate developer. In the process, Aengus has chosen not to renew tenants’ leases as they expire.  This way the building would empty in time, renovating the units as they became empty. It also means thatAengus can charge higher rentals in line with other renovated buildings in the area. This has been a common practice in the renewal movement of inner city Johannesburg and around the world.

However tenants are people and people have lives. As it turns out, Loliebenhof, the building in question has some very fine occupants. Firstly they are tenants of long-standing, some as long as 18 years. Secondly they are on record as being regular, prompt rent payers.  These aren’t squatters or criminals but law abiding citizens. Their argument is that they are not in a position to occupy similar accommodation elsewhere.

As it turns out the leases, which were fixed term, ceased to be current upon Aengus’ purchase of Lowliebenhof. The result was that the tenants were continuing to be tenants subject to either party’s right to terminate on reasonable notice. Notice was given with the offer of a new lease at rental increase of up to 150%. Under the South African law of contracts, landlords do not have to renew a lease upon expiration, although reasonable notice of termination must be given.

The case was then brought before Justice A.J. Van Der Riet of the South Gauteng High Court, and to quote the Southern African Legal Institute:  “First, that the respondent’s purported termination of the leases was invalid. Second, that, even if the leases were validly terminated, it would not be just and equitable to evict them from the flats. For the second ground they relied on the provisions of s 4(6) of the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land, Act 19 of 1998, which generally became known as PIE.” A.J. Van Der Riet dismissed the case.

The Lowliebenhof tenants’ leases were validly terminated and eviction has been permitted.Currently the tenants are relying on section 26 of the Constitution, which guarantees each person’s right to have access to adequate housing. 

The case went before the Supreme Court of appeal and was heard on the 11th of May 2011. By the 1st of June Justice JA Brand dismissed the appeal.  Justice Brand ended his judgement with:”Thecourt held that, since the appellants raised important constitutional issues, they should not be burdened with costs. It therefore makes no order as to costs. “

Clearly Justice Brand sees the matter in a more serious light than just another case, but rather a case “that raised important constitutional issues” and needs to be tested before the constitution.
So the Constitutional Court will be aiming at balancing the interests of landlords and tenants. The exact nature of one’s constitutional rights to adequate housing, or education and healthcare for that matter, are still being processed before South African courts. The United Nations has prescribed that ‘irrespective of the type of tenure, all persons should possess a degree of security which guarantees legal protection against forced eviction, harassment and other threats’.

Trudie Broekmann commercial director for Gunstons Attorneys’ has been quoted as saying: “If the Constitutional Court comes to the conclusion that it will advance access to adequate housing to grant tenants housing rights that extend even after their leases have elapsed, this case will certainly set a precedent and make landlords’ obligations more onerous.”

The consequences for landlords in particular and South African property in general would be sweepingin the event of a favourable decision for the tenants. Some would argue that human rights and championing the cause of the vulnerable would have won. On the other hand urban decay may be seen as having won the day with the renovation of buildings becoming more difficult and less financially viable due to deeply rooted occupants.

PIE may have become a redundant meal in the world of property law.

Sources:

The Southern African Legal Information Institute
SERI socio-economic rights institute of South Africa
SA Property News: Pending Constitutional Court decision could hamper upgrading of urban residential stock