Advice and Opinion

How does SA law define a ‘home’ in eviction cases?

By Jason Berkowitz, Associate with Fairbridges Wertheim Becker Attorneys in Johannesburg.

According to South Africa’s Constitution, no one can be evicted or have their ‘home’ demolished without a court order. This principle is reinforced by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE), which upholds the right against arbitrary eviction or demolition. PIE outlines the procedures landowners must follow to legally evict unlawful residential occupants.

However, there’s a widespread misconception that mere occupation of a residential property deems it a “home,” thereby granting PIE’s protections. This isn’t always the case; the specific circumstances of each case determine PIE’s applicability. Over the years, various court rulings have clarified what constitutes a “home” and the legal implications of its unlawful occupation.

In the case of Blue Dot Properties 391 (Pty) Ltd v HG and Others (1926/2023) [2023] ZAWCHC 269 (1 November 2023), the Western Cape Division of the High Court addressed the definition of a “home” and its occupation. This case revolved around a luxury seaside mansion in Bantry Bay, a prestigious area on Cape Town’s Atlantic Seaboard. The property’s history began in 1986 with the original occupant, who was later joined in 1997 by his future life partner and eventual wife, the third respondent. Before his death in 2021, his widow invited her son and his family from a previous marriage to help manage and reside in the expansive property. After his death in 2021, and while his widow remarried and moved to a luxury golf estate outside Stellenbosch, the son and his family continued to live on the property. This situation formed the basis of the legal examination regarding what qualifies as a “home” and the nature of its occupation.

Under the deceased’s will, his widow was named the sole heir of his estate, but the will did not specify her rights to occupy the property after his death. Blue Dot Properties 391 (Pty) Ltd (Blue Dot Properties), the registered owner of the property, sought to sell the property to settle its debts to various creditors. This endeavour was hindered by the widow’s son and other occupants at the property. Consequently, Blue Dot Properties initiated eviction proceedings against the widow, her son, and the other occupants under PIE.

Following her husband’s death, the third respondent, now residing in Stellenbosch, occasionally returned to the seaside property. During her marriage, she had used an art studio there, which still housed her materials. She continued to use this studio and visited her son and daughter-in-law during these stays. The respondents, including the widow and her family, cited the presence of her art studio as a key argument for their right to occupy the mansion and for the protection provided by PIE.

In defining “occupation,” the Court in this case considered the precedent set by another matter – Stay At South Point Properties (Pty) Ltd v Mqulwana and Others. This ruling clarified that while the substantive provisions of PIE focus on the occupation of land, the essence of PIE is to uphold constitutional protections against the risk of homelessness. Therefore, it was established that if the occupation of a property does not equate to it being the occupier’s home, then PIE does not apply. This interpretation is crucial in determining the legal framework for eviction and property rights, particularly in cases where the definition of a “home” is under scrutiny.

What exactly defines a “home”? The Supreme Court of Appeal provided insight in Barnett and others v Minister of Land Affairs and others 2007 (6) SA 313 (SCA), defining a home as a place where there is ‘regular occupation coupled with some degree of permanence.’

Building on this definition, Judge Gamble in the discussed case concluded that the art studio was not the widow’s home, and her eviction from the seaside property would not render her homeless, given her permanent residence in Stellenbosch. The widow’s sporadic use of the studio did not qualify as lawful occupation under PIE, making an ordinary eviction order a legal possibility. Furthermore, the court determined that the other occupants, who were residing there at the widow’s invitation, also lacked lawful occupation once her own occupancy was deemed unlawful. Consequently, the court granted an order for their eviction, reaffirming the legal criteria for what constitutes a home and lawful occupation under PIE.

For PIE to be applicable and for residential tenants to benefit from its protection, there must be regular occupation with a degree of permanency. While PIE typically applies in most residential eviction disputes, its provisions might not be relevant in certain unique situations. This includes cases like student and holiday accommodations, where the occupation is intermittent and lacks the necessary permanence.

Therefore, it’s crucial for both landlords and tenants to evaluate each dispute individually. Landlords and owners of residential properties should be mindful of the specific nature of the tenancies they engage in. In situations where a tenant refuses to vacate a property, it’s advisable for property owners to seek guidance from experts in property law. This tailored approach ensures that both parties understand their rights and obligations under the law, particularly in complex or unusual tenancy situations.

In light of the legal framework and precedents set in South African property law, particularly concerning the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), landlords, managing agents and property owners should consider the following steps to mitigate risks:

Understand Legal Obligations: Familiarise yourself with the constitutional protections against arbitrary evictions and the specific provisions of PIE. Understanding these laws is crucial in ensuring compliance and protecting your rights as well as those of the tenants. It must be noted that PIE does not apply to commercial evictions.

Proper Documentation: Ensure all rental agreements are comprehensive and legally binding. This includes clearly defining the terms of occupation, duration of the tenancy, and clauses governing breach, termination and eviction.

Regular Occupation and Permanence: Be aware that PIE’s protection typically applies to situations where there is regular residential occupation with some degree of permanence. Differentiate between standard residential tenancies and occasional tenancies, such as holiday or student accommodations, which might not fall under the same legal protections.

Case-by-Case Approach: Treat each tenancy and potential eviction case on its own merits. Circumstances vary, and what constitutes a ‘home’ legally can differ based on the specific details of each case.

Legal Advice: In complex situations, particularly where an eviction might be necessary, seek advice from a legal professional specialising in property law. This ensures that any action taken is compliant with current laws and court precedents.

Tenant Screening: Conduct thorough background checks on potential tenants to reduce the risk of future disputes. This includes checking credit history, rental history, and references.

Effective Communication: Maintain open lines of communication with tenants. Many disputes can be resolved amicably without legal intervention if there is clear and respectful communication.

Dispute Resolution Mechanisms: Have mechanisms in place for resolving disputes, whether through mediation or other means, before escalating to legal action.

Updates on Legal Changes: Stay informed about changes in property law or court rulings that could affect landlord-tenant relationships and eviction processes.