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[2006] ZAGPHC 43
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Andries Van Der Schyff en Seuns (Pty) Ltd t/a Complete Constructio n v Webstrade Inv No 45 (Pty) Ltd and Others (1277/06 , 1277/06) [2006] ZAGPHC 43; 2006 (5) SA 327 (W) (1 February 2006)
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CASE NO: 1277/06
In the matter between:ANDRIES VAN DER SCHYFF EN SEUNS (PTY) LTD T/A COMPLETE CONSTRUCTION APPLICANT and WEBSTRADE INV NO 45 (Pty) ltd 1ST RESPONDENT MARK SABY 2ND RESPONDENT CHERALEE SABY 3RD RESPONDENT FIDELITY GUARDS HOLDINGS (PTY) LTD 4TH RESPONDENT TSHIQI J
[1]
The Applicant, a construction company, urgently seeks to be restored to possession of the immovable property situated at 463 Rooibekkie Lane, Featherbrooke Estate, Krugersdorp (hereafter referred to as “the property”). The second and third respondents currently
occupy the property. The application is founded on mandament van spolie. The date of the alleged spoliation is 20 January 2006. The 1st Respondent is the owner of the property. The 2nd Respondent is a director of the 1st Respondent. The 3rd Respondent is the wife of the 2nd Respondent. The 2nd Respondent, acting on behalf of the first respondent entered into a contract with the Applicant in terms of which the Applicant was
to build a house on the property. Before the construction of the house had been completed and before the applicant had handed over
possession of the property, the 2nd and 3rd Respondents took possession of the property. They did so by obtaining a duplicate set of keys without the knowledge of the applicant,
who was at that stage still in possession of the original set of keys of all the doors to the property.
[2]
At the time the Respondents took possession of the property there was a dispute between the parties about the quality of the workmanship and outstanding money due to the Applicant.
The applicant unsuccessfully attempted to prevent the Respondents from taking possession of the property.
[3]
It is in dispute whether the applicant was in undisturbed possession of the property and whether the second and third respondents
unlawfully deprived the Applicant of such possession. However the second and third respondents (hereinafter referred to as “Respondents”) have raised the point that on the applicant’s
version, and assuming that the respondents took occupation of the property unlawfully as the applicant contends, the respondents
are unlawful occupiers as defined in Section 1 of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act No
19 of 1998 (hereafter referred to as “PIE”) consequently. It was further submitted that as the respondents are protected by the provisions of PIE, the common law remedy of a mandament van spolie is not applicable in circumstances in which PIE applies.
[4]
Section 1 of PIE contains the following relevant definitions:
“’Building or structure’ includes any hut, shack, tent or similar structure, or any other form of temporary or permanent
dwelling or structure.
‘Evict’ means to deprive a person of occupation of a building or structure, or the land on which such building or structure is erected, against his or her will, and ‘eviction’ has a corresponding meaning. ‘Owner’ means the registered owner of land, including an organ of state. ‘Person in charge’ means a person who has or who at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question. ‘Unlawful occupier’ means a person who occupies land without the express or tacit consent of the owner or person in charge or without any right in law to occupy such land excluding a person who is an occupier in terms of the Extension of Security and Tenure Act 1997 and excluding a 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, 1996 (Act No31 or 1996)”
[5]
The applicant on the other hand seeks the common law remedies of the mandament van spolie on the basis that PIE does not apply.
[6] Counsel for the respondents has referred to a judgment of Selikowitz J in City of Cape Town v Rudolph and others 2004 (5) SA 39 where the Court dealt with the issue (amongst others) whether PIE was applicable in the case and whether mandament van spolie is available where PIE applies.
[7]
In considering the meaning of the term “Unlawful occupier” as defined in Section 1 of PIE the court referred with approval to the dissenting judgment of Olivier JA in Ndlovu v Ngcobo: Bekker and another v Jika 2003(1) SA 113 SCA at paragraphs 40-41 in which he considered the meaning of unlawful occupier as follows:
“C The term “unlawful occupier”: the problem of its meaning:
[40] The definition of “unlawful occupier” in PIE appears, on a first perusal, to be clear and unambiguous. But this appearance
is illusory and deceptive, and Courts have struggled to fathom its correct meaning and in the process to demarcate the purview of
PIE: to whom is it applicable ad to which categories of property?
[41] The problem inherent in the expression “unlawful occupier” is that it is latently capable of two expositions. The verb “occupy” can legitimately be used in two senses, viz, firstly, “to hold possession of … reside in; to stay abide”; or, secondly, “to take possession of (a place) by settling in it, or by conquest” (see The Shorter Oxford Dictionary sc”occupy”). On the face of it, the words “a person who occupies land without the express or tacit consent of the owner… “means anyone who now continues in occupation without the necessary consent irrespective or whether that person originally took occupation of the land with or without the necessary consent. But the word can also refer to a specific act, viz, the taking of possession or occupation without the necessary consent.”
[8]
Selikowitz J found that the Respondents, as “squatters” or “land grabbers”, fell four square within the definition of an “unlawful occupier” as defined in PIE. He went on to find
that there was no “warrant for depriving them of the protection for which the Legislature enacted PIE” (at 69G to H) – (my underlining). In this context he went on to hold that the mandament van spolie was not available to the Council because, in his opinion, “the framing of an order in terms which refer to ‘restoring possession ante omnia’ to the person from whom it was despoiled
is simply another way of effectively evicting the spoliator. To permit an applicant to use the mandament to evict a person who has
established a home on the land and who would otherwise qualify as an ‘unlawful occupier’ would, as in the case of the
other common-law remedies, overlook the wording and purpose of PIE and would permit the statute to be undermined by a simple device.”
This application poses a totally different set of facts to those on which the Rudolph judgment was based. What must be asked in this application is whether the grant of a spoliation order in this application would “permit the statute
to be undermined by a simple device.” The answer must be no.
The Respondents in this matter are the affluent private owners of the property which they occupied in the midst of a dispute surrounding workmanship and money. In utilizing the provisions of PIE, the second respondent
seeks to shield himself against his own unlawful conduct.
The protection under PIE was clearly not intended to protect affluent property owners who deliberately place themselves in unlawful occupation of their own property. The purpose and meaning of PIE and how it is to be applied by our courts is dealt with in P E Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 CC. After pointing out the evils of the Prevention of Illegal Squatting Act 52 of 1951 (PISA), Sachs J, speaking for the court at page 223D to 224B, said:
“PISA, accordingly, gave the universal social phenomenon of urbanization an intensely racialised South African character. Everywhere,
the landless poor flocked to urban areas in search of a better life. This population shift was both a consequence of and a threat
to the policy of racial segregation. PISA was to prevent and control what was referred to as squatting on public or private land by criminalizing it and providing for a simplified eviction process.
The power to enforce politically motivated, legislatively sanctioned and State-sponsored eviction and forced removals became a cornerstone
of apartheid land law. This marked a major shift, both quantitatively and qualitatively (politically). Evictions could be sought
by local government and achieved by use of criminal rather than civil law. It was against this background, and to deal with these
injustices, that s 26(3) of the Constitution was adopted and new statutory arrangements made.”
Section 26 (3) of the Constitution provides that as follows:
“No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.”
Sachs J went on to deal with PIE as follows (224C – 225B).
“ The prevention of Illegal Eviction from and Unalwful Occupation of Land Act 19 of 1998 (PIE).
[11]
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) was adopted
with the manifest objective of overcoming the above abuses and ensuring that evictions, in future, took place in a manner consistent
with the values of the new constitutional dispensation. Its provisions have to be interpreted against his background.(my underlining)
[12]
PIE not only repealed PISA but, in a sense, inverted it: Squatting was decriminalized and the eviction process was made subject to a number of requirements,
some necessary to comply with certain demands of the Bill of Rights. The overlay between public and private law continued, but in
reverse fashion, with the name, character, tone and context of the statute being turned around. Thus, the first part of the title
of the new law emphasized a shift in thrust from prevention of illegal squatting to prevention of illegal eviction. The former objective of reinforcing common-law remedies, while reducing common-law protections, was reversed so as to temper common-law remedies with strong procedural and substantive protections; and the overall
objective of facilitating the displacement and relocation of poor and landless black people for ideological purposes was replaced
by acknowledgment of the necessitous quest for homes of victims of past racist policies. While awaiting access to new housing development
programmes, such homeless people had to be treated with dignity and respect.
[13] Thus, the former depersonalized processes that took no account of the life circumstances of those being expelled were replaced by humanized procedures that focused on fairness to all. People once regarded as anonymous squatters now became entitled to dignified and individualized treatment with special consideration for the most vulnerable. At the same time, the second part of the title established that unlawful occupation was also to be prevented. The courts now had a new role to play, namely to hold the balance between illegal eviction and unlawful occupation. Rescuing the courts from their invidious role as instruments directed by statute to effect callous removals, the new law guided them as to how they should fulfil their new complex, and constitutionally ordained, function: when evictions were being sought, the courts were to ensure that justice and equity prevailed in relation to all concerned. The broad constitutional matrix for the interpretation of PIE.
[14] In this context, PIE cannot simply be looked at as a legislative mechanism designed to restore common-law property rights by freeing
them of racist and authoritarian provisions, thought that is one of its aspects. Nor is it just a means of promoting judicial philanthropy in favour of the poor, though compassion is built into its very
structure. PIE has to be understood, and its governing concepts of justice and quity have to be applied, within a defined and carefully calibrated
constitutional matrix.” (my underling)
As the Constitutional Court says, the “manifest objective” of PIE is to overcome the abuse permitted by PISA and to ensure that the eviction of unlawful occupiers takes place in a manner consistent with the Constitution. In essence, what the Constitutional Court has held is that PIE is directed at ensuring that justice and equity prevail in relation to all concerned in the eviction process.
Justice and equity do not require that the Respondents in this matter be protected from their unlawful conduct. In my view respondents are not in dire need of accommodation and do not belong to the poor and vulnerable class of persons whose protection was foremost in the Legislative’s mind when PIE was enacted.
(See Wormald NO and others v Kambule (2005) 4 All SA 629 SCA.)
[9]
Whilst it may be argued that the definition of unlawful occupier does not draw a distinction between different kinds of unlawful occupiers nor classify different categories of unlawful occupiers, what should not be overlooked is the objective of PIE as stated succinctly in the Constitutional Court by Sachs J in PE Municipality (supra). In the circumstances I find that PIE is not applicable in the present matter.
[10]
A mandament van spolie is a common law remedy. The reason behind the granting of a spoliation order is that no man is allowed to take the law into his own hands and to dispossess
another illicitly of possession of property. If he does so, the court will restore the status qua ante, and will do that as a preliminary
to any enquiry or investigation into the merits of the dispute.
(See Jones & Buckle: The Civil Practice of the Magistrates Court in South Africa 9th Edition Volume 1: the Act).
[11] It follows that the court in spoliation proceedings need not enter into the question of the rights of the parties before the spoliation took place. The court needs to concern itself with whether there has indeed been a spoliation. In the present matter there has been a spoliation.
[12]
I accordingly grant the following order:-
1.
That the Applicant’s possession of the property known as Erf 463, Featherbrooke Estate,
Extension 1, at 463 Rooibekkie Lane, Featherbrooke Estate, Krugersdorp be restored.
2.
That the first, second, third and fourth respondents be ordered to take all necessary steps
to ensure that the applicant is placed in undisturbed possession of the property.
3. That the costs of this application be paid jointly and severally by the first, second and third respondents.
_________________________
COUNSEL FOR THE APPLICANT
ADV A R G MUNDELLZ L L TSHIQI JUDGE OF THE HIGH COURT
INSTRUCTED BY ATTORNEYS VILJOEN INC. COUNSEL FOR THE RESPONDENT ADV LENNOX INSTRUCTED BY ATTORNEYS MARIE- LOU BESTER. DATE OF HEARING: 1/02/2006 DATE OF JUDGMENT: |