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[2002] ZASCA 87
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Ndlovu v Ngcobo, Bekker and Another v Jika (1) (240/2001, 136/2002) [2002] ZASCA 87; [2002] 4 All SA 384 (SCA); 2003 (1) SA 113 (SCA) (30 August 2002)

Reportable
Case No 240/2001
Case No 136/2002
I
n
the matter between:
1. PETER
NDLOVU Appellant
and
MPIKA
LAWRENCE NGCOBO Respondent
2.
CHARLES ALFRED BEKKER and
MICHAEL JOHN BOSCH Appellants
and
JIMMY-RODGERS B JIKA Respondent
Coram: NIENABER, HARMS, OLIVIER, MPATI and MTHIYANE JJA
Heard: 23 MAY 2002
Delivered: 30 AUGUST 2002
Subject: The Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998: its application to holding-over
by
ex-tenants and ex-mortgagors.
JUDGMENT
HARMS
JA:
[1] The Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (herein
called ‘PIE’) gives
‘unlawful occupiers’ some
procedural and substantive protection against eviction from land.
The question that arises
is whether ‘unlawful occupiers’
are only those who unlawfully took possession of land (commonly
referred to as squatters)
or whether it includes persons who once had
lawful possession but whose possession subsequently became unlawful.
In the
Ndlovu
appeal the tenant’s lease was terminated
lawfully but he refused to vacate the property. In the
Bekker
appeal a mortgage bond had been called up; the property was sold in
execution and transferred to the appellants; and the erstwhile
owner
refused to vacate. In neither case did the applicants for eviction
comply with the procedural requirements of PIE and the
single issue
on appeal is whether they were obliged to do so.
[2] The
Ndlovu
matter
originated in a magistrate’s court; the Magistrate held that
PIE did not apply to the circumstances of the case.
The appeal to
the Natal Provincial Division (per Galgut J, Combrinck J and
Aboobaker AJ concurring) was dismissed as was the application
for
leave to appeal. This Court granted the necessary leave. The
Bekker
case began as an application for eviction in the Eastern Cape.
Plasket AJ
mero motu
raised the question of non-compliance
with PIE and subsequently dismissed the application. The judgment is
reported:
[2001] 4 All SA 573
(SE). The appeal to the Full Court
(Somyalo JP, Jennett and Leach JJ) was dismissed, each member
delivering a separate judgment.
These have also been reported:
2002
(4) SA 508
(E). This Court granted special leave to appeal. In view
of the fact that there was no appearance for the respondents and
since
both appellants were to argue the same issue from different
perspectives, the appeals were heard concurrently.
[3] PIE has its roots,
inter alia
, in s 26(3) of the Bill of
Rights, which provides that ‘no one may be evicted from their
home without an order of court made
after consideration of all the
relevant circumstances’.
Cape Killarney Property Investment
(Pty) Ltd v Mahamba
2001 (4) SA 1222
(SCA) 1229E. It invests in
the courts the right and duty to make the order, which, in the
circumstances of the case, would be
just and equitable and it
prescribes some circumstances that have to be taken into account in
determining the terms of the eviction.
[4] PIE defines an ‘unlawful occupier’ in s 1 to mean –
‘
a person who
occupies
land
without the express or tacit consent of the owner or person in
charge, or without any other right in law to occupy such land,

excluding a person who is an occupier in terms of the
Extension of
Security of Tenure Act, 1997
, and excluding a person whose informal
right to land, but for the provisions of this Act, would be protected
by the provisions
of the Interim Protection of Informal Land Rights
Act, 1996 (Act No. 31 of 1996).’
(Underlining added.)
[5] When the applications for eviction were launched the consent of
the owner in the case of
Ndlovu
had lapsed and in the case of
Bekker
the occupier, who originally held
qua
owner,
never had the consent of the present owner. Both are cases of
holding over. The quoted definition is couched in the present
tense.
Consequently, at the time of the launch of the applications to
evict, both these occupiers – according to the ordinary
meaning
of the provision – were ‘unlawful occupiers’
because they occupied the land without consent. By the
very nature
of things the definition had to be in the present tense because the
question of eviction cannot arise in relation to
someone who, at the
time of the application, is a lawful occupier albeit that he had
formerly been in unlawful possession. In
other words, someone who
took occupation without the necessary consent but afterwards obtained
consent cannot be an unlawful occupier
for the purposes of eviction.
To exclude persons who hold over from the definition would require
more than a mere change in tense
and one would have to amend the
definition to apply to ‘a person who
occupied and still
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’.
[6] The first question is whether there are indicators in PIE as a
whole that can justify such an emendation. Mr Kuper, for the

landlords, did not suggest that there were any. Mr Trengove, who
argued the case of the occupiers, submitted that everything in
PIE in
fact points in the opposite direction. First, he sought support for
the ordinary meaning in the fact that occupiers protected
by the
Extension of Security of Tenure 62 of 1997 (‘ESTA’) are
by the quoted definition expressly excluded from the
provisions of
PIE. ESTA protects persons who, at some stage or another, had
consent or some other right to occupy (basically)
agricultural land.
It would not have been necessary to exclude that class from PIE, he
submitted, if PIE did not protect persons
whose occupation, at a
prior stage, had been lawful. The argument has some force but is not
conclusive because persons protected
by the provisions of the
Interim
Protection of Informal Land Rights Act 31 of 1996
are also excluded
from PIE’s protection. Those persons do not appear to be
otherwise covered by the definition in PIE and
their exclusion from
PIE appears to be unnecessary and meaningless.
[7] Another pointer suggested by Mr Trengove is
s 6(1)
of PIE, a
provision heavily relied upon by the Full Court in the
Bekker
case.
Section 6(1)
gives organs of state legal standing to apply for
the eviction of unlawful occupiers from land belonging to others. It
has an
exception, underlined in the quote that follows:
‘
An organ of state may institute proceedings for
the eviction of an unlawful occupier from land which falls within its
area of jurisdiction,
except where the
unlawful occupier is a mortgagor and the land in question is sold in
a sale of execution pursuant to a mortgage
,
and the court may grant such an order if it is just and equitable to
do so, after considering all the relevant circumstances,
. . ..’
The argument is that since the Legislator regards a mortgagor as an
unlawful occupier, it has to follow that the definition cannot
be
restricted to persons who took occupation unlawfully.
[8] The problem is that, on a literal interpretation, the phrase
makes no sense at all. By the very nature of things a mortgagor,

being an owner, cannot be an unlawful occupier; only once the
property has been sold in execution and transferred to a purchaser

can the possession of the erstwhile mortgagor/owner become unlawful.
Another problem is that the purpose of the exception is not
at all
discernible. One can surmise that it was inserted during the bill’s
passage through Parliament as the result of some
lobbying by banks
and the like who wished to ensure that their security would not be
eroded by PIE. To call a mortgagor an ‘unlawful
occupier’
is not only incongruous but also absurd and it follows that the use
of the term in
s 6(1)
cannot be used to interpret the definition.
Cf
Hoban v Absa Bank Ltd t/a United Bank and Others
1999 (2) SA 1036
(SCA) par 19.
[9] Somyalo JP and Jennett J, in their respective judgments in
Bekker
, relied upon
s 4(7)
for support for the proposition
that the Legislature included mortgagors within the definition of
‘unlawful occupiers’.
It provides (with added
underlining):
‘
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.’
Neither counsel embraced the argument. The words underlined mean
that, if land is sold in a sale of execution, the court, in
determining the relevant circumstances, does not take into account
the factors listed after the exception. It has nothing to do
with
the question of holding over by a mortgagor.
[10] The phrase nevertheless gives rise to an inexplicable anomaly.
PIE distinguishes between unlawful occupiers who have occupied
for
less than six months
(s 4(6))
and those who have occupied for more
than six months
(s 4(7)).
The former have less rights than the
latter in the sense that the court is not mandated to consider in
their case whether land
has been made available or can reasonably be
made available for their relocation (a consideration that can be
traced to the Prevention
of Illegal Squatting Act 52 of 1951 (herein
referred to as ‘PISA’):
Kayamandi Town Committee v
Mkhwaso and Others
1991 (2) SA 630
(C)). However, in the event
of a sale in execution of the bonded property, those with less than
six months’ occupation receive
more protection because the
court has to have regard to the rights and needs of the elderly,
children, disabled persons and households
headed by women (s 4(6)),
something it need not take into account in the case of s 4(7).
[11] Since the factors discussed are essentially neutral, one is left
with the ordinary meaning of the definition which means that

(textually) PIE applies to all unlawful occupiers, irrespective of
whether their possession was at an earlier stage lawful. Mr
Kuper,
as did other courts, relied on external factors that would indicate
that Parliament could not have intended to cast the
net so wide, and
I proceed to consider them.
[12] It is apparent from the long title that PIE has some roots in
PISA. PISA had its origin in the universal social phenomenon
of
urbanisation. Everywhere the landless poor flocked to urban areas in
search of a better life. This population shift was a
threat to the
policy of racial segregation. PISA was to prevent and control
illegal squatting on public or private land by criminalizing

squatting and by providing for a simplified eviction process. PIE,
on the other hand, not only repealed PISA but in a sense also

inverted it: squatting was decriminalized (subject to the Trespass
Act 6 of 1959) and the eviction process was made subject to
a number
of onerous requirements, some necessary to comply with certain
demands of the Bill of Rights, especially s 26(3) (housing)
and s 34
(access to courts).
[13] The first reported judgment on the present issue is
Absa Bank
Ltd v Amod
[1999] 2 All SA 423
(W) (per Schwarzman J). It held
that PIE did not apply to cases of holding over. The learned Judge
referred to the history of
PIE and its relationship to PISA. PISA,
he said, was limited to squatters
strictu sensu
; the intention
of PIE was to invert PISA; PIE was consequently likewise limited;
since PISA did not extend to persons whose lawful
occupation became
unlawful, the same limitation ought to apply to PIE. This reasoning
found favour with the Full Court in
Ellis v Viljoen
2001 (4)
SA 795
(C) 800-801 and the Court
a quo
in the
Ndlovu
appeal.
[14] This reasoning is based upon a misreading of PISA. PISA did not
only deal with persons (irrespective of race) who unlawfully
took
possession of land but it also dealt with persons (irrespective of
race) whose possession was lawful but became unlawful (s
1(a)).
Holding over was a crime and eviction could have been effected
without due process of law.
R v Zulu
1959 (1) SA 263
(A).
[15] Schwartzman J raised another point. He found it difficult to
accept that PIE could be interpreted as turning common law principles

on their head, for instance, by granting a tenant a ‘right’
of holding over. He postulated the example of the affluent
tenant
who rents a luxury home for a limited period. Such a person should
not be entitled to the protection of PIE. Mr Trengove,
on the other
hand, postulated other cases: the tenant of a shack in a township who
loses his work or falls ill and cannot afford
to pay rent or the
tenant in a township whose tenancy is terminated by virtue of some
township regulation and has nowhere else
to go. He asked
rhetorically why these persons should be in a worse position than
those whose initial occupancy was illegal.
[16] There is clearly a substantial class of persons whose
vulnerability may well have been a concern of Parliament, especially

if the intention was to invert PISA. It would appear that
Schwartzman J overlooked the poor, who will always be with us, and
that he failed to remind himself of the fact that the Constitution
enjoins courts, when interpreting any legislation, to promote
the
spirit, purport and objects of the Bill of Rights, in this case s
26(3). The Bill of Rights and social or remedial legislation
often
confer benefits on persons for whom they are not primarily intended.
The law of unintended consequences sometimes takes
its toll. There
seems to be no reason in the general social and historical context of
this country why the Legislature would have
wished not to afford this
vulnerable class the protection of PIE. Some may deem it unfortunate
that the Legislature, somewhat
imperceptibly and indirectly, disposed
of common law rights in promoting social rights. Others will point
out that social rights
do tend to impinge or impact upon common law
rights, sometimes dramatically.
[17] The landlord’s problem with the affluent tenant is not as
oppresive as it seems at first. The latter will obviously
be
entitled to the somewhat cumbersome procedural advantages of PIE to
the annoyance of the landlord. If the landlord with due
haste
proceeds to apply for eviction the provisions of s 4(6) would apply:
‘
If an unlawful occupier has
occupied the land in question for less 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 the
rights and needs of the elderly, children, disabled persons and
households headed by women.’
If the landlord is a bit slower, s 4(7) would apply, but one may
safely assume that the imagined affluent person would not wish
to be
relocated to vacant land possessed by a local authority and that this
added consideration would not be apposite. The period
of the
occupation is calculated from the date the occupation becomes
unlawful. The prescribed circumstances, namely the rights
and needs
of the elderly, children, disabled persons and households headed by
women, will not arise. What relevant circumstances
would there
otherwise be save that the applicant is the owner, that the lease has
come to an end and that the tenant is holding
over? The effect of
PIE is not to expropriate the landowner and PIE cannot be used to
expropriate someone indirectly and the landowner
retains the
protection of section 25 of the Bill of Rights. What PIE does is to
delay or suspend the exercise of the landowner’s
full
proprietary rights until a determination has been made whether it is
just and equitable to evict the unlawful occupier and
under what
conditions. Simply put, that is what the procedural safeguards
provided for in s 4 envisage.
[18] The court, in determining whether or not to grant an order or in
determining the date on which the property has to be vacated
(s
4(8)), has to exercise a discretion based upon what is just and
equitable. The discretion is one in the wide and not the narrow

sense (
cf Media Workers Association of South Africa and Others v
Press Corporation of South Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992 (4) SA 791
(A) 800,
Knox D’Arcy Ltd and Others v
Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) 360G-362G). A court of
first instance, consequently, does not have a free hand to do
whatever it wishes to do and a court
of appeal is not hamstrung by
the traditional grounds of whether the court exercised its discretion
capriciously or upon a wrong
principle, or that it did not bring its
unbiased judgment to bear on the question, or that it acted without
substantial reasons
(
Ex parte Neethling and Others
1951 (4) SA
331
(A) 335E,
Administrators, Estate Richards v Nichol and Another
[1998] ZASCA 82
;
1999 (1) SA 551
(SCA) 561C-F).
[19] Another material consideration is that of the evidential onus.
Provided the procedural requirements have been met, the owner
is
entitled to approach the court on the basis of ownership and the
respondent’s unlawful occupation. Unless the occupier
opposes
and discloses circumstances relevant to the eviction order, the
owner, in principle, will be entitled to an order for eviction.

Relevant circumstances are nearly without fail facts within the
exclusive knowledge of the occupier and it cannot be expected
of an
owner to negative in advance facts not known to him and not in issue
between the parties. Whether the ultimate onus will
be on the owner
or the occupier we need not now decide.
[20] A further area of concern is the lease of commercial properties.
Does it fall within the purview of PIE?
Prima facie
the
answer would be in the affirmative because of the definition of
‘building or structure’ which –
‘
includes
any hut,
shack, tent or similar structure or any other form of temporary or
permanent dwelling or shelter.’
The word ‘includes’ is as a general rule a term of
extension. It may, however, depending upon the circumstances, be
one
of exhaustive definition and synonymous with ‘comprise’.
R v Debele
1956 (4) SA 570
(A) 575. In this instance, having
regard to the history of the enactment with, as already pointed out,
its roots in s 26(3) of
the Constitution which is concerned with
rights to one’s home, the preamble to PIE which emphasises the
right to one’s
home and the interests of vulnerable persons,
the buildings listed and the fact that one is ultimately concerned
with ‘any
other form of temporary or permanent dwelling or
shelter’, the ineluctable conclusion is that, subject to the
eiusdem generis
-rule, the term was used exhaustively. It
follows that buildings or structures that do not perform the function
of a form of dwelling
or shelter for humans do not fall under PIE and
since juristic persons do not have dwellings, their unlawful
possession is similarly
not protected by PIE.
[21] Another factor relied upon by Mr
Kuper in support of the proposition that PIE was not intended to deal
with holding over cases,
is the legislative landscape surrounding
PIE. He listed three statutes. There are probably more. ESTA is an
enactment geared
to deal with the eviction of a particular class of
persons whose lawful occupation has been terminated. It contains
detailed procedures
that flow from the fact that consent to
occupation was terminated. Similar procedures are not to be found in
PIE. Then there
is the
Rental Housing Act 50 of 1999
. Its preamble
is in many respects strikingly similar to that of PIE; it purports to
protect a landlord’s right to apply
for the eviction of a
tenant at the conclusion of the tenancy
(s 4(5)(d))
; and it even
anticipates regulations regulating evictions
(s 15(1)(f)(v)).
Last,
the Land Reform (Labour Tenants) Act 3 of 1996 regulates the eviction
of labour tenants. These acts and PIE, he submitted,
formed a
mosaic. Each was intended to protect a different class of occupier.
The rights of tenants who hold over have to be found
exclusively
within the parameters of the
Rental Housing Act and
not in PIE.
[22] The answers to the submission are manifold. The submission
skirts around the issue of interpretation of PIE and does not

confront it directly. It assumes that these pieces of legislation
form, by design or chance, a mosaic and it discounts the possibility

that they are but pieces of an incomplete jigsaw puzzle. It relies
on a later act (the
Rental Housing Act) to
interpret an earlier
enactment (PIE). It assumes that Parliament does not pass
overlapping acts. If one examines these laws even
cursorily it is
obvious that they were not intended to form a mosaic in the sense
suggested by counsel: they deal with related
matters in often
completely different ways and there are at the same time overlapping
and uncovered areas. It follows that this
argument must also fail.
[23] The conclusion is that it cannot be discounted that Parliament,
as it said, intended to extend the protection of PIE to cases
of
holding over of dwellings and the like. In the result the
Ndlovu
appeal must succeed and the
Bekker
appeal must fail. This
does not imply that the owners concerned would not be entitled to
apply for and obtain eviction orders.
It only means that the
procedures of PIE have to be followed. No costs will be ordered
since neither counsel asked for costs
and because the respondents
were not represented.
[24] The order in NDLOVU v NGCOBO (appeal no 240/2001) is that –
the appeal is upheld;
the order of the Court a quo is set aside and replaced with an order
upholding the appeal from the Magistrates’ Court and
replacing
it with an order of absolution from the instance with costs.
[25] The order in BEKKER and BOSCH v JIKA (appeal 136/2002) is that
– the appeal is dismissed.
____________________
L T C HARMS
JUDGE OF APPEAL
Agree:
MPATI
JA
MTHIYANE
JA
NIENABER JA
/
NIENABER JA
:
[1] I have had the benefit, after
listening to argument of quality from counsel on both sides, of
reading the judgments prepared
by my brothers Harms JA and Olivier
JA respectively. There is, if I may say so with respect, much to be
admired in both judgments.
Both deal in depth with the textual hash
that is PIE (Act 19 of 1998) and with its contiguity to other
enactments such PISA (Act
52 of 1951), ESTA (Act 62 of 1997) and the
Rental Housing Act (Act
50 of 1999), amongst others, in an effort to
discern a pattern of meaning as to its true reach. What is evident
from studying
the two judgments in conjunction with divers others
cited therein, are, first, that the provisions of PIE unquestionably
do apply
to the occupation of land by squatters properly so called
ie homeless people who settle on publicly or privately owned land
without
legal title or permission to do so; and secondly, that the
solution to the further problem posed in this case (whether the
terms
of PIE extend to a different class of persons ie those who
once were but are no longer lawful occupiers of the land) cannot
unquestionably
be abstracted from within the four corners of PIE
itself or its juxtaposition to other antecedent or contiguous pieces
of legislation.
Cogent arguments in favour of one solution, based
on particular sections of the Act, are counter-balanced by equally
cogent
arguments in favour of the other. Even so, I find myself in
broad agreement with the line of reasoning expressed in
Absa Bank
v Amod
[1999] 2 All SA 423
(W) and the cases following it and
with the points made by Olivier JA in his judgment. In addition
there are two general considerations
which in my opinion tend to
support the conclusion and the orders proposed by him.
[2] The first such consideration is
this. The occupation of land without colour of right is by
definition wrongful. It is wrongful
even when the land is vacant and
there is no imminent competition for its occupation. Squatting is
therefore wrongful. PIE does
not purport to legitimize such wrongful
occupation. But in protracting the process of eviction it created
the apparatus for
prolonging it. In that sense and to that extent
PIE condones and indeed rewards the wrongful conduct of the
squatter, if it is
to be compared to the conduct of someone, perhaps
also poor and homeless, who, out of respect for the property rights
of another,
refrains from taking the land and the law into his own
hands. The legislature, if it applied its parliamentary mind to this
complexity
at all, would presumably have been disposed to limit
rather than expand a circumstance that would reward wrongful
conduct. The
bias should therefore be towards interpreting the
legislation to be inclusive of the category to which it is
manifestly intended
to apply and to be exclusive of all other
categories where, as in the present case, there is doubt.
[3] The second general consideration
is closely allied to the first. The occupation of land that is by
definition wrongful will
more likely than not be adverse to the
interests of the party who is rightfully entitled to it. That will
more particularly be
so where the land is privately owned. It is
implicit in the provisions of PIE that the party entitled to
occupation may be kept
out of his property for longer or shorter
periods. Occupation delayed is occupation denied. Occupation denied
can be hugely
detrimental to the party so affected. That such harm
may be considerable is demonstrated by the many instances quoted or
postulated
in the judgments dealing with this issue. In the case of
genuine squatters the provisions of the Act are designed to achieve

a reconciliation of sorts between the hardship of the one and the
harm of the other. But it by no means follows as a matter of
course,
as the discussions in the two judgments show, that these provisions
were in addition intended to assist a completely
different type of
wrongful occupier, whom I may call a ‘holder-over’, a
person who deliberately refuses to vacate
the property when his
claim or term for occupying it has terminated. The mechanisms
introduced by PIE for dispossessing recalcitrant
occupiers have made
it more difficult and time-consuming to evict them. As such it has
created the potential, if it is to apply
to ‘holders-over’,
for the latter class to exploit the procedural provisions of PIE to
keep owners and other rightful
claimants at bay for some
considerable time. Even in more deserving cases, where the equities
between rightful claimant and wrongful
occupier are more evenly
balanced (as in the much recited case of the widow who can no longer
afford her rent in circumstances
where alternative accommodation is
not readily available for her relocation), the criteria to be
applied are so vague and so
dependent on the subjective value system
and preconceptions of the judicial officer concerned that the status
quo may well be
prolonged for an extended period. A claim for
compensation in delict will often prove to be ephemeral rather than
real. Once
again it must be presumed that the legislature, being
even-handed in its approach, would have intended to contain rather
than
to extend the potential for harmful interference with
recognized rights. It is no answer to say that such harm is to be
discounted
as being one of the many relevant circumstances to be
taken into account in any event when the equities are assessed; harm
to
the rightful claimant is not a conclusive factor in itself.
Consequently, when the legislature does in principle sanction
conduct
that is admittedly wrongful and potentially harmful, even if
only for the time being, one is entitled to presume that the
provisions
of the Act were intended to be restricted to those
instances to which they incontestably apply, namely to squatters;
and not
to others.
[4] For all the above reasons I
believe that the legislature, in enacting PIE, had in mind squatters
properly so called and that
it was not preoccupied with, and never
intended to legislate for, the case of the ex-tenant, the ex-owner
or the ex-mortgagor.
I accordingly concur in the orders proposed by
Olivier JA.
…………………
P M NIENABER
JUDGE OF APPEAL
P J J OLIVIER JA
A Background
[1]
The
Prevention of
Illegal Eviction from and Unlawful Occupation of Land 19 of 1998
('PIE') regulates both procedurally and substantively the eviction
of what is referred to in PIE as 'unlawful occupiers' of land.

There are divergent judgments both in the High Court and the Land
Claims Court as to the proper interpretation of the expression

'unlawful occupiers' in PIE. Two strongly opposed interpretations
have been given to the expression. On the one hand it has
been
held that it applies only to people who
unlawfully
took occupation of land and
remain
in unlawful occupancy (
eg
informal settlers or squatters). On the other hand it has been
held that it applies also to people who
lawfully
took occupation of the land under a contractual or other right to do
so but unlawfully
remain
in occupation after their right to do so has come to an end (
eg
ex-tenants, ex-mortgagors,
ie
defaulters).
The
two appeals before us raise squarely the issue of the correct
interpretation of the said expression and consequently the
scope and
ambit of PIE.
[2]
In
the first appeal ('
Ndlovu
')
the appellant was a tenant of an urban residence by virtue of an
agreement with the respondent. The lease was lawfully terminated.

The appellant refused to vacate, praying PIE in support. He was
ordered to vacate by a magistrate. His appeal against that
order
was dismissed by the Full Bench of the Natal Provincial Division of
the High Court. With the leave of this Court, his
appeal is now
before us.
[3]
In
the second appeal ('
Bekker
and Bosch
'), now reported
in
2002 (4) SA 508
(E), the appellants are the registered owners of
urban residential property known as 52 Avondale Road, Kabega Park,
Port Elizabeth.
The respondent is the former owner of that
property. He and his family resided there. In order to secure an
indebtedness
to the First National Bank, respondent passed a
mortgage bond over the property in favour of the bank. He
allegedly failed
to honour his obligations under the bond. The
bank issued summons and obtained judgment by default on 9 February
2000. A
warrant for execution was issued on 10 February 2000.
Pursuant thereto the property was sold in execution on 23 March
2001.
On the same day, more than a year after the default judgment
was taken against him, the respondent launched an application for

rescission of the default judgment. The basis of the application
was that the bank had overcharged him in respect of interest.
The
sheriff conducting the sale was requested by the respondent to
notify the prospective purchasers of the property of his
pending
application. The appellants purchased the property at the sale in
execution and, on 22 May 2001, obtained registration
of transfer
into their names.
[4]
The
judgment, sale in execution and registration of transfer
notwithstanding, the respondent refused to vacate the property,

contending that the default judgment should be rescinded. The
appellants in the meantime had leased the property to a third
party
and, in order to provide their tenant with vacant and undisturbed
occupation, launched an application for the eviction
of the
respondent. According to their allegations, the respondent had not
taken any further steps in the application for rescission,
which was
opposed, since 26 April 2001.
[5]
When
the application for eviction was called, Plasket AJ
mero
motu
and without dealing
with the respondent's main defence relating to the rescission of the
default judgment and, presumably, of
the sale in execution, raised
the issue whether the provisions of PIE were not applicable. After
hearing argument on this issue,
the learned judge held that PIE
applied and that the appellants had not complied with its
requirements; and he dismissed the
application. (This judgment is
reported in
[2001] 4 All SA 573
(S E).)
[6]
The
appellants appealed to a Full Bench of the Eastern Cape Division of
the High Court (Somyalo JP, Jennett and Leach JJ). The
appeal was
unsuccessful. The matter came to this Court, the necessary leave
having been obtained.
[7]
The
two appeals were heard concurrently. Mr Trengove appeared for the
appellant, Ndlovu, in the first appeal; Mr Kuper for
the
appellants, Bekker and Bosch, in the second appeal. The
unrepresented parties abide the decision of this Court. We thus

had the benefit of having the position of the 'unlawful occupier'
argued from the opposing perspectives by counsel for the parties
in
the two appeals.
B The
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998
[8]
The
solution of the problems presented by the two appeals before us
depends on the interpretation and application of the provisions
of
PIE. It is necessary to relate some of the features of PIE at the
outset.
[9]
PIE
came into force on 5 June, 1998. Its long title reads as follows:
'To provide for the prohibition of
unlawful eviction; to provide for procedures for the eviction of
unlawful occupiers; and to
repeal the
Prevention
of Illegal Squatting Act, 1951
,
and other obsolete laws; and to provide for matters incidental
thereto.'
Its preamble reads:
'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;
AND WHEREAS 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;
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;
AND WHEREAS special consideration
should be given to the rights of the elderly, children, disabled
persons and particularly households
headed by women, and that it
should be recognised that the needs of those groups should be
considered; …'
[10]
The
most important provision is that of s 4 (1). It provides that
'Notwithstanding anything to the
contrary contained in any law or the common law, the provisions of
this section apply to proceedings
by an owner or person in charge of
land for the eviction of an unlawful occupier.'
[11]
Section
4 then contains both procedural and substantive provisions. The
procedural provisions are to be found in ss 4 (2),
(3), (4) and (5)
which read as follows:
'(2) At least 14 days before the
hearing of the proceedings contemplated in subsection (1), the court
must serve written and effective
notice of the proceedings on the
unlawful occupier and the municipality having jurisdiction.
(3) Subject to the provisions of
subsection (2), the procedure for the serving of notices and filing
of papers is as prescribed
by the rules of the court in question.
(4) Subject to the provisions of
subsection (2), if a court is satisfied that service cannot
conveniently or expeditiously be
effected in the manner provided in
the rules of the court, service must be effected in the manner
directed by the court: Provided
that the court must consider the
rights of the unlawful occupier to receive adequate notice and to
defend the case.
(5) The notice of proceedings
contemplated in subsection (2) must –
(a) state that the
proceedings are being instituted in terms of subsection (1) for an
order for the eviction of the unlawful
occupier;
(b) indicate on what date and at
what time the court will hear the proceedings;
(c) set out the grounds for the
proposed eviction; and
(d) state that the unlawful
occupier is entitled to appear before the court and defend the case
and, where necessary, has the
right to apply for legal aid.'
[12]
The
substantive provisions are those contained in ss 4 (6), (7) and (8):
'(6) If an unlawful occupier has
occupied the land in question for less 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 the
rights and needs of the elderly, children, disabled persons and
households headed by
women.
(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).'
[13]
From
the aforegoing provisions, it is abundantly clear that the concept
of 'unlawful occupier' is of pivotal importance. PIE
defines the
term in s 1:
' "unlawful occupier" means
a person who occupies land without the express or tacit consent of
the owner or person in
charge, or without any other right in law to
occupy such land, excluding a person who is an occupier in terms of
the
Extension of Security of Tenure Act, 1997
, and excluding a
person whose informal right to land, but for the provisions of this
Act, would be protected by the provisions
of the Interim Protection
of Informal Land Rights Act, 1996 (Act No. 31 of 1996).'
[14]
Finally,
s 2 provides that PIE applies to all land throughout the Republic,
ie
urban and rural land.
C The
term 'unlawful occupier' : the problem of its meaning
[15]
The
definition of 'unlawful occupier' in PIE appears, on a first
perusal, to be clear and unambiguous. But this appearance
is
illusionary and deceptive, and courts have struggled to fathom its
correct meaning and in the process to demarcate the purview
of PIE :
to whom is it applicable and to which categories of property?
[16]
The
problem inherent in the expression 'unlawful occupier' is that it is
latently capable of two expositions. The verb 'occupy'
can
legitimately be used in two senses,
viz
firstly 'to hold possession of … reside in; to stay, abide';
or secondly, 'to take possession of (a place) by settling
in it, or
by conquest' (see the
Shorter
Oxford Dictionary
sv
'occupy'). On the face of it, the words 'a person who occupies
land without the express or tacit consent of the owner …'

means anyone who
now
continues in occupation without the necessary consent irrespective
of whether that person originally took occupation of the land
with
or without the necessary consent. But the words can also refer to
a specific act,
viz
the taking of possession or occupation without the necessary
consent.
[17]
The
Afrikaans text of PIE is the unofficial one and arguably favours the
interpretation referring to a specific act. The term
used for
'unlawful occupier' is 'onregmatige okkupeerder', which is defined
as
' 'n persoon wat grond sonder die
uitdruklike of stilswyende toestemming van die eienaar of persoon in
beheer
beset
,
of sonder enige ander wettige reg om sodanige grond te
beset
…' (my emphasis).
Die
Woordeboek van die
Afrikaanse Taal Deel 1
(P
C Schooneess
et al
)
explains 'beset' as follows :
'beset
.
I
w.
1.
In besit neem:
Die
pioniers het hul plase beset.
2.
(
mil.
)
Van troepe, van 'n garnisoen voorsien:
'n
Vesting beset met 'n groot garnisoen.
3.
(
mil
.)
Inneem, bemeester:
Die
rante, die hoogtes beset.
4.
In beslag neem:
Al sy
aande met lesse beset.
5.
Volsit:
Die voorste ry
stoele, alle sitplekke beset.
6.
Beklee:
Hulle nakomelinge
het tot
1910
die troon beset.
7.
Belê, aanbring op:
'n
Kledingstuk met kant beset.
8.
Beplant:
'n Pad met bome
beset.
9.
Ook
besit.
Bevrug, beswanger:
Die
merrie laat haar beset;
vgl
.
besit
2
(
See
also the
Verklarende
Handwoordeboek van die Afrikaanse Taal,
(
(HAT
)
sv
beset
).
There
is thus an indication, in the Afrikaans text, that PIE was intended
to apply to the unlawful occupation of land as a positive
action, as
in the case of squatters
taking
occupation of land, and not to apply to defaulting ex-tenants and
ex-mortgagors who simply remain in unlawful occupation.
[18]
The
problem of ascertaining to which situations PIE applies is, however,
not capable of a definite and final solution by a mere
textual
interpretation of the definition itself. The answer is to be found
in broad, context-sensitive to PIE and its place
in the
constitutional and legislative framework of land tenure laws.
[19]
There
seems to be general agreement that PIE applies to the situation
where an informal settler ('a squatter') moves onto vacant
land
without any right to do so and without the consent of the landowner
or his or her agent. There are thousands, if not millions,
of such
squatters in our country. They are usually unemployed, the poorest
of the poor, and live with their families in self-erected
tin,
cardboard or wooden shacks.
[20]
But
does PIE also apply to the following situations?
[20.1]
A
widow, the head of a household, has been the lessee of a house in
Randburg, Johannesburg. The lease expires but, unable to
find any
other accommodation, she remains in the
house.
[20.2]
A
young couple buys a house in a suburb. In order to afford the
purchase price, they borrow money from a bank. The loan is
secured
by a registered mortgage bond over the property. Falling on hard
times, they fail to keep up with the bond payments.
The bank takes
judgment and the property is sold in execution. They remain in
occupation, desperately looking for other accommodation,
which they
are unable to find or afford.
[20.3]
The
owner of a holiday home in Plettenberg Bay allows a friend to use
his home, free of charge, for the winter season. Come
the summer
season, the owner wants to let the house at very profitable rates to
tenants. His friend refuses to vacate.
[20.4]
A
company owns a factory in an industrial urban area. The company
goes into liquidation. The liquidator intends to sell the

property, but the former directors simply carry on using the
machinery in the factory for their own profit.
[20.5]
A
purchaser of a house in town takes occupation but defaults in
payment of the purchase price. The
seller cancels the contract. The obstinate 'purchaser' refuses to
vacate.
[20.6]
Conversely,
a seller refuses to vacate although the purchaser has complied with
all his or her obligations.
[21]
Can
these occupiers be evicted? Leaving aside, for the moment, other
legislation that may come into play, the common law answer
would
have been clear and simple : the owner (or the liquidator, by virtue
of applicable legal provisions) can without more ado
apply to court
for an eviction order, simply alleging his or her ownership of the
property in question and stating that the property
is occupied by
someone else. This has been trite law ever since
Graham
v Ridley
1931 TPD 476.
The underlying principle and resultant procedure and
onus
of proof was succinctly encapsulated in
Chetty
v Naidoo
1974 (3) SA 13
(A) at 20A as follows:
'It may be difficult to define
dominium comprehensively … but there can be little doubt …
that one of its incidents
is the right of exclusive possession of
the
res
,
with the necessary corollary that the owner may claim his property
wherever found, from whomsoever holding it. It is inherent
in the
nature of ownership that possession of the
res
should normally be with the owner, and it follows that no other
person may withhold it from the owner unless he is vested with
some
right enforceable against the owner (e.g. a right of retention or a
contractual right). The owner, in instituting a
rei
vindicatio
, need,
therefore, do no more than allege and prove that he is the owner and
that the defendant is holding the
res
– the
onus
being on the defendant to allege and establish any right to continue
to hold against the owner.'
When the owner acknowledges (without
there being any legal obligation to do so) that the occupier has or
had a right of occupation
(for example in terms of a lease), the
owner has, in addition, to prove that the right no longer exists or
is no longer enforceable,
eg
that the lease between them has expired or been cancelled lawfully
(see
Graham v Ridley
,
supra
;
Chetty v Naidoo
,
supra
,
at 21).
[22]
But,
in those cases where PIE is
admittedly applicable
,
eg
in the case of squatters, the common law has been changed
drastically, both as to procedure and to substance. No longer is

there in such cases a simple
rei
vindicatio
procedure
available to the owner. Section 4 of PIE introduces a unique and
peremptory procedure. Section 4 (2) requires that
notice of the
eviction proceedings be given to the unlawful occupier and the
municipality having jurisdiction, at least 14 days
before the
hearing of those proceedings. The juxtaposition of this procedure
and that prescribed by the court rules is opaque,
and has already
given rise to an appeal to this Court –
vide
Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others
,
2001 (4) SA 1222
(SCA). In terms of that judgment, both the
ordinary court procedures and the procedure under PIE must be
followed. Furthermore,
it seems that a further
ex
parte
application is
necessary in order to obtain the court's directions for serving the
notice required by s 4 (2).
Be that as it may, it is clear that
if PIE is applicable the procedure for the eviction of an unlawful
occupier is cumbersome,
costly and time-consuming.
[23]
The
important impact of PIE, however, is to be found in the substantive
provisions of s 4 (6), (7) and (8). These provisions
turn the
common law on its head and they draw a thick black line through
Graham v Ridley
and
Chetty v Naidoo
as far as proceedings under PIE are concerned,
ie
if PIE is applicable. No
longer does the owner have an absolute right to evict the unwanted
and unlawful occupier. The court
is now given a
discretion
to evict or to allow the
occupier to remain in possession. The discretion is given in wide
and open terms - is it, in the
opinion of the court, 'just and
equitable' to grant an eviction order? The circumstances to be
taken into account by the court
in forming such an opinion are also
wide-ranging - all the relevant circumstances must be considered,
including the rights
of the elderly, children, disabled persons and
households headed by women. If the period of occupation exceeds
six months,
further considerations must also be taken into account,
viz
'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'.
[24]
Even
if it is accepted, as it must be, that the discretion given to the
particular judicial officer hearing the case will be
exercised
judicially, the result of the conditions and qualifications
contained in ss 4 (6), (7) and (8) may, in a particular
case, be
extremely injurious to the landowner. Suppose that s 4 (7) is
applicable and no other land can be found to accommodate
the widow
and her family. The consequence is that they must remain on the
property, obviously to the detriment of the owner
who will not be
able to use, sell or lease the property. And so examples of
hardship to the landowner can be multiplied.
[25]
It
is clear that PIE created a new perspective on the age-old conflict
of interests between the traditional rights of a landowner
and the
statutory protection of the unlawful occupier. No surprise,
therefore, that the landowners would energetically endeavour
to
avoid the application of PIE to their eviction proceedings and that
the ex-tenants holding over, ex-mortgagors and former
precarists
would with equal vigour contend for its application.
D The
previous judgments
[26]
There
has been a plethora of judgments in the Provincial Divisions of the
High Court and the Land Claims Court dealing directly
or indirectly
with the meaning of 'unlawful occupier' in PIE and consequently with
the purview of that statute. They are:
Absa Bank Ltd v Amod
[1999]
2 All SA 423
(W) ('
Amod
');
Ross v South Peninsula
Municipality
2000 (1) SA
589
(C) ('
Ross
');
Betta Eiendomme v Ekple-Epoh
2000 (4) SA 468
(W) ('
Betta
');
Port Elizabeth Municipality v
Peoples Dialogue on Land and Shelter and Others
2000
(2) SA 1074
(SE) ('
Peoples
Dialogue 1
');
Port Elizabeth Municipality v
Peoples Dialogue on Land and Shelter and Another
[2001]
1 All SA 381
(EC Full Bench) ('
Peoples
Dialogue 2
');
Sentrale Karoo Distriksraad v
Roman; v Koopman; v Krotz
2001
(1) SA 711
(LCC)
(
'
Sentrale
Karoo Distriksraad
'
);
Esterhuyze v
Khamadi
2001
(1) SA 1024
(LCC) ('
Esterhuyze
')
Ellis v
Viljoen
2001
(5) BCLR 487
(C) ('
Ellis
');
Van Zyl N.O. v Maarman
2002 (1) SA 957
(LCC) ('
Van
Zyl
');
Ridgway v Janse van Rensburg
2002
(4) SA 187
(C) ('
Ridgway
');
The judgments in the two appeals
before us.
E
Amod
[27]
The
applicant bank was the owner of a property in a residential suburb
which, together with the improvements (a house) thereon,
was worth
approximately R495 000. The respondent was in occupation of the
property. The bank sought his eviction. The respondent
alleged
that he was in occupation by virtue of an oral lease with the bank;
the bank denied the alleged agreement. The matter
was referred for
the hearing of oral evidence. Before the trial, the parties had
come to an agreement,
inter
alia
that the respondent
would vacate the property on or before 31 March 1999. They asked
the presiding judge, Schwartzman J, to
make this agreement an order
of court. The learned judge, however, was faced with an
alternative defence (which had not been
abandoned) relied upon by
the respondent, that the bank, in applying for eviction, had not
complied with the provisions of PIE.
Schwartzman J held (at 430 e -
g) that PIE cannot
' ... be reasonably interpreted or
understood to mean an Act designed to change the common law of
landlord and tenant or to affect
the common-law right of an owner of
an immovable property to recover his or her immovable property from
a person who took occupation
in terms of a contract but whose
contractual right to occupy has terminated. On my reading of the
1998 Act, it is intended
solely to regulate and control persons who
occupy what are called informal settlements. I also conclude that
the reference to
the common law in section 4 of the Act is limited
to the common law insofar as it may deal with persons who move onto
another's
land without the owner's express or tacit approval, e.g. a
trespasser, and that the provisions of the Act cannot and do not
apply
to other common-law relationships and in particular agreements
pursuant to which parties agree that land or the improvements built

thereon shall be occupied for a period of time as determined by them
in terms of their agreement.'
The defence based on the provisions
of PIE having failed, the agreement was then made an order of court.
[28]
The
reasons expressed by Schwartzman J for favouring the 'narrow'
interpretation of PIE can be summarised as follows:
[28.1]
The
learned judge (at 428 d - f), took as his point of departure certain
principles that govern the interpretation of statutes.
[28.2]
He
then stated that the laws repealed by PIE included the Prevention of
Illegal Squatting Act 52 of 1951 ('PISA') and that PIE
and PISA
pursued 'diametrically opposed objects' (at 429 e).
[28.3]
The
learned judge next stated (at 429 e) that, notwithstanding s 4
(1) of PIE,
' ... I find it difficult to accept
that the 1998 Act can be interpreted as turning on its head the
common law of landlord and
tenant or the common-law right of an
owner of immovable property who has, in terms of a contract, given
another the right to
occupy his or her immovable property to recover
same. But this is what Mr
Fehler
submitted was the effect of the 1998 Act. If he is correct, it
means that a property owner say in Hyde Park, Bishops Court
or La
Lucia, who leases his or her residential property for 12 months to
say a millionaire, cannot recover possession of the
property on
termination of the lease from what is then an "unlawful
occupier" unless and until he or she complies with
section 4 of
the 1998 Act. Nor can the property owner recover any amount for
the holding over by the tenant who is at common
law in unlawful
occupation of the property (see section 3 (1) of the 1998 Act), nor
can an eviction order be granted unless the
court is satisfied that
it is just and equitable to do so and then only after considering
whether there is land available to
which the millionaire tenant can
be relocated. A similar position would arise if such property
owner sold the property to a
purchaser who took occupation of the
property and failed or refused to pay the purchase price. Here
again such property owner's
right to evict would be subject to
equitable consideration and the court being satisfied that the
occupier has alternative land
that he or she can occupy (see section
4 (6) and 4 (7) of the 1998 Act). These apparently absurd results
can only follow if
it is clear from the 1998 Act that this was the
clear and manifest intention of Parliament. I cannot find such an
intention
in the 1998 Act.'
[28.4]
The
learned judge further held (at 429 i) that, having regard to the
definition in PIE of 'unlawful occupier',
' ... and notwithstanding the
definition of "evict" the meaning I give to these words is
that the person referred to
is a person who has without any
formality or right moved on to vacant land of another and
constructed or occupied a building
or structure thereon. Had it
been the intention of the legislature to affect the common-law right
of property owners, to which
I have referred, the definition of
unlawful occupier would have included a person who, having had a
contractual right to occupy
such property, is now in unlawful
occupation by reason of the termination of the right of occupation.
The absence of such a
provision must affect the extent to which it
can be said that the 1998 Act was intended to affect persons'
common-law right to
determine who may occupy their immovable
property in terms of agreements. Furthermore, the words "the
person who occupies
land" in the context of the definition of
an unlawful occupier can only, as I understand it, mean a person who
moves onto
the land of an owner without the permission of the owner
and cannot without more be said to include a person who has, in
terms
of a contract or otherwise, been in lawful occupation of a
property but whose common-law right to possession has ended.'
[28.5]
The
learned judge held (at 430 c - d) that PIE applies, in any event,
only to persons moving onto vacant land who then erect
dwellings
thereon that accord with the definition of the buildings or
structures mentioned in of s 1 of PIE and which may
be
demolished in terms of s 4 (10),
ie
' ... any hut, shack, tent or similar
structure, or any other form of temporary or permanent dwelling or
structure.'
[28.6]
The
learned judge on the basis of these arguments came to the conclusion
that the Act had the narrow meaning and was not applicable
to the
ex-tenant holding over.
F
Ross
[29.1]
Josman
AJ delivered the judgment of the Full Court of the Cape Provincial
Division
,
Desai J concurring. The appellant, Mrs Ross, occupied the premises
at 15 Lilac Court, Lotus River, which is a residential suburb,
with
the permission of the respondent-owner. The permission was revoked
and the respondent issued summons for her eviction.
[29.2]
The
summons was issued in July 1997. PIE came into operation on 5 June
1998. Josman AJ (at 597B) accepted that PIE was clearly
not
applicable to the case if the time frame had been different.
Nevertheless, the learned judge embarked on a discourse as
to
whether PIE would have applied to the present case. He referred to
an article by Ranjit Purshotam (in 1999
De
Rebus
), who was of the
view (not substantiated by analysis and debate) that PIE would be
applicable in future to cases such as that
of Mrs Ross (see 597 I -
J). But, opined Josman AJ, there is the judgment in
Amod
.
After quoting lengthy passages from
Amod
,
the learned judge concluded (at 599 A) that he agreed with the
interpretation of Schwartzman J. The implication is clear:
had
PIE been applicable, the appellant would not have been entitled to
its protection.
G
Betta
Eiendomme
[30.1]
The
judgment of Flemming DJP contains a number of
obiter
remarks, highly insensitive to the plight of squatters, whose legal
position was not relevant to the issue before the court.
The
applicant, the owner of premises (unspecified in the judgment), had
let them to the respondent, who failed to pay the stipulated
deposit
and, after paying rental for four months, stopped paying altogether.
At first the appellant instituted action for eviction
in the
magistrate's court, which was not defended. In the magistrate's
view PIE requires, in an action for eviction of an ex-tenant,
more
than mere allegations of ownership and termination of the right of
the tenant to occupation. He refused ejectment. The
applicant
then commenced an application in the Witwatersrand High Court, for
the eviction of the respondent. This time the
applicant sought to
comply with PIE, the papers now running to 55 pages (470 E - F).
The application was not opposed. Flemming
DJP, after a number of
contentious remarks as regards the general method of legislation and
'the normal legal principles of interpretation
of statutes' (at
472C) and as regards the 'vertical application' of s 26 (3) of the
Constitution (at 473A - B) and its non-applicability
to the present
case (at 473 B - E), at last dealt with PIE. In a single sentence
he endorsed
Amod
(at 473 I), noted that
Amod
was also endorsed in
Ross
(at 473 I - J), and issued an eviction order.
[30.2]
It
is clear that the perspective from which Flemming DJP viewed s 26
(3) of the Constitution and the provisions of PIE is based
on the
common law view of ownership, from which follows that unless
legislation clearly limits that right, the common law position
as
expounded in
Graham v
Ridley
,
supra
,
and
Chetty v Naidoo
,
supra
,
is still good law even in those cases where PIE was applicable. It
is necessary, for my analysis
infra
,
to quote what the learned judge actually said:
'[10.1] I conclude that the right of
ownership as recognised before the Constitution has not been
affected by the Constitution.
Compare s 39 (3) of the
Constitution. No necessity arises to restrict rights of an owner
against an illegal occupier to
"promote the values that
underlie" the Constitution or to "promote the spirit,
purport and objects of the Bill
of Rights". (Sections 39 (1)
and 39 (2).) If the Legislature in the Constitution or elsewhere
intended a change in law
or in equity, it should have made itself
clear. Ownership still carries within it the right to possession.
Similar to the inflatable
ball, ownership still reflates to its full
content as and when any burden such as the rights created by tenancy
falls away.
[10.2] In the absence of legislative
interference, postulating that nothing more is known than that the
plaintiff is owner and
that the defendant is in possession, it is
right and proper that an owner be granted an ejectment order against
someone who has
no business interfering with the possession. A
court must protect a legal right when it is not clearly barred from
doing so.
That applies also to ownership and the right to
possession which is its core. A court should require a clear
restraint before
it fails to act against a wrong. That applies also
to theft of land and to the grabbing the right to possess, which is
after
all of the same quality and has the same effect.'
H
Peoples
Dialogue 1
[31]
In
this matter, the municipality was the owner of a piece of vacant
land, approximately 12 hectares in size, which it had earmarked
for
future low-cost housing development. During the latter part of
1998 the municipality agreed that 20 squatter families,
who had
moved onto the land and erected shacks there, could temporarily
remain on the land. But soon after that further squatters
moved
onto the land, so that, when the litigation arose, at least 340
structures had been erected and were occupied. The municipality,

desiring to commence with the development of the property,
instituted an application for the eviction of the 'further
squatters',
ie
those who moved onto the land without permission. The opposed
application was heard by Horn AJ. There was no dispute that
PIE
applied because the 'further squatters' had moved onto the property
without any permission or right to do so. What is commendable

about this judgment is Horn AJ's grasp of the legal and social
background of the squatter problem and his balanced approach to
the
conflicting rights of the landowner and the squatters. He issued
an order for the eviction of the further squatters, but
suspended
the execution of the order pending the availability of suitable
alternative land or accommodation for their resettlement.
(For a
similar approach, see Moosa J in
MEC
for Business Promotion, Tourism and Property Management, Western
Cape Province v Matthyse and others
,
[2000] 1 All SA 377(C)
, where the execution of the eviction order
was suspended for 4 months and 3 weeks).
I
Peoples
Dialogue 2
[32]
This
was an appeal by the municipality against the suspension of the
eviction order issued by Horn AJ, discussed above. The
appeal
succeeded and the eviction of the further respondents one month
after the date of the delivery of the judgment, was ordered.
Smith
AJ (with whom Pickering and Liebenberg JJ agreed) referred to
Amod
,
apparently accepting that PIE would not apply to those squatters who
occupied the land with the permission of the municipality.
J
Sentrale
Karoo Distriksraad
[33]
All
that needs at this stage to be said about this case is that Dodson J
stated that the approach expressed in
Amod
seems correct, but as it was not necessary to decide the issue, the
learned judge correctly refrained from voicing a definite
opinion.
K
Esterhuyze
[34]
The
case concerned a contract of employment between a farmer and an
employee which had been terminated. The ex-employee refused
to
vacate the farm. An action was instituted, the plaintiff alleging
that he had complied with the procedural provisions of
PIE. The
action was not opposed and default judgement for eviction was
granted, but subject to review by the LCC.
Dodson
J, following
Amod
,
held that PIE '... does not apply where the person sought to be
evicted previously occupied the property concerned in terms
of an
agreement with the owner' (at 1026 [6]). The learned judge
consequently came to the conclusion that the plaintiff was
not
entitled to an eviction order on the basis of PIE, and also that
there had not been compliance with ss 4 (7) and (8) of PIE.
In
terms of PIE the LCC has no automatic review jurisdiction, and as
that court could thus not entertain the matter, Dodson
J remitted
the case to the magistrate (at 1029 [12]).
L
Ellis
[35.1]
The
judgment in this case was delivered by Thring J (Blignault and Van
Heerden JJ concurring). It dealt with the situation where
the
previous owner of a farm had given permission to a Mrs Viljoen to
live in a house on the farm
a
precario
,
viz
,
that she had the use and occupation of the house belonging to the
landowner on sufferance, by the latter's leave and licence.
In law
the permission so to use and occupy is revocable at the will of the
landowner, provided reasonable notice is given.
In this case
sufficient notice of revocation of the new owner's permission was
given. The new owner applied for the eviction
of Mrs Viljoen.
She relied on the protection of PIE.
[35.2]
In
the court
a quo
,
Griesel J had found that PIE was not applicable. On appeal by Mrs
Viljoen, Thring J confirmed this conclusion. He followed
Amod
,
quoting extensively from the judgment in that case and endorsing the
view that PIE does not apply to a situation where property
is
occupied by a person who initially took occupation thereof in terms
of a contract, or with the consent of the owner, but whose
right to
remain in occupation has since been terminated (at 493 I - 494 A).
Thring J granted the eviction order.
M
Van
Zyl
[36.1]
This
case dealt with an application in a magistrate's court for an order
for the eviction of a defendant from a house on a farm
let to him by
the plaintiff who was the owner. The plaintiff alleged that the
lease was for a period of 12 months, that it
had come to an end but
the defendant had failed to vacate, despite demand. The
application was not opposed and default judgment
was granted and a
warrant of execution issued. Thereafter the defendant brought an
application for rescission of the default
judgment and suspension of
the warrant of execution. He alleged that he was protected from
eviction because he was an occupier
as defined in the
Extension
of Security of Tenure Act 62 of 1997
('ESTA'). He alleged that he was entitled to reside permanently on
the farm because he had lived there for ten years and had
reached
the age of 60 years. He denied the lease. This application was
opposed, and dismissed. The magistrate held that
the defendant had
been a lessee and had never been employed by the plaintiff. The
matter was then sent to the Land Claims Court
for automatic review
in terms of 19 (3) of ESTA.
[36.2]
Dodson
J assumed in favour of the plaintiff that the defendant had been a
lessee and not an employee. On this basis, the question
was
whether the existence of a former lessor-lessee relationship
precluded the application of ESTA. The learned judge stated
that
the magistrate had based his conclusion that a lease agreement
precluded the application of ESTA on the
Amod
judgment.
[36.3]
The
learned judge then referred to
Amod
,
stating that he agreed with the decision in that case in so far as
it concluded that PIE applied only to persons who have never
had
consent to reside on the land concerned. The learned judge
correctly stated that the
Amod
decision was based primarily on the view that PIE merely replaced
PISA (at 962 par [11]). Dodson J, however, in a footnote
(at 962
footnote 11) qualified his acceptance of
Amod
in these terms:
'I am not necessarily convinced that
PIE does not apply where existing lawfully erected improvements on
land are occupied unlawfully
from the outset of the occupation.
This appears to be the import of the
Amod
judgement at 429 c-e, although the reference to ‘or occupied a
building ... thereon’ at 429 j seems to contradict
what is
said earlier in the judgement.'
[36.4]
Dodson
J also correctly distinguished between PIE and ESTA, the latter
aiming to provide more secure tenure to persons who have
or had
consent or a legal right to occupy rural land which belongs to
another person. The
Amod
decision thus cannot be applicable to an interpretation of ESTA.
N
Ridgway
[37]
The
facts in this case were identical to those of the appeal in
Bekker
and Bosch
before us.
The applicant is the registered
owner of a residential property in Gordons Bay, which he had bought
at a sale in execution.
The respondent was the former owner and
mortgagor who had failed to comply with his obligations under the
mortgage. He refused
to vacate the property, apparently on the
basis of some undisclosed defence against the bank's claim.
Griesel J, following the decision of
the Full Bench in
Bekker
and Bosch,
held that the
concept 'unlawful occupier' in PIE includes a former mortgagor (at
190 A - B). The learned judge nevertheless
granted an eviction
order against the respondent. The only defect in the notice
required by s 4 (2) of PIE relied upon by the
respondent was that
the required notice had not been given to the municipality
concerned. Griesel J held that the requirement
that notice be
given to the municipality was not peremptory and, on the facts of
the case, held that the applicant had complied
substantially with s
4 of PIE. As far as the question of
onus
is concerned, the learned judge agreed with the approach followed in
Ellis
(at 191
I
- 192 B).
O
Ndlovu
v Ngcobo
(the first
appeal before us)
[38.1]
I
have related the facts which gave rise to this appeal. Galgut J,
who delivered the judgment (Combrinck J and Aboobaker AJ
concurring)
endorsed and followed
Amod
.
[38.2]
Galgut
J adopted the view that the application of PIE to ordinary tenants
would lead to absurd results. He repeated the example
given by
Schwartzman J of the millionaire tenant in Hyde Park, Bishops Court
or La Lucia, all upmarket residential areas populated
by affluent
members of society. He also agreed with Schwartzman J that PIE was
not intended to alter the common law of ownership.
But Galgut J
also found further considerations which, in his view, supported the
Amod
result.
[38.3]
First,
if PIE was intended to apply to leases, why was the
Rent
Control Act 80 of 1976
,
which laid down limits to a lessor’s right to evict a lessee
from so-called controlled premises not repealed, or why was
nothing
said in the PIE about those provisions in the
Rent
Control Act
which were
inconsistent with PIE? The
Rent
Control Act
was repealed
in 1999 and replaced by the
Rental
Housing Act 50 of 1999
.
But, asked the learned judge, why was this
Act
necessary, especially because the express terms of its purpose and
preamble, in part at any rate, are the same as those in PIE?
The
learned judge also pointed out that the provisions of the
Rental
Housing Act
are
to some
extent inconsistent with those of PIE, yet it contains no provision
to explain how the two
Acts
are to be reconciled.
[38.4]
Galgut
J also postulated another absurd result which would occur if PIE
were to apply to leases. If the tenant sublet the premises

concerned, and did not therefore use them as his home,
s 4
of PIE
would not necessarily protect him, because he would not strictly be
in '
occupation
'
of the land concerned, and for the purposes of
s 4
(7) at any rate,
there would be no question of enquiring into whether other land is
available for his occupation. If he failed
to pay the rental, an
order for his eviction might therefore be made. But the
sub-lessee, who used the premises for his home
would not be in the
same position: he would not necessarily be liable to eviction at
the instance of either the landlord or
the tenant.
[38.5]
Finally,
the learned judge also relied on the sanctity of contract (
pacta
sunt servanda
) principle:
'When a party to a contract
conscientiously undertakes an obligation the other acquires a right
which the law recognises and enforces.
The legislature would
therefore not lightly interfere with the sanctity of contracts, and
in particular with rights properly
acquired thereby, especially in
an established field, such as landlord and tenant, which has been
with us for ages. There are
in the Republic doubtless hundreds of
thousands of houses or flats that have been let as homes to the
lessees concerned. If
the Act had been intended to apply to those
leases, it would drastically and prejudicially affect the rights of
the landlords
concerned, and it would have done so without any
warning. The result would unquestionably give rise to alarm, if not
chaos,
in the industry, and I find it difficult to imagine that the
legislature could have intended such results.'
P
Bekker
and Bosch v Jika
(the second appeal before us)
[39.1]
The
first recorded judgment in which disagreement with
Amod
was expressed is that of Plasket AJ in the first instance in the
appeal now under discussion (see
[2001] 4 All SA 573
(SE))
.
His approach differs
toto caelo
from that of Schwartzman J. He took as his starting point the
Constitution,
inter alia
,
ss 7 (2), 26 (3) and 39 (2). PIE, he found, must be
interpreted broadly and purposively and should not be subjected to

trimming to bring it into line with the common law.
[39.2]
Plasket
AJ also dealt with, and disagreed with, the argument of absurdity
which had featured so prominently in the judgment of
Schwartzman J.
He held that s 4 of PIE created a procedure and placed an
obligation on the court, to consider all relevant
factors before
ordering an eviction, in much the same way as was required by the
erstwhile
Group Areas Act
and, by implication, by PISA.
[39.3]
Plasket
AJ held that in the instant case there was no contract between the
applicants and the respondent. The latter occupies
the land (to
which the dwelling has acceded and is part of it) without the
express or tacit consent of the applicants and without
having any
other right in law to occupy it. He was, therefore, an unlawful
occupier as envisaged by PIE.
[39.4]
An
appeal against the order made by Plasket AJ was heard by the Full
Court of the Eastern Cape Division (Somyalo JP; Jennet and
Leach JJ)
and was dismissed. Each of the members of the bench delivered a
concurring judgment.
[39.5]
Somyalo
JP took as point of departure the Constitution and its proper
interpretation. The learned judge president also found
support for
his conclusion in the definition of 'evict', from which it appears
that land includes buildings or structures on
land. He concluded
that the definition of 'unlawful occupier' in PIE was clear and
unambiguous, and that a person is an unlawful
occupier whether he
originally took occupation of the land unlawfully or whether he
refuses to vacate on the termination of his
lawful occupancy. The
definition is also couched in the present tense which means that the
time for determining the unlawfulness
or otherwise of the occupancy
is at the time of the institution of eviction procedures. The
learned judge president also expressed
the view that the landlord or
owner of property would be entitled to recover rental or damages
from a tenant holding over.
Reliance was also placed on s 6 (1) of
PIE which clearly refers to a mortgagor, who holds over after a sale
in execution as an
unlawful occupier. Reference was also made to
PISA. As far as the
Rental
Housing Act
is
concerned,
the fact is that it contains no procedures for eviction, which led
the learned judge president to remark: 'For a
statute to achieve
fairness and equity this would be beyond comprehension. The answer
in my view is that the legislature is
aware of and intended that the
procedure in [PIE] would apply.'
The learned judge
president expressed his belief that
the fears raised in
Amod
are unwarranted, and that there are in any event no absurdities
resulting from PIE in the present case.
[39.6]
Jennett
J concentrated on the question posed in the matter before him,
viz
whether the ex-mortgagor was protected by PIE. He relied on
ss 4
(7) and
6
(1) to find that PIE was in fact applicable.
[39.7]
Leach
J, in a more wide-ranging discussion, came to the same conclusion as
his two colleagues on the bench. He referred to the
Amod
decision and subsequent judgments and to the definition of 'unlawful
occupier' in PIE, which he, correctly, found to be ambiguous.
In
such a case, he held, it is permissible to have regard to any
absurdity which would result from a particular interpretation:

absurdity, he reasoned, is a means of divining what the legislature
could not have intended and therefore did not intend.
One can thus
arrive at what it did actually intend. He referred to the
absurdities mentioned in
Amod
and by Galgut J in
Ndlovu
,
adding a new example of absurdity if
Amod
is not followed: if the tenant fails to pay the rental and the
landlord cancels the lease, the tenant would be in unlawful
occupation and PIE would apply. But if the landlord sues for
specific performance and, failing such, then in the alternative
for
an order for cancellation and eviction, PIE would not apply:
'... it would be absurd to think that
in the latter case an eviction order could not issue upon the
cancellation order unless
and until the provisions of the Act had
been complied with. Indeed it seems to me to be absurd to suggest
that having obtained
the cancellation order, the landlord should
have to go through yet a further judicial process to obtain an
eviction order.'
[39.8]
However,
Leach J also dealt with s 6 (1) of PIE. He found that it clearly
implies that the former owner (the mortgagor) was
an 'unlawful
occupier'. Solely in the light of s 6 (1), Jika was an 'unlawful
occupier', and PIE was applicable.
Analysis
[40]
Our
common law was based on the view, ingrained since Roman times, that
ownership of land is the most extensive and absolute real
right,
protecting the owner against all unwanted intrusions and affording
the owner an absolute right of eviction against those
whom he did
not want on his property. This view of ownership permeated not
only the whole field of the law of things, but informed
the law of
contract and was the basis of the entire socio-political pattern and
fabric of our society prior to 1996. This was
the basis of
decisions such as
Graham v
Ridley
,
supra
,
and
Chetty v Naidoo
,
supra
,
in which the minimum assertions to be made by an owner in an
eviction case were established. Since 1996, Parliament has

embarked on a land reform programme which may justly be designated
as revolutionary. Basic to the land reform programme is the

Constitution. It prescribes land reform in three directions: the
restitution of land rights, the redistribution of land, and
the
protection of tenure, the last mentioned including limitations of
eviction in various ways.
Prof A J van der Walt (
Exclusivity
of ownership, security of tenure and eviction orders : a model to
evaluate South African land reform legislation
2002 TSAR 254
at 258) correctly remarks that :
'The "normality" assumption
that the owner was entitled to possession unless the occupier could
raise and prove a valid
defence, usually based on agreement with the
owner, formed part of Roman-Dutch law and was deemed unexceptional
in early South
African law, and it still forms the point of
departure in private law. However, it had disastrous results for
non-owners under
apartheid law, which developed the distinction
between owners and non-owners of land and the implied preference for
the former
to establish and maintain apartheid land law: the strong
position of ownership and the (legislatively intensified) weak
position
of black non-ownership rights of occupation made it easier
for the architects of apartheid to effect the evictions and removals

required to establish the separation of land holdings along race
lines.'
[41]
A
comprehensive picture of the post-apartheid constitutional land
tenure reform measures is usefully sketched by Budlender, Latsky
and
Roux
(Juta’s New Land
Law,
1998); Carey Miller
(with Pope)
Land Title in
South Africa
, 2000, at 282
- 555); Van der Walt
(Property
rights and hierarchies of power: a critical evaluation of land
reform policy in South Africa
(1999) 64 (2 and 3) Koers at 259 - 294; 281 et seq.); Catherine
O'Regan,
No more forced
removals? An historical analysis of the Prevention of Illegal
Squatting Act
(1989) 5
SAJHR 361-394
; Horn AJ in
People's
Dialogue
1 at 1079
et
seq,
and Van der Walt,
supra
at 259
et seq
.
[42]
To
bring about post-apartheid tenure reform:
S 26 (3) of the Constitution lays
down the constitutional rule that prohibits evictions from and
demolitions of homes without
a court order
the
Rental
Housing Act 50
>
of
1999
protects the
occupation rights of (lawful) occupiers of (rural and urban)
residential property
the
Land
Reform (Labour Tenants) Act 3
of 1996
protects (lawful) occupiers of agricultural (rural) land
the
Extension
of Security of Tenure Act 62 of 1997
('ESTA') protects the occupation rights of persons who (lawfully)
occupy (rural) land with consent of the landowner
the
Interim
Protection of Informal Land Rights Act 31 of 1996
protects (lawful) occupiers of (rural and urban) land in terms of
informal land rights
the
Restitution
of Land Rights Act 22 of 1994
protects (lawful and unlawful) occupiers of (urban and rural) land
who have instituted a restitution claim
the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998
('PIE') regulates
eviction of unlawful occupiers (from urban and rural land).
[43]
What should be the approach of this Court, in interpreting the laws
tabulated above? A realistic and healthy view is that
proposed by
Prof A J van der Walt,
supra
,
at 255 where he says :
'Despite mixed reaction from the
courts, it is clear that the traditional, common-law right to sue
for eviction is deeply affected
by new land-reform developments.
Some would describe the relationship between common-law eviction and
reform-oriented anti-eviction
provisions as a head-on conflict that
forces the courts to choose between two irreconcilable political
goals or value-systems.
The moderate version of this view finds
support in the theory of context-sensitive adjudication, describing
the courts'
function in terms of context-sensitive and
-determined balance between the protective common-law approach and
the
reformist statute-based approach, in an attempt to mediate
between the opposing views and legal rules in search of
equilibrium.'
After a review of the relevant
legislation, Prof van der Walt, at 288, comes to the following
conclusion :
'Analysis of the land-reform
legislation provisions that deal with eviction orders suggests that
these statutory innovations
have amended the common-law right to
eviction quite substantially, without establishing a new paradigm
within which the right
to eviction is subjected fundamentally or
institutionally to security of tenure considerations. The overall
impression is that
land-reform legislation has brought about a more
or less
ad hoc
but nevertheless reasonably standardised set of qualifications,
restrictions and controls to ensure that evictions are not

undertaken lightly or arbitrarily.'
[44]
In
endeavouring to fathom what the expression 'unlawful occupier' in
PIE means, our task is to find a balanced and justifiable

interpretation, without fear, favour or bias. Let me once again
emphasise : the class of occupiers which we deal with are
not
poor, homeless squatters who have been forced by past laws to occupy
the property of another without the latter's consent
or other right
to do so, simply out of necessity. We are dealing with a class of
occupiers who have entered into valid contracts
to acquire or occupy
the property of another, but due to their own default, breach of
contract and refusal to vacate land which
is not theirs, are in
occupation. Was it the legislature's intention to protect these
defaulters against the lawful owners?
[45]
The
land tenure reform laws find their basis and justification in the
Constitution. The following sections seem to me to be
relevant :
[45.1]
'7 (1) This Bill of Rights is a
cornerstone of democracy in South
Africa. It enshrines the rights of
all people in our country and affirms the democratic values of human
dignity, equality and
freedom.'
[45.2]
'9 (3) The state may not unfairly
discriminate directly or indirectly against anyone on one or more
grounds, including race,
gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience,
belief, culture, language and
birth.'
[45.3]
'25 (1) No one may be deprived of
property except in terms of law of general application, and no law
may permit arbitrary deprivation
of property.'
[45.4]
'25 (5) The state must take
reasonable legislative and other measures, within its available
resources, to foster conditions which
enable citizens to gain access
to land on an equitable basis.'
[45.5]
'26 (1) Everyone has the right to
have access to adequate housing.
(2) The state must take
reasonable legislative and other measures, within its
available resources, to achieve the progressive
realisation of this
right.'
(3) 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.'
[45.6]
'39 (1) When interpreting the Bill
of Rights, a court, tribunal or forum -
(a) Must promote the values that
underlie an open and democratic society based on human dignity,
equality and freedom;
(b) must consider international law;
and
(c) may consider foreign law.
(2) When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must
promote the spirit, purport and
objects of the Bill of Rights.
(3) The Bill of Rights does not
deny the existence of any other rights or freedoms that are
recognised or conferred by common
law, customary law or legislation,
to the extent that they are consistent with the Bill.'
[46]
It
can hardly be denied that our Constitution addresses the problem of
land tenure reform in a balanced and even-handed manner,

recognising, on the one hand, the right to property and protection
of the home, and on the other, the right of access to land,
through
legislation, but in a fair and just way.
[47]
In
interpreting the statute under consideration, one must keep in mind
that the defaulter now occupies the property of another
without
being contractually obligated to pay compensation for such
occupation. The defaulter holds the property adversely to
the
rights of a lawful owner and to the latter's detriment and loss.
The equities of the situation are obvious, but may also
be tested
against the following : suppose the owner is sequestrated (or, if
it is a company, liquidated). The trustee claims
occupation of the
land. The defaulter relies on PIE and remains in occupation. Not
only the owner, but the mortgagee and
other creditors can be
severely prejudiced and this can conceivably be seen as a form of
expropriation without compensation,
something which neither the
Constitution or our common law permits (see
Land-
en Landboubank van Suid-Afrika v Cogmanskloof Besproeiingsraad
[1991] ZASCA 137
;
1992
(1) SA 217
(A) at 243 D - G).
[48]
I
can find in the provisions of the Constitution, read on its own, no
justification for the protection of the defaulters and
class of
persons now under consideration as against the lawful owners,
landlord or other persons with similar rights. On the
contrary, a
correct interpretation of the Constitution points the other way.
[49]
The
question then arises whether one can find justification for such
protection in the laws mentioned and, in the present case,
in PIE.
[50]
As
far as the first appeal is concerned, our point of departure must
then be the text of PIE. The definition of 'unlawful occupier'
in
s 1 is ambiguous. Are there any indications in the other
provisions of PIE as to the intention of the legislature?
[51]
Mr
Trengove's argument in favour of a wide interpretation runs as
follows:
PIE excludes from its protection
occupiers protected under ESTA.
PIE effects this exclusion by two of
its provisions. The first is its definition of 'unlawful occupier'
in s 1 which excludes
occupiers within the meaning of ESTA. The
second is s 11 (2) and schedule II of PIE, which amended s 29 (2) of
ESTA to provide
that PIE does not apply to an occupier protected
under ESTA. Their exclusion is significant for the following
reasons:
Section 1 of ESTA defines an
'occupier' as someone who lives on land that belongs to another,
'who has, or on 4 February 1997
or thereafter had, consent or
another right in law to do so'. ESTA in other words protects two
classes of occupier. The first
is an occupier who has consent or
another right to reside on the land. Let us call them 'lawful
occupiers'. The second is
an occupier who had but no longer has
consent or another right to live on the land. They are the
unlawful occupiers that can
be called 'ex-tenants' or defaulters.
The purpose of excluding occupiers
protected under ESTA from the protection of PIE could not have been
to exclude lawful occupiers
from its protection. That would have
been pointless because PIE does not protect lawful occupiers in the
first place. Its
definition of an 'unlawful occupier' is limited
to those who occupy unlawfully.
The purpose of excluding occupiers
protected under ESTA from the protection of PIE could in other words
only have been to exclude
the tenants protected under ESTA, that is,
to exclude those occupiers who once had but no longer have consent
or another right
to reside on the land and who are protected under
ESTA. They are excluded because they have greater protection under
ESTA than
they would have had under PIE.
The exclusion makes sense only if
PIE's definition of an 'unlawful occupier' includes tenants in the
first place. If it did
not include tenants and was limited to
squatters, the exclusion would have been pointless.
It follows that the legislature must
have intended PIE's definition of an 'unlawful occupier' to include
tenants because it would
otherwise not have made sense to exclude
occupiers protected under ESTA.
The exclusion of occupiers protected
under ESTA from the protection of PIE is moreover significant for
another reason. It means
that, when PIE's definition of an
'unlawful occupier' was drafted, the drafters were alive to ESTA's
definition of an 'occupier'.
The latter definition expressly
refers to occupiers who had but no longer have consent or another
right to reside on the land.
The drafters of PIE's definition in
other words had that class of unlawful occupier in mind. If they
intended to exclude
them from PIE's definition of an 'unlawful
occupier', they would have done so. Their failure to do so and
their adoption of
a definition which includes them (subject to the
exclusion of those of them who are protected under ESTA), could not
have been
inadvertent. It must have been deliberate.
[52]
Mr
Kuper, on the other hand, argued as follows :
Had the Legislature intended PIE to
have such a wide and unrestricted ambit, it would have expressly
provided therefor. For
example, it would have included a
definition similar to that employed in s 1 of PISA (albeit with a
different purpose). Section
1 of PISA made it an offence to 'enter
upon or into without lawful reason,
or
remain
on or in any land
or building without the permission of the owner or lawful occupier
of such land or building' (my emphasis).
The exclusion in PIE of persons who
are occupiers in terms of the ESTA is, if anything, an indicator of
the intention
not
to include within the ambit of the definition of occupier in PIE,
occupiers who lawfully took occupation, but whose occupation
may
have subsequently become unlawful.
Mr Kuper also referred to the
observation by Dodson J in
Sentrale
Karoo Distriksraad
, at 712
viz
:
'In
Absa
Bank Ltd v Amod
th(e)
[definition of unlawful occupier in PIE] … was held to mean -
"A
person who has without any formality or right moved onto vacant land
of another and constructed or occupied a building
or structure
thereon."
Although this approach seems correct,
it is not necessary for me to decide that issue here. What is
particularly important for
present purposes is that the definition
expressly excludes "a person who is an occupier in terms of the
Extension of Security of Tenure Act&quot
;. I will refer to this
Act as ESTA.
The latter exclusion is logical
because an occupier in terms of ESTA is by definition a person who
has or at a certain time had
consent or another right in law to
occupy the land of another
.'
(emphasis added) (footnotes omitted)
It was not necessary to include such
category of occupiers within the ambit of PIE precisely because they
receive extensive protection
under ESTA,
and
are excluded from the provisions of PIE
.
In my view, the exclusion in PIE of
the application of ESTA is a strong indication in favour of the more
limited ambit of PIE.
It is clear that the legislature wished to
avoid any overlap between the two statutes. True, it could have
defined the scope
and ambit of PIE in a lengthy definition of the
category of persons to whom it should apply. But it followed a
well-known legislative
technique,
viz
to identify the persons
subject to the statute by way of a short definition and then, to
make assurance doubly sure, to exclude
the operation of other
statutes.
But, be that as it may, the net
result is that PIE excludes a person who has or at a certain time
had consent or another right
to occupy the land of another. PIE
does not apply to them. Ex-tenants are persons who had at a
certain time consented to
occupy the land of another. By
definition they are excluded from PIE.
[53]
Mr
Trengove also relied on the provision of s 6 (1) of PIE, which, as I
have mentioned above, refers to an ex-mortgagor as an
unlawful
occupier. He argued that the mortgagor must be the former owner of
the land sold in execution because only an owner
can mortgage land.
The section in other words also makes it clear that the unlawful
occupiers protected under PIE include an
owner who lawfully occupied
the land but whose occupation of it has become unlawful by virtue of
its sale in execution under
a mortgage bond. Consequently, he
argued, it is not feasible that PIE's protection is limited to
squatters who unlawfully acquired
occupation of the land
The counter-argument was the obvious
and correct one : if PIE applies not only to squatters but also to
those who took occupation
by virtue of agreement and whose right to
occupy has been terminated, it would not have been necessary
specifically to refer
to the ex-mortgagor. The fact that it was
necessary to refer specifically to the ex-mortgagor is a very strong
indication that
PIE does not apply generally to a person who had at
a certain time consent to occupy the land now belonging to another.
[54]
Mr
Kuper also, correctly in my view, relied in argument on the
definition of 'building or structure' in s 1 of PIE. It defined

'building or structure' as including
'any hut, shack, tent or similar
structure or any other form of temporary or permanent dwelling or
shelter.
Mr Kuper argued that the legislature
clearly had in mind the type of building or structure erected by
squatters who move onto
land. Had it been the intention of the
legislature that PIE would apply to urban houses, townhouses,
apartments, flats or rooms,
it would have said so specifically.
The words 'permanent dwelling' in the definition, when read
ejusdem
generis
with the rest of
the definition must be understood to refer to permanent dwellings or
shelters erected by some squatters, and
not to refer to the urban
houses, townhouses
etc
,
as was argued by Mr Trengove.
[55]
Mr
Kuper also, correctly in my view, referred to s 3 of PIE, which
prohibits the receipt of or solicitation for payment of money
for
arranging or organising or permitting a person to occupy land
without the consent of the owner or person in charge of the
land.
Mr Kuper argued, correctly in my view, that this provision, which
precedes s 4, clearly has in mind land occupation by
squatters, and
is incompatible with the letting and hiring of houses, townhouses
etc
.
[56]
Mr
Kuper also relied on the requirement in s 4 (2) of PIE, that notice
must be given by the court of the proceedings not only
to the
unlawful occupier, but also to the municipality having jurisdiction.
He argued, correctly in my view, that the requirement
of
notification to the municipality is incompatible with the eviction
of ex-tenants but understandable if one deals with squatters.
What
interest does the municipality of, say, Cape Town have with the
ordinary, daily, eviction of tenants of houses, townhouses
etc
in the area? But it does
have an interest, and should be given a say, in the eviction of
squatters in its area, because, under
s 4 (7) of PIE, it may be
called upon to make land available for the evicted squatters.
[57]
Mr
Kuper also referred in support of his argument to the procedure laid
down in ss 4 (2) to (12) of PIE. He convincingly argued
that these
procedures are compatible with the eviction of squatters and
incompatible with the eviction of ex-tenants from houses.
He
highlighted the following points :
(a) The requirement of the
involvement of the court in a procedure which is clearly
inquisitorial and intended to protect those
who cannot protect
themselves,
eg
squatters;
(b) The involvement of the
municipality concerned;
(c) The discretion given to the court
in ss 4 (6), (7) (8) and (9);
(d) The provisions relating to the
demolition and removal of the buildings or structures that were
occupied by the occupier on
the land in question - ss 4 (10), (11)
and (12). This is incompatible with the lease of urban houses,
flats, townhouses,
rooms,
etc
.
[58]
Mr
Kuper also relied on the following indications to support his
interpretation of PIE
viz
that it does not apply to ex-tenants:
(a) The apprehension of real and
imminent danger to persons or property in s 5 (1) (a) arises only in
the context of informal
land settlement;
(b) The grant to an organ of State of
locus standi
to act in certain cases is compatible only with a possible need to
clear informal settlements which may give rise to public health
or
like concerns (s 6);
(c) The use of mediation as a dispute
resolution technique, particularly as the relevant municipality is
given the power to intervene
in the public interest. This form of
mediation is suited to solving problems of informal settlement. It
is out of place in
ordinary letting and hiring.
[59]
Both
counsel referred to the background and history of the law relating
to landlords and tenants and the rights of the former
to evict a
tenant whose tenancy had been terminated. A close analysis of the
statutory position and history shows conclusively,
in my view, that
the interpretation of PIE argued for by Mr Kuper must be the correct
one. At the time of the introduction
of PIE, the position was
regulated by the common law as laid down in
Graham
v Ridley
and
Chetty
v Naidoo,
and by the
Rent
Control Act 18 of 1976
.
The latter Act had a limited ambit, and protected only tenants of
'controlled premises',
ie
'any dwelling, garage, parking space or business premises' (see s 1
(iii)). It was applicable only to premises occupied before
21
October 1949, in the area of a Rent Board, did not apply to state
property ( see
Jeena v
Minister of Lands
1955 (2)
SA 380 (A) at 383 B), and was not applicable to farms, churches and
schools, nor to vacant land (see
Boyers
v Stansfield Ratcliffe and Co Ltd
1951 (3) SA 299 (T)).
When PIE came into operation, the
Rent Control Act
was still in force, as well as the common law as set out above.
PIE must be interpreted against that background, and not against

that of the
Rental Housing
Act 50 of 1999
, which only
came into operation on 1 August 2000.
[60]
If
one compares PIE and the
Rent
Control Act
so as to
reconcile the provisions of the two Acts (as we must do, see
inter
alia Sedgefield Ratepayers' and Voters' Association and Others v
Government of the Republic of South African and Others
1989
(2) SA 671
(C) at 700 J - 701 C) it becomes obvious that PIE was not
intended (a)
en passant
to turn the common law on its head, and (b) stealthily, to do away
with the
Rent Control Act.
[61]
If
the introduction of PIE was intended to reverse the common law as
laid down in
Graham v
Ridley and Chetty v Naidoo
and followed and applied by all courts as daily practice, one would
have expected the legislature to do so explicitly. There
is, after
all, a strong legal presumption of statutory interpretation that the
existing law is not presumed to have been altered
unless the
language used makes it clear that an alteration was intended. What
is required in order to effect an amendment of
the common law,
especially where existing rights are diminished, is a ' …
distinct and positive provision' (see
Spoor
and Fisher v Registrar of Patents
1961 (3) SA 476
(A) at 482 H - 483 A).
This rule also puts paid to the
suggestion that PIE must be applied to ex-tenants as a result of
some 'law of unintended consequences'.
There is no such a 'law' in
the legal rules relating to statutory interpretation. Such a 'law'
would obviate the existing
rules relating to the interpretation of
statutes, and would permit one to argue that if the legislature
intended result A, result
B is also intended by the 'law of
unintended consequences'.
What has to be ascertained is
nothing more and nothing less than the true intention of the
legislature, and one way of ascertaining
that intention is to apply
the presumption that the legislature did not wish to interfere with
the common law, unless the intention
to interfere appears clearly or
by necessary implication. (See also
Palvie
v Motale Bus Service (Pty) Ltd
[1993] ZASCA 105
;
1993 (4) SA 742
(A) at 748 A - B;
Land-
en Landboubank van Suid Afrika v Die Meester en Andere
1991 (2) SA 761
(A) at 771 A - C)).
If one thing is clear from the
definition of 'unlawful occupier' in PIE, the rest of the provisions
in PIE referred to, the debate
in the courts since
Amod
and the argument before us, it is that one cannot find in PIE an
intention to alter the common law (and that in a drastic and
far
reaching manner) whether clearly or by necessary implication.
[62]
But,
the comparison between PIE and the
Rent
Control Act
goes further.
It shows that the legislature was aware of the provisions of the
Rent Control Act
and did not intend PIE to do away with them.
First, there is a strong legal
presumption that an existing statute is not repealed by a later one,
unless such an intention
appears plainly from the later Act, whether
expressly or by necessary implication (see
Kent,
N O v South African Railways and Another
1946 AD 398
at 405). A
possible
implication of an intention to amend or repeal an existing statute
will not suffice (see
R v
Vos
;
R
v Weller
1961 (2) SA 743
(A) at 749 A - F;
Ex parte
the Minister of Justice : In re R v Jekela
1938 AD 370
at 377 - 378;
Van
Heerden and Others, NNO v Queen's Hotel (Pty) Ltd and Others
1973 (2) SA 14
(R AD) at 23 H - 24 C; 38 B - C; 32 A - 35 A).
Once again, there is no inkling in
PIE that it was the intention of the Legislature to do away with the
Rent Control Act
.
In fact, the
Rent Control
Act of 1976
was repealed,
not by PIE, but by the
Rental
Housing Act 50 of 1999
on
1 August 2000. PIE and the
Rent
Control Act 1976
existed,
side by side, from 5 June 1998 to 1 August 2000. It was never
argued or suggested that PIE had repealed the
Rent
Control Act
, and, apart
from the presumptions referred to above, for good reason. The
Preamble to PIE, and the main provisions of PIE,
make it clear that
PIE was intended to apply to 'land' and, incidentally, to the
demolition of structures erected or occupied
by unlawful occupiers
on such land (see s 4 (10), (11) and (12) of PIE). The
Rent
Control Act
never applied
to vacant land, as indicated above. It does not even refer to
'land', and deals only with certain types of leased
dwellings,
garages, parking spaces and business premises. The reconciliation
of PIE and the
Rent Control
Act
is both clear and
compelling
.
PIE
was never intended to apply to leased dwellings, garages, parking
spaces and business premises; the
Rent
Control Act
was never
intended to deal with vacant land.
[63]
Next,
it was argued that the definition of 'unlawful occupier' in PIE is
couched in the present tense. According to the ordinary
meaning of
the provision, the ex-tenant holding over is in unlawful occupation.
But it was conceded that by the very nature
of things the
definition had to be in the present tense because the question of
eviction cannot arise in respect of someone who,
at the time of the
application, is a lawful occupier but who was formerly in unlawful
possession. In other words, someone who
took occupation without
the necessary consent but afterwards obtained consent cannot be an
unlawful occupier for the purposes
of eviction. It was then
suggested that to exclude persons holding over (
eg
tenants) from the definition requires more than a change in the
tense and one would have to amend the definition so that it applies

to 'a person who
occupied
and still
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'.
I disagree. The squatter who
unlawfully occupied the land and remains there without consent or
any other right is, at the time
of the eviction application, in
unlawful occupation and no emendation is necessary to bring him or
her under PIE. The squatter
who unlawfully occupied the land and
later was given consent to remain there or acquired any other right
to do so, is, at the
time of the eviction application not an
unlawful occupier and falls outside the scope of PIE. His or her
position is dealt
with by ESTA.
The ex-tenant who holds over without
the consent of the owner and without any other right to do so, is,
if one reads the only
definition of 'unlawful occupier' in PIE and
applies it grammatically, an 'unlawful occupier' and PIE would apply
without more
ado. The suggested emendation is not necessary to
bring him or her under the protection of PIE. The whole argument,
however,
turns around the said definition as it stands and how it
should be interpreted. As I have indicated, it does not and cannot
bear the simple present tense sense.
[64]
Finally,
it was suggested that PISA did not apply to squatters only, but also
to persons who had at a certain time consent to
occupy the land or a
part of it. PIE was intended to replace PISA.
Ergo
,
PIE must be applied to the same categories of persons.
The argument is without any merit.
It is true that in
R v Zulu
1959 (1) SA 263
(A) at 268A it was argued that the legislature could
not have intended to penalise under the provisions of PISA all
persons who,
whether as lessees or otherwise, have held over after
the termination of their rights of occupation. But Schreiner ACJ
at 268A
stated that there was no good reason for saying that the
legislature cannot have intended its language to be given the
meaning
which would include those persons.
Two points must, however, be made.
The first is that the wording of PISA and PIE relating to the
categories of persons to whom
the respective statutes, apply, differ
considerably. The logic of transferring the legislative intent
behind PISA to PIE is
therefore suspect.
But, secondly and more importantly,
the effect of
R v Zulu
and the applicability of PISA to persons holding over were
terminated by the introduction of ESTA on 28 November 1997. ESTA

then became applicable to persons who have or had consent or another
right to occupy the land of another. When PIE was introduced

later, on 5 June 1998, only one category of persons formerly dealt
with by PISA, remained to be dealt with,
viz
squatters. This is the category dealt with by PIE.
[65]
For
the reasons set out above, I have come to the conclusion that PIE
does not apply to persons who have occupied residential,
business or
industrial dwellings or buildings under a contractual or other right
to do so and who continue to occupy them after
their rights to do so
have lawfully been terminated or have come to an end.
[66]
I
now turn to the second appeal before us, that of Bekker and Bosch.
[67]
Section
4 (7) of PIE reads as follows:
'(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.'
[68]
Section
4 (7) of PIE must be read also in the light of s 6 (1), which
provides as follows:
'(1) An organ of state may institute
proceedings for the eviction of an unlawful occupier from land which
falls within its area
of jurisdiction, except where the unlawful
occupier is a mortgagor and the land in question is sold in a sale
of execution pursuant
to a mortgage, and the court may grant such an
order if it is just and equitable to do so, after considering all
the relevant
circumstances, and if -
(a) the consent of that organ of
state is required for the erection of a building or structure on
that land or for the occupation
of the land, and the unlawful
occupier is occupying a building or structure on that land without
such consent having been obtained;
or
(b) it is in the public interest to
grant such an order.'
[69]
Sections
4 (6) and 4 (7) must now be considered and, if possible,
reconciled. It will be noticed immediately that, by virtue
of the
limitation imposed by the phrase,
viz
'except where the land is sold in a sale of execution pursuant to a
mortgage' in s 4 (7), the considerations to be taken into
account by
a court when asked to issue an eviction order are the same,
viz
whether the 'unlawful occupier' has occupied the land for less or
more than six months at the time when the proceedings are
instituted.
Secondly, ss 4 (6) and 4 (7) do not
say who the 'unlawful occupier' in question is. Is it the
mortgagor or the informal settlers
(squatters) who moved onto the
land while it was mortgaged by the landowner in favour of a bank,
building society,
etc
?
[70]
In
dealing with the first appeal, I have come to the conclusion that
the words 'unlawful occupier' in s 1 of PIE do not refer
or include
ex-tenants and other like occupiers, and that PIE applies only to
persons who moved onto the land and who never had
and does not now
have consent or another right to be in occupation. Thus
interpreted, the 'unlawful occupier' in ss 4 (6) and
4 (7) cannot be
the ex-mortgagor, because he or she had, in the past, the right to
be on the land,
viz
as owner. Up to the moment of transfer of the property out of his
or her name pursuant to the sale in execution, he or she
is still,
as owner, in lawful occupation. Only after the registration of
transfer can one say that he or she is in unlawful
occupation. But
even at that stage the definition of 'unlawful occupier' would not
be applicable to him or her, because of
the uninterrupted right he
or she has enjoyed in the past as owner - and this is incompatible
with the definition of 'unlawful
occupier' in PIE itself.
[71]
Sections
4 (6) and 4 (7) therefore, in my view, deal with the situation where
informal settlers have moved onto land mortgaged
by the owner. The
owner then fails to honour the loan obligations and the property is
declared executable and sold in execution.
The new owner must take
the necessary steps to evict the informal settlers, in which event
the considerations mentioned in
ss 4 (6) and 4 (7) must be taken
into account. Those considerations have no place in the eviction
of the ex-mortgagor. Had
it been the legislature's intention to
alter the common law relating to the unassailable position of a
purchaser at a sale in
execution (see
Reynders
v Rand Bank Bpk
1978 (2)
SA 630
(T) at 634 F
et seq
)
so drastically, and to undermine the whole institution of providing
home loans on the security of a mortgage bond, it should
and would
have said so clearly and expressly.
[72]
In
so far as the above conclusion seems to be in conflict with the
words 'except where the unlawful occupier is a mortgagor'
in s 6 (1)
of PIE, the only rational explanation of that phrase is, in my view,
that the legislature had confused the object
it had in mind,
ie
to provide some security of tenure for informal settlers, with the
person in occupation of the land at the time. The phrase
is
nonsensical : the mortgagor is still owner, is in lawful occupation
and cannot be an 'unlawful occupier'. In my view, the
unhappy
designation of a mortgagor as an unlawful occupier cannot detract
from the correct interpretation of PIE.
[73]
It
follows that PIE is not applicable to ex-mortgagors. In the
result, the second appeal must succeed.
No costs orders were requested by
the parties involved in both appeals.
[74]
In
the result I would accordingly have ordered that
1 the appeal in the case of
Peter
Ndlovu v Mpika Lawrence Ngcobo
,
case number 240 / 2001, be dismissed;
2 the appeal in the case of
Charles
Alfred Bekker and Michael John Bosch v Jimmy-Rodgers Bonginkasi
Jika
, case number 136 /
2002, succeed on the basis that the provisions of the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998 provide no defence against the order sought by the
appellants; and that the matter be remitted to the court of first

instance for the determination of the remaining issues between the
parties.
P J J OLIVIER JA