Ndlovu v Ngcobo; Bekker and Another v Jika

• Jurisdiction: South Africa
• Citation: 2003 (1) SA 113 (SCA)

Ndlovu v Ngcobo;
Bekker and Another v Jika
2003 (1) SA 113 (SCA)

2003 (1) SA p113

Citation	2003 (1) SA 113 (SCA)
Case No	240/2001 and 136/2002
Court	Supreme Court of Appeal
Judge	Nienaber JA, Harms JA, Olivier JA, Mpati JA and Mthiyane JA
Heard	May 23, 2002
Judgment	August 30, 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.

Flynote : Sleutelwoorde E

Land — Land reform — Eviction — Unlawful occupation — What constitutes — 'Unlawful F occupier' in terms of Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 includes owner who has mortgaged property but who continued to remain in occupation despite rights of ownership having been terminated by sale in execution and tenant whose lease lawfully terminated but who refuses to vacate G property — Provisions of Act applying to all unlawful occupiers irrespective of whether possession lawful at earlier stage — Act delaying or suspending exercise of landowner's full proprietary rights until determination made as to whether it was just and equitable to evict unlawful occupier and under what conditions — Provided procedural requirements of Act met, owner entitled to approach court on basis of ownership and H relevant occupier's unlawful occupation — Unless occupier opposing or disclosing circumstances relevant to eviction order, owner, in principle, entitled to order for eviction — Buildings or structures not performing function of form of dwelling or shelter for humans not falling under Act and, since juristic persons not having dwellings, their unlawful possession not protected by Act. I

Headnote : Kopnota

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 gives 'unlawful occupiers' some procedural and substantive protection against eviction from land. The question which arose in the J

2003 (1) SA p114

present appeals was whether 'unlawful occupiers' were A only those who had unlawfully taken possession of land, ie squatters, or whether the term included persons who at one stage had had lawful possession but whose possession had subsequently become unlawful. In the Ndlovu matter, the tenant's lease had been terminated lawfully but he had refused to vacate the property. The magistrate hearing the matter initially had held that the Act did not apply to the circumstances of the case. On appeal, the High Court B upheld this decision. In the Bekker matter, a mortgage bond had been called up, the property sold in execution and transferred to the present appellants but the erstwhile owner had refused to vacate. In the application for eviction in the High Court, the Judge had mero motu raised the question of non-compliance with the Act and had subsequently dismissed the application. The appeal to a Full C Bench was dismissed. In neither case had the applicants for eviction complied with the procedural requirements of the Act and the only issue for the Court to decide was whether they had been obliged to do so. As there was no appearance for the respondents and as the appellants intended to argue the same issue from different perspectives, it was decided to hear the appeals in the two matters concurrently.

Both matters under consideration were cases of holding over. In Ndlovu the consent of the owner had lapsed, while in D Bekker the occupier, who had originally held qua owner, never had the consent of the present owner. At the time of the launch of the applications to evict, both occupiers had, according to the ordinary meaning of the term in the Act, been 'unlawful occupiers' because they occupied the land without consent. To exclude persons who hold over from the definition of 'unlawful occupier' E would necessitate an amendment to the definition to apply to a person who occupied and still occupied land without express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land. (Paragraph [5] at 120D/E - G.) It therefore needed to be considered whether there were indicators in the Act justifying such an emendation. In the Bekker case the argument was that, since the Legislature regarded the mortgagor as an unlawful F occupier, it had to follow that the definition could not be restricted to persons who took occupation unlawfully.

Held (per Harms JA; Mpati JA and Mthiyane JA concurring; Olivier JA and Nienaber JA dissenting), that by the very nature of things a mortgagor, being an owner, could not be an unlawful occupier. Only once the property had been sold in execution and G transferred to a purchaser could the possession of the erstwhile mortgagor/owner become unlawful. To call a mortgagor an 'unlawful occupier' was not only incongruous but also absurd. (Paragraph [8] at 121D - E and E/F.)

Held, further, that the Act distinguished between unlawful occupiers who had occupied for less than six months (see s 4(6) of the H Act) and those who had occupied for more than six months (see s 4(7) of the Act). The former had fewer rights in that the court considering the application for their eviction did not have to consider whether land had been made available or could reasonably be made available for their relocation. However, in the event of a sale in execution over bonded property, those with less than six months' occupation received more protection because the court had to have regard to the needs of the elderly, children, disabled persons and I households headed by women (s 4(6)), something it did not have to take into account in the case of s 4(7). (Paragraph [10] at 121J - 122C.)

Held, further, that the ordinary definition of the term meant, textually, that the Act applied to all unlawful occupiers, irrespective of whether their possession at an earlier stage had been lawful. (Paragraph [11] at 122C/D - D.)

Held, further, that, in enacting the Act, there had clearly been a substantial class J

2003 (1) SA p115

of persons whose vulnerability might have been a concern of Parliament. The Bill of Rights and social or remedial A legislation often conferred benefits on persons for whom they were not primarily intended. There seemed to be no reason in the general social and historical context of the country why the Legislature would not have wished to afford the vulnerable class of the landless poor the protection of the Act. (Paragraph [16] at 123C - E.)

Held, further, that the landlord's problem with the affluent tenant was not as oppressive as it seemed at first. The tenant B would obviously be entitled to the somewhat cumbersome procedural advantages of the Act to the annoyance of the landlord. However, what the Act did was to delay or suspend the exercise of the landowner's full proprietary rights until a determination had been made whether it was just and equitable to evict the unlawful occupier and under what conditions. This discretion was one in the wide, not the narrow, sense. C (Paragraph [17] at 123F - F/G and 123J - 124A and para [18] at 124B/C.)

Held, further, that a court of first instance did not have a free hand to do whatever it wished and the Court of appeal was not hamstrung by the traditional grounds of whether the Court a quo had exercised its discretion capriciously or upon a wrong principle, or that it had not brought its unbiased judgment to bear on D the question, or that it had acted without substantial reasons. (Paragraph [18] at 124C - D.)

Held, further, that, provided the procedural requirements had been met, the owner was entitled to approach the court on the basis of ownership and the respondent's unlawful occupation. Unless the occupier opposed or disclosed circumstances relevant to the eviction order, the owner, in principle, would be entitled to an order for E eviction. (Paragraph [19] at 124E - E/F.)

Held, further, that buildings or structures that did not perform the function of a form of dwelling or shelter for humans did not fall under the Act and, since juristic persons did not have dwellings, their unlawful possession was not protected by the Act. (Paragraph [20] at 124J - 125A.) F

Held, further, that it could not be discounted that Parliament had intended to extend the protection of the Act to cases of holding over of dwellings and the like. The Ndlovu appeal therefore had to succeed and the Bekker appeal fail. This did not imply that the owners concerned would not be entitled to apply for and obtain eviction orders. It only meant that the procedures of the Act had to be followed. (Paragraph [23] at 125G - H.) G

Cases Considered

Annotations

Reported cases

ABSA Bank Ltd v Amod [1999] 2 B All SA 423 (W): discussed, criticised and not followed

Administrators, Estate Richards v Nichol and Another 1999 (1) SA 551 (SCA): considered H

Bekker and Another v Jika [2001] 4 B All SA 573 (SE): referred to

Bekker and Another v Jika 2002 (4) SA 508 (E): confirmed on appeal

Betta Eiendomme (Pty) Ltd v Ekple-Epoh 2000 (4) SA 468 (W): discussed and dicta in criticised

Boyers v Stansfield Ratcliffe & Co Ltd 1951 (3) SA 299 (T): referred to

Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA): dictum at 1229E applied I

Chetty v Naidoo 1974 (3) SA 13 (A): referred to

Ellis v Viljoen 2001 (4) SA 795 (C) (2001 (5) BCLR 487): considered

Esterhuyze v Khamadi 2001 (1) SA 1024 (LCC): considered

Ex parte Neethling and Others 1951 (4) SA 331 (A): considered

Ex parte the Minister of Justice: In re R v Jekela 1938 AD 370: referred to J

2003 (1) SA p116

Graham v Ridley 1931 TPD 476: referred to A

Hoban v ABSA Bank Ltd t/a United Bank and Others 1999 (2) SA 1036 (SCA): compared

Jeena v Minister of Lands 1955 (2) SA 380 (A): referred to

Kayamandi Town Committee v Mkhwaso and Others 1991 (2) SA 630...