South Africa: Supreme Court of Appeal

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.

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P M NIENABER

JUDGE OF APPEAL