2.1 The Bill substitutes the Long Title of the Act to reflect the amendments proposed by the Bill.

2.2 The Bill seeks to amend section 1 of the Act by –

2.3 There has been confusion as to whether or not the Act applies to proceedings for the eviction of erstwhile tenants, or mortgagors who refused to vacate land after their leases were cancelled or on foreclosure of their bonds. The Supreme Court of Appeal has held that these categories of persons do indeed fall under the provisions of the Act—[Ndlovu, Ngcobo, Bekker & another v Jika 2003 (1) SA 113 (SCA)] It is submitted that it is not desirable and that it was not the intention that the Act should apply to tenants and mortgagors who default in terms of their prior agreements with landlords and financial institutions, respectively. The Act should cover only those persons who unlawfully invade land without the prior consent of the landowner or person in charge of land.

It has thus been necessary to amend section 2 of the Act (application section) to state specifically that the Act does not apply to a person who occupied land as a tenant, in terms of any other agreement or as the owner of land and who continues to occupy despite the fact that the tenancy or agreement has been validly terminated or the person is no longer the owner of the land.

2.4 A problem that may arise as a result of the amendment of section 2, is that an owner or person in charge of land may try to avoid the application of the Act, e.g. by entering into a simulated agreement with unlawful occupiers, only to terminate it shortly afterwards. In this regard the Bill seeks to grant a court the power to order that the Act applies if it is satisfied that the plight of a person is of such a nature that any act or omission by the owner or person in charge of land was calculated to avoid the application of this Act.

2.5 Whilst the Act currently prohibits the receipt or solicitation of money or other consideration as a fee for arranging for a person to occupy land without the consent of the owner, the act of arranging an unlawful occupation of land is not an offence. Due to the nature and increase in land invasions, often on land which has already been earmarked for housing development, it is deemed necessary to make it an offence for a person to arrange the unlawful occupation of land. It is proposed to amend section 3(1) of the Act in this regard.

In addition, section 3(1) is also amended to prohibit the practice of "constructive eviction". The phrase constructive eviction means any act or omission, including the deprivation of access to land or to essential services or other facilities related to land, which is calculated or likely to induce a person to vacate occupied land or refrain from exercising access to land.

2.6 Sections 3(3) and 3(4) currently provides that money or other considerations received by a person in contravention of section 3, must upon conviction of such person be repaid to the person from whom it was received, or if the person cannot be positively identified, into the National Revenue Fund. In this regard two issues have been identified and is addressed in the proposed amendments. Firstly, the reference to money or other consideration is not wide enough and should also include any assets acquired with such money. Secondly, it is deemed necessary to, where land is administered or controlled by a municipality, any money should rather be paid into the municipal operating account and not the National Revenue Fund.

2.7 Section 4(2) of the Act incorrectly provide that ‘‘the court must serve/give written and effective notice.’’. This is clearly not the function of the court and it is proposed to amend the section suitably.

2.8 Section 4(2) as well as 4(5) is amended to align its provisions pertaining to the giving of notice regarding eviction proceedings with that of the Extension of Security of Tenure Act, 1997 and the Land Reform (Labour Tenants) Act, 1996, whilst section 4(10), which deals with the content of a court order for eviction, is also aligned with the corresponding provisions of the mentioned laws.

2.9 In respect of eviction proceedings before a court, sections 4(6), 4(7) and 6(3) of the Act currently draw a distinction between persons occupying for less than six months and persons occupying for more than six months. In cases of occupation of less than six months, the Act prescribes certain criteria which a court may take into account when deciding whether or not to issue an eviction order, whilst the Act prescribes different criteria in cases of occupation in excess of six months. This clearly constitutes unequal protection of a person’s right not to be evicted, as afforded by section 26(3) of the Constitution. The proposed amendments to the said sections remove the six months distinction and provide for a single set of criteria to be applicable in all cases of unlawful occupation.

2.11 As a consequence of the amendments to section 2 of the Act, the Bill seeks to amend section 6 accordingly.

2.12 Sections 7(1) and 7(2) of the Act contains provisions pertaining to municipalities as being either the "owner of land" or not the "owner of land". This phrase is problematic in that although a municipality may in certain cases for all intents and purposes be the "owner" of certain land, the formality of transfer of ownership in the Deeds Office may not have been finalised. To address this occurrence, the referral to "owner" is substituted to now refer to land which the municipality "administers or controls".

3.1 An earlier version of this Bill was published in the Gazette for public comment during August 2004, and inputs were received from institutions which included—

Tshwane Metro;

The provincial administrations of the Western Cape and KwaZulu-Natal;

AGRI SA;

SAPOA;

Department of Justice;

COSATU;

Legal Resources Centre.

3.2 The current draft Bill has been subject to extensive consultation with the Department of Land Affairs as well as a thorough workshop held with relevant government departments and bodies.

3.3 Due to the substantial changes made to the earlier version of the Bill, it will again be published in the Gazette for public comment.

6.1 The State Law Advisers and the Department of Housing are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.

6.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.