Pieters and another v Stemmett and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Spilg J |
| Judgment Date | 03 February 2023 |
| Citation | 2023 JDR 0342 (LCC) |
| Docket Number | LCC 2022/139 |
| Hearing Date | 10 November 2022 |
| Court | Land Claims Court |
Spilg J:
INTRODUCTION:
In September 2018 Mr S Stemmett brought an application in the Bellville Magistrates' Court for the eviction of Mr and Mrs Pieters in terms of the
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Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ("PIE")
In late May 2019 the Pieters brought an urgent spoliation application in the same court. They alleged that additional locks had been placed on a gate, that movement to and from their dwelling on the property was being curtailed, that they were prevented from having certain visitors and that access to water and electricity had been cut. In this application both Mr Stemmett and his father (who was the predecessor in title to the property), were cited as first and second respondents respectively.
The application was in two parts. The first part sought an urgent interim interdict pending the outcome of a declarator (contained in the second part), that the Pieters' occupation is governed by the Extension of Security of Tenure Act 62 of 1997 ("ESTA"), not by PIE.
In his answering affidavit, which was filed in October 2019, Stemmett contended that the majority of events predated January 2019 and that none amounted to a spoliation.
The Pieters' ESTA application as well as Stemmett's eviction application were heard on the same date by Magistrate Mohamed. The court found that the Pieters were not ESTA occupiers. In the result, the Pieters' application for a declarator that their rights of occupation were subject to ESTA was dismissed. The court also found that the relevant provisions of PIE had been complied with and granted an eviction order against the Pieters.
The Pieters bring the decision to dismiss their ESTA declarator on appeal to this court. They have also brought a separate appeal before the High Court against the granting of the eviction order under PIE.
The manner in which the appellants have brought the appeals is to be commended. This court has exclusive jurisdiction to hear civil appeals from a
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Magistrates' Court and exclusive jurisdiction to interpret ESTA legislation [1] . If this court determines that ESTA applies, then the pending appeal before the Full Bench of the High Court becomes moot. If this court finds that ESTA does not apply then the appeal before the High Court can proceed on the basis of a PIE eviction.
PRELIMINARY:
The appellants apply for condonation in respect of the late filing of their notice of appeal. Good and proper grounds for granting condonation have been provided PLS STATE VERY BRIEFLY WHAT THESE ARE.and the respondents do not oppose. Condonation is therefore granted
THE ISSUES:
At the heart of the dispute between the parties is whether the land on which the Pieters reside is or is not in a township, and if it is in a township whether the specific land they are on has been designated for agricultural purposes.
If it is not in a township (or despite being in a township is land designated for agricultural purposes) then the regime under which the Pieters may be evicted is determined by ESTA and not PIE.
Although the issue may be crisply framed, the determination of what constitutes a township and land designated for agricultural purposes under ESTA requires the court to delve into the meaning to be given to these terms.
The point of departure between the able arguments presented by each counsel is that Adv. Adhikari for the appellants contends that the enquiry requires an exclusive jurisprudential analysis devoid of factual orientation while Adv. Beviss-Challinor
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for the Respondents, submits that the legislation directs us through its wording to consider the specific attributes of the land which is identified in order to determine whether it falls within a township or not.
"Words exist because of meaning". This was said some 2300 years ago. [2]
Legislation requires the distillation of concepts into concise and manageable, but possibly an imprecise or ambiguous, series of words into printed form. Imprecision may arise internal to the document itself or externally when applied to a set of given circumstances.
Historically courts grappled with whether ambiguity or absurdity and the like were a pre-requisite before being entitled to embark on a broader enquiry in order to ascertain the meaning of words in documents [3] . By the time of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC), Ngcobo J (at that time) was able to confirm the proper approach to statutory interpretation (at para 90):
"The emerging trend in statutory construction is to have regard to the context in which the words occur, even where the words to be construed are clear and unambiguous."
The court also cited the passage in University of Cape Town v Cape Bar Council and Another 1986 (4) SA 903 (A) at 914D-E where the then Appellate Division said that:
"I am of the opinion that the words of s 3(2)(d) of the Act, clear and unambiguous as they may appear to be on the face thereof, should be read in the light of the subject-matter with which they are concerned, and that it is only when that is done that one can arrive at the true intention of the Legislature."
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The words, "in the light of the subject matter" are emphasised because, aside from the legislation being concerned with the protection of ESTA occupiers, the Act took the deliberate step of identifying the line where ESTA did not apply- namely to townships unless s 2(1)(a) applied.
Nonetheless the enquiry into the legislative intent is not one dimensional. In a definitive judgment on the interpretation of any written instrument Wallis JA said in Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) at para 12 noted that interpretation is a unitary exercise. [4]
The considerations to be taken into account have regard to the words used in their setting, the context in which they are used and the purpose for which the words are intended and taking into account all relevant and admissible circumstances in which the document came into existence, "including the material known to those responsible for its production" [5] , the mischief sought to be addressed, and in respect of legislation with particular regard to the values of the Constitution purposively interpreted [6] . This process will obviously have regard to time tested and pragmatic aids to interpretation when considering the words in their context.
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THE LEGISLATIVE FRAMEWORK:
The scheme of ESTA is to;
facilitate long term security of land tenure for occupiers;
regulate the conditions of residence on certain land by defining the rights and duties of both occupier and owner
only permit the termination of a right of residence or use of the land on which the occupier resides in certain prescribed circumstances;
only permit the eviction of a person whose rights of residence have been lawfully terminated in certain prescribed circumstance. [7]
In Klaase at para 51, and Molusi v Vogels NO and others 2016 (30 SA 370 (CC) at para 7 the Constitutional Court explained that ESTA is remedial legislation unbilically linked to the Constitution which seeks to protect those whose tenure to land is insecure. The legislation must be interpreted so as to afford the fullest possible protection, limit homelessness and promote the realisation of the right to access housing. [8]
It will be observed that PIE has much the same objectives, save that ESTA affords greater protection and allows for the on-site or off-site acquisition of land on behalf of an occupier. This is because an ESTA occupier had at some stage a lawful right to reside on land which was not then a township with or without the entitlement to use the land for agricultural purposes.
In both Goedgelegen and Molusi the Constitutional Court had regard to the social and historical background to the legislation and in the latter case the court added that the objective of ESTA is to:
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"improve the condition of occupiers of premises on farmland and to afford them substantive protections that the common law remedies may not . . ." [9]
It is evident that the Constitution Court itself understood ESTA to apply to farmland and to improving conditions of occupiers on farmland. It is submitted that this would be the ordinary understanding of ESTA as a whole unless there are anomalies either in the legislation itself or in its application. As I hope to demonstrate, the legislation does not create anomalies.
SECTIONS 2 and 29 OF ESTA
ESTA delineates land to which its provisions apply and those to which PIE applies [10] . This must therefore be the starting point of the enquiry
Section 29(2) provides that:
"The provisions of the Prevention of Illegal [Squatting Act, 1951 (Act 52 of 1951)] Eviction from and Unlawful Occupation of Land Act, 1998, shall not apply to an occupier in respect of land which he or she is entitled to occupy or use in terms of this Act."
It is evident from this provision that ESTA requires two qualifiers; that the occupation is on land to which ESTA applies and that the person was entitled to reside there when such right of residence was terminated.
Accordingly;
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A person entitled to occupy land to which ESTA applies cannot rely on the provisions of PIE;
A person entitled to occupy land to which ESTA does not apply is subject to the common law and on termination of the right to occupy is entitled to protection under PIE if he or she is rendered homeless and earns less than the prescribed minimum;
A person who was never entitled to reside on land to which...
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