Can estoppel be raised against an eviction in terms of PIE?

• Author: Elmien (W.J.) Du Plessis
• DOI: 10.10520/EJC197715
• Published date: 01 January 2015
• Date: 01 January 2015
• Pages: 434-455

Can estoppel be raised against an

eviction in terms of PIE?

Elmien (WJ) du Plessis*

Abstract

Estoppel is a well-known defence against (or limitation on) the rei vindicatio. This would

be the case for example where the owner by some representation creates the impression

that a third party is the owner of a thing and that the third party has the capacity to alienate

the property. The bona fide third party can, when the owner then institutes the rei vindicatio

to recover his property, raise estoppel and preclude the real owner from claiming his

property.

Before 2002, if one wanted to evict an unlawful occupier from certain residential

premises, one would institute the rei vindicatio. In Ndlovu v Ngcobo; Bekker v Jika [2002]

4 All SA 384 (SCA) the court, however, ruled that the Prevention of Illegal Eviction from

and Unlawful Occupation of Land Act 19 of 1998 (PIE) must be used in all instances of

evicting people from urban residential premises. The question is: does estoppel serve as

a defence/limit in the application of PIE? Surprisingly few cases deal with this issue. The

court in Joe Slovomade a few remarks about the possibility of using estoppel as a defence

against the rei vindicatioby looking at the interpretation of ‘tacit consent’ required by PIE.

This article will interpret provisions of PIE and look at case law that deals with the use of

estoppel in lease cases. It will conclude by remarking on the feasibility of using estoppel

as a defence in PIE eviction cases.

BA (International Relations), LLB, LLD (US). Associate Professor, Faculty of Law, North-West

*

University, Potchefstroom Campus. This work is supplemented on the research supported in part

by the National Research Foundation of South Africa (Unique Grant No 94148). Any opinion, finding

and conclusion, or recomm endation expressed in this material is that of the author and the NRF

does not accept any liability in this regard. This article was presented at the South African Property

Law Teachers Conference held at UCT, November 2012. I would like to thank Prof Jean Sonnekus

for the informal discussion we had about the topic (even though we have different opinions on the

matter), as well as Prof Gerrit Pienaar, with whom I had various conversations about this over cups

of very strong coffee. The comments made by Prof Joseph Singer on the American position in this

respect also helped me consider the way this problem is solved elsewhere. Faults and inaccuracies

remain my own (and can maybe be attributed to a caffeine overdo se).

Can estoppel be raised against an eviction in terms of PIE?435

1 Introduction

Property owners are generally entitled to exercise and retain control over their

property. In attempting to do this, there are several remedies at an owner’s

disposal should her entitlements be infringed. The rei vindicatio is one such

remedy. This entitles an owner to vindicate her property, in particular movables

1

and non-residential immovable property, from anyone that is in unlawful control

of her property. All the owner needs to aver is that she is the owner, and that the

defendant is in control of the property, and that the property exists and is

identifiable. The defendant can then raise various defences to ward off this

2

claim, of which estoppel is one such defence.

3 4

Estoppel precludes the owner from relying on her ownership, if the owner

created a misrepresentation that another person relied on, thinking the presentation

is the truth, and acted on the misrepresentation to the other person’s detriment. This

representation can be made in words or by conduct, including silence and inaction.5

The remedy of the rei vindicatiowas traditionally used to evict tenants. With

6

the advent of constitutionalism this changed dramatically. Section 26 of the

7

Ubi rem meam invenio, ibi vindico, or ‘where I find my property, th ere I can vindicate it from’.

1

Graham v Ridley 1931 TPD 476 at 479 and Chetty v Naidoo 197 4 3 SA 13 (A) 20A – E.

2

The various defence s against the rei vi ndicatio are as follows: the defendant has acquired the

3

property by prescription; a third party is the owner of the property; the property was alienated or

destroyed; or the defendant has a superior contractual right to possession. Van der Merwe and Du

Plessis Introduction to the law of South Africa (2004) 218. Echoed in Du Bois et alWille’s Principles

of South African law (2011) 539 and Badenhorst et alSilberberg and Schoeman’s The law of

property 5 ed (2006) 242.

th

Mann v Sydney Hunt Motors (Pty) Ltd 1958 2 SA 103 (GW ), where it was said that ‘[i]n our law

4

estoppel remains a weapon of defence’ (107). Also see Union Government v National Bank of

South Africa Ltd 1921 AD 121 128; Pandor’s Trustee v Beatley and Co 1935 TPD 358; Biloden

Properties (Pty) Ltd v Wilson1946 NPD 736 at 749-750. Millner ‘Fraudulent non-disclosure’ (1957)

SALJ 177 questions why estoppel cannot also be used to enforce a contract. Van der Walt ‘Die

beskerming van die bona fide-besitsverkryger: ’n vergelyking tus sen die Suid-Afrikaanse en

Nederlandsereg’ in Gauntlett (ed) Noster (1979) 86 does not agree: ‘[e]stoppel is gerig op die

voorkoming van nadeel aan die opwerper; die leerstuk het dus slegs werking in dié mate waarin

die opwerper benadeelsou word. ’n Opwerper kan nie op grond van estoppel ’n voordeel, wat hy

andersins nie sou gehad het, behou nie’. See Arthur v Central News Agency Ltd 1925 TPD 588

about the nature of the ‘rem edy of estoppel’ as ‘a matter of evidence’ (595). This was rejected in

Colee Investments (Pty) Ltd v Papageorge 1985 3 SA 305 (W ) at 56.

Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 3 SA 275 (A) 291.

5

Chetty v Naidoo (n 3). In pre-constitutional evicti on law, this enabled a landlord to easily evict

6

tenants without considering if it was just and equitable to do so. With landownership mostly in the

hands of the state and of white people, this enabled the apartheid government to enforce its

segregation policies. See Van der W alt ‘Exclusivity of ownership, security of tenure, and eviction

orders: A model to evaluate South African land-reform leg islation’ 2002 TSAR 254.

See in general Van der Walt Property in the margins(2009) for a thorough theoretical explanation

7

of this shift.