South African homeowners who find their property being unlawfully occupied should act immediately, according to Geoffrey Allsop, a senior associate at Pinsent Masons Africa LLP, in an interview with 702 Drive reported by BusinessTech. He said the first 48 hours can be critical to stopping an occupation from becoming entrenched.
What the 48 hours actually mean
Allsop was clear that no law mentions 48 hours. The number is shorthand for a legal principle called counter-spoliation, under which an owner may, in certain circumstances, remove unlawful intruders without first obtaining a court order, provided the response is immediate and meets the legal requirements. “I think that anything beyond 48 hours would be difficult for you to show that you’ve not acted instantly,” he said.
The distinction matters because South African law generally prohibits evicting people from their homes without a court order, even when they are there unlawfully.
Call the police first
Allsop’s advice is not to take matters into your own hands. “The best thing to do would not necessarily be to take it into your own hands, but to inform the police,” he said. If an owner acts immediately and reports an attempted occupation as trespassing, police may be able to step in before it becomes established. He added that officers are legally required to act when they witness a crime such as trespassing, although the reality on the ground can be more complicated, and some owners have gone to court for urgent orders requiring police to intervene.
When the principle does not help
The problem is harder when an owner only discovers an occupation after being away. Allsop used the example of someone returning from a December holiday to find people living in their house: the 48-hour principle would not necessarily let them remove the occupants without the ordinary legal process. Courts interpret a home broadly, he said, so even an intruder who puts up a tent in the garden could create circumstances in which a court order is needed. “That could constitute a home. Which would mean that you would then need to go through the ordinary court process to evict that person from your home,” he said.
Those proceedings can be long. BusinessTech points to cases under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (the PIE Act) that dragged on for years: an owner who fought for 14 years to evict an elderly tenant, and an Umhlanga landlord who spent more than two years in the High Court over an occupier living rent-free in a R12 million property. This is general legal commentary, not advice on any particular situation.
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