Absa Bank bpk v Murray and Another (8946/02) [2003] ZAWCHC 48; 2004 (1) BCLR 10 (C); 2004 (2) SA 15 (C) (18 September 2003)

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[2003] ZAWCHC 48
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Absa Bank bpk v Murray and Another (8946/02) [2003] ZAWCHC 48; 2004 (1) BCLR 10 (C); 2004 (2) SA 15 (C) (18 September 2003)

Republic of South
Africa
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO. 8946/02
In the matter between:
ABSA BANK BPK
Applicant
and
P J J MURRAY
First Respondent
D D MURRAY
Second Respondent
JUDGMENT DATED THIS 18th DAY OF SEPTEMBER 2003
BINNS-WARD
AJ
:
The applicant is a commercial bank. As security for a loan advanced
by the applicant, a mortgage bond was registered in its favour
against the title deed of the residential property owned jointly by
the respondents. The property was, indeed still is, the respondents’
family home. The respondents were sequestrated after first
respondent lost his employment. The sequestration resulted in the

bank eventually selling the respondents’ house in realisation of
its security. The bank itself purchased the respondents’ property
at the sale by public auction held in terms of
s 83(8)
of the
Insolvency Act, No. 24 of 1936
.
The applicant subsequently resold the property, but it was not able
to give vacant possession to the buyer because the respondents
remained in occupation. It therefore instituted an application for
the eviction of the respondents from the property.
The application was brought in accordance with the provisions of
s 4
of the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act, No. 19 of 1998 (‘PIE’). On 12 August 2003,
I made
an order evicting the respondents and all those who occupied the
property under them
1
.
I directed that the execution of the eviction order be suspended
until 30 September 2003. I undertook to furnish reasons for
the
order at a later date. These are those
reasons.
The respondents had no defence at common law to the application for
their eviction. They, however, opposed the application. They
contended that it would not be ‘just and equitable’ in the
circumstances for the court to grant an order for their eviction.
The respondents had been in unlawful occupation of the property for
more than six months when proceedings were initiated. The
provisions of PIE which were central to the determination of the
application were subsections 4(7) and 4(8):
‘
(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.
(8) If the court is satisfied
that all the requirements of this section have been complied with and
that no valid defence has been
raised by the unlawful occupier, it
must grant an order for the eviction of the unlawful occupier, and
determine-
(a) a just and equitable date on
which the unlawful occupier must vacate the land under the
circumstances; and
(b) the date on which an
eviction order may be carried out if the unlawful occupier has not
vacated the land on the date contemplated
in paragraph (a).
’
The respondents relied on the following circumstances in support of
their contention that it would not be just and equitable for
an
eviction order to be granted:
1. They and their family had lived in the house for almost 20 years;
2. They
had not wilfully defaulted on the mortgage bond repayments. The
reason for the default was first respondent’s loss of employment
by
reason of a worker complement reduction retrenchment process
instituted by first respondent’s erstwhile employer. The first
respondent had paid
R36 000,00 of his retrenchment package in
reduction of the mortgage debt, before being sequestrated.
3. The
first respondent conducts a business from the garage on the property
with the permission of the trustee of respondents’ insolvent
estate. The first respondent needed the space thus provided to earn
a living.
4. The
first respondent had offered to pay rent on the property.
5. The
first respondent had asked the bank for time until the end of 2002 to
raise the funds to repurchase the property. He explained
that he
intended to do this from the proceeds of an MVA award which his
brother expected to receive.
6. The
respondents’ grandchild (just over 2 years of age) and an 11 year
old girl placed in the respondents’ care lived in the
house
together with the respondents.
7. The
respondents and their family have no alternative place to stay.
The circumstances summarised in the preceding paragraph were set out
in a statement filed in proceedings previously instituted
by the
bank in the magistrates’ court. This statement was incorporated by
reference in the first respondent’s answering affidavit
in this
court. (The bank’s magistrates’ court action for the eviction of
the respondents had been withdrawn in September 2002,
prior to the
institution of the current application in December 2002.) The
applicant did not file a replying affidavit, or apply
to
cross-examine the first respondent and accordingly, the evidence
tendered in support of the circumstances relied upon by the
respondents must be accepted.
The respondents were unrepresented. They appeared in person at the
hearing. The first respondent addressed the court and in answer
to
questions directed from the Bench, he confirmed the basis of the
opposition to the application. The first respondent accepted
that
the property had been resold by the bank in the intervening period
since the aforementioned statement had been filed in the
magistrates’ court. He explained that settlement of his brother’s
MVA claim had been unexpectedly delayed. Accordingly, the
funds
which it was expected to provide had not yet become available.
The bank’s counsel contended that the personal circumstances of
the respondents were legally irrelevant and afforded no basis
to
refuse an eviction order. Counsel submitted that the only relevance
of the requirement in
s 4(7) of PIE that the court form an
opinion as to the justness and equitability of granting an eviction
order was in order to determine
whether or not a period of notice
should be afforded to the respondents before the eviction order
could be enforced, and if so,
the period of such notice. He relied
in support of this argument on a passage in the majority judgment of
the in
Brisley v Drotsky
2002 (4) SA 1
(SCA)
, at paragraphs
[41] and [42]:
[41]
Dit volg dat ook in 'n geval soos die onderhawige art 26(3) vereis
dat 'n hof, alvorens 'n uitsettingsbevel gemaak word, oorweging
moet
skenk aan alle relevante omstandighede. Davis, Cheadle and Haysom 22
sê:
'The
relevant circumstances which the court must consider before it makes
such an order should include at least the pesonal circumstances
of
those being deprived of accommodation, and the availability of
alternative accommodation. These were among the factors which were
considered relevant to the exercise of a court's discretion in
issuing an ejectment order in terms of s 46(2) of the repealed Group
Areas Act 36 of 1966 (S v Govender
1986 (3) SA 969
(T) at 971H - J).
These factors should be weighed against the reasons for the party
seeking the order (for example, an illegal occupation,
a default on
bond or rent payments, the resettlement of a community in another
area).'
[42]
Ons stem nie saam dat die bogenoemde omstandighede sonder meer
relevante omstandighede sal wees nie. Artikel 26(3) vereis dat
alle
relevante omstandighede in ag geneem moet word maar bepaal nie self
dat enige omstandighede relevant sal wees nie. Daarvoor
moet na die
algemeen geldende reg gekyk word. Omstandighede kan slegs relevant
wees indien hulle regtens relevant is. Indien die
artikel aan 'n hof
'n diskresie verleen het om 'n uitsettingsbevel te weier onder sekere
omstandighede, soos byvoorbeeld indien die
hof dit reg en billik sou
ag, sou alle omstandighede wat relevant is met betrekking tot die
vraag of dit in 'n bepaalde geval reg
en billik sou wees natuurlik
relevant wees by die uitoefening van daardie diskresie. Die artikel
verleen egter geen diskresie aan
die hof om onder sekere
omstandighede te weier om 'n uitsettingsbevel toe te staan aan 'n
eienaar wat andersins op so 'n uitsettingsbevel
geregtig sou gewees
het nie.
In my view the decision in
Brisley
does not constitute
authority for the construction of s 4(7) of PIE advanced by the
applicant’s counsel.
Brisley’s
case concerned an appeal against an eviction
order granted by Vorster AJ in the Transvaal High Court. The appeal
was dismissed.
The only issue in
Brisley
relevant to the
present matter was the effect of s 26(3) of the Constitution which
provides:
‘
No one may be evicted from
their home, or have their home demolished, without an order of court
made after considering all the relevant
circumstances. No legislation
may permit arbitrary evictions.
’
In
Brisley’s
case, the appellant relied on the provisions
of s 26(3) of the Constitution and the
obiter dicta
of Josman
AJ (as he then was) in
Ross v South Peninsula Municipality
2000
(1) SA 589
(C)
to argue that the court of first instance should
have taken into account the circumstances under which the lease in
terms of which
the appellant occupied the premises had been
cancelled and also the socio-economic consequences that any eviction
order was likely
to have on her and her dependant mother and child.
The argument was rejected. The matters relied upon by the appellant
were held
by the majority not to be ‘legally relevant’.
It is apparent, however, from a contextual consideration of the
judgments in
Brisley
that the eviction proceedings there in
issue had not been instituted in terms of s 4 of PIE. As the history
giving rise to the
appeals in
Ndlovu v NGGPBP; Ngcobo, Bekker and
Another v Jika
2003 (1) SA 113
(SCA)
illustrates, until just a
year ago, it was a matter of contentiousness whether PIE applied in
eviction cases like the present or
that in
Brisley
. The
majority judgment of the Supreme Court of Appeal in
Ndlovu
determined that it does. The decision in
Brisley
would
appear, however, to have been made in the context of an assumption
by the parties in that case that PIE did not apply.
The appeal in
Brisley
was decided some five months before
that in
Ndlovu
. Had the judgment in
Ndlovu
preceded
that in
Brisley
, it seems to me that the focus in
Brisley
would have been on subsections 4(6) or 4(7) of PIE rather than s
26(3) of the Constitution read in isolation.
Now that it has been authoritatively confirmed that PIE does apply
even in cases where the unlawful occupiers’ occupation of
residential property was initially lawful (in
Brisley
by
reason of a lease which was subsequently cancelled, or here, by
reason of the respondents’ previous ownership of the property
subsequently terminated by their sequestration and the consequent
realisation of the property by the bank) it must follow that
the
dicta
of the majority, at paragraph [43] of
Brisley
,
are of more relevance in the present matter than the passage relied
upon by the bank’s counsel:
‘
[43] Regtens is 'n eienaar
geregtig op besit van sy eiendom en op 'n uitsettingsbevel teen 'n
persoon wat sy eiendom onregmatiglik
okkupeer
behalwe
indien daardie reg beperk word deur die Grondwet, 'n ander Wet, 'n
kontrak of op een of ander regsbasis. 'n Voorbeeld van
sodanige
beperking is te vinde in die Wet op die Voorkoming van Onwettige
Uitsetting en Onregmatige Besetting wat, soos hierbo aangetoon,
'n
uitsettingsbevel in die omstandighede genoem in daardie Wet
onderhewig maak aan die uitoefening van 'n diskresie deur die hof
.
...
’ (my emphasis).
What was said in paragraph [43] of
Brisley
reflects an
acceptance by the majority of the court
2
in that matter that the provisions of PIE do result in a limitation
or restriction (‘beperking’) of a property owner’s common
law
right to obtain possession of it and, to that end, to obtain an
eviction order against any person unlawfully occupying it.
That the
impingement on a property owner’s common law right to possession
of its property introduced by PIE is not only procedural,
but
substantive was confirmed by the decision in
Ndlovu
: see para
[1] of the judgment. The limitation of a property owner’s common
law rights constituted by PIE has been described as
having occurred
‘imperceptibly and indirectly’. Insofar as its substantive
effect is concerned, the limitation is subject to
the constraints
that only relevant circumstances may be taken into account and that
constitutional conformity means that the provisions
cannot be used
to expropriate indirectly. See
Ndlovu
at paragraph [17]
3
The substantive reforming effect of s 26(3) of the Constitution read
with PIE is at least twofold. It
unambiguously imposes a duty upon the courts to investigate and
address considerations of justice and equity in the determination
of
any application for the eviction of any person from his or her home.
And it provides a discretionary power to the judiciary in
such cases
to impinge on the property owner’s common law right to obtain
possession of the property, to the extent that considerations
of
justness and equity demand.
If the argument advanced by counsel for the bank were correct, it
would entail that the provisions of subsections 4(6) and 4(7)
were
more procedural than substantive in nature. The nature of the
court’s discretion would be not as to whether or not to grant
an
eviction order, but only on what terms to make it. The wording of
the statutory provisions and the aforementioned dicta in
Brisley
do not support the argument advanced on behalf of the bank in this
respect. On the contrary, the wording of the provision indicates
that the ‘relevant circumstances’ might in a given case give
rise to the court declining to grant a property owner relief in
accordance with his or her common law rights unless and until the
pertinent circumstances were addressed or ameliorated
4
.
The requirement that a court may grant an order for eviction in
terms of s 4 of PIE only if it is of the opinion that it is just
and
equitable to do so in all the relevant circumstances confirms the
point.
A duly formed opinion that it would be just and equitable in all the
relevant circumstances to grant an order for eviction is one
of the
‘requirements’ of s 4, compliance with which is necessary before
a court becomes obliged to grant an eviction order
in terms of s
4(8) of PIE. Furthermore, an allegation by an unlawful occupier that
his or her eviction would be unjust and inequitable
in the
prevailing circumstances is in the nature of raising a defence to
eviction proceedings under the Act. The ‘validity’
of the
defence depends upon the determination of what would be just and
equitable.
Were the enquiry into relevant circumstances circumscribed in the
manner contended for on behalf of the bank, the provisions of
ss
4(8) and 4(9), which prescribe a further and additional
consideration of what is just and equitable in determining an
eviction
date would be superfluous. It is trite that one does not
readily construe a statute in a way that renders any of its
provisions
superfluous. The construction contended for by the bank’s
counsel would in my view render the provisions of ss 4(6) and (7)
nugatory.
Notwithstanding certain problems with the implementation
of the statutory provisions, to which I shall come presently, there
is
no basis in principle to uphold such a reading of the provisions.
The statement at paragraph [43] of the majority judgment in
Brisley
that PIE makes the grant of an eviction order in matters to which
the relevant provisions of PIE apply subject to the exercise
of a
discretion by the court seems to me, with respect, to accurately
reflect the apparent meaning of subsections 4(6) and 4(7)
of PIE
5
.
See also
The City of Cape Town v Rudolph and Others
CPD case
no. 8970/01 (delivered on 7 July 2003, as yet unreported),
especially at pp.39-40, where Selikowitz J held:
‘
There is, in the final
analysis, only one test under PIE for determining whether unlawful
occupiers are to be evicted (except in the
case of urgent proceedings
under section 5). That test is whether the eviction would be ‘just
and equitable’. (Sections 4(6),
4(7), 6(1)).
By setting the requirement of
justice and equity as the threshold for eviction, PIE seeks to do no
more than to pursue that to which
the law should in any event always
aspire.
In deciding whether eviction
would be just and equitable, the court is required to consider “
all
the relevant circumstances
”.
These include, but are not limited to, the factors specified in these
sections. The weight to be afforded to those circumstances;
the
determination of such further circumstances as might be relevant and
the weight to be afforded to them as also the balance ultimately
struck, are matters left entirely to the judgment and discretion of
the court.
’
The
balance that has to be struck is one between the proprietary rights
of the owner and the basic human rights of the occupier. The
Act
creates a legal mechanism whereby the human rights of unlawful
occupiers are afforded some protection in the context of the exercise
by property owners of their proprietary rights. It does not provide
for the negation of either class or category of rights and leaves
it
to the courts to endeavour to address the tension between them justly
and equitably. The nature of the exercise means that the
result will
often be one where both sides will feel that their rights have been
compromised to some extent.
Depending on the circumstances, a judicial determination of what is
‘just and equitable’ for the purposes of s 4(6) and (7)
of PIE
can and should also take into account considerations beyond those
immediate to the protagonists in the litigation. The decision
in
Ndlovu
that PIE has a wider application than just to the
occupation of property by ‘squatters’ or ‘informal settlers’,
a phenomenon
generally associated with the process of rapid
urbanisation, which has, and will for some time yet, continue to be
one of the most
significant manifestations of social change in South
Africa, does not mean, in my view, that the practical effect of PIE
will be
the same for a landless migrant to the city who unlawfully
occupies vacant land as it will be for a tenant who holds over, or a
mortgagor who refuses to vacate when the property is sold after
there has been a default on loan repayments
6
.
Courts will needs be sensitive to the social and economic
repercussions of the exercise of the important responsibility given
to them by the Act to regulate property rights. In other words, the
determination of what is just and equitable in the circumstances
will often entail the court in contextualising the immediate
circumstances of the case in the national social and economic
macrocosm.
In a case like the present, this means that cognisance
must be taken of the need for institutional lenders to be reasonably
assured
that their security is effective. The consequences of not
doing so would impact negatively on the provision of housing finance
and would retard rather than encourage the achievement of access
to
adequate housing for all in terms of s 26 of the Constitution.
The nature of the discretionary power invested in the courts by s 4
of PIE is, however, of the wide type described in, amongst
others,
Knox D'Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A)
at 360D-362G and the cases cited there; and
Hix
Networking Technologies v System Publishers (Pty) Ltd and Another
[1996] ZASCA 107
;
1997 (1) SA 391
(A)
at 402B-C. Accordingly, a judge or
magistrate determining eviction proceedings instituted in terms of
the provisions does not have
as free a hand to act as he or she
might do were the nature of the judicial discretion of the strict or
narrow character which
applies in matters like sentencing in
criminal cases or the determination of general damages in
compensation cases. See
Ndlovu
at paragraph [18].
It was argued by the applicant’s counsel that the bank’s claim
fell to be determined within the effect of the exception provided
in
terms of s 4 (7) of PIE where ‘land is sold in a sale of execution
pursuant to a mortgage’.
The majority in
Ndlovu
were of the view that in the
case of an eviction pursuant to a sale in execution pursuant to a
mortgage when the unlawful occupation
had subsisted for more than
six months, the court would not have to have regard to the rights
and needs of the elderly, children,
disabled persons and households
headed by women. The result of this construction, when contrasted
with the plain meaning of s 4(6),
was found to give rise to an
‘inexplicable anomaly’. See paragraph [10] of the judgment.
Whether or not the observations concerning the apparently anomalous
incidences of ss 4(6) and 4(7) in the context of the reasoning
at
paragraphs [7]-[11] of the judgment in
Ndlovu
were
obiter
and, if so, whether the anomalous result identified there could be
avoided if the exception in respect of the mortgage-related
sales in
execution in s 4(7) were limited in application to the import of the
words between the first and the second ‘including’
in the
phrase:
‘
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.
’
are
questions which, because of the view I take of the facts in this
case, it is unnecessary to decide.
As pointed out earlier, the sale of the property in this matter
occurred in terms of
s 83(8)
of the
Insolvency Act. Although
the
sale occurred pursuant to the provisions of a mortgage contract, it
was not, in my view, a ‘sale in execution’ either in
the
ordinary sense of the expression, which denotes a realisation of
property in execution of a judgment, or within the meaning
of ‘sale
of
execution’ in
s 4(7) of the Act. As the property was
sold by the mortgagee privately, exercising the rights reserved to
it in terms of the
Insolvency Act, the
full range of relevant
circumstances, including the ‘rights and needs’ of the unlawful
occupier’s household fell to be considered
in determining whether
it would be just and equitable to grant an eviction.
The expression ‘rights and needs’ seems to me to be intended to
be of wide import. It is not amenable to precise definition
and
lends itself to significant flexibility. It cannot mean the
evictees’ ‘right’ to occupy the property. The notion that
the
intended evictees are ‘unlawful occupiers’ is inconsistent with
the existence of any such right. The unlawful occupiers’
‘rights’
for the purposes that would generally be relevant would include the
right to human dignity, the right not to be treated
in a cruel,
inhumane or degrading way, the constitutional rights of children and
the availability of alternative accommodation
within the context of
the State’s obligation to provide access to it. The ‘needs’
would be the considerations which would
have to be satisfied to give
substance to the rights.
The enquiry, at least insofar as it takes into consideration the
effect of an eviction on the person sought to be evicted, will
be
influenced particularly by the consideration of the effect on that
person’s basic rights, including that person’s constitutional
socio-economic rights.
Any court applying
ss 4(6)
or
4
(7) of PIE is confronted by the
question of just how to go about determining what is just and
equitable in a context where while
it is clear that the landowner’s
common law rights have been displaced by the legislation, the Act
fails to describe the extent
of the displacement. The inherent
uncertainty has resulted in a tendency by courts to take the common
law rights of an owner as
the point of departure. This has given
rise to criticism that the courts have often failed to be as
sensitively attuned as the
spirit of the Constitution enjoins to the
far-reaching reforming effects on the approach to ownership rights
in s 26(3) of the
Constitution read with legislation such as PIE and
Extension of Security of Tenure Act, No. 62 of 1997
7
.
Some judgments have been criticised as evincing too much of a
‘business as usual’ approach, according inadequate recognition
to the extent to which the common law has been amended by the
statute.
The basis for the criticism that the tendency has been to take the
owner’s rights as the point of departure arises in the main,
I
think, because there is often no or inadequate evidence before the
courts in these matters concerning matters affecting the justness
and equity of the evictions insofar as the intended evictee is
concerned. That the owner’s right should be given effect to if
there is no or insufficient evidence in support of the existence and
substance of any relevant competing right is only logical.
The
central issue in opposed eviction proceedings under PIE is after all
whether and to what extent the exercise of the owner’s
right
should be suspended or delayed. PIE does not in any way, nor could
it constitutionally, negate the owner’s right. The criticism
is
also to some extent coloured by what I consider to be a misdirected
perception of the
object of the legislation. The insinuation that PIE is redistributive
in nature characterises some of the academic criticism levied
at
judgments in which PIE has been implemented
8
.
The suggestion is premised on a reading of the statute which its
wording and constitutional context do not support. However, the
proper implementation of the Act has not been assisted by the poor
draftsmanship that went into its making
9
.
The legislation is plainly regulatory
10
in effect. It does not afford a mechanism to divest an owner of his
or her property. It does, however, afford a basis upon which
the
judiciary can and must regulate the exercise of the relevant
proprietary right to possession by the owner of his or her property
against an unlawful occupier, to whom the property has become home,
in a manner as far as practically achievable consistently with
the
Bill of Rights and the founding principles of the Constitution.
The use, in s 4(7), of the expression ‘including’ with reference
to various stipulated circumstances relevant in the context
of the
particular case points to factors to be weighed in favour of the
intended evictee, but in no manner excludes reference to
the at
least equally relevant factor of the owner’s right to its property
and indeed any other circumstances pertinent to the
owner’s need
to obtain possession of its own property. Any opinion as to what is
just and equitable in the given circumstances
must in a balanced
even-handed way take into account the rights and needs of both
sides. The owner or ‘person in charge of land’
(as defined in s
1 of PIE) is therefore entitled to equal consideration. The object
is that any eviction from residential property
must occur in a fair
manner appropriately regulated according to the circumstances
11
.
Striking a balance when determining what is just and equitable in
terms of ss 4(6) or (7) of PIE cannot be done without due
recognition
of the owner’s common law and constitutional rights as
well. The constitutional rights attendant on property ownership are
enshrined
in s 25 of the Constitution, but, depending on the
particular case, other basic rights of an owner might also be
relevant
12
.
Any contention that PIE has a redistributive goal or emphasis puts
little or nothing into the owner’s side of the scales and
stacks
the weights heavily in favour of unlawful occupiers giving an
unbalanced result at odds with the very notion of the exercise
of
the judicial discretion required by the statute’s substantive
provisions. The argument of the bank’s counsel on the other
hand
put virtually everything on the bank’s side of the scale and
nothing of substance on that of the occupier.
I suppose that the misdirected extremes in the dichotomous
conceptual approaches to the proper construction of the statute just
discussed go to illustrate the tensions inevitably involved in
dealing with the conflicting needs and interests which the
legislation
seeks to address.
In order to be able to undertake the exercise of determining what
might be just and equitable in a given case, the court requires
evidence of the relevant circumstances. In
Ndlovu
, the
Supreme Court of Appeal held that the evidential onus of
demonstrating the existence of circumstances meriting the limitation
of the owner’s right to possession was on the unlawful occupier
13
.
In the
absence of such evidence the owner is entitled in principle to an
order for eviction. The Appeal Court found it unnecessary to
determine
where the ‘ultimate onus’ of proof lay.
Having regard to what is entailed in any determination of what is
just and equitable, as discussed above, I consider that it is
inappropriate to fix an ultimate onus of proof on either side. The
court’s decision falls to be made on the basis of all the
relevant
facts and considerations available to it.
As previously indicated, I consider that the courts will often have
to contextualise the evidence with reference to their own perception
of the wider social and economic landscape. I find it impossible to
reconcile the requirements of ss 4(6)-(8) of PIE with the notion
of
a measure of proof in any empirical sense; rather they enjoin a
decision to be arrived at by the application of principled
14
,
intuitive justice. The duty imposed on the court by the provisions
implies that making a decision from the perspective of
characterising
the proceedings as purely adversarial in the ordinary
sense would be inappropriate. The concept of an ultimate onus
implies that
proof of particular facts will have the corollary of
identifiable and predictable legal consequences; cf.
During N.O.
v Boesak and Another
[1990] ZASCA 51
;
1990 (3) SA 661
(A)
at 672H-I and
Woerman
and Schutte NNO v Masondo and Others
2002 (1) SA 811
(SCA)
at
para [17]. That is why the incidence of onus in the true sense is a
matter of substantive law. The incidence of the onus is
obviously
pertinent when the existence of a legal right is in contention. The
operation of s 4 of PIE, however, contemplates that
the protagonists
both have established rights which conflict with each other in a
context where the operation of law provides no
solution. That is the
reason why the legislature has had to allow for the courts to afford
an equitable remedy to address the conflict.
This is the
quintessence of the substantive reforming effect of the statute.
The procedural burdens placed on a property owner seeking an
eviction order in terms of PIE include the need to serve notice of
the proceedings on the relevant municipality. The contextual link
between PIE and s 26 of the Constitution is the apparent basis
for
this procedural provision. Municipalities are the organs of
government which, with financial and other support from the national
and provincial spheres of government, fulfil the primary role of
discharging the constitutional duty on the State in terms of s
26(2)
of the Constitution to achieve the progressive realisation of the
right to access to adequate housing. Cf.
Ridgway v Janse van
Rensberg
2002 (4) SA 186
(C)
at 191C-I
15
.
But I think the object of the notice to be given to the municipality
goes wider than that. Municipalities are also the manifestation
of
the State governmentally responsible for a number of other functions
pertaining to socio-economic constitutional rights;
cf. s
25(5)-(8) (identification and provision of land for settlement and
the taking of measures to achieve land, water and related
reform to
redress the results of past racial discrimination) and s 27 and s 28
of the Constitution (access to basic healthcare,
food, water and
social services for adults and children).
In this matter service of a notice in terms of s 4(2) of PIE was
duly served on the municipality. The municipality, however,
submitted
no report or comment to the court. I understand that this
is the norm. In my view the failure by municipalities to discharge
the
role implicitly envisaged for them by the statute; that is to
report to the court in respect of any of the factors affecting land
and
accommodation availability and the basic health and amenities
consequences of an eviction on the occupiers, especially the most
vulnerable
such as children, the disabled and the elderly, not only
renders the service of the notice a superfluous and unnecessarily
costly
exercise for the applicants, but, more importantly, it
frustrates an important object of the legislation. It will often
hamper the
court’s ability to make decisions which are truly just
and equitable.
The provision of a report to the court is a function regularly
discharged by a variety of state departments in the context of

proceedings in terms of various statutes. One thinks of the reports
routinely filed for the assistance and guidance of the courts
by
officials such as the Registrar of Deeds, the Master and the
Registrar of Companies. In my view, if PIE is to be properly
implemented
and administered, reports by municipalities in the
context of eviction proceedings instituted in terms of the statute
should be
the norm and not the exception.
In the present matter I gave consideration to directing that the
municipality furnish a report. I decided that on the peculiar
facts
of the case the further delay and added costs in which such a course
would result was not justified.
On the facts, which were common cause, I concluded that the
respondents do not qualify for any special consideration in justice
and equity entitling them and their dependants to remain in
occupation of the property against the owner’s right to
possession.
In arriving at that conclusion the following factors weighed with
me.
The respondents’ occupation of the property was a consequence of a
mortgage loan contract with the applicant, which had afforded
them
the financial means to acquire possession of the property.
Interference with the effectiveness of the bank’s security in
cases like this could have far reaching adverse consequences in the
housing market inimical to the realisation of the object of
the
progressive provision of access to housing by the broader community.
The first respondent is a relatively sophisticated and economically
active member of the community who was able to provide independently
for the needs of his family and dependants, within the limits of his
income. He is a small-scale entrepreneur who has established
a
successful business. The first respondent had in fact offered to pay
rent to the applicant. With adequate notice to make arrangements
to
move to alternative accommodation, there is no reason to believe he
will not be able to continue to provide adequately for his
and his
dependants’ basic needs.
The respondents had been aware for over a year of the bank’s
intention to evict them and accordingly they had already had a

considerable period, during which they have occupied the property
without any recompense to the owner, to prepare to vacate the
property. Accordingly, in terms of ss 4 (8) and (9) of the Act, I
considered that a period of approximately 6 weeks’ notice to
vacate the property before an eviction order could be executed was
just and equitable in the circumstances.
I should mention that the first respondent applied orally at the
hearing for a postponement in order to obtain legal representation.
The respondents had applied for legal aid, but their application had
been declined. The respondents wanted time to raise finance
to pay
for privately funded legal representation. The first respondent was
quite articulate and was able to address the court intelligently
and
cogently on the relevant facts and considerations. I was unpersuaded
that sufficient reason for a postponement had been shown.
For the reasons given, I made the following orders:
The respondents’ application for a postponement of the application
is refused.
Subject to the provisions of paragraph 3 hereof, an order is granted
for the eviction of first and second respondents and all persons
occupying under them from erf 3523, Westfleur, also known as 3
Wielewaal Crescent, Robinvale, Atlantis.
No warrant for the enforcement of the order granted in terms of
paragraph 2 hereof shall issue before 1 October 2003.
There shall be no order as to costs.
A.G. BINNS-WARD
1
It
has been suggested that it is no longer competent to claim eviction
‘of all who occupy by, through, or under the unlawful occupier’;
see Tarica ‘PIE and its application to defaulting tenants and
mortgagors’, De Rebus, March 2003, at p.18. In the present case
there is no suggestion that the property is occupied by any persons
other than the respondents and their dependants (cf. s 4(9)
of PIE)
and accordingly, I have not found it necessary to consider the
validity of the argument.
2
The
learned judges who wrote the minority judgments expressed no
contrary view.
3
See
also the following statement in the preamble to PIE: ‘WHEREAS no
one may be deprived of property except in terms of law of
general
application and no law may permit arbitrary deprivation of
property.’ PIE is of course a law of general application,
but it
is important not to overlook the distinction between depriving and
expropriation in s 25 of the Constitution.
4
In
Ndlovu
,
supra, at para [17] the effect of PIE is described as being ‘to
delay or suspend the exercise of the landowner's full proprietary
rights’ until it is just and equitable to grant an eviction order.
Cf. also the orders made in Port Elizabeth Municipality v
Peoples
Dialogue on Land and Shelter and Others
2000 (2) SA 1074
(SEC), at
1087G-I (the orders were set aside on appeal in a judgment of the
Full Bench, reported under the same name at
2001 (4) SA 759
(E), on
the basis of a finding that the judge of first instance had
misdirectedly elevated the availability of alternative housing
to a
precondition for an eviction in terms of the Act).
5
It
also seems to me that the remarks made by Olivier JA at paragraphs
[86] and [87] of his minority judgment in
Brisley
in respect of the effect of s 26(3) of the Constitution undoubtedly
apply in respect in the context of subsections 4(6) and 4(7)
of PIE,
subject of course to the wording of the provisions, including the
distinction between unlawful occupiers with less than
six month’s
occupancy and those with more and the exception in respect of sales
in execution in mortgage cases.
6
A
municipality seeking to evict land invaders from vacant land owned
by it could well find that its ownership rights are treated
with
less deference than those of a private landowner because of the duty
on government, effectively through local government,
to provide
access to housing and to have in place effective programmes to
discharge that duty. Cf. The City of Cape Town v Rudolph
and Others,
supra; Government of the Republic of South Africa and Others v
Grootboom and Others
2001 (1) SA 46
(CC
)
and A.J. van der Walt, ‘Exclusivity of Ownership, Security of
Tenure and Eviction Orders: A Critical Evaluation of Recent Case
Law
(2002) SAJHR 372
, at 397
7
For
a thought provoking overview, see A.J. van der Walt, ‘Exclusivity
of Ownership, Security of Tenure and Eviction Orders: A
Critical
Evaluation of Recent Case Law
(2002) SAJHR 372
and the other
literature there referred to
8
The
‘burgeoning literature’ in which the jurisprudential philosophy
which supports this view was alluded to in a different context
by
Davis J in Oudekraal Estates (Pty) Ltd v City of Cape Town and
Others
2002 (6) SA 573
(C) at 594J-595B.
9
In
Ndlovu, supra, at para [100], the Act is described by Nienaber JA
as ‘a textual hash’.
10
Cf.
The City of Cape Town v Rudolph and Others, supra, at p.42: ‘What
PIE does is to
regulate
the
exercise
of property rights. It is similar for example to rent control
legislation and laws of a similar kind, which limit a landowner’s
exercise of his or her ownership rights, and which may compel him or
her to tolerate occupation of the land by a person whom he
or she
wishes to evict. Analogous too, are building regulations which
restrict or limit the development of immovable property...’
11
See
the preamble to PIE, which includes the following statement: ‘AND
WHEREAS it is desirable that the law should regulate the
eviction of
unlawful occupiers from land in a fair manner, while recognising the
right of land owners to apply to a court for an
eviction order in
appropriate circumstances.’
12
For
example, the owner might need possession of the property to provide
adequate housing for himself or his dependants, or to provide
an
income to provide for his livelihood and the maintenance of his
dependants.
13
See
Ndlovu, supra, at para [19].
14
Cf.
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at para
[17]
; Mistry v
Interim Medical and Dental Council of South Africa and Others
1998
(4) SA 1127
(CC) at para [3].
15
In
Ridgway
,
it was held that the provision for service of a notice in terms of s
4(2) of PIE on the municipality is only directory in cases
where an
eviction in terms of s 4(7) of PIE is applied for pursuant to a sale
in execution by a mortgagee. The correctness of
this aspect of the
judgment must, with respect, be doubted in the context of the
decision of the judgement in Cape Killarney Property
Investments
(Pty) Ltd v Mahamba and Others
2001 (4) SA 1222
(SCA) at paragraphs
[11]-[20].