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Case No 240/2001
Case No 136/2002
In the matter between:
and
2. CHARLES ALFRED BEKKER and
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.
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 (4) SA 791 (A) 800, Knox D’Arcy Ltd and Others v Jamieson and Others 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 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
SAFLII:
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.RTF of original document