A recent Constitutional Court judgment highlights a fundamental difference in the legal protections afforded to two types of unlawful occupant:
Residential occupants: Occupants residing on premises are afforded protection in terms of PIE (The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act) with its many onerous requirements for eviction. Note that even residents of “commercial” property are covered – it is not the categorisation of property that counts, but whether or not the unlawful occupierresides on it.
“Commercial” occupants: In contrast, “commercial” occupants (“juristic persons and persons that do not use buildings and structures as ‘a form of dwelling or shelter’”) have no such protection, and are accordingly (in principle at any rate) easier to evict.
To illustrate …..
The case in question concerned a mixed-use property which was sold on an insolvency auction. The previous owners refused to vacate and the new owner asked the Court to evict two classes of unlawful occupier –
a.) A business in the form of a vehicle service station and convenience store operating from the commercial portion of the property, and
b.) The previous owners of the property who personally resided on the residential portion.
Because the buyer had not complied with PIE, eviction was granted only for the non-residential occupants (the service station and various employees). The previous owners themselves could not be evicted without PIE compliance.