New hijacking trend to look out for in South Africa

The hijacking of residential properties in South Africa is on the increase, with organised syndicates mobilising in the face of state inaction and outdated and impractical legislation, says Dominic Steyn, head of the corporate, commercial, tax, and litigation at Cowan-Harper-Madikizela Attorneys.

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,” said Steyn.

Syndicates gain income from the tenants placed in the property without incurring any expenses.

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, said Steyn. “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.”

Steyn said that the reason why this practice is becoming so prevalent is that 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,” said Steyn.

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, noted Steyn.

“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.”

Steyn said that 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.

The legal expert said that calling the police to help is not a simple outcome.

“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.”

Because of this standing directive property owners are 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,” said Steyn.

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