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 Organised syndicates have mobilised in the face of state inaction and outdated and impractical legislation.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 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.

Dominic Steyn, a partner at Cowan-Harper-Madikizela, adds the PIE Act has not been amended to keep up with syndicates, which rely on its ‘onerous’ provisions and the inaction, and sometimes collusion, with these syndicates by members of the SAPS.

In an opinion piece in Business Day, Steyn notes 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.

Steyn says 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 accommodation becomes available.

As the SAPS has been the recipient of thousands of civil claims for damages arising from unlawful detention and arrest, 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.

Because of this, 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.’

Steyn notes 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.

Here, 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 PIE Act kick in.’

Steyn suggests property owners should 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.’

He adds: ‘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.’

Full opinion piece in Business Day