Why the 48-hour rule is not what the courts apply
Homeowners have been warned this week that they have 48 hours to act if someone moves into their property, but South African law contains no 48-hour rule, and the lawyer quoted in the warning said so himself. The real test is stricter: an owner may remove intruders without a court order only while the invasion is still under way, and once that window closes, evicting them without a court order is a criminal offence.
The figure comes from an interview Geoffrey Allsop, a senior associate at law firm Pinsent Masons Africa, gave to 702, which was widely republished on 6 October. Allsop said no legal rule refers to 48 hours, but that an owner who waited longer would struggle to show they had acted instantly, as the law requires.
The distinction matters to anyone who owns or lets out property, and most in the weeks before the December holidays, when many homes stand empty. It also comes while a draft amendment to the eviction law is still waiting to reach Parliament.
What the Supreme Court of Appeal says the window is
The principle behind the warning is counter-spoliation, a common-law defence that lets someone resist being dispossessed at the moment it happens. The Supreme Court of Appeal set out its limits in July 2024 in City of Cape Town v South African Human Rights Commission, in a unanimous judgment written by Judge of Appeal BC Mocumie.
The court held that counter-spoliation is allowed only while the intruder has not yet gained peaceful and undisturbed possession, and only if it does not cause a fresh breach of the peace. On land, that means acting before occupiers have put up poles, sheeting or other structures, with or without furniture, that show effective control.
After that point, the court said, the owner may not take the law into their own hands and must turn to the courts. The judgment cited an earlier Johannesburg case in which the city began demolishing shacks three days after occupiers moved in, and found that was already too late because their possession had been completed.
That case concerned informal structures on open land, not a suburban house, and no court has set a number of hours for a home. What it shows is that the test is about control, not a clock.
Evicting intruders yourself can mean up to two years in jail
Once the window closes, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, known as PIE, takes over. Section 8 says no one may evict an unlawful occupier without a court order, and anyone who does is liable to a fine, imprisonment of up to two years, or both.
Section 26(3) of the Constitution adds that no one may be evicted from their home, or have it demolished, without a court order made after considering all the relevant circumstances. Allsop warned that courts read the idea of a home broadly, so that even an intruder’s tent in a garden could qualify.
His practical advice was to report a trespass in progress to the police rather than act alone, since officers are required to act on a crime they witness. He said some owners have gone to court for urgent orders compelling the police to intervene.
| Situation | What the law allows | Authority |
|---|---|---|
| Intruders still entering, no control yet | Owner may resist and remove them immediately, without a court order, if no fresh breach of the peace is caused | Supreme Court of Appeal, 2024 |
| Intruders have moved in or taken effective control | Self-help is no longer allowed, so the owner must go to court | Supreme Court of Appeal, 2024; Constitution s26(3) |
| Removing an unlawful occupier without an order | Criminal offence: fine, up to two years’ imprisonment, or both | PIE Act s8 |
| Ordinary court eviction | At least 14 days’ written notice to the occupier and municipality, and an order only if just and equitable | PIE Act s4 |
| Occupation of six months or longer | Court must also consider whether alternative land can be made available | PIE Act s4(7) |
| Proposed change | Six-month line deleted, and fine of up to R2 million for organising occupations | Draft PIE Amendment Bill, not yet law |
A court eviction takes longer and costs more than acting in the moment. PIE also allows urgent applications for interim eviction, but only in limited circumstances set out in section 5.
What the PIE Amendment Bill would change, and what it would not
Human Settlements Minister Thembi Simelane published a draft PIE Amendment Bill for comment on 16 April 2026, saying it would target “individuals and organised groups who are responsible for orchestrating these invasions”. Public comment closed on 6 August after a one-month extension, and the department had said it aimed to table the bill in Parliament by late July or early August.
The draft would make it an offence to incite, arrange, organise or permit anyone to occupy land without the owner’s consent, punishable by a fine of up to R2 million, two years’ imprisonment, or both. It would also delete the current distinction between occupation of less than and more than six months, and let a court grant an eviction without requiring a municipality to provide alternative accommodation.
Organised occupations, of the kind Southafriworld has reported in land invasions in South Africa’s cities, are what the new offence is written for. It would not change the counter-spoliation window, because the draft does not mention counter-spoliation or set any time for self-help.
The bill has drawn criticism. Marie Huchzermeyer argued in Business Day in May that it repeats earlier attempts to criminalise organising occupations even where no money changes hands.
Alternative accommodation is where the debate is sharpest. In the 2024 case, the City of Cape Town told the court its housing waiting list stretched about 70 years, a pressure Southafriworld has covered in reporting on the housing backlog and budget cuts.
What homeowners face before the December holidays
The scenario Allsop described is a family returning from a December holiday to find people living in the house. In that case, he said, the window for self-help has almost certainly closed, and the ordinary court process applies.
Two points remain unsettled. No court has defined how quickly possession of an ordinary house is completed, and the PIE Amendment Bill’s final wording and tabling date have not been announced.
Until Parliament passes any amendment, the 1998 Act and the 2024 Supreme Court of Appeal judgment remain the rules that apply.
HOW WE REPORTED THIS
- The legal test was taken from the Supreme Court of Appeal's judgment in City of Cape Town v South African Human Rights Commission, delivered on 10 July 2024 and read in full, which sets out when counter-spoliation is allowed.
- The offence and eviction procedure were checked against sections 4 and 8 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998.
- Proposed changes were taken from the full text of the draft PIE Amendment Bill, 2026, as published in the Government Gazette, and its timeline from the Department of Human Settlements' statements of 16 April and 7 July 2026.
- The 48-hour figure was traced to a lawyer's radio interview reported this week, the interview audio itself was not reviewed, and his remarks are attributed.
- No comment was sought from the Department of Human Settlements or the South African Police Service, and this article is general information rather than legal advice for a specific case.
