Ndlovu v Ngcobo; Bekker and Another v Jika

• Jurisdiction: South Africa
• Judge: Nienaber JA, Harms JA, Olivier JA, Mpati JA and Mthiyane JA
• Judgment Date: 30 August 2002
• Citation: 2003 (1) SA 113 (SCA)
• Docket Number: 240/2001 and 136/2002
• Hearing Date: 23 May 2002
• Counsel: W H Trengove SC for the appellant in the Ndlovu matter. M D Kuper SC for the appellants in the Bekker matter. No appearance for the respondent in either matter.
• Court: Supreme Court of Appeal

Harms JA:

[1] The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (herein called 'PIE') gives 'unlawful occupiers' some procedural and substantive protection against eviction from land. The question that arises is whether E 'unlawful occupiers' are only those who unlawfully took possession of land (commonly referred to as squatters) or whether it includes persons who once had lawful possession but whose possession subsequently became unlawful. In the Ndlovu appeal the tenant's lease was terminated lawfully but he refused to vacate the property. In the Bekker appeal a mortgage bond had been called up; the F property was sold in execution and transferred to the appellants; and the erstwhile owner refused to vacate. In neither case did the applicants for eviction comply with the procedural requirements of PIE and the single issue on appeal is whether they were obliged to do so.

[2] The Ndlovu matter originated in a magistrate's court; the magistrate held that PIE did not apply to the circumstances G of the case. The appeal to the Natal Provincial Division (per Galgut J, Combrinck J and Aboobaker AJ concurring) was dismissed as was the application for leave to appeal. This Court granted the necessary leave. The Bekker case began as an application for eviction in the Eastern Cape. Plasket AJ mero motu raised the question of non-compliance with PIE and H subsequently dismissed the application. The judgment is reported: [2001] 4 B All SA 573 (SE). The appeal to the Full Court (Somyalo JP, Jennett and Leach JJ) was dismissed, each member delivering a separate judgment. These have also been reported: 2002 (4) SA 508 (E). This Court granted special leave to appeal. In view of the fact that there was no appearance for the respondents and since both appellants I were to argue the same issue from different perspectives, the appeals were heard concurrently.

[3] PIE has its roots, inter alia, in s 26(3) of the Bill of Rights, which provides that 'no one may be evicted from their home without an order J

Harms JA

of court made after consideration of all the relevant circumstances'. Cape Killarney Property Investments A (Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA) at 1229E. It invests in the courts the right and duty to make the order, which, in the circumstances of the case, would be just and equitable and it prescribes some circumstances that have to be taken into account in determining the terms of the eviction. B

[4] PIE defines an 'unlawful occupier' in s 1 to mean

'a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997, and excluding a C person whose informal right to land, but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act 31 of 1996'.

(Emphasis added.)

[5] When the applications for eviction were launched the consent of the owner in the case of Ndlovu had lapsed and in the D case of Bekker the occupier, who originally held qua owner, never had the consent of the present owner. Both are cases of holding over. The quoted definition is couched in the present tense. Consequently, at the time of the launch of the applications to evict, both these occupiers - according to the ordinary meaning of the provision - were 'unlawful occupiers' because they occupied the land without consent. By the very E nature of things the definition had to be in the present tense because the question of eviction cannot arise in relation to someone who, at the time of the application, is a lawful occupier albeit that he had formerly been in unlawful possession. In other words, someone who took occupation without the necessary consent but afterwards obtained F consent cannot be an unlawful occupier for the purposes of eviction. To exclude persons who hold over from the definition would require more than a mere change in tense and one would have to amend the definition to apply to 'a person who occupied and still occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land'. G

[6] The first question is whether there are indicators in PIE as a whole that can justify such an emendation. Mr Kuper, for the landlords, did not suggest that there were any. Mr Trengove, who argued the case of the occupiers, submitted that everything in PIE in fact points in the opposite direction. First, H he sought support for the ordinary meaning in the fact that occupiers protected by the Extension of Security of Tenure Act 62 of 1997 (ESTA) are by the quoted definition expressly excluded from the provisions of PIE. ESTA protects persons who, at some stage or another, had consent or some other right to occupy (basically) agricultural land. It would not have been necessary to exclude that class from PIE, he submitted, I if PIE did not protect persons whose occupation, at a prior stage, had been lawful. The argument has some force but is not conclusive because persons protected by the provisions of the Interim Protection of Informal Land Rights Act 31 of 1996 are also excluded from PIE's protection. Those persons do not appear to be otherwise J

Harms JA

covered by the definition in PIE and their exclusion from PIE appears to be unnecessary and meaningless. A

[7] Another pointer suggested by Mr Trengove is s 6(1) of PIE, a provision heavily relied upon by the Full Court in the Bekker case. Section 6(1) gives organs of State legal standing to apply for the eviction of unlawful occupiers from land belonging to others. It has an exception, underlined in the quote that follows: B

'An organ of State may institute proceedings for the eviction of an unlawful occupier from land which falls within its area of jurisdiction, except where the unlawful occupier is a mortgagor and the land in question is sold in a sale of execution pursuant to a mortgage, and the court may grant such an order if it is just and equitable to do so, after considering all the relevant circumstances, . . . .' C

The argument is that since the legislator regards a mortgagor as an unlawful occupier, it has to follow that the definition cannot be restricted to persons who took occupation unlawfully.

[8] The problem is that, on a literal interpretation, the phrase makes no sense at all. By the very nature of things a mortgagor, being D an owner, cannot be an unlawful occupier; only once the property has been sold in execution and transferred to a purchaser can the possession of the erstwhile mortgagor/owner become unlawful. Another problem is that the purpose of the exception is not at all discernible. One can surmise that it was inserted during the Bill's passage through Parliament as the result of some lobbying by banks and the like who E wished to ensure that their security would not be eroded by PIE. To call a mortgagor an 'unlawful occupier' is not only incongruous but also absurd and it follows that the use of the term in s 6(1) cannot be used to interpret the definition. Compare Hoban v ABSA Bank Ltd t/a United Bank and Others 1999 (2) SA 1036 (SCA) at para [19]. F

[9] Somyalo JP and Jennett J, in their respective judgments in Bekker, relied upon s 4(7) for support for the proposition that the Legislature included mortgagors within the definition of 'unlawful occupiers'. It provides (with added emphasis): G

'If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of State or another land owner for the relocation of the H unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.'

Neither counsel embraced the argument. The words italicised mean that, if land is sold in a sale of execution, the court, in determining the relevant circumstances, does not take into account the factors I listed after the exception. It has nothing to do with the question of holding over by a mortgagor.

[10] The phrase nevertheless gives rise to an inexplicable anomaly. PIE distinguishes between unlawful occupiers who have occupied for less J

Harms JA

than six months (s 4(6)) and those who have occupied for more than six months (s 4(7)). The former have less rights than the latter A in the sense that the court is not mandated to consider in their case whether land has been made available or can reasonably be made available for their relocation (a consideration that can be traced to the Prevention of Illegal Squatting Act 52 of 1951 (herein referred to as 'PISA'): Kayamandi Town Committee v Mkhwaso and Others B 1991 (2) SA 630 (C)). However, in the event of a sale in execution of the bonded property, those with less than six months' occupation receive more protection because the court has to have regard to the rights and needs of the elderly, children, disabled persons and households headed by women (s 4(6)), something it need not take into account in the case of s 4(7). C

[11] Since the factors discussed are essentially neutral, one is left with the ordinary meaning of the definition which means that (textually) PIE applies to all unlawful occupiers, irrespective of whether their possession was at an earlier stage...