With the recent illegal attempted land grabs in Frankenwald, Sandton and Waterfall in Midrand, and talks about expropriation of land, many landowners are fearing for their properties.
In light of this, the Sandton Chronicle set out to find out exactly what the law says about landowners and their rights. Afzal Lahree of Afzal Lahree Attorneys and the Kelvin Residents Association director; together with Ryan Brueton, associate delegate; and paralegal, Vanessa Banda assisted with the information provided.
Lahree said the law protects private landowners and they have the right to the use and enjoyment of their properties.
“The right to own property is encompassed in the Bill of Rights and Section 25 (1) of the Constitution provides an express protection of private property.
“The property clause, therefore, grants private property owners the right to claim their property as theirs. Section 25 (2) of the Constitution stipulates, ‘Property may be expropriated only in terms of the law of general application for public purposes/public interest and subject to compensation…’ [This means that any expropriation of land can only be initiated by the State].
“Private landowners, therefore, have immunity within the law against expropriation without compensation.”
He continued that landowners need to inform the police as soon as possible before the unlawful occupiers have a chance to erect a structure.
“However, if the element of permanency has been created, the owner has the right to make an urgent application or an application in the normal course to evict the unlawful occupiers according to the Prevention of Illegal Eviction and Unlawful Occupation Act 19 of 1998 (‘PIE Act’), if the land is used by the occupiers for residential purposes.”
Unlawful occupiers can only be removed by means of a court order in terms of the PIE Act.
Lahree said that in certain instances and depending on the facts of the matter, when someone forcibly and illegally spoliates (deprives one of their peaceful and undisturbed use, possession, and enjoyment) another’s property, the owner of the property has a right to counter-spoliate, provided there is no permanency created by the squatter.
“This means, they can, with the assistance of the South African Police Service, security etc, remove the squatter from the land.”
However, should he not act timeously, he is precluded from doing so and would have to seek redress through a court by way of the eviction procedure said Lahree.
Lahree stated that there is no room for arbitrary and/or illegal land grabs, and on a practical level, landowners can prevent land grabs by, inter alia protecting and fortifying their land by means of security fences and personnel.
“Landowners may also apply for prohibitory interdicts to prohibit any persons from trespassing and occupying their land where there is imminent danger of illegal occupation. Failure to comply with such interdict would be in contempt of a court order and alternatively punishable by law.”
It is therefore in the best interest of a landowner to ensure that any unlawful occupiers do not erect any buildings on the land and create any form of permanency.
“Landowners should act immediately by calling the police to deal with the situation as soon as possible. This will save the landowners a lot of time and money that comes with being embroiled in court processes.”
Lahree said the police may also be able to investigate and ascertain if the illegal occupiers have committed other offences such as trespassing, malicious damage to property, arson or assault.
“The true and more practical method would be ‘prevention rather than cure’.”
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