Students protected as illegal “landlord” evicted
Eviction is never pleasant, regardless of just cause. It usually means someone losing their home, even if their occupation of that home is technically unlawful. People who erect shacks on land that is not their own can be forgiven…or at least understood…when they genuinely have nowhere else to go. But sometimes an eviction is not only justified but entirely deserved. A recent case that came before the Gauteng High Court reveals just how brazen a building hijacker can be. The case is astonishing for the sheer audacity of the respondent. Fortunately, the law prevailed. Furthermore, it protected a large number of innocent students who were offered tenancies under false pretences.
Caretaker turned landlord
A property-owning company owns a property in Tshwane. They are the applicant – the party bringing the case to court. The respondent, or defendant, is an individual who was formerly employed by the applicant as a caretaker of the property. He was permitted to occupy the property to carry out his duties, but his employment has now been terminated. With absolutely no mandate from the property owner, this former caretaker concluded an accreditation agreement with a third party so the property could be accredited as private student accommodation. When the applicant learned of this, they obtained an order stopping the respondent from leasing out units and from collecting rent or permitting people who are not in occupation of the property to enter the property and take up occupation. The respondent was specifically forbidden from acting on behalf of the applicant for any purpose. Nonetheless, the respondent continued to rent rooms to students. Occupant numbers rose from 17 to 50, and by early March 2024 there were approximately 200 students in residence!
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE)
When PIE is mentioned, it is usually in the context of stopping an eviction. However, the Act also exists to stop unlawful occupation, and the applicant in this case believed (with good reason) that the respondent’s occupation of the property was unlawful. Furthermore, the respondent, acting as landlord, was collecting rental income to which he had no entitlement. The applicant went to court seeking an eviction order under PIE and an urgent interim eviction order under section 5(1) of the Act. Because eviction proceedings can take some time, the applicant was concerned to rectify a chaotic and potentially dangerous situation quickly. Section 5(1) states:
(1) …the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of that land pending the outcome of proceedings for a final order, and the court may grant such an order if it is satisfied that- (a) there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land; (b) the likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted; and (c) there is no other effective remedy available.
In the application for the urgent eviction order, the applicant argued that unless the respondent was evicted on an urgent basis the hijacking of the property would continue. Given that unlawful landlords rarely have the best interests of the property or the tenants in mind, and are not known for maintaining properties in good order, the likelihood of injury or damage to person or property was high.
Fate of the students in the hijacked building
However, the tenants had occupied the building in good faith and were living there while pursuing their studies. There have been many stories in the press of hijacked buildings being cleared by relocation and eviction services such as the Red Ants, who may restore the building to the rightful owner but also make tenants homeless in the process. Fortunately, in this case the applicant informed the students of the pending dispute and confirmed that the application to court would not affect their occupation of the property. The university has been furnished with a copy of the court order and the applicant intends to seek accreditation with the university once the fraudulent accreditation granted to the first respondent has been cancelled. At that point leases will be normalised. Students were advised not to make any further payments to the respondent and to alert the applicant to any attempt to extort money from them by threats. In yet further confirmation of his brashness, the respondent physically prevented delivery of these letters to the property.
A happy ending
The court found that the requirements in section 5(1) of the Act were met. There is a real and imminent danger of damage to the property and harm to the bona fide students who are at the property to pursue their studies, and the hardship to the applicant and the occupiers far exceeds the potential harm to the respondent, who has no right to occupation. The respondent has invaded the applicant’s property and the applicant is in danger of losing the use of his own property to the detriment of their lawful business and to the detriment of the university students. The property is also undergoing maintenance that is incomplete and construction work may pose a danger to students. The right to occupation initially granted to the respondent was limited and linked to his employment as a caretaker. He did not have permission to rent out rooms or to use the property for business purposes on his own behalf of on behalf of anybody else. The applicant has a right to the use and enjoyment of the building. The property company is entitled to protect its property from damage and to regularise its relationship with the university, using the property to earn income by providing legitimate accommodation to genuine students.
The respondent was ordered to vacate the property within 48 hours of service of the eviction order.
For further information
Landlords sometimes need legal help with troublesome tenants. Tenants may also have mitigating circumstances that make an eviction case complex. But this particular case was cut and dried. The respondent blatantly abused his initial right of occupancy as caretaker and disregarded the law in offering accommodation to students with accreditation gained under false pretences. The urgent eviction order was granted without dispute. If you have issues with property hijacking, we can help. Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za
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