THE BENCH
Official Newsletter of the Judicial Officers Alliance of South Africa
Seventh Edition · October 2026
Preventing Unlawful Eviction: The Magistrate’s Role under the PIE Act
Section 26(3) of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act remains the principal statute governing eviction proceedings in the lower courts.
No one may be evicted from their home without an order of court made after considering all the relevant circumstances (section 26(3) of the Constitution). The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) gives effect to this right. Magistrates are frequently the first judicial officers to consider urgent applications under section 5 of the Act and to determine whether it is just and equitable to grant an eviction order under section 4. The enquiry is not mechanical. The court must consider the rights and needs of the elderly, children, disabled persons and households headed by women; the circumstances under which the unlawful occupier occupied the land; the period of occupation; and the availability of suitable alternative accommodation. Recent decisions of the Supreme Court of Appeal and the Constitutional Court continue to emphasise that municipalities have positive obligations to provide temporary emergency accommodation where an eviction would render persons homeless.
Magistrates should insist on proper service of the section 4(2) notice, should invite municipalities to report on alternative accommodation, and should give reasons that demonstrate that the just-and-equitable enquiry has been fully undertaken. Procedural shortcuts undermine both the Constitution and the dignity of the persons affected.
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