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[2015] ZASCA 165
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Hendricks v Hendricks and Others (20519/14) [2015] ZASCA 165; 2016 (1) SA 511 (SCA) (25 November 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20519/14
Reportable
In
the matter between
ANNIE
HENDRICKS
APPELLANT
and
MARGARET
HENDRICKS
FIRST RESPONDENT
GRAHAM
HENDRICKS
SECOND RESPONDENT
AND
ALL OTHER FAMILY AND PERSONS
RESIDING
UNDER THE FIRST AND
SECOND
RESPONDENTS
THIRD RESPONDENT
CITY
OF CAPE TOWN
FOURTH RESPONDENT
Neutral
citation:
A
Hendricks v M Hendricks & others
(20519/14)
[2015] ZASCA 165
(25 November 2015)
Coram
:
Mhlantla, Leach, Tshiqi,
Majiedt and Saldulker JJA
Heard:
16 November 2015
Delivered:
25 November 2015
Summary:
Eviction – an owner who
occupies property without the consent of the holder of a right of
habitation in respect of that property
is an ‘unlawful
occupier’ as contemplated in the Prevention of Illegal Eviction
from and Unlawful Occupation of Land
Act 19 of 1998.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Zondi and Samela JJ
sitting as court of appeal):
1.
The appeal is upheld,
with the first respondent to pay the costs.
2.
The order of the a quo
is set aside and substituted with the following:
‘
(a)
The appeal is upheld, with the first respondent to pay the costs.
(b)
The matter is remitted to the Somerset West Magistrates’ Court
for the finalisation of the eviction application brought
by the
appellant, (the applicant in the magistrates’ court), in
particular for a consideration of the factors set out in
section 4(7)
of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, 19 of 1998’.
JUDGMENT
Majiedt
JA (Mhlantla, Leach, Tshiqi and Saldulker JJA concurring):
[1]
A long-running family quarrel culminated in the appellant, Ms Annie
Hendricks, seeking
the eviction of her erstwhile daughter-in-law, the
first respondent, Ms Margaret Hendricks, and her son, the second
respondent,
Mr Graham Hendricks, in the Somerset West Magistrates’
Court. The third respondent, collectively the other persons occupying
the property in question through the first and second respondents,
and the fourth respondent, the City of Cape Town, did not participate
in the matter. I will therefore refer to the first and second
respondents simply as ‘the respondents’.
[2]
The eviction was sought in terms of the provisions of the Prevention
of Illegal Eviction from and Unlawful Occupation of Land
Act, 19 of
1998, (the PIE Act), but was unsuccessful. The magistrates’
court held that the respondents were not unlawful
occupiers as
contemplated in the PIE Act and could therefore not be evicted. The
Western Cape Division of the High Court, Cape
Town (Zondi and Samela
JJ, sitting as court of appeal) endorsed this view and dismissed the
appellant’s appeal. This court
granted the appellant special
leave in terms of s 16(1)(
b
)
of the
Superior Courts Act, 10 of 2013
.
[3]
The eviction application was unopposed. The unanswered factual
allegations made by the appellant are these. The appellant was
72
years old when she launched the eviction application. On 5 November
1990 she had sold her residential property, Erf 2128, Macassar,
situated at 9 Fish Street, Macassar (the property), to her son, the
second respondent. A lifelong right of habitation was registered
in
favour of the appellant on the property’s title deed. A
concomitant cession of right of habitation, signed by the second
respondent in favour of the appellant in respect of the property, was
recorded in a notarial deed, number K871/90. The appellant
lived in
the property when her son took occupation thereof after registration
of the transfer. The second respondent married the
first respondent
in community of property on 24 November 1990. Relations soured
between the appellant and the first respondent
and deteriorated
steadily over the years. By 2009 the appellant experienced the living
conditions in the property as intolerable
which prompted her to leave
the property temporarily. She was granted refuge first by her
daughter and later by her other son.
The appellant obtained a family
violence interdict against the first respondent and instructed her
attorneys to write to the respondents
to request them that the
appellant be permitted to move back into the property without being
verbally abused by them. These letters,
as well as ongoing
negotiations, including a round-table discussion convened by the
appellant’s attorneys, bore no fruit.
[4]
The respondents were divorced on 2 February 2010 and, in terms of the
decree of divorce, their joint estate in community of
property had to
be divided equally between them. It appears from the papers that at
some stage the second respondent (who, as stated,
is the appellant’s
son) left the property, possibly as a consequence of having been
refused access to the property by the
first respondent. He has played
no part in any of the previous proceedings and in this court.
Ultimately, the first respondent
remained in occupation of the
property, together with her daughter from a previous relationship,
her granddaughter and the three
children born of the marriage between
her and the second respondent. On 6 February 2012 the appellant’s
attorneys wrote to
the first respondent, again asserting the
appellant’s right of habitation and calling upon the first
respondent to vacate
the property by 22 February 2012, failing which
an eviction order would be obtained. In the end, an eviction order
was sought,
without success.
[5]
The central issue before the magistrates’ court was whether the
respondents were unlawful occupiers as envisaged in the
PIE Act.
Section 4 provides for the eviction of unlawful occupiers. Since the
respondents had been in occupation of the property
for more than six
months at the time of the eviction application, s 4(7) applies. It
reads:
‘
(7)
If an unlawful occupier has occupied the land in question for more
than six months at the time when the proceedings are initiated,
a
court may grant an order for eviction if it is of the opinion that it
is just and equitable to do so, after considering all the
relevant
circumstances, including, except where the land is sold in a sale of
execution pursuant to a mortgage, whether land has
been made
available or can reasonably be made available by a municipality or
other organ of state or another land owner for the
relocation of the
unlawful occupier, and including the rights and needs of the elderly,
children, disabled persons and households
headed by women.’
In
s 1 ‘unlawful occupier’ is defined as follows:
‘“
unlawful
occupier”
means
a person who occupies land without the express or tacit consent of
the owner or person in charge, or without any other right
in law to
occupy such land, excluding a person who is an occupier in terms of
the
Extension of Security of Tenure Act, 1997
, and excluding a person
whose informal right to land, but for the provisions of this Act
would be protected by the provisions of
the Interim Protection of the
Informal Land Rights Act, 1996 (Act 31 of 1996).
’
‘
Person
in charge
’ is
defined in that section as ‘a person who has or at the relevant
time had legal authority to give permission to
a person to enter or
reside upon the land in question’. The appellant’s case
is that she was at the time of the eviction
application the person in
charge of the property, and that her legal authority, as contemplated
in the definition, emanated from
her right of habitation. In the
magistrates’ court the appellant’s legal standing to
bring the application and the
fact that she had temporarily given up
residing in the property without abandoning her right of habitation,
was not in issue. It
was also not in issue that she had not consented
to the respondents’ occupation of the property and that any
previous tacit
or implied consent had been unequivocally withdrawn. I
must add that, although no opposing papers had been filed on behalf
of the
respondents, they were represented by an attorney in the
magistrates’ court. But in the court a quo and in this court,
the
first respondent appeared in person, apparently due to
impecuniosity. Before us the first respondent merely denied that she
had
caused the appellant to leave the property and indicated that the
appellant was welcome to return at any time.
[6]
The right to habitation as a servitude is a limited real right which
confers on the holder the right to dwell in the house of
another,
without detriment to the substance of the property
[1]
.
The right can historically be traced back to Roman law when the
original objective was to provide accommodation to indigent
foreigners.
In that context it was regarded as a factual, rather than
a juridical, institution. But Justinian accepted it as a sui generis
legal concept and he classified it as a personal servitude
[2]
.
This was generally accepted by Roman-Dutch authorities
[3]
.
Our courts have long recognized
habitatio
as a personal servitude which is a limited real right. Thus it has
been held to be a
jus
in re
which founds
an action
rei
vindicatio
[4]
.
The novel question before us is whether, as far as the PIE Act is
concerned, a holder of this limited real right is a ‘person
in
charge’ of the property in respect of which the
habitatio
operates and whether that holder can obtain an eviction order against
an owner who occupies the property without the holder’s
consent. For the reasons that follow both these questions must in my
view be answered in the affirmative.
[7]
It is well established that ownership is the most comprehensive real
right and that all other real rights are derived from it
[5]
.
But limited real rights are absolute in the sense that they are
enforceable against any and all. A limited real right detracts
from
the owner’s dominium. Thus, in the present instance, the owner
of the property, the first respondent, cannot exercise
full dominium
over it, inasmuch as she cannot occupy the property, unless the
appellant as the holder of the right to habitation
has consented
thereto. Absent such consent, her occupation of the property is
unlawful. She is therefore, on the facts of this
case, an ‘unlawful
occupier’ within the meaning contemplated in s 1 of the PIE
Act.
[8]
The court a quo sought to distinguish
Galant
and
Kidson
(referred to in footnote 4 above) on the facts and on the law. It
rejected the contention advanced by the appellant’s counsel
that ‘the right to habitation trumps ownership’. Finally,
it found that the owner of the right to habitation cannot
evict the
owner of the servient tenement. While it did not set out any further
reasons for this conclusion it seems to me, with
respect, that the
court a quo has misconceived the nature of the right of habitation
vis-à-vis the owner of the property
in respect of which the
habitatio
prevails. And the court a quo failed to consider at all whether the
holder of such a right can be a ‘person in charge’
for
purposes of the PIE Act, more particularly as far as s 4(7) is
concerned. In
Kidson
the owner of a farm had destroyed the farmstead and outbuilding to
which the applicants had a right of habitation, granted to them
by
the previous owner. The court held that the applicants were entitled
to exercise their rights of habitation by either rebuilding
the
farmstead and outbuildings or by building alternative structures. Van
Rooyen AJ correctly held (at para 11) that ‘the
ius
in re aliena
limits
[an owner’s] ownership until the death of the person entitled
to the
habitatio
.’
In
Galant
the court enforced a right of habitation enjoyed by an heir against a
co-heir who had inherited the farm. Sampson J held that the
plaintiff, as holder of the right of habitation, can sue for the
recovery of that right against any owner of the land subject to
the
right. These cases demonstrate that an owner’s rights in his or
her property are limited in relation to the right of
habitation and,
for that matter, by the holder of the right of use [usus] and a
usufruct. In this regard therefore the court a
quo erred in its
findings.
[9]
I have not been able to find a reported judgment where the holder of
a right of habitation had been held to be a ‘person
in charge’
within the meaning of the PIE Act. But appellant’s counsel
referred us to the unreported judgment of Rogers
AJ in
October
NO & another v Hendricks & another
[6]
.
There the court had to decide whether the owners of property could be
‘unlawful occupiers’ in the context of an eviction
application having been brought by the holder of a life usufruct in
respect of the property. The applicant’s late husband
had
bequeathed the relevant property to their two daughters with the
proviso that they should vacate the property once they get
married.
The will also stipulated a life usufruct in favour of the applicant.
As is the case here, strained relations between the
applicant and one
of her daughters resulted in an eviction application in the high
court against the said daughter and her husband.
The court framed the
question thus: whether the respondents in that case were persons who
occupy the property ‘without the
express or tacit consent of
the owner of person in charge, or without any other right in law to
occupy such [property]’.
Rogers AJ held that ‘(w)here
someone other than the registered owner is the “person in
charge” (ie the person
with the right to determine who stays on
the property), it is the consent of such person rather than the
registered owner which
is . . . relevant.
It
follows that the holder of bare dominium could be an unlawful
occupier if he or she occupied property without the consent of
the
usufructuary
’
(own emphasis).
[10]
The conclusion and reasoning of Rogers AJ is clearly correct. Applied
to the present instance, the first respondent’s
bare dominium
as owner of the property must in law yield to the appellant’s
right of habitation. For, like usus and usufruct,
habitatio
is a limited real right, enforceable to the extent of the right
itself, against the entire world (hence its registrability against
a
title deed). Absent any consent from the appellant, either express,
tacit or implied, the first respondent is an unlawful occupier
of the
property.
[11]
When one has regard to the definition of an ‘unlawful occupier’
in s 1, as set out above, the appellant is indubitably
a ‘person
in charge’ of the property. This is so, not only on the basis
expounded by Rogers AJ in
October
,
quoted above, but also by virtue of the fact that the appellant
plainly derives her ‘legal authority’ as contemplated
in
the definition of ‘person in charge’ in s 1 and as set
out above, from her right of
habitatio
.
She alone could legally grant permission to a person (even the
registered owner) to reside in the property.
[12]
In the premises, the court a quo has erred in its findings. But that
is not the end of the matter. Section 4(7) provides that
a court may
grant an eviction order only if it is satisfied that it is just and
equitable to do so. In order to make that determination,
it must
consider the factors enumerated in the subsection. In
Port
Elizabeth Municipality v Various Occupiers
[7]
the court stressed that the phrase ‘just and equitable’
entails a more elaborate enquiry than ‘purely of the
technical
kind that flow[s] ordinarily from the provisions of land law’
[8]
.
And it emphasized that in conducting such an enquiry, ‘. . .
the court must have regard to the interests and circumstances
of the
occupier and pay due regard to broader considerations of fairness and
other constitutional values, so as to produce a just
and equitable
result’
[9]
.
[13]
Some of the factors to be considered in terms of s 4(7) are the
rights and needs of the elderly, children, disabled persons
and
households headed by women. As a result of the outcome of the case
the magistrates’ court did not have to consider s
4(7) at all.
Due to the lack of opposing papers, there is a dearth of information
on these and other potentially relevant aspects.
It appears from the
papers that, at the time of the respondents’ divorce (in 2010),
there was one minor child (they had three
children). There is no
indication on the papers of whether this child and possibly one or
both of the others, may still be dependent
on their parents. There is
also no indication whether anyone of the occupiers of the property is
disabled. In all probability that
household is headed by a woman, the
first respondent, in view of her divorce from the second respondent.
In the circumstances,
the matter must be remitted to the Somerset
West Magistrates’ Court for a full enquiry as contemplated in s
4(7) into whether
it would be just and equitable to order the
eviction of the respondents (in effect only the first respondent) and
all those occupying
the property through them or her (the first
respondent).
[14]
It is necessary to add one last observation. This unseemly family
feud is highly regrettable. It is plain on the papers that
hard,
inflexible positions have been adopted on both sides. Ultimately, no
one wins in a matter such as this. The more desirable
outcome,
beneficial to all concerned, is to bury the hatchet and to co-exist
in harmony on the property. One can only hope that
good common sense
will prevail.
[15]
The following order is issued:
1.
The appeal is upheld,
with the first respondent to pay the costs.
2.
The order of the court
a quo is set aside and substituted with the following:
‘
(a)
The appeal is upheld, with the first respondent to pay the costs.
(b)
The matter is remitted to the Somerset West Magistrates’ Court
for the finalisation of the eviction application brought
by the
appellant, (the applicant in the magistrates’ court), in
particular for a consideration of the factors set out in
section 4(7)
of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, 19 of 1998.’
________________________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES
For Appellant:
R J Steyn
Instructed
by:
Morkel & De Villiers Attorneys, Somerset West
Matsepes Inc, Bloemfontein
For Respondents:
In Person
[1]
See: P J Badenhorst et al, Silberberg and
Schoeman’s
The Law of Property
,
5 ed at 341.
[2]
I 2.5.5; and see Van Leeuwen Censura Forensis
1.2.15.12.
[3]
Grotius, Introduction 2.44.8; van der Linden,
Institutes 1.11.6.
[4]
Galant v Mahonga
1922
EDL 69
at 79. See also
Kidson &
another v Jimspeed Enterprises
CC
& others
2009 (5) SA 246
(GNP)
paras 7 and 8, where Van Rooyen AJ gives a useful exposition of the
history and ambit of the right.
[5]
Grotius: Inleidinge 2.3.10: ‘Ownership is
complete if someone may do with the thing whatever he pleases,
provided that it is permitted in terms
of law
’ (translation as set out
in Silberberg and Schoeman’s
The
Law of Property
5 ed, at 91 fn 7, own
emphasis). See also
Regal v African
Superslate (Pty) Ltd
1963 (1) SA 102
(A) at 106-107.
[6]
October NO & another v Hendricks and
another (
23189/2011)
[2013] ZAWCHC 12
(31 January 2013).
[7]
Port Elizabeth Municipality v Various
Occupiers
(CCT 53/03) [2004] ZACC 7;
2005 (1) SA 217 (CC).
[8]
Id, para 35.
[9]
Id, para 36.