Your house, their rules: When hijackers move in and the law won’t move them out

Earlier this week, listeners of 702 heard the story of property owner Dzivhu Tevin Mashila, whose Bryanston home was hijacked while he continued paying the bond and following the law.

Despite doing everything required of him, he said that the system left him powerless to reclaim his property from the tenant, who refuses to leave.

It’s a scenario becoming increasingly common for South African landlords and one that raises a common question.

Why, if someone is occupying your property illegally, can’t they simply be removed?

"When it comes to residential, we're dealing with Section 26 of the Constitution, we're dealing with the right to housing," explains property law expert Marlon Shevelew.

There are also the provisions contained in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, better known as the PIE Act.

"It's very fact-specific as to what needs to be proved to get an unlawful occupier out of a property."

In Mashila's case, he bought a property at auction, and the previous owner, who lost the property due to defaulting on the home loan, simply refused to leave.

Shevelew said that it is not the responsibility of the lending bank to ensure the owner vacates.

"Banks are not estate agents; banks are informed by the powers that be to call in a loan, if a debt is not paid, they are debt collectors. They're not in the job of evicting; it becomes the job of the purchaser."

He admits the risks can be high for those seeking to purchase properties being sold in a 'distressed sale' such as this.

"It can become a little bit hairy, depending on the facts of the matter."

Shevelew explains that the law was designed to prevent unlawful and inhumane evictions, particularly of vulnerable people such as children, the elderly and the marginalised, but he admits the process often leaves lawful owners in limbo.

"Unfortunately, the PIE Act is open to a lot of exploitation."

To listen to Shevelew in conversation with 702 Bongani Bingwa, use the audio player below: