Andries Van Der Schyff en Seuns (Pty) Ltd t/a Complete Construction v Webstrade Inv No 45 (Pty) Ltd and Others (1277/06 , 1277/06) [2006] ZAGPHC 43; 2006 (5) SA 327 (W) (1 February 2006)

IN THE HIGH COURT OFSOUTH AFRICA(WITWATERSRANDLOCA DIVISION)CASE NO: 1277/06In the matter between:ANDRIES VAN DER SCHYFF EN SEUNS (PTY) LTDT/A COMPLETE CONSTRUCTION

APPLICANTandWEBSTRADE INV NO 45 (Pty) ltd

1STRESPONDENTMARK SABY

2NDRESPONDENTCHERALEE SABY

3RDRESPONDENTFIDELITY GUARDS HOLDINGS (PTY)LTD

4THRESPONDENTJUDGMENTTSHIQI J[1]The Applicant, a construction company, urgently seeks to be restored to possession of the immovable property situated at463 Rooibekkie Lane, Featherbrooke Estate, Krugersdorp (hereafter referred to as “the property”). The second and third respondents currently occupy the property. The application is founded onmandament van spolie.The date of the alleged spoliation is 20 January 2006.The 1stRespondent is the owner of the property. The 2ndRespondent is a director of the 1stRespondent. The 3rdRespondent is the wife of the 2ndRespondent. The 2ndRespondent, 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 2ndand 3rdRespondents 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 tookpossessionof the property there was a dispute between the parties about the quality of the workmanship and outstanding money due to the Applicant. The applicantunsuccessfullyattempted to prevent the Respondents from takingpossessionof 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 wasfurthersubmitted thatasthe respondents are protected by the provisionsof PIE,the common law remedy of a mandament van spolie is not applicable in circumstances in which PIE applies.[4]Section 1of PIEcontains 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 themandament van spolieon the basis that PIE does not apply.[6]Counsel for the respondentshas referred toajudgment of Selikowitz J inCity of Cape Town v Rudolph and others2004 (5) SA 39where the Courtdealt with the issue (amongst others) whether PIE was applicable in the caseandwhethermandament van spolieis available where PIE applies.[7]In considering the meaning of the term “Unlawful occupier” as defined in Section 1 of PIEthe courtreferred with approval to the dissenting judgment of Olivier JA inNdlovu v Ngcobo: Bekker and another v Jika 2003(1) SA 113 SCA at paragraphs 40-41in which he considered the meaning of unlawful occupier as follows:“CThe 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 ShorterOxfordDictionary 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 “landgrabbers”, 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 deprivingthemof theprotection for which theLegislature enacted PIE”(at 69G to H) – (my underlining). In this context he went on to hold that the mandamentvan 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 totallydifferent set of facts to those on which the Rudolphjudgment 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 whichthey 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 PIEwas clearly notintendedto 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 inP E Municipality v Various Occupiers[2004] ZACC 7;2005 (1) SA 217CC.After pointing out the evils of the Prevention of Illegal Squatting Act 52 of 1951 (PISA), Sachs J,speakingforthe courtat 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.PISAwas 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) ofthe 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.”SachsJ went on todeal 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 repealedPISAbut, 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-lawprotections, 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 itsaspects. 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 theConstitutional Courtsays, the “manifest objective”of PIE is to overcome the abuse permitted byPISAand to ensure that the eviction of unlawful occupiers takes place in a manner consistent with the Constitution.In essence, what theConstitutional Courthas 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 Respondentsin thismatterbe protected from their unlawful conduct.In my viewrespondents are not in dire need of accommodation and do not belong to the poor and vulnerable class of personswhose protection was foremost in the Legislative’s mind whenPIEwas enacted.(SeeWormald NO and others v Kambule(2005) 4 All SA 629SCA.)[9]Whilst it may be argued that the definition of unlawful occupier does not draw a distinction between differentkinds of unlawful occupiers norclassify different categories of unlawful occupiers,what should not be overlooked is the objective of PIE as stated succinctly in theConstitutional Courtby SachsJ inPE Municipality(supra).In the circumstances I find that PIE is notapplicable in the present matter.[10] Amandament van spolieis 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 theMagistrates CourtinSouth Africa9thEdition 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 aspoliation.In the present matter there has been aspoliation.[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._________________________Z L L TSHIQIJUDGE OF THE HIGH COURTCOUNSEL FOR THE APPLICANT

ADV A R G MUNDELLINSTRUCTED BY

ATTORNEYSVILJOEN INC.COUNSEL FOR THE RESPONDENT

ADVLENNOXINSTRUCTED BY ATTORNEYS MARIE- LOU BESTER.DATE OF HEARING:

1/02/2006DATE OF JUDGMENT:

IN THE HIGH COURT OF

SOUTH AFRICA

(WITWATERSRANDLOCA DIVISION)

(

WITWATERSRAND

LOCA DIVISION)

CASE NO: 1277/06

In the matter between:

ANDRIES VAN DER SCHYFF EN SEUNS (PTY) LTDT/A COMPLETE CONSTRUCTION

APPLICANT

and

WEBSTRADE INV NO 45 (Pty) ltd

1

ST

RESPONDENTMARK SABY

2

ND

RESPONDENTCHERALEE SABY

3

RD

RESPONDENTFIDELITY GUARDS HOLDINGS (PTY)LTD

4

TH

RESPONDENT

JUDGMENT

TSHIQI J

[1]The Applicant, a construction company, urgently seeks to be restored to possession of the immovable property situated at463 Rooibekkie Lane, Featherbrooke Estate, Krugersdorp (hereafter referred to as “the property”). The second and third respondents currently occupy the property. The application is founded onmandament van spolie.The date of the alleged spoliation is 20 January 2006.The 1stRespondent is the owner of the property. The 2ndRespondent is a director of the 1stRespondent. The 3rdRespondent is the wife of the 2ndRespondent. The 2ndRespondent, 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 2ndand 3rdRespondents 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.

[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 1

st

Respondent is the owner of the property. The 2

nd

Respondent is a director of the 1

Respondent. The 3

rd

Respondent is the wife of the 2

Respondent. The 2

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 2

and 3

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 tookpossessionof the property there was a dispute between the parties about the quality of the workmanship and outstanding money due to the Applicant. The applicantunsuccessfullyattempted to prevent the Respondents from takingpossessionof 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

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 wasfurthersubmitted thatasthe respondents are protected by the provisionsof PIE,the common law remedy of a mandament van spolie is not applicable in circumstances in which PIE applies.

[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 t

he 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 pro

visions

of PIE

,

the common law remedy of a mandament van spolie is not applicable in circumstances in which PIE applies.

[4]Section 1of PIEcontains the following relevant definitions:

[4]

Section 1

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 themandament van spolieon the basis that PIE does not apply.[6]Counsel for the respondentshas referred toajudgment of Selikowitz J inCity of Cape Town v Rudolph and others2004 (5) SA 39where the Courtdealt with the issue (amongst others) whether PIE was applicable in the caseandwhethermandament van spolieis available where PIE applies.

[5]

The applicant on the other hand seeks the common law remedies of the

on the basis that PIE does not apply.

[

6

]

Counsel for the respondent

s

has referred to

a

judgment of Selikowitz J in

City of Cape Town v Rudolph and others2004 (5) SA 39

2004 (5) SA 39

where the Court

dealt with the issue (amongst others) whether PIE was applicable in the case

whether

is available where PIE applies.

[7]In considering the meaning of the term “Unlawful occupier” as defined in Section 1 of PIEthe courtreferred with approval to the dissenting judgment of Olivier JA inNdlovu v Ngcobo: Bekker and another v Jika 2003(1) SA 113 SCA at paragraphs 40-41in which he considered the meaning of unlawful occupier as follows:

7

I

n 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:

“CThe term “unlawful occupier”: the problem of its meaning:

“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 ShorterOxfordDictionary 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.”

[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 t

h

at 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 “landgrabbers”, 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 deprivingthemof theprotection for which theLegislature enacted PIE”(at 69G to H) – (my underlining). In this context he went on to hold that the mandamentvan 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.”

[8]

Selikowitz J found that the Respo

ndents, 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 mandam

ent

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 totallydifferent set of facts to those on which the Rudolphjudgment 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.

Th

is application poses a totall

y

different set of facts to those on which the Rudo

lph

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 whichthey 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 PIEwas clearly notintendedto 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 inP E Municipality v Various Occupiers[2004] ZACC 7;2005 (1) SA 217CC.After pointing out the evils of the Prevention of Illegal Squatting Act 52 of 1951 (PISA), Sachs J,speakingforthe courtat page 223D to 224B, said:

The Respondents in this matter are the affluent private owners of the property wh

ich

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 217CC.

[2004] ZACC 7

2005 (1) SA 217

After pointing out the evils of the Prevention of Illegal Squatting Act 52 of 1951 (

PISA

), Sachs J,

peaking

for

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.PISAwas 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.”

“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.

was to prevent and cont

rol 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) ofthe Constitution provides that as follows:

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.”

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.”

SachsJ went on todeal with PIE as follows (224C – 225B).

Sach

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).

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)

[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 repealedPISAbut, 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-lawprotections, 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.

[12] PIE not only repealed

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 e

v

iction. 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 itsaspects. 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)

[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 theConstitutional Courtsays, the “manifest objective”of PIE is to overcome the abuse permitted byPISAand to ensure that the eviction of unlawful occupiers takes place in a manner consistent with the Constitution.In essence, what theConstitutional Courthas 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 Respondentsin thismatterbe protected from their unlawful conduct.In my viewrespondents are not in dire need of accommodation and do not belong to the poor and vulnerable class of personswhose protection was foremost in the Legislative’s mind whenPIEwas enacted.

As the

Constitutional Court

says, the “

manifest objective”

of PIE is to overcome the abuse permitted by

and to ensure that the eviction of unlawful occupiers takes place in a manner consistent with the Constitution.

In essence, what the

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 person

whose protection was foremost in the Legislative’s mind when

PIE

w

as enacted.

(SeeWormald NO and others v Kambule(2005) 4 All SA 629SCA.)

See

Wormald NO and others v Kambule(2005) 4 All SA 629SCA

(2005) 4 All SA 629

[9]Whilst it may be argued that the definition of unlawful occupier does not draw a distinction between differentkinds of unlawful occupiers norclassify different categories of unlawful occupiers,what should not be overlooked is the objective of PIE as stated succinctly in theConstitutional Courtby SachsJ inPE Municipality(supra).In the circumstances I find that PIE is notapplicable in the present matter.

[9]

Whilst it may be argued that t

he definition of unlawful occupier does not draw a distinction between different

kinds of unlawful occupiers nor

classify different categories of unlawful occupiers

hat should not be overlooked is the objective of PIE as stated succinctly in the

by Sach

J in

PE Municipality

(supra)

In the circumstances I find that PIE is no

t

applicable in the present matter.

[10] Amandament van spolieis 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.

[1

0

] A

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 theMagistrates CourtinSouth Africa9thEdition 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 aspoliation.In the present matter there has been aspoliation.

(See Jones & Buckle: The Civil Practice of the

Magistrates Court

in

South Africa

9

th

Edition Volume 1: the Act).

1

] 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

[12] I accordingly grant the following order:-

2

] 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.

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

_________________________Z L L TSHIQIJUDGE OF THE HIGH COURT

_________________________

Z L L TSHIQIJUDGE OF THE HIGH COURT

COUNSEL FOR THE APPLICANT

ADV A R G MUNDELLINSTRUCTED 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: