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[2007] ZASCA 95
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Barnett and Others v Minister of Land Affairs and Others (304/06) [2007] ZASCA 95; 2007 (6) SA 313 (SCA); 2007 (11) BCLR 1214 (SCA) (6 September 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number : 304/06
In
the matter between :
DAVID
SINCLAIR BARNETT
.......................
FIRST APPELLANT
PATRICIA
STEPHANIE CANHAM NO
.......................
SECOND APPELLANT
STEPHEN
HUGH CHURCH
.......................
THIRD APPELLANT
PETER
CLOWES
.......................
FOURTH APPELLANT
JAMES
KEVIN DOVETON
.......................
FIFTH APPELLANT
PETER
GOSS
.......................
SIXTH APPELLANT
HILTON
LLEWELLYN LANE
.......................
SEVENTH APPELLANT
ASHTON
HENRY MARTIN
.......................
EIGHTH APPELLANT
RICHARD
JEREMY REEN
.......................
NINTH APPELLANT
JACOB
JOHN ROTHMAN
.......................
TENTH APPELLANT
WILLIAM
TURTON
.......................
ELEVENTH APPELLANT
EDWARD
LAWRENCE BARRY
.......................
TWELFTH APPELLANT
MICHAEL
BERESFORD
.......................
THIRTEENTH APPELLANT
BRUCE
DORNLEO
.......................
FOURTEENTH APPELLANT
R
JOHN PICKERING
.......................
FIFTEENTH APPELLANT
NEVILLE
DANSON TAYLOR
.......................
SIXTEENTH APPELLANT
and
THE MINISTER OF LAND AFFAIRS
.......................
FIRST
RESPONDENT
THE MINISTER OF WATER AFFAIRS
AND FORESTRY
.......................
SECOND RESPONDENT
THE MINISTER OF ENVIRONMENTAL
AFFAIRS AND TOURISM
.......................
THIRD RESPONDENT
THE MEMBER OF THE EXECUTIVE
COUNCIL RESPONSIBLE FOR ECONOMIC AFFAIRS,
ENVIRONMENT AND TOURISM,
EASTERN CAPE PROVINCE
.......................
FOURTH RESPONDENT
CORAM : HOWIE P, BRAND, JAFTA, MAYA
et
COMBRINCK JJA
HEARD : 20 AUGUST 2007
DELIVERED : 6 SEPTEMBER 2007
Summary
: Application for
eviction from cottages built in coastal conservation area –
based on both Decree 9 of 1992 (Transkei) and
wrongful possession in
common law – plea of prescription dismissed on principle of
continuous wrong – PIE found not applicable
because cottages
held not to be ‘homes’- other defences dismissed on the
facts.
Neutral citation: This judgment may be referred to as
Barnett v Minister of Land Affairs
[2007]
SCA 95 (RSA)
JUDGMENT
________________________________________________________________
BRAND JA
/
BRAND JA
:
[1] The first three respondents are Cabinet Ministers
representing three different State Departments in the National
Government. The
fourth respondent is the Member of the Executive
Council for Economic Affairs, Environment and Tourism in the Province
of the Eastern
Cape. The sixteen appellants are the occupiers of
sites and cottages on the Transkei Wild Coast in an area 13
kilometres north of
Port St Johns and situated in the magisterial
district of Lusikisiki. I shall herein refer to the respondents
collectively as ‘the
Government’ and to the appellants as
they were cited in the court
a quo
,
ie ‘the defendants’.
[2] On the basis that the sites occupied by the
defendants form part of State land, the Government sought and
obtained an eviction
order against the defendants (by Miller J) in
the Mthatha High Court. The order also directed the defendants to
demolish and remove
all structures built on the sites within four
months from date of the order, failing which the Government was
authorised to have
the structures demolished and removed at the
defendants’ expense. The appeal against that judgment is with
the leave of the
court
a quo.
[3] The sites are situated in an area which, until 27
April 1994, formed part of the erstwhile Republic of Transkei. Since
then, it
falls under the jurisdiction of the Provincial Government of
the Eastern Cape. The cottages and other structures were erected by
the defendants from about mid 1994. The Government relied on two
causes of action, in the alternative. Its first cause of action
was
based on the provisions of a decree promulgated by the President of
the Transkei on 24 July 1992 described as Decree No 9 (Environmental
Conservation) of 1992 which came into operation on 1 January 1993
(‘the Decree’). For its alternative cause of action
the
Government relied on the common law ground that the defendants were
in unlawful possession – or occupation – of State
land.
[4] I shall soon return to the provisions of the Decree
in more detail. Broadly stated, however, its import was to proclaim
all State
land situated on the landward side of the entire Transkeian
coast within a strip of one kilometre above the high water mark, a
coastal
conservation area. Inside the conservation area, the Decree
prohibited any development by anybody (including departments of
State)
save under authority of a permit issued by the Department of
Agriculture and Forestry. Relying on the provisions of the Decree as
its main cause of action, the Government contended that because the
defendants had no permit to construct the cottages and other
structures on the sites occupied by them, their activities
constituted unauthorised development within the coastal conservation
area,
the consequences of which they were bound to remove.
[5] The defences raised by the defendants to these
causes of action were numerous and, at least some of them, rather
difficult to
understand. They led to a trial lasting for many days
and a record covering nearly four thousand pages. In the course of
time, some
of these defences have wisely been jettisoned. Those
persisted in will best be understood against the background facts
that follow.
The defendants are mostly well-to-do farmers and
businessmen. They all reside in the province of KwaZulu-Natal.
Nonetheless, most
of them had some association with the Transkei Wild
Coast which they visited regularly on vacation for a number of years.
Their settlement
in the area started about one month after the area
again became part of South African soil, in April 1994. Their reason,
so they
said, was because prior to that they were not allowed to
occupy land which formed part of the former Republic of Transkei. The
timing
of their settlement in this exquisitely beautiful, virtually
pristine part of nature, happened to coincide, however, with a
transition
from one government to the other, when administrative
control in the area seems to have been, to say the least, in a state
of flux.
[6] The procedure adopted by the defendants to obtain
their occupancy was essentially the same. This is hardly surprising.
Those who
came later simply followed the precedent established by the
success of the earlier ones. Broadly stated, it happened like this:
They
first spoke to the local headman, Induna Torch Hola, who is
since deceased, and informed him of their wish to obtain a site on
the
coast which they identified to him. The headman then took them to
the chief of the local tribe, Chief Mchilizwa Hanxa, who is also
since deceased. Their approach to the chief was mostly accompanied by
a bottle of Commando brandy, which appears to have been the
strong
drink of the chief’s choice. Once they obtained the chief’s
approval, he arranged for them to attend a meeting
of the Emtweni
tribal authority, exercising jurisdiction in the area.
[7] Accompanied by the chief, they then attended a
meeting of the tribal authority. After the meeting had approved their
request,
they paid a ‘customary fee’ of R200 to the
tribal authority for which they were issued with a receipt. They also
received
a rather curious document signed by the secretary of the
tribal authority and described as a ‘fishing site licence
application’.
According to the heading of the document itself,
it was to be submitted to the magistrate at Lusikisiki. In substance
the document
conveyed to the magistrate a recommendation by the
tribal authority that the applicant cited be granted a licence to
conduct some
fishing business on the proposed site. Why I referred to
the document as curious, is, of course, because it made no mention of
the
defendants’ request for permission to occupy or to build a
cottage on the site. while, on the other hand, it referred to an
application for a business licence which the defendants never wanted.
[8] Armed with the receipt and the fishing site license
application, the defendants then made their way to the magistrate’s
court building in Lusikisiki. However, they did not go to the
magistrate, as instructed by the contents of the application form,
but to an official in the Department of Agriculture, Mr Dumisane
Ntete, who happened to have his office in the same building.
Arrangements
were then made with Ntete to meet at the chosen site
together with Chief Hanxa and members of the local community. It
appears that
Ntete always had a measuring tape with him when he
attended these meetings. Yet the measuring tape was never used. The
sites were
not actually measured, but rather vaguely identified by
Ntete with reference to certain landmarks and physical features. Nor
were
the sites ever surveyed or their exact dimensions recorded or
mapped.
[9] The chief then asked the members of the local
community present, who on occasion numbered up to one hundred people,
whether they
had any objection to the site being allocated to the
defendant concerned. No objections were ever raised. After that, the
chief granted
his permission for structures to be built on the site,
which signalled the end of the formalities. Festivities then started
where
beer, brandy and food, supplied by the defendants in ample
quantities, were enjoyed by all. The only thing that happened
thereafter
was that some of the defendants – though not all of
them – annually paid the sum of R20 by way of a local tax and a
general
levy to the Receiver of Revenue in Lusikisiki, whose office
also happened to be in the same building as the Magistrate’s
Court.
Receipts were issued for these payments and a record kept by
means of a so-called cardex filing system, identifying each defendant
with reference to his own tax number.
[10] Two of the defendants testified that on an occasion
when they went to pay their annual taxes at the Magistrate’s
Court
building they happened to meet one of the magistrates. They
then used the opportunity to ask him whether there was anything more
they had to do in order to secure occupation of their sites. His
response was something to the effect that they had done all they
were
required to do and that ‘nobody could take their piece of
heaven away from them’.
[11] In response to the defendants’ declarations
of trust in the validity of the permission they received from the
chief, the
tribal authority and – on two occasions from the
magistrate, by conduct, as it were – the Government relied on
the evidence
of Mr James Feely. Feely was employed between 1989 and
2000 by the departments – first of the former Transkei
Government and
then of the Eastern Cape Provincial Government –
that took administrative responsibility for the area. According to
his testimony
– undisputed in this regard – the
allocation of residential sites and sites for recreation as well as
land destined for
agricultural use in the area, was governed at the
time by the provisions of Proclamation No 26 of 1936 read with the
Transkei Agricultural
Development Act 10 of 1966 (Transkei).
[12] According to these statutory enactments,
residential sites could only be allocated in areas earmarked for
residential purposes.
Because the sites occupied by the defendants
did not form part of any residential area, no one was authorised to
permit the occupation
or the erection of buildings on these sites.
Moreover, s 4 of the 1936 Proclamation provided that, within
residential areas,
permission to reside could only be granted by the
magistrate of the district and only to a ‘person domiciled in
the district,
who has been duly authorised thereto by the Tribal
Authority’. It follows that neither the chief nor the tribal
authority could
allocate residential sites. They could only make
recommendations to the magistrate and, in any event, only in respect
of persons
domiciled in the district. In terms of s 5,
occupation for recreational purposes could only take place with the
permission of
the Minister of the Interior and subject to such
conditions and to the payment of such rental or other charges as he
of she might
approve. In sum, Feely’s evidence was that the
permission relied upon by the defendants, was plainly devoid of any
validity.
[13] Feely also laid the factual foundation for the
Government’s main cause of action which relied on s 39 of
the Decree.
The relevant part of the section provides:
’
39(1)
There is hereby established on the landward side of the entire length
of the seashore, excluding any national park, national
wildlife
reserve, municipal land, seaside resort, site occupied in terms of
Proclamation No 174 of 1921 or Proclamation No 26 of
1936, privately
owned land and lease hold land, a coastal conservation area 1 000
metres wide measured –
(a) in relation to the sea, as distinct
from a tidal river and tidal lagoon, from the high-water mark;
(b) . . .
(2) Notwithstanding anything in any other
law or in any condition of title contained, no person (including any
department of State)
shall within the coastal conservation area, save
under the authority of a permit issued by the Department [of
Agriculture and Forestry]
in accordance with the plan for the control
of coastal development approved by the resolution of the Military
Council –
(a) clear any land or remove any sand,
soil, stone or vegetation;
(b) . . .
(c) erect any building.
. . ..’
And then follows a list of other prohibited activities,
such as the construction of roads, etc
,
which
were admittedly carried out by the defendants, both on their
individual sites and in the area generally.
[14] It is not in dispute that, despite the cessation of
the Republic of Transkei as an independent country, the Decree
remained in
force by virtue of s 229 of the Interim
Constitution, Act 200 of 1993, in the area where it previously found
application. Likewise
undisputed, is the fact that, pursuant to the
provisions of s 235(8) of the Interim Constitution, the
administration of s 39
of the Decree had been assigned to
Feely’s employer of late, to wit, the Department of Economic
Affairs, Environment and Tourism
of the Eastern Cape Province. Feely
was convinced that the sites occupied by the defendants form part of
the coastal conservation
area. They were clearly situated within a
zone one kilometre from the sea and, so he testified, not inside any
of the areas pertinently
excluded by s 39(1) such as national
parks, seaside resorts, etc. Yet, he said, not one of the defendants
– or, for that
matter, anybody else – applied for a
permit from any of the successive authorities that he worked for, to
carry out the activities
enumerated in s 39(2) that they had
performed.
[15] Feely conceded in cross-examination that no overall
plan for coastal development was ever approved by resolution of the
Military
Council as envisaged by s 39(2). The development plan
in existence at the time, he explained, was the Transkei Coastal
Development
Control Plan of 1979. According to this plan, the
defendants’ sites were outside any of the prescribed nodes
destined for development,
Though a new development plan was in the
process of preparation for approval, that plan had never been
finalised before the demise
of the Military Council. Feely’s
department thus continued to work on the 1979 plan. If someone had
applied for a permit under
s 39(2) – which no-one did –
Feely’s assumption was that his department would have made use
of the 1979 plan.
[16] The Government also relied on the expert evidence
of Mr Warrick Pierce, who carried out an investigation into the
environmental
impact of the defendants’ activities in the area.
In response, the defendants tendered the expert evidence of Dr James
Granger
who was involved in a similar study. This gave rise to a
rather lengthy debate between these two experts, the relevance of
which,
I must confess, I find difficult to understand. What the
experts agreed upon was that the impact of some of the defendants’
activities was significant and that it will endure for a long time to
come. In this regard, they both referred, by way of example,
to the
harm caused by the gaining of access to cottages by means of
four-wheel driven vehicles via the beach and across frontal dunes;
the impact on dunes caused by the construction of cottages too close
to the high-water mark; the damage caused by the clearing of
the
coastal forest; and the visual disturbance caused by the erection of
structures to an otherwise pristine landscape. What the
two experts
also seemed to agree on, was that no proper and effective
rehabilitation could take place for so long as the defendants’
cottages remain. The dispute between them seemed to turn mainly on
the extent to which the environmental impact of the defendants’
activities can be remedied or ameliorated through rehabilitative
measures, once all the structures had been demolished and removed
from the sites. As I have indicated, however, I cannot see how the
resolution of this debate, one way or the other, could make any
difference to the outcome of this case.
[17] Dr Granger also introduced a further topic which
then became a recurring theme in the evidence of the defendants
themselves.
It related to the benefits received by the local
residents from the settlement by the defendants in the area and the
concomitant
hardship that they would suffer if the defendants were
compelled to leave. In the promotion of this theme, the defendants
also relied
on the results of a social impact study commissioned on
their behalf. In sum, the results of this study showed that
unemployment
is a serious problem in the area; that many of the local
inhabitants have no cash income at all and that they represent what
was
described as the ‘poorest of the poor’. According to
those responsible for the study, the consensus among members of
the
local community was that they substantially benefited from the
presence of the defendants in the area. Examples of these benefits
included the employment of local residents as domestic workers, as
security guards and as construction workers on the building sites;
assistance rendered by the defendants in the erection of a school and
a water tank for the community; and the provision by the defendants
of emergency transport and care. In the event the study showed that
this resulted in considerable local support for the defendants’
continued presence in the area, as was confirmed by those members of
the community who were called to testify on behalf of the defendants.
[18] Against this background I can now turn to those
defences persisted in by the defendants on appeal. First among these
is the special
plea of prescription. The starting point of the
defendants’ argument in support of this plea relied on s 12(3)
of the
Prescription Act 68 of 1969
. In terms of this section, the
defendants argued, the prescription period – of three years
provided for in
s 11(d)
– commenced to run, at the latest, when
the Government acquired knowledge of the ‘identity of the
debtor and of the facts
from which the debt arose’. The ‘debt’
under consideration, so the argument went, is the vindicatory relief
that
the Government sought to enforce. The identities of the
defendants and the facts from which the vindicatory claims against
them arose,
so the argument proceeded, were known to the Government
at the latest by early 1996. Thus, the argument concluded, the claims
relied
upon by the Government became prescribed long before summons
in the matter was issued and served in December 2000.
[19] In my view it is fair to say that the Government
was aware of the identities of the defendants and of the facts upon
which its
claims against them rely, more than three years before the
present action was instituted. I am also prepared to accept that the
vindicatory
relief which the Government seeks to enforce constitutes
a ‘debt’ as contemplated by the
Prescription Act. Though
the Act does not define the term ‘debt’, it has been held
that, for purposes of the Act, the term has a wide and general
meaning and that it includes an obligation to do something or refrain
from doing something (see eg
Electricity
Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd
1981
(3) SA 340
(A) at 344F-G and
Desai NO v Desai
[1995] ZASCA 113
;
1996 (1) SA 141
(A) at 146H-J). Thus
understood, I can see no reason why it would not include a claim for
the enforcement of an owner’s rights
to property (see also eg
Evins v Shield Insurance Co Ltd
1979
(3) SA 1136
(W) 1141F-G).
[20] In considering the special plea of prescription,
the postulation is, of course, that the allegations underpinning the
Government’s
claim had in fact been established. Broadly
stated, it must therefore be accepted for the prescription issue that
the defendants’
occupation of their sites constitutes a
contravention of both the Decree and the common law. Departing from
this premise, the answer
to the prescription defence is, in my view,
to be found in the concept which has become well-recognised in the
context of prescription,
namely that of a continuous wrong. In
accordance with this concept, a distinction is drawn between a
single, completed wrongful act
– with or without continuing
injurious effects, such as a blow against the head – on the one
hand, and a continuous wrong
in the course of being committed, on the
other. While the former gives rise to a single debt, the approach
with regard to a continuous
wrong is essentially that it results in a
series of debts arising from moment to moment, as long as the
wrongful conduct endures
(see eg
Slomowitz v
Vereeniging Town Council
1966 (3) SA 317
(A);
Mbuyisa v Minister of Police, Transkei
1995 (2) SA 362
(T);
Unilever
Bestfoods Robertsons (Pty) Ltd v Soomar
2007
(2) SA 347
(SCA) para 15).
[21] In
Slomowitz
(at
331F-G) this court accepted the description of a continuous wrong as
one which ‘is still in the course of being committed
and is not
wholly past’. In applying this description, the defendants’
wrongful conduct relied upon by the Government
must, in my view, be
classified as a continuous wrong, in contrast with a single wrongful
act. For their contention to the contrary,
the defendants sought to
rely mainly on the decision in
Radebe v
Government of the Republic of South Africa
1995
(3) SA 787
(N) 803D-804G. I believe, however, that
Radebe
is distinguishable on its facts. What
Radebe
claimed was the setting aside of an alleged wrongful
expropriation and the consequent transfer of his immovable property
to the Government,
which was the defendant in that case. What the
court held was that a deprivation of ownership based on a single act
of expropriation
did not constitute a continuous wrong and that,
because the single wrongful act that Radebe relied upon had occurred
more than three
years ago, his claim had become prescribed. Where the
present case differs from
Radebe
,
as I see it, is that the Government’s claim is not for the
setting aside of a single act of deprivation of possession which
happened wholly in the past, but effectively for an order terminating
wrongful conduct which is still in the course of depriving
it of the
possession of its property. Thus understood, the Government’s
position is, in my view, no different from that of
the plaintiff in
South African Railways & Harbours v
Fisher’s Estate
1954 (1) SA 337
(A)
which was succinctly described as follows by Centlivres CJ at 342B-D:
‘
The
plaintiff’s case is not that the defendant wrongfully entered
upon the land but that the defendant was at the time of service
of
the summons (not at any time prior to that date) in wrongful
possession of land of which it is the registered owner. That is all
it has to prove in order to succeed in its action. As far as its
claim is concerned, what occurred in the past is irrelevant . . ..’
[22] A further argument raised by the defendants for the
first time in this court, was that even if their wrongful occupation
of the
sites must be regarded as a continuous wrong, the same cannot
be said of their building activities on the sites. That, they argued,
can only be described, with reference to every individual structure,
as a single wrongful act committed wholly in the past. In
consequence,
so their argument went, even though the Government’s
claim for their eviction from the sites may still be enforceable, its
further claim that they be held responsible for the demolition and
removal of all structures erected by them, had been extinguished
by
prescription three years after the Government acquired notice of
these structures. I do not agree with this argument. On the
Government’s
case as pleaded, the continued existence and
occupation of the structures by the defendants constituted part and
parcel of their
wrongful occupation of the sites. To my way of
thinking, the result is that the existence and occupation of the
structures form part
of the continuous wrong perpetrated by the
defendants. It follows that, in my view, the special plea of
prescription cannot be sustained.
[23] As to the merits, the first defence raised by the
defendants went to the Government’s
locus
standi.
Essentially it was based on the
contention that the Government had failed to establish its alleged
ownership of the land on which
the sites are situated. The
appropriate starting point in considering the validity of this
contention is, in my view, to be found
in the unequivocal testimony
of Feely, on behalf of the Government, that the defendants’
sites indeed formed part of State
land. The defendants relied,
however, on a concession by Feely in cross-examination that he never
consulted the Deeds Registry. Though
this is so, Feely seems to have
been justified in his inference, shared by at least some of the
defendants, that that remote part
of the Transkei Wild Coast has
never been held in private ownership. It also appears to have been
common cause that the area formed
part of unsurveyed land. In the
event, the legal principle to be applied is that, since all land
originally belongs to the State,
land which has never been
transferred into private ownership remains State land (see eg
Cape
Town Town Council v Colonial Government and Table Bay Harbour Board
(1906) 23 SC 62
at 69;
LAWSA
(1
st
reissue)
Vol 14 para 21). Moreover, Feely also testified, and this was not
contested, that the land in the immediate vicinity of the
defendants’
sites had been administered since time immemorial as State land under
the provisions of the 1936 Proclamation.
In the circumstances, I find
no merit in this defence.
[24] As to the Government’s case based on the
provisions of the Decree, the defendants raised a twofold defence.
Firstly, they
maintained that the sites occupied by them were
excluded from the coastal conservation area created by s 39(1)
because it formed
part of municipal land. Their second defence was
that s 39(2) of the Decree never took effect because the overall
development
plan contemplated in this section had never been approved
by the Military Council.
[25] The defence that the sites fell within the excluded
category of municipal land was in turn based on a twofold hypothesis.
Firstly,
it assumed that the expression ‘municipal land’
must, in the context of s 39(1) be understood to refer to land
falling
under municipal jurisdiction as opposed to land owned by a
municipality. The second assumption was that the sites were indeed
subject
to the jurisdiction of some unknown municipality. The first
assumption is, in my view, unfounded. The meaning of the expression
contended
for by the defendants is clearly not the natural one. When
the Decree refers to ‘State land” it patently means land
owned
by the State. That much was conceded by the defendants. Why, it
may then, in my view, rightfully be asked, would the meaning of the
same expression change without warning when it refers to a
municipality instead of the State? What s 39(1) plainly sought
to
exclude from the ambit of its operation – admittedly in a
somewhat circuitous way – was land not owned by the State.
In
the process it referred,
inter alia
,
to ‘privately-owned land’ and ‘municipal land’.
In this context the latter expression must, in my view,
be understood
to mean land owned by a municipality.
[26] The assumption that the sites were indeed subject
to the jurisdiction of some or other municipality, is, in my view,
equally
untenable. It was based on the supposition that when the 1996
Constitution came into operation on 4 February 1997, every nook and
cranny of the national territory immediately and automatically became
subject to the jurisdiction of a municipality, albeit that
the
identification of the municipality concerned might not in all
instances have been practically possible. As the basis for this
rather surprising notion, the defendants relied on s 151(1) of
the Constitution 108 of 1996, which provides that:
‘
The
local sphere of Government consists of municipalities, which must be
established for the whole of the territory of the Republic.’
[27] I do not believe, however, that the section is
capable of supporting the notion contended for by the defendants. In
fact, if
that was the meaning of the section, it would make a
nonsense, for example, of the contemplation in s 155 of the
Constitution,
that the establishment of municipalities and their
boundaries would take place in terms of national and provincial
legislation to
be promulgated at some future date (see eg,
Local
Government: Municipal Demarcation Act 27 of 1998
). Absent any direct
evidence that the remote part of the Transkei Wild Coast where the
sites are situated became subject to the jurisdiction
of some
municipality, that inference cannot, in my view, be justified. I
therefore conclude that there is no merit in the defence
that the
sites occupied by the defendants were excluded from the coastal
conservation area and thus from the ambit of the provisions
of the
Decree.
[28] The further defence, that the Decree did not come
into operation, because the Military Council never adopted an overall
development
plan, is, in my view, equally devoid of substance. The
mere fact that, in the absence of an overall plan, no permit
authorising development
could be issued under
s 39(2)
, does not
mean that the prohibition pronounced by
s 39(2)
could simply be
ignored. The main operative part of the section was the prohibition.
A permit would constitute an exception. Quite
clearly the operative
part could function without any exception. That distinguishes the
present case from the facts of
Pharmaceutical
Manufacturers Association of South Africa: In re Ex Parte President
of the Republic of South Africa
1999 (4) SA
788
(T) – on which the defendants sought to rely – where
the operation of the whole Act depended on subordinate legislation
not yet in existence. It may be that the applicant for a permit would
have to seek a
mandamus
against
the Military Council – or its successor – compelling the
approval of an overall plan. Or, maybe such an applicant
could take
the department on review for refusing the permit on the basis of the
1979 plan, as Feely suggested. But, since no single
defendant applied
for such permit, these are not issues we have to decide.
[29] As to the Government’s alternative claim
based on wrongful possession of State land, the first defence raised
by the defendants
was one of consent. The onus to prove the validity
of that consent, in my view, rested on the defendants. It follows
from the statement
by this court in
Dreyer and
another NNO v AXZS Industries
2006 (5) SA 548
(SCA) para 4, that:
‘
A
party who institutes the
rei
vindicatio
is
required to allege and prove ownership of the thing. Since one of the
incidents of ownership is the right to possession of the
thing, a
plaintiff who establishes ownership is not required to prove that the
defendants’ possession is unlawful. In that
event, the onus to
establish any right to retain possession will rest on the defendant,
as long as the plaintiff does not go beyond
alleging ownership.’
[30] I do not think it unfair to say that the defendants
did not even come close to discharging this onus. On the contrary,
even if
the Government were to bear the onus, it had, in my view
succeeded in establishing the absence of any valid consent. The
defendants
did not deny that the right to occupy uninhabited land in
the area was governed by ss 4 and 5 of Proclamation 26 of 1936.
Even
a perfunctory reading of these sections reveal that the consent
of the tribal authority and the chief, relied upon by the defendants
was plainly of no validity. As to the tacit consent of the magistrate
in which some of the defendants placed their trust, it is equally
clear that, in terms of s 4, the magistrate could only grant
permission to reside to persons domiciled in the district of his
jurisdiction and then only in an area reserved for residential
purposes. Because the defendants clearly failed to meet these two
requirements, any consent by the magistrate, be it tacit, express or
otherwise, would be equally invalid. The proposition put forward
for
the first time in this court, that when the magistrate granted his
tacit consent, he must be taken to have acted on behalf of
the
Minister of the Interior under s 5, was clearly no more than an
afterthought. The suggestion was never pleaded by the defendants
nor
put to any of the Government witnesses in cross-examination and, in
any event, appears to be devoid of any factual basis. Whatever
the
magistrate intended to do, it is clear that he never purported to
grant the formal – and conditional – permission
contemplated by s 5, on behalf of the Minister.
[31] At the stage of argument in the trial court, the
defendants raised the further defence that they were protected in
their occupation
by s 2(1) of the Interim Protection of Informal
Rights Act 31 of 1996. In this regard they contended that their right
to occupy
the sites constituted an ‘informal right to land’
as defined in paras a(i) and (a)(ii) of s 1 of the Act. In terms
of these paragraphs, the ‘informal right to land’
protected by s 2(1) includes ‘(a) the occupation of land
in terms of (i) any tribal, customary or indigenous law or
practice of a tribe; and (ii) the custom, usage or administrative
practice in a particular area or community.’
[32] The short answer to this defence is, in my view,
that, on the evidence presented, the ‘rights’ relied upon
by the
defendants – whatever they were – had never before
been granted to non-residents in the area until the defendants came
on the scene. It follows, in my view, that the defendants did not
even come close to establishing the ‘custom’ or
‘practice’
on which they sought to rely. In the result I
am of the view that this defence cannot succeed.
[33] What remains to be considered is the defendants’
contention that the Government’s claim for their ejectment,
both
in terms of the Decree and under the common law, was constrained
by the provisions of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998, that has long since
become better known in legal vernacular as ‘PIE’.
Departing
from this premise, the defendants’ argument was that
the Government had to satisfy the provisions of s 4(7) of PIE.
In
terms of this section an eviction order may only be granted if the
court ‘is of the opinion that it is just and equitable to
do
so, after considering all the relevant circumstances . . ..’
[34] Thus based on the presumed application of PIE, the
defendants developed an argument which eventually constituted the
cornerstone
of their case, namely, that the Government had failed to
establish that, in all the circumstances, it would be just and
equitable
to evict them from their sites. In fact, it was the
argument, so it seems, which prompted the greater part of the
evidence presented
by and on behalf of the defendants at the trial.
[35] Adverting to this evidence, the defendants advanced
considerations such as the following in support of their plea that it
would
be unfair and unjust to evict them from their sites:
(a) Their historical connections with and affinity for
the Transkei Wild Coast, coupled with the fact that they were for a
long time
precluded from any title to the land, which they visited
from childhood, because of the racial policies of the
pre-constitutional
South Africa.
(b) They took occupation openly and without stealth or
force, of vacant State land held in trust for local tribes who
consented to
and endorsed the defendants’ occupation.
(c) It was held out to them by various officials and
entities involved in the administration of the area, that they could
occupy the
sites and build their cottages.
(d) The consideration that the impact of their
occupation on the environment was not as far reaching as suggested by
the Government.
(e) Their eviction would result in their losing the
money, time and labour invested in buildings on the sites –
which varied
from R30 000 to R300 000.
(f) The benefits attained by the local inhabitants
through the defendants’ occupation and the concomitant hardship
the inhabitants
will suffer if the defendants are ordered to leave.
(g) The consideration that the state of apartheid will
effectively be reintroduced if all white residents are evicted from
the area.
[36] Apart from disputing the veracity of some and the
weight to be attributed to the other considerations advanced by the
defendants,
the Government’s contention was that, the balancing
act of deciding what is just and fair requires that regard should
also
be had to countervailing factors such as the following:
The defendants are all literate and sophisticated
people. The documents that were issued to them purported to be
applications for
licences to conduct a fishing business on the sites
and not the permission to build holiday cottages which they sought.
Though
these applications were addressed to the magistrate, they
went to the agricultural officer. The dimensions of the sites were
determined
in the most cavalier fashion. Despite these glaring
incongruities and despite the inherent unlikelihood that one could
acquire
the right to perpetual occupation of a site on the coast for
a sum as paltry as R200, the defendants chose to make no enquiries
about the applicable legislation. The inference to be drawn from
this, the Government contended, is that the defendants deliberately
closed their eyes; that they simply did not want to know what the
true position was.
The defendants built their cottages, in direct
contravention of the law, in an ecologically sensitive area. By all
accounts the
impact of their activities on this virtually pristine
environment was significant and will endure for a long time to come.
The defendants did not build in an area reserved for
residential purposes, where the local residents lived, but instead
created
a white enclave.
The benefits derived from their occupation by the local
community, the Government contended, are overstated by the
defendants; are
in any event limited to a few of these residents;
and are only enjoyed during the relatively short periods when the
defendants
are there on vacation.
[37] On balance, I tend to agree with the Government’s
argument that considerations of fairness and equity do not favour the
defendants’ continued stay. But, as I have said, this whole
debate had been introduced by the defendants on the basis of the
expressly stated hypothesis that the provisions of PIE has a bearing
on the case. Thus the pivotal question is whether PIE does in
fact
apply. It is to that question I now turn. I believe it can be
accepted with confidence that PIE only applies to the eviction
of
persons from their
homes.
Though
this is not expressly stated by the operative provisions of PIE, it
is borne out, firstly, by the use of terminology such as
‘relocation’
and ‘reside’ (in ss 4(7) and 4(9)) and, secondly, by
the wording of the preamble, which,
in turn establishes a direct link
with s 26(3) of the Constitution (see eg
Ndlovu
v Ngcobo
2003 (1) SA 113
(SCA) para 3). The
constitutional guarantee provided by s 26(3) is that ‘no-one
may be evicted from their home, or have
their home demolished,
without an order of the court made after considering all the relevant
circumstances’.
[38] This leads to the next question: can the cottages
on the sites that were put up by the defendants for holiday purposes
be said
to be their homes, in the context of PIE? I think not. Though
the concept ‘home’ is not easy to define and although I
agree with the defendants’ argument that one can conceivably
have more than one home, the term does, in my view, require an
element of regular occupation coupled with some degree of permanence.
This is in accordance, I think, with the dictionary meanings
of: ‘the
dwelling in which one habitually lives; the fixed residence of a
family or household; and the seat of domestic life
and interests’
(see eg The Oxford English Dictionary 2ed Vol VII). It is also borne
out, in my view, by the following statement
in
Beck
v Scholz
[1953] 1 QB 570
(CA) 575-6:
‘
The
word ‘home’ itself is not easy of exact definition, but
the question posed, and to be answered by ordinary common
sense
standards, is whether the particular premises are in the personal
occupation of the tenant as the tenant’s home, or,
if the
tenant has more than one home, as one of his homes. Occupation merely
as a convenience for . . . occasional visits . . . would
not, I
think, according to the common sense of the matter, be occupation as
a “home”.’
[39] Moreover, within the context of s 26(3) of the
Constitution – and thus within the context of PIE – I
believe
that my understanding of what is meant by a ‘home’
is supported by Sachs J, speaking for the Constitutional Court, in
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) para 17, where
he said:
‘
Section
26(3) evinces special constitutional regard for a person’s
place of abode. It acknowledges that a home is more than
just a
shelter from the elements. It is a zone of personal intimacy and
family security. Often it will be the only relatively secure
space of
privacy and tranquillity in what (for poor people, in particular) is
a turbulent and hostile world. Forced removal is a
shock for any
family, the more so for one that has established itself on a site
that has become its familiar habitat.’
[40] These sentiments cannot, in my view, apply to
holiday cottages erected for holiday purposes and visited
occasionally over weekends
and during vacations, albeit on a regular
basis, by persons who have their habitual dwellings elsewhere. Thus I
conclude that for
purposes of PIE, the cottages concerned cannot be
said to be the defendants’ ‘homes’. Their ‘homes’
are in KwaZulu-Natal. Consequently I hold the view that PIE finds no
application. This finding renders it unnecessary and indeed
inappropriate to resolve the debate as to what outcome would be
dictated by justice and equity. Finally, the defendants sought an
extension of the four month period which the court
a
quo
afforded them to demolish and remove
their structures from the sites. Again, however, this relief was
sought on the basis of PIE –
this time under the provisions of
s 4(8) of the Act. Because of my view that PIE does not apply, I
do not believe we can accede
to this request.
[41] For these reasons, the appeal is dismissed with
costs, including the costs occasioned by the employment of two
counsel.
………………………
..
F D J BRAND
JUDGE OF
APPEAL
Concur
:
HOWIE P
JAFTA JA
MAYA JA
COMBRINCK
JA