Betta Eiendomme (Pty) Ltd v Ekple-Epoh

• Jurisdiction: South Africa
• Judge: Flemming Djp
• Judgment Date: 28 April 2000
• Citation: 2000 (4) SA 468 (W)
• Docket Number: 1736/2000
• Hearing Date: 23 March 2000
• Counsel: K I Foulkes-Jones SC for the applicant. No appearance for the respondent.
• Court: Witwatersrand Local Division

Flemming DJP:

[1] Applicant is the owner of premises. Respondent took occupation thereof on 1 March 1999 in terms of a written lease. He did not pay the required deposit and paid rental only for four months. When B payments ceased applicant instituted action in the magistrate's court. The action was not defended. Default judgment was later granted for rental for a few months and damages. But the magistrate refused to grant ejectment because 'illegal occupation is in itself not sufficient relevant circumstances for the granting of an order of the C eviction of a person from his home'. The proposition which I have quoted was derived from the decision in Ross v South Peninsula Municipality which was delivered on 3 September 1999 in the Cape Provincial Division under case No A741/98. [*] The magistrate's judgment amounts to the granting of absolution from the instance in regard to the claim for ejectment. D

[2] Applicant's attorney (apparently from comments by the magistrate) learnt that in view of the Ross case no amendment of pleadings would assist the applicant in obtaining the ejectment of the respondent unless the amendment went further than alleging the mere unlawful occupation of the premises. The attorney E learnt that no magistrate in Johannesburg would apply the Ross decision differently. Proceedings were therefore commenced in this Court. Instead of a two-page summons dealt with in a magistrate's court, there is now a 55-page application, all of which has to be read, before a High Court. There is still no sign of any opposition from the respondent. F

[3] Before considering the Ross decision, some general observations are appropriate.

[3.1] To understand a communication, oral or written, there is no better guide than the words which were actually used. Words are ordinarily chosen because they are regarded by the speaker as the most G apt to convey the specific thought which he wants to put across. Words are intended by the speaker to receive their ordinary signification in the setting of the topic under discussion. Any speaker will expect the interpreter not to ignore some of his words or to add to his words, but to respect that the statement goes as far as the words indicate. H

[3.2] A second group of principles which explain the process of understanding also rests upon logic. The principles are again neither synthetic nor unnatural. They are an explanation of what the ordinary sensible person really does, keeping feet on the ground, to get to the true meaning. That person, perhaps unwittingly, will understand a word I in its context and not in isolation. The context includes the object of the communication. If a person shouts 'fire', it is a command for action to artillery; it is a warning to vacate a theatre; it is confirmation of readiness

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to the person with the starter's gun at athletics; it is an A effective suggestion to proceed to someone who awaits clearance before commencing an intended task; it is advice to an employer about how to respond to an employee's misdemeanour.

[3.3] Legislation lacks some of the aids to interpretation which are available in oral communication such as intonation and gestures. On the B other hand some considerations are added which find no place in oral context or in written communications of a different nature such as contracts. Two of these are the probability (therefore a 'presumption' or 'rule of preference') that a legislator intends clarity rather than uncertainty and that it intends fairness rather than unfairness. Good and fair governing is what one expects a legislature to strive for. Whenever the Legislature desires a different C result, it should make that clear. If on one interpretation rights are not affected while another causes interference, the interpretation of non-interference (or of lesser rather than greater interference) is indicated.

[4] Although the third group of 'rules' includes rules which have D specialised application to statutes, these rules are so obvious and logical that they are generally speaking applied, for example, in interpreting oral speech, contracts, wills, patent specifications (cf Nampak Products Ltd and Another v Man-Dirk (Pty) Ltd 1999 (3) SA 708 (SCA) at 712, 713) etc. They are, as one may expect, found in every legal system of which I have any knowledge. As to other legal E systems one need refer only to a textbook. Steyn's Die Uitleg van Wette shows that it is a pattern through history. These 'rules' of interpretation, notwithstanding being recognised in law to the point of being part of our law, are in their nature merely the systematic expression of the logic of how one comes to understand a particular meaning. F

[5] Legislation is normally passed for a reason. Knowing what the reason is may assist the interpreter. Recognising a purpose does not create freedom to create any injunction which in the subjective mind of the interpreter is beneficial to attain the object. It remains G necessary to ascertain how much of the mischief the Legislature actually intended to counteract. It needs to be determined how far the chosen remedy was intended to go to counteract the relevant mischief. In the result close attention must be focused on the words even when the object indicates the tenor. The object remains as one mere aid when attending to the words actually used. To promote literacy a statute may H not speak of every illiterate but perhaps tackle only children between the ages of ten and fourteen, or only employees in a specific industry. The remedy may be against the parent only and not the teacher or the child. The statute may require actual interpretation on aspects such as whether it creates voidness, authorises expulsion or empowers criminal punishment. I

[6.1] The Constitution of this country is 'an order on paper'. Human failure may cause it to be different in practice, in particular if the Constitution is made a fountain of loss of rights, of inequality, of unfairness and ineffectiveness against crime. It will be a failure of those who must strike the balance if the Constitution results in cuddling the J

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bad and meeting the good with controls, limitations, burdens, and A loss of legitimate interests. It will be the fault of Judges.

[6.2] It may seem trite, but it deserves to be emphasised in this case that those who formulated the Constitution and who passed the statute in Parliament also chose their words carefully. They did so knowing full well that the chosen words constitute practically the B exclusive or at least the dominant source from which it will be established what Parliament is really saying. Parliament had no legitimate means except written words to convey its intentions. Also the Constitution of the Republic of South Africa Act 108 of 1996...