The development from apartheid to democracy continues to contain surprises and delicious ironies. Take the recent Supreme Court of Appeal decision in Ndlovu v Ngcobo: Becker and Another v Jika. The majority judgement was delivered by a pillar of the old legal establishment, Judge Louis Harms, he of Harms commission fame who at the time when the country desperately needed clarity on the existence of murky elements that were causing mayhem, laboured long and hard and found but a mouse. Judge Harms’s generous interpretation of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE) has enraged the property-owning establishment.
PIE gives unlawful occupiers a measure of procedural and substantive protection against evictions from land. In Ndlovu’s case the question arose as to whether ”unlawful occupiers” are only those who unlawfully take possession of land (commonly referred to as squatters) or whether the term includes persons who once enjoyed lawful possession but whose possession subsequently had become unlawful. For example, Ndlovu was a tenant whose lease had terminated lawfully but he then refused to vacate the property. Did he enjoy the protection of PIE ?
PIE defines an unlawful occupier as: ”A person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997, and excluding a person whose informal right to land, but for the provisions of this Act will be protected by the provisions of the Interim Protection of Informal Land Rights Act, 1996.”
In an earlier decision in Absa Bank Ltd v Amod, Judge Ivor Schwartzman found that an extensive interpretation of this definition of unlawful occupier would so subvert common law principles of property that it could not have been the intention of the legislature to so include occupants who initially occupied property lawfully. He gave the example of the affluent tenant who rents a luxury home for a limited period. It could not have been the purpose of the legislation to entitle such a person to the protection of PIE.
Writing for the majority of the court, Judge Harms disagreed with this approach as follows: ”It appeared that Schwartzman J overlooked the poor, who will always be with us, and that he failed to remind himself of the fact that the Constitution enjoins courts, when interpreting any legislation, to promote the spirit, purport and object of the Bill of Rights, in this case Section 26 (3). The Bill of Rights and social or remedial legislation often confer benefits on persons for whom they are not primarily intended. The law of unintended consequences sometimes takes its toll. There seems to be 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.”
Relying on Section 26 (3), which provides that no one may be evicted from their home without an order of court made after a careful consideration of all the relevant facts, as well as the preamble to PIE, which emphasises the right to one’s home and the interests of vulnerable persons, the majority of the court held that the wording of unlawful occupier must include all unlawful occupiers irrespective of whether their position was at any stage lawful.
In dealing with the interest of the property owners, Judge Harms found that the effect of PIE is not to expropriate the land of the owner and PIE cannot be used to expropriate someone indirectly. The land owner retains the protection of Section 25 of the Bill of Rights. What PIE does is to delay or suspend the exercise and the land owner’s full proprietary rights until a determination has been made whether it is just and equitable to evict the unlawful occupier and under what conditions.
Judges Pierre Olivier and Piet Nienaber dissented. For them PIE already constitutes an erosion of the right to ownership of property. Given the ambiguous definition of an unlawful squatter, the two judges in effect found that the role of the court was to reconcile needs of squatters with rights to ownership of property. By extending the scope of PIE to tenants who can refuse to pay rent lawfully due and refuse to be evicted, the two judges found that the majority had got the balance all wrong.
The ramifications for the law of property are extremely important. The absolutist conception of ownership of property has been struck a major blow. How ironic it is that this transformative blow has been struck by one of the legal stars appointed by the previous administration.