By Jaco Swart, National Manager of the National Employers' Association of South Africa (NEASA).

The Supreme Court of Appeal (SCA) recently issued a judgment confirming the right of property owners to remove illegal occupiers of property, without the need to acquire a court order first.

The SCA rejected arguments by the EFF that the right of property owners to remove unlawful occupiers without a court order is unconstitutional and no longer valid in our law and further rejected the contention that the protection of the Prevention of Illegal Eviction (PIE) Act becomes applicable the moment a person enters a property with the intention to seize it.  

However, despite the fact that the Court confirmed the existence of this “counter spoliation right”, it emphasised that this right will only arise in a very narrow window period, whereafter the provisions of the PIE Act will apply.

The SCA stated that property owners will need to act in real time and remove trespassers as soon as they illegally enter the premises and before such trespassers “take control of the property”.

Taking control of the property may be as simple as putting up any structure, albeit a building, with or without furniture, poles or even lines demarcating the property, and each case will be judged on its own merits.

Should owners not actively guard against the erection of any structures and not remove trespassers immediately, the provisions of the PIE Act will apply, and owners will have to approach a court for an eviction order. This will place a number of obligations on the property owner, including, possibly, having to prove the existence of, or even providing alternative accommodation.

Property owners should therefore be vigilant in actively protecting their property from any person who illegally enters such property in order to avoid drawn out and expensive court processes.