2020 volume 1 p 103

• Date: 03 February 2020
• Published date: 03 February 2020

RECONSIDERI NG COUNTER-SPOLI ATION AS A COMMON-LAW REMEDY 103

[ISSN 0257 – 7747] TSAR 2020

. 1

RECONSIDERING COUNTER-SPOLIATION AS A COMMON-LAW

REMEDY IN THE EVICTION CONTEXT IN VIEW OF THE SINGLE-

SYSTEM-OF-LAW PRINCIPLE

A reply to Scott’s discussion of Residents of Setjwetla Inform al Settlement v

Johannesburg City 2017 2 SA 516 (GJ)*

1 Introduction

After 25 years of democracy, landlessness remains a major problem in South Africa,

as millions of people still do not have access t o adequate housing. Thi s inevitably

causes persons, who act eithe r out of necessity or, sometimes, for more questionable

reasons (such as to make political stateme nts), to occupy the land of others (see,

* We are indebted to Prof Michelman for fruitful correspondence regarding key aspects of the case

note. The authors co-presented this contribution as a paper at the Private Law and Social Justice

Conference, held at Nelson Mandela University, Port Elizabeth, 19-20 August 2019. Thanks are due

to the conference participants for helpful comments. A word of thanks also goes to the participants of

the monthly property law reading session at the University of Pretoria for their constructive feedback.

Ms Van der Merwe and Ms Makaya provided research assistance. Muller (ORCID: 0000-0003-1254-

6601) received funding from the Research Development Programme at the University of Pretoria that

made this research possible and Marais (ORCID: 0000-0003-2840-2653) expresses his gratitude to the

National Research Foundation for providing nancial support that made research for this contribution

possible. Remaining errors are our own.

2020 TSAR 103

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TSAR 2020

. 1 [ISS N 0257 – 7747]

104 MULLER AN D MARAIS

for instance, htt ps://ewn.co.za/ Topic/Illegal-la nd-invasion s (28-08-2019)). Despite

the desperate plight of these per sons, and the motivations behi nd these intr usions,

the law cannot (and does not) condone such conduct (s 3 of the Prevention of

Illegal Eviction from and Unlawful Occupation of L and Act 19 of 1998). If land

occupations are not properly add ressed, they hold several danger s. These include

undermin ing the rule of law (s 1(c) of the Constitution of the Republic of South

Africa, 1996) throug h subverting public order (Cramer and Moste rt “‘Home’ and

unlawful occ upation: the horns of local governme nt’s dilemma: Fischer v Persons

Unknown 2014 3 SA 291 (WCC)” 2013 Stell LR 583 584; Pre sident of the Republic

of South Africa v Modderk lip Boerdery (Pt y) Ltd 2005 5 SA 3 (CC) par 45),

infring ing the right of landowners aga inst arbitrar y deprivation of their prope rty

(s 25(1) of the constitution), and (perhaps most per tinently) frust rating the stat e’s

legitimate efforts to pr ovide housing on a planned basis under se ction 26(1) of the

constitution (Government of the Republic of South Africa v Grootboom 20 01 1 SA

46 (CC) par 92). The question is therefore how best to prevent – and discourage –

these occupations.

The answer to this que stion is twofold, namely which source of law governs such

intrusions, a nd whether the applicable source promotes the posit ive characteristics

the constitution envisions for all law. The common-law defence of counter-spoliation

(contra-spolie), like the mandament van spolie, discourages unlawf ul self-help by

permitti ng possessors to commit a reasonable measu re of lawful self-help to protect

their possession of propert y (see, for instance, Boggenpoel Property Remedies

(2017) 149-153; Badenhorst, Pienaar a nd Mostert Silberberg and Schoeman’s The

Law of Property (2006) 306 -308 and the sources they cite). Act 19 of 1998 brings

the applicability of this defence into que stion in cases where person s are in the

process of unlawfu lly occupying land to est ablish a home there. This is because

the act expressly excludes the common law when it comes to evict ing unlawfu l

occupiers from land they oc cupy as a home (s 4(1) of Act 19 of 1998, read with s

26(3) of the constitution). Landowners, both private and the stat e, must follow the

relevant procedure in th is act to evict such occupiers fr om land and may no longer

merely invoke the common law to obtain an evict ion order – whether actual or

construct ive. It thus has to be determ ined what the relationship be tween these two

sources of law is.

Several recent cases emphasise a very specic aspect of land occupations, namely

where persons are sti ll in the process of occupying la nd and where their possession

has thus not yet stabilised. Stat ed differently, here the intruder s are still in the process

of acquiring physical control of la nd but have not yet obtained it. The question is

whether Act 19 of 1998 governs such i nstances or whether owne rs are free to rely

on the defence of counter-spoliation to protect their possession. It is precisely this

latter possibility t hat Scott raises in his case note (“The preca rious position of a land

owner vis-à-vis unlawf ul occupiers: common-law remedies to t he rescue?” 2018

TSAR 158) on Residents of Setjwetla Informal Settleme nt v Johannesburg City 2017

2 SA 516 (GJ)). His contribution prompted us to wr ite this response.

Scott argues th at the Gauteng local division, Johanne sburg, in the Setjwetla case

erred by not consideri ng that the respondent’s demolition of the applicants’ informal

homes without a court order m ight have amounted to counter-spoliation, wh ich

is a lawful act. For reasons on which we elaborate i n more detail below, Scott’s

reasoning – in ter ms of the applicable common-law principles governi ng counter-

spoliation – cannot be faulted.

The normative aspect t hat underlies the question how land i ntrusions should be

prevented entails that the law mus t provide a speedy and effective mechan ism to

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