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[2007] ZASCA 104
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Webtrade INV No 45 (Pty) Ltd and Other v Andries Van Der Schyff en Seun (Pty) Ltd t/a Complete Construction (589/06) [2007] ZASCA 104; [2007] SCA 104 (RSA) (17 September 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 589/06
In the matter between:
WEBTRADE INV NO 45
(PTY) LTD
.......................
First Appellant
CHERALEE SABY
.......................
Third Appellant
and
ANDRIES VAN DER
SCHYFF EN SEUNS
.......................
Respondent
(PTY) LTD t/a
COMPLETE CONSTRUCTION
_____________________________________________________
Coram
:
Navsa, Brand, Lewis, Ponnan JJA et Malan AJA
Date
of hearing:
10 September 2007
Date
of delivery:
17 September 2007
Summary
: The
provisions of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (PIE) do not apply in circumstances
in which the owner of land takes possession from a builder exercising
a builder’s lien.
Neutral citation:
This judgment may be referred to as
Webtrade
v Van Der Schyff
[2007] SCA 104 (RSA).
_____________________________________________________
JUDGMENT
_____________________________________________________
NAVSA JA
NAVSA JA:
[1] This is an appeal, with the leave of the court below, against a
judgment in terms of which possession of immovable property was
restored to the respondent, a construction company, which at the time
of dispossession was exercising a builder’s lien.
[2] The first appellant is a company which is the owner of the land
and improvements at 463 Rooibekkie Lane, Featherbrooke Estate,
a
gated community estate consisting of approximately 1 000 freehold
properties. The erstwhile second appellant, Mr Mark Saby was,
prior
to his untimely death ─ which occurred after judgment in the
court below and before the present appeal was heard ─
the
controlling shareholder of the first appellant. The third appellant,
Mrs Cheralee Saby, is Mr Mark Saby’s widow.
[3] The respondent constructed the house on the property at the
instance of Mr and Mrs Saby, acting through the medium of the first
appellant. The erf on which the house was constructed was purchased
by the first appellant on 3 July 2000 for an amount
of R200
000 and was transferred to it on 26 March 2001. A tender
for the construction of the house by the respondent in
an amount of
R2.3 million was accepted by the first appellant.
[4] During October 2004 the respondent took possession of the erf and
commenced construction work in terms of the tender. It is not
disputed that the original and spare keys to the locks of all the
doors were at the time of the commencement of construction in the
possession of Mr Brendon De Reuck, the respondent’s site
supervisor.
[5] It is common cause that, during May and June 2005, a dispute
arose between the respondent and Mr and Mrs Saby regarding
the costs
of the construction of the house. This manifested itself, according
to the respondent, in frequent and repeated short payments
of
invoices presented to the first appellant for payment. In its
founding affidavit in the court below, the respondent alleged that
the fist appellant owed it more than R100 000. This was disputed
by the appellants.
[6] According to Mr De Reuck, when he arrived at the premises on
Friday 20 January 2006, he found that Mr and Mrs Saby
had
taken possession of the house, gaining entry by way of keys they had
somehow acquired and thereby depriving the respondent of
its
possession of the house. Shortly thereafter Mr De Reuck handed
to Mr and Mrs Saby a letter from the respondent’s attorney
seeking restoration of possession. This resulted in Mr De Reuck being
forcibly escorted off the estate by security guards.
[7] The respondent applied in the Johannesburg High Court for an
order restoring it forthwith to possession of the premises ─
it
relied on the
mandament van spolie
.
[8] In answering affidavits in the court below, the first appellant
and Mr and Mrs Saby alleged that, on 20 January 2006,
they had obtained possession with the consent of Mr De Reuck. What is
undisputed, however, is that on 20 January 2006,
while Mr
and Mrs Saby were attempting to move into the premises, Mr De Reuck
attempted to prevent them from doing so. Notwithstanding
his
resistance, they took occupation.
[9] It was probably the realisation of the difficulties posed by the
facts set out in the preceding paragraph that led the first
appellant
and Mr and Mrs Saby to change tack. They sought to rely on the
provisions of the Prevention of Illegal Eviction from and
Unlawful
Occupation of Land Act 19 of 1998 (PIE). They submitted that, in the
prevailing circumstances of the case, the provisions
of PIE rendered
the
mandament van spolie
inapplicable.
[10] The court below (Tshiqui J) said the following:
‘
The
respondents in this matter are the affluent private owners of the
property which they occupied in the midst of a dispute surrounding
workmanship and money. In utilising the provisions of PIE, [Mr Saby]
seeks to shield himself against his own unlawful conduct.
The protection under PIE was clearly not
intended to protect affluent property owners who deliberately placed
themselves in unlawful
occupation of their property.’
[11] The court below made an order restoring the respondent to the
property and ordered that costs be paid by the first appellant
and Mr
and Mrs Saby jointly and severally.
[12] Section 4(1) of the Act prescribes procedures to be
followed before an owner or person in charge of land may evict an
unlawful
occupier. The relevant part of s 1 of the Act defines an
unlawful occupier as follows:
‘
[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, . . .’.
[13] In
Ndlovu v Ngcobo, Bekker and Another v Jika
2003 (1) SA
113
(SCA) at para 8 this court said in relation to the application of
the Act that a mortgagor, being an owner, cannot be an unlawful
occupier. In the present appeal the first appellant is the owner of
the property and Mr and Mrs Saby its controlling mind.
[14] Section 1 of the Act, in defining ‘unlawful occupier’,
categorises persons who can seek protection under its provisions.
It
is important to note that the relevant part of s 1 of the Act is
disjunctive in that a person is an unlawful occupier if he or
she
occupies land without the express or tacit consent of the owner
or
the person in charge. In terms of s 4(1) of the Act an unlawful
occupier has protection against summary eviction. Thus, an occupier
who has the permission of either the owner or the person in charge of
land does not qualify for procedural or substantive protection
in
terms of the Act. It is clear that Mr and Mrs Saby were acting with
the consent of the owner, the first appellant. They accordingly
are
not unlawful occupiers as defined and must therefore fail in their
quest to invoke the protection afforded by the Act.
[15] At common law owners of land can, in certain circumstances, be
unlawful occupiers. However, having regard to the provisions
of the
Act, which is what the first and second appellants rely on, it would
be absurd, as pointed out in
Jika’s
case, to hold that
owners can be unlawful occupiers. The Act seeks to protect persons
who are homeless and who do not own the land
they occupy. The Act
intended to protect them and not persons such as the appellants.
Tshiqui J was correct to conclude that the
provisions of the Act do
not apply to the circumstances of this case.
[16] The court below referred to the judgment of the Constitutional
Court in
PE Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) where Sachs J (para 12) said the following concerning the Act:
‘
Squatting
was decriminalised and the eviction progress was made subject to a
number of requirements, some necessary to comply with
certain demands
of the Bill of Rights. … Thus, … the new law emphasised
a shift in thrust from prevention of illegal
squatting to prevention
of illegal eviction. The former objective of reinforcing common-law
remedies, while reducing common-law protections,
was reversed so as
to temper common-law remedies with strong procedural and substantive
protections; and the overall objective of
facilitating the
displacement and relocation of poor and landless black people for
ideological purposes was replaced by acknowledgment
of the
necessitous quest for homes of victims of past racist policies. While
awaiting access to new housing development programmes,
such homeless
people had to be treated with dignity and respect.’
[17] In the
PE Municipality
case the role of courts in the
application of the Act was spelt out (para 13) as follows:
‘
The
courts now had a new role to play, namely to hold the balance between
illegal eviction and unlawful occupation. Rescuing the courts
from
their invidious role as instruments directed by statute to effect
callous removals, the new law guided them as to how they should
fulfil their new complex, and constitutionally ordained, function:
When evictions were being sought, the courts were to ensure that
justice and equity prevailed in relation to all concerned.’
[18] The purpose and the background to the application of the Act are
set out in the
dicta
referred to in the two preceding
paragraphs. The circumstances of the present case are far removed
from the main purpose of the Act,
to prevent evictions of the
landless ─ a category of vulnerable persons which by its very
nature excludes owners of land. To
uphold the appeal would in the
immortal words of Charles Dickens render the law an ‘ass’.
1
[19] There is one further aspect that requires attention. As
mentioned earlier Mr Saby has passed away. Regrettably, there has
been
a delay in the appointment of an executor to his estate. Mr
Saby’s erstwhile attorneys, having initially failed to persuade
the respondent to agree to a postponement of the appeal, withdrew
from the matter. Counsel on behalf of the first and third appellants
informed the court that there were difficulties in relation to the
appointment of an executor and that the delay would not be less
than
six months. He agreed with submissions on behalf of the respondent
that the matter should proceed to finality, notwithstanding
that the
estate was not represented. The costs order that follows will
therefore only apply in respect of Mrs Saby and the first
appellant.
[20] The following order is made:
‘
The
appeal is dismissed with costs, such costs to be paid by the first
and third appellants jointly and severally.’
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
Brand JA
Lewis JA
Ponnan JA
Malan AJA
1
A
ttributed
to the literary character, Mr Bumble, in
Oliver
Twist
.