George Municipality v Vena and Another

• Jurisdiction: South Africa
• Citation: 1989 (2) SA 263 (A)

George Municipality v Vena and Another
1989 (2) SA 263 (A)

1989 (2) SA p263

Citation	1989 (2) SA 263 (A)
Court	Appellate Division
Judge	Corbett JA, Van Heerden JA, Hefer JA, Milne JA, Kumleben JA
Heard	November 17, 1988
Judgment	November 30, 1988

Flynote : Sleutelwoorde F

Land — Squatting — Prevention of Illegal Squatting Act 52 of 1951 s 3B(1)(a) — Not only applicable to buildings or structures erected on land unlawfully occupied — No support for such interpretation either in specific wording of section or in title of Act — Section G can accordingly be used to justify demolition, without Court order, of buildings or structures erected without owner's consent on land lawfully occupied.

Spoliation — Spoliation order — Owner of land, municipality, demolishing, without Court order in terms of s 3B(1)(a) of the Prevention of Illegal Squatting Act 52 of 1951, homes built without H the property owner's consent — Grounds advanced for demolition (i) occupants had no right to occupy land, and (ii) the homes had been built without the owner's consent — First respondent proving on balance of probabilities that he was entitled to occupy land — Building constituted re-erection of existing building — Owner's consent I obtained for original building — Re-erection covered by original consent provided structure not so different from building consented to that it could be said that it was not consented to — Also word 'erect' did not include re-erection and therefore no consent required by Act — Demolition without Court order therefore unlawful — J Spoliation order granted.

1989 (2) SA p264

Headnote : Kopnota

First and second respondents resided in Lawaaikamp on land owned by the appellant municipality which had, without a A Court order and relying on the provisions of s 3B(1)(a) of the Prevention of Illegal Squatting Act 52 of 1951, demolished a partly re-erected building occupied by the first respondent and an extra room second respondent had added to his existing house. The respondents successfully sought a spoliation order in a Provincial Division for the restoration of their respective houses to their condition before demolition. In an appeal,

B Held, that the first respondent only had established a title or right to the land, on which the demolished building or structure had existed, by which she could lawfully occupy it, and second respondent's failure to establish such title or right precluded him in terms of s 3B(4)(a) of the Act from seeking relief in this regard.

Held, accordingly, that the appeal had to succeed in respect of the second respondent.

Held, further, that, s 3B(1)(a) of Act 52 of 1951 did not, as had C been held by the trial Court, apply only to buildings or structures on land unlawfully occupied: such an interpretation found no support in either the specific wording of the section or the long title of the Act or amending Acts.

Held, further, that any Act purporting to alter the fundamental principle of our law that a person should not be disturbed in his possession of property without recourse to legal process would have to be narrowly construed in view of the fundamental importance of that principle of law.

D Held, further, that s 3B(1)(a) of Act 52 of 1951 was capable of meaning:

(i)

that the owner's consent might be given before, during or after the erection and in any manner whatsoever, ie expressly or impliedly, orally or in writing or by conduct;

(ii)

the consent might be in very general terms, eg for a 'dwelling' or a 'shack' for X and his family to live in.

Held, further that, if an owner consented to the erection of a E building, then, for the purposes of the section, the fact that the building erected was not precisely what the owner had envisaged or did not comply with by-laws or town planning regulations did not necessarily mean that the owner had not consented to such an erection subject to the qualification that the building erected could not be so different from that to which the owner consented that it could be said that he had not consented.

F Held, further, that appellant had failed to discharge the onus it bore to justify its actions in demolishing a building without a Court order, firstly, on the ground that appellant must be taken to have consented to the original erection of the house occupied by first respondent and there was nothing on the papers before the Court to show that appellant's consent to the original erection of the house did not apply to the house as re-erected nor were any reasons advanced for finding that the consent was to terminate automatically if the original building was damaged or even destroyed; and secondly that the word 'erect' did not mean 're-erect' and therefore the owner's consent for the G re-erection of buildings was not required.

Held, therefore, that appellant's consent to the erection of the original building continued to operate in respect of the re-erection of the building and appellant was accordingly not justified in demolishing first respondent's house.

The decision in the Cape Provincial Division in Vena and Another v George Municipality 1987 (4) SA 29 confirmed in part and reversed in part. H

Case Information

Appeal against the grant of a spoliation order in the Cape Provincial Division (Friedman J). The facts appear from the judgment of Milne JA.

A J Smit for the appellant referred to the following authorities: As I to when the long title of an Act may be referred to in the interpretation thereof, Bhyat v Commissioner for Immigration 1932 AD 125 at 129; B Levy & Co v Livschitz 1941 WLD 89 at 91; S v Bhengu 1968 (3) SA 606 (N) at 610B - C; S v Coetzer 1972 (2) SA 119 (T) at 121E - F; Norden and Another NNO v Bhanki and Others 1974 (4) SA 647 (A) at 655A; S v Kock 1975 (3) SA 332 (O) at 333G; L C Steyn Die Uitleg van Wette 5th ed at 147; as to the enforcement of municipal building J regulations, Randell and Bax The

1989 (2) SA p265

South African Attorneys Handbook 4th ed at 196; Sloss v Morgan and Another 1935 CPD 86; Smith v Cape Town Council 1934 CPD 441; S v Antrim Court (Pty) Ltd and Another 1962 (4) SA 405 (C); Attorney-General, Transvaal v Tayob 1963 (2) SA 460 (A) is distinguishable in regard to the meaning of 'erect'. A

L R Dison SC (with him P A L Gamble ) for the respondents referred B to the following authorities: As to the Court's approach to factual disputes, Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634. As to the requirements of a spoliation order, Lee and Honoré Family, Things and Succession 2nd ed at 250; Silberberg and Schoeman The Law of Property 2nd ed at 135. As to whether there was a genuine dispute of fact on the question of whether second respondent C had permission to reside, Kotsokwane v Johannesburg City Council 1950 (1) SA 161 (W) at 163; Kelleher v Minister of Defence 1983 (1) SA 71 (E) at 77A; Plascon-Evans case (supra at 634G - 635C). As to the applicability of the regulations, City of Salisbury v Mehta 1962 (1) SA 675 (FC) at 693; Armitage NO v Mtetwa 1950 (1) SA 439 (T) at 443; Wise D Poka v Johannesburg City Council and Others 1938 WLD 212 at 218; Sithole v Native Resettlement Board 1959 (4) SA 115 (W) at 118H. As to the interpretation of s 3B(1)(a) of the Prevention of Illegal Squatting Act 52 of 1951, IRC v Mobil Ltd 1987 (1) WLR 1065 (HL(E)) at 1073C; 1967 Acta Juridica 201 at 203; Voet (Gane's translation) vol I at 10, 11, E 53; Massachusetts Bonding Insurance Co v United States 77 S Ct 187 (352 US 128); Corbin On Contracts (1971) Part III para 542 at 45; Jaga v Dönges NO 1950 (4) SA 653 (A) at 664; Stellenbosch Farmers' Winery Ltd v Distillers Corporation (SA) Ltd and Another 1962 (1) SA 458 (A) at 476; IRC v Mobil Ltd (supra at 1071); In re Bidie [1949] 1 CH 121 (CA) ([1948] 2 ER 995); Hleka v Johannesburg City Council 1949 (1) SA 842 (A) F at 851 - 3; L C Steyn Uitleg van Wette 5th ed at 97, 101; Benning v Union Government (Minister of Finance) 1914 AD 180 at 185; Union Government v Rosenberg (Pty) Ltd 1946 AD 120 at 129; Phillips v Direkteur vir Sensus 1959 (3) SA 370 (A) at 374; Charlestown Town Board and Another v Vilakazi 1951 (3) SA 361 (A) at 370; Attorney-General, Transvaal v Tayob 1963 (2) SA 460 (A) at 463B. As to non-compliance with G the building regulations, Runsin Properties (Pty) Ltd v Ferreira 1982 (1) SA 658 (SE) at 668F - H, 670G. As to the remedy of a spoliation order, Huber Jurisprudence of my time (Gane's translation vol 2 at 221); Runsin Properties case supra at 670G. Further as to the interpretation of s 3B(1)(a) of Act 52 of 1951, Storm & Co v Durban Municipality 1925 H AD 49 at 55; Sitole v Johannesburg Municipality 1933 AD 1 at 10; Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530 at 554; 1951 Annual Survey at 35; Trespass Act 6 of 1959; Kruger v Monala 1953 (3) SA 266 (T) at 270; Chiloane v Maduenyane 1980 (4) SA 19 (W) at 22G; Stewart v Ivercagil 1976 (2) NZLR 362.

I Cur adv vult.

Postea (November 30).

Judgment

Milne JA:

This is an appeal against the grant of a spoliation order and certain other relief which the respondents obtained in the Cape of J Good Hope Provincial Division. The judgment of the Court a quo is reported as

1989 (2) SA p266

Milne JA

Vena and Another v George Municipality 1987 (4) SA 29 (C). The allegations of fact, the contentions of law and the relevant legislation are clearly and fully set out in the judgment of Friedman J. It is therefore unnecessary to set them all out again at this stage, although I shall have occasion to refer in detail to the legislation. A

B There can be no doubt that the appellant municipality did demolish the partly erected building occupied by the first respondent, and the extra room which the second respondent had added to the house occupied by him, and that it did so without obtaining an...