DOMINIC STEYN: What to do in the face of syndicated property invasions

The hijacking of residential properties in SA is on the increase. Organised syndicates have mobilised in the face of state inaction and outdated and impractical legislation. 

The strategy of organised property hijacking syndicates is simple: force their way into occupied or vacant properties, forcibly evict tenants or owners, and put in place tenants of their choice. The property owner then has no other choice but to rely on the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act (PIE Act) to evict the unlawful occupiers, a lengthy process that can take years and incurs excessive legal costs. In the meantime the owner remains responsible for rates and taxes and the utility services consumed.

It is a fruitful business model for the syndicates, which realise income from the tenants placed in the property without incurring any expenses. Over the past few years this has resulted in numerous building owners, in central Johannesburg in particular, abandoning their properties because the outstanding rates and taxes incurred while the building was unlawfully occupied exceed the actual value of the building.

A trend in the relatively affluent area of Pretoria East of late is that residential properties are hijacked by these syndicates when the owners are away on holiday. This occurs in security estates too. A recent surge in hijackings of residential apartment blocks in Pretoria has resulted in at least nine urgent court applications in the past month alone. Cape Town has likewise seen an increase in building hijackings.

The question is why this practice is becoming so prevalent. The answer is simple: the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act has not been amended to keep up with syndicates that rely on its onerous provisions and the inaction, and sometimes collusion, with these syndicates by members of the SA Police Service (SAPS).

In a nutshell, the act provides that a property owner must approach a court to obtain an order for the eviction of unlawful occupiers. Notice must be given to the unlawful occupiers, and when hearing the application the court must consider all relevant circumstances, including:

• The rights of the elderly, children, disabled persons and households headed by women;
• Whether alternative accommodation has been made available or can reasonably be made available by a municipality, organ of state or an owner of property for the relocation of the unlawful occupier; and
• Whether it will be just and equitable to grant an eviction order.

These legally mandated considerations result in a logistical nightmare for the court, the property owner and the relevant municipality. If there is no alternative accommodation readily available the unlawful occupiers may not be evicted until it somehow becomes available.

In our experience a property owner will be lucky to have the unlawful occupiers evicted within a period of 10 months from the date of the eviction application being instituted, and far longer where there are multiple occupiers.

If an eviction application is opposed (which it usually is when organised syndicates are involved) the process can drag out for years. Legal costs for the property owner can easily exceed R800,000, and they are seldom recoverable.

Organised syndicates have been educated in this process and use it to their advantage to secure a lengthy occupation of a property by simply relying on a combination of the onerous provisions of the act, the congested court roll and abuse of the court process.

Ordinarily, if an owner becomes aware of the initial incursion onto its property by a syndicate they could call on the SAPS to intervene and remove the syndicate members for the act of trespassing before they have time to install tenants. However, most South Africans are not aware of the risk mitigation exercise that has been implemented by the police.

The SAPS has been the recipient of thousands of civil claims for damages arising from unlawful detention and arrest. In an attempt to reduce these claims it has issued a standing directive that arrests may take place only for so-called  schedule A (serious) offences. Schedule B (minor) offences warrant only a fine and no arrest may be made. The constitutionality of this directive is questionable and it probably stands to be reviewed.

However, the reality is because of this standing directive a property owner who experiences acts of trespass cannot call on the assistance of the police without a court order directing them to carry out their duties. And the police will not even abide by the directions of a court order unless it explicitly sets out their powers and duties and essentially indemnifies them from future damages claims.

Often SAPS members directed to abide by a court order will not assist through the expedient that they do not have the capacity to assist, or the personnel stationed in the area where the hijacking has taken place also reside there and are fearful of future victimisation by a syndicate, or they are simply colluding with the property hijackers.

As a result of this unfortunate set of circumstances property owners are now required to approach a court on an urgent basis as soon as they become aware of an attempted hijacking and seek redress, whereby the SAPS is bypassed and the sheriff of the court is authorised to appoint a private security company to remove the members of the syndicate — all before the syndicate can install its own tenants.

The organised nature of the syndicates is such that they monitor the court rolls and are closely advised by conspiring members of the SAPS. If an application to remove syndicate members is launched, property owners can expect legal representatives of the syndicate to be present to oppose the application and an almost instantaneous installation of tenants in the property to ensure the provisions of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act kick in.

Property owners must thus approach courts and seek to have their application heard in camera, without service of the application on the organised syndicate or the police. This is a process the courts will not ordinarily condone unless the facts warrant it and the legal papers have been drawn up precisely.

We have seen a lot of these types of applications rejected by our courts simply because the attorneys representing a property owner have not drawn up the legal papers correctly because they do not have sufficient experience in these types of matters.

As things stand property owners have multiple burdens to bear — the threat of dispossession of their property by organised syndicates and the onus to arrange for and pay for their removal, a function that ordinarily lies with the police. If a property owner does not act with alacrity the onus increases with time and costs.

Until the SAPS internal directive is taken on review, property owners have no other option but to keep their attorneys close on hand — and a private security company closer.

• Steyn is partner: corporate law & commercial litigation at Cowan-Harper-Madikizela.