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

The ambit of the Prevention of Illegal and Unlawful Occupation of Land Act 19 of 1998 (PIE) in respect of whether ex-tenants and ex-mortgagers fall within the definition of 'unlawful occupier' for purposes of this Act, and whether this class of occupiers warrants its substantive and procedural protection in the context of eviction proceedings.

The ambit of the Prevention of Illegal and Unlawful Occupation of Land Act 19 of 1998 (PIE) in respect of whether ex-tenants and ex-mortgagers fall within the definition of 'unlawful occupier' for purposes of this Act, and whether this class of occupiers warrants its substantive and procedural protection in the context of eviction proceedings.

Facts

This case centres on whether the term 'unlawful occupiers' as defined in section 1 of PIE only refers to persons who unlawfully took possession of land, or, whether it includes persons who once had lawful possession, but whose possession subsequently became unlawful. The aforementioned group would therefore include persons who are essentially 'holding-over' and could include those who have defaulted on lease agreements, like ex-tenants, or ex-mortgagers.

In the Ndlovu case, the Magistrates Court held that the provisions of PIE were not applicable to cases where ex-tenants default on lease agreements. This decision was confirmed by the Natal Provincial Division of the High Court.

In the Bekker 2002 (4) SA 508 (E), the Full Bench of the Eastern Cape Division of the High Court held that the provisions of PIE do in fact extend to ex-mortgagers. This subsequently resulted in the dismissal of the eviction order against the former owner of the property in question because the applicant had failed to comply with the procedural requirements of PIE.

Due to the fact that the two cases before the Court essentially dealt with the same matter, their appeals were consequently consolidated and heard together.

The Decision

In the majority judgment handed down by Harms JA (Mpati JA and Mthiyane JA concurring) The Court held:

  1. The definition of 'unlawful occupier' in section 1 of PIE, is formulated in the present tense. Ex-tenants and ex-mortgagers, because they are no longer in lawful occupation of the land in question are therefore 'unlawful occupiers' for the purposes of section 1.
  2. The Court then examined the roots of PIE. PIE was essentially intended to give effect to section 26 (3) of the Bill of Rights, by providing persons in eviction proceedings with substantive and procedural protection. It was meant to replace the Prevention of Illegal Squatting Act 52 of 1951 (PISA) that was aimed at preventing 'squatting' by criminalising it and by providing a simplified procedure for eviction proceedings, which afforded scant protection to unlawful occupiers.
  3. The Court held that the earlier judgment in Absa Bank Ltd v Amod [1999] 2 All SA (W), which stipulated that PIE was not applicable to cases of holding over, was incorrect. In this case it was argued that PISA only applied to squatters and that PIE, because it had its roots in PISA subsequently did not apply to cases of holding over either. The Court held that this was incorrect on the basis that PISA had in fact been applicable to cases of holding over. Furthermore, in evaluating the purpose of PIE to give effect to section 26 (3), the Court held that 'there seems no reason in the general social and historical context of this country why the Legislature would have wished not to afford this vulnerable class the protection of PIE'.
  4. The argument that PIE did not apply to cases of holding over because it constituted one of a number of related statutes like the Extension of Security of Tenure Act of 1996 (ESTA), or The Rental Housing Act 50 of 1999, amongst others, was rejected. The Court held that these Acts were essentially aimed at affording different classes of occupiers with substantive and procedural protection. Furthermore, while it was clear that these Acts often deal with similar or related issues, they are dealt with in very different ways and lacunae do exist in certain areas. It cannot therefore automatically be assumed that PIE will not afford unlawful occupiers protection because they are presumed to fall within the ambit of the other Acts.
  5. As to the contention that PIE had the effect of 'turning common law principles on its head' or expropriating the landowner's property, particularly when dealing with 'affluent tenants', the Court held that PIE has its roots in the Bill of Rights. Furthermore, while the legislature had intended to protect a vulnerable class of people, at times 'remedial legislation can confer benefits to persons for whom they were not primarily intended'. The Court held however, that PIE does not expropriate landowners of the property, but merely regulates the exercise of their rights.
  6. Taking all of the above into account, the Court held that PIE is applicable to cases of holding over, and therefore extends both procedural and substantive protection to ex-tenants as well as ex-mortgagers. The appeal in the Ndlovu case was therefore successful, while the appeal in the Bekker case was dismissed

For further information on this case, please see the case review by Mahendry R Chetty, 'The applicability of the Prevention of Illegal Eviction Act: Ndlovu v Ngcobo and Bekker & Bosch v Jika' in the ESR Review Vol 3 No 3 September 2002, 14.

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