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South African Journal on Human Rights Volume 18, 2002 - Issue 3
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Original Articles

Exclusivity of Ownership, Security of Tenure and Eviction Orders: A Critical Evaluation of Recent Case Law

AJ van der WaltUniversity of Stellenbosch. Thanks to Geo Quinot and Theuns Möller, who rendered excellent research assistance, to Geoff Budlender, who sent me copies of unreported judgments, and to Hanri Mostert, Frank Michelman, Johan van der Walt, Iain Currie, Patrick O'Brien and Juanita Pienaar, who read an early draft of the long background paper and gave me the benefit of their valuable insights and comments. Participants at the ELRC conference provided helpful discussion and comments. Juanita Pienaar assisted me by giving me access to the then still unpublished manuscript of her article (see note 63 below). Although my focus is slightly different, I was fortunate in writing this article to be able to draw upon the excellent work done earlier by Raylene Keightley (note 2 below), to which I am indebted. My theoretical views in this article were influenced by works which I would like to acknowledge here: J Nedelsky Private Property and the Limits of American Constitutionalism: The Madisonian Framework (1990); GS Alexander Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776–1970 (1997); D Kennedy A Critique of Adjudication (Fin de Siècle) (1997); JW Singer Entitlement: The Paradoxes of Property (2000). Remaining shortcomings and errors are my own.
(Professor of Law)
Pages 372-420 | Published online: 02 Feb 2017

  • Most dictionaries and legal dictionaries describe ‘evict(ion)’ and ‘eject(ment)’ as synonyms, but I opted for the former because ‘evict(ion)’ suggests that the action is grounded in (the private landowner's) stronger right to possession, whereas ‘eject(ment)’ seems to include a sense that the occupation is obviously unlawful. Since the lawfulness of the occupation is often disputed, I prefer to use the term ‘evict(ion)’ to emphasise that the landowner sues for eviction on the basis of a stronger right of occupation, regardless of the lawfulness or possible justification of the occupation.
  • See particularly R Keightley ‘The Impact of the Extension of Security of Tenure Act on an Owner's Right to Vindicate Immovable Property’ (1999) 15 SAJHR 277, 286–306, who discusses the Extension of Security of Tenure Act 62 of 1997 (‘ESTA’) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘PIE Act’). The arguments are raised again in sections 2 and 3 below. The land reform legislation that amended the common law right to eviction is discussed and analysed in a separate article: AJ Van der Walt ‘Exclusivity of Ownership, Security of Tenure, and Eviction Orders: A Model to Evaluate South African Land-Reform Legislation’ (2002) TSAR 254.
  • See Commissioner of Customs and Excise v Container Logistics 1999 (3) SA 771 (SCA), where the Supreme Court of Appeal adopted the view that administrative review can be based purely on common law grounds in suitable instances. This view was rejected in Pharmaceutical Manufacturers Association of SA: In re: ex parte President of the RSA 2000 (2) SA 674 (CC), where the Constitutional Court decided that review of the exercise of state power and functions was always a constitutional matter, and that administrative law consists of only one system of rules (constitutional, under which the common law is subsumed) and not two separate systems (common law and constitutional) (para 44). See note 68 below and accompanying text. At the same time, the SCA still accepts that laws are interpreted in such a manner that they affect vested rights and remedies only if the laws themselves require or authorise an amendment of those rights explicitly or by necessary implication: Fedlife Assurance Ltd v Wolfaardt [2002] 2 All SA 295 (SCA), and see the eviction cases discussed in Section II below.
  • See Van der Walt (note 2 above) for analysis and discussion of the constitutional provision (s 26(3) of the Constitution of the Republic of South Africa Act 108 of 1996 ‘the Constitution’) and relevant legislation.
  • See s 8(1) of the Constitution: ‘The Bill of Rights applies to all law and binds the legislature, the executive, the judiciary, and all organs of state’.
  • As I have explained elsewhere (Van der Walt note 2 above), different courts have jurisdiction with regard to different land reform laws, and the landowner might find it difficult in some instances to ascertain in which forum to institute the action.
  • Land-reform laws invariably set higher standards of proof than the common law and require additional information that is often not available to the landowner. Furthermore, the landowner might not want to admit indirectly, by proceeding in a certain forum and in terms of a certain statute, that the occupier enjoys or enjoyed a certain status (for example as a residential tenant or labour tenant).
  • Section 13(10) of the Rental Housing Act 50 of 1999 even explicitly allows for common law eviction to be available in tandem with statutory eviction procedures. See the discussion in Van der Walt (note 2 above). Where applicable, the Rent Control Act 80 of 1976 still imposes further restrictions on landlords' right to evict. See Batchelor v Gabie 2002 (2) SA 51 (SCA).
  • Section 4(1): ‘Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by any owner or person in charge of land for the eviction of an unlawful occupier’. See Keightley (note 2 above) 302.
  • Ibid 302–306. Unlike most other land reform laws, this Act does not function retroactively, and therefore applies only to evictions instituted since it came into operation on 5 June 1998.
  • 2000 (2) SA 1074 (SEC). The court granted an eviction order because the unlawful land invasion frustrated the orderly and planned efforts of the local authority to develop land and provide housing (1084G; 1087E), but made the order subject to the availability of alternative land for the occupiers to be settled on (instead of considering the availability of alternative land as one factor among others). The decision that the order was subject to the availability of alternative land was overturned on appeal, as the availability of alternative land was merely a consideration to be taken into account and not an absolute requirement: Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter 2001 (4) SA 759 (E) 771E–F.
  • Port Elizabeth Municipality (E) (note 11 above) 1080E–F.
  • Ibid 1081D.
  • Ibid 1081G.
  • Ibid 1081F.
  • ‘Acknowledgement of the reality of the squatter problem has understandably given rise to anxiety and frustration amongst landowners' (ibid 1080C); ‘the negative implications they [the provisions of the Act] hold for rights of freehold in this country, are indeed worrisome’ (ibid 1081C); ‘property owners also enjoy the protection of the Constitution vis-à-vis their ownership rights' (ibid 1083C).
  • ‘People squat because they have to, not because they want to’ (ibid 1079H); ‘[h]umane action is needed, not a sledgehammer’ (ibid 1080A).
  • Ibid 1081H–I.
  • Ibid 1082A–C.
  • Ibid 1082C-G. The court refers to the act as a basically ‘socialistic’ piece of legislation, ‘which would in all probability not see the light of day in most democratic-capitalistic societies' (ibid 1080H; 1083A), but still appreciates its origin in a ‘more liberal and enlightened land reform policy’ (ibid 1083A).
  • Note 11 above, 771E-F. See the discussion of the problems surrounding proof of additional information on this and other considerations below.
  • 2001 (1) SA 753 (W). An application to appeal directly to the Constitutional Court against the order given in this case was denied by the Constitutional Court in Mkangeli v Joubert 2001 (2) SA 1191 (CC). While the constitutional court was clearly critical of some parts of the decision, Chaskalson P regarded them as obiter and decided that the issues relating to the order (mainly the trust question and the nuisance question) were of such a nature that direct appeal was unwarranted and that the case had to go to the Supreme Court of Appeal first. It was made clear, however, that an eventual appeal to the Constitutional Court was not thereby precluded. Eventually the decision a quo was overturned by the Supreme Court of Appeal in Mkangeli v Joubert 2002 (4) SA 36 (SCA) para 24.
  • The settlement contravened the Town Planning and Township Ordinance 15 of 1986 (T). The settlement could have been legalised by more informal means in terms of laws such as the Development Facilitation Act 67 of 1995 or the Communal Property Associations Act 28 of 1996.
  • The application to appeal directly to the Constitutional Court was based on the argument that the decision of the trial court, and especially its ‘aside’ finding that the ESTA was unconstitutional for allowing arbitrary deprivations of property in conflict with s 25(1) of the Constitution, was confusing and that it created legal uncertainty. In Mkangeli v Joubert (CC) (note 22 above) the Constitutional Court agreed that the decision created uncertainty, but held that the confusing parts of the decision were obiter and that the order was based on the findings on the validity of the trust, the abatement of the nuisance, standing to enforce the planning laws and ownership of the land, and therefore the case was referred to the Supreme Court of Appeal. The SCA held that the trial court did not have jurisdiction to grant an eviction order, as the magistrates' courts and the Land Claims Court have exclusive jurisdiction under the Act. Mkangeli v Joubert (SCA) (note 22 above) para 24.
  • Joubert v Van Rensburg (note 22 above) 799G–802F. The Constitutional Court decided that the eventual order was based on private law issues relating to the validity of the trust, ownership of the land, nuisance and the appropriate remedies for it, and not on the constitutional validity of the ESTA: Mkangeli v Joubert (CC) (note 22 above) para 11.
  • The crucial passage is this: ‘In regard to ejectment as such it must be remembered that ejectment cannot in this application be granted on the well-known basis of a landowner ejecting an unlawful holder. The respondents are required to bring themselves within lawful limits. If they comply they are not ejected. If they fail to comply it proves that the initial remedies granted by the Court are proved to be [sic] inadequate and ejectment of the excess number of occupiers [beyond the number allowed by planning laws] comes in as a strengthened way of getting matters within legal limits’. Joubert v Van Rensburg (note 22 above) 800H–I.
  • The court reiterated repeatedly that the trustees, being the owners of the property, were immune to the eviction application, but since the order was eventually based on the ‘excess’ number of people living on the land as compared to the number allowed by planning laws, even some of the trustees would no doubt be affected by the eviction. It has to be pointed out that the decision in this respect raises uncomfortable memories of apartheid evictions and forced removals, which were also often based on unlawful occupation of illegally erected structures, and which were also often instituted by people or institutions other than the landowner.
  • Joubert v Van Rensburg (note 22 above) 785B. Flemming AJP nevertheless considered it appropriate to add that the act ‘elevates unlawful occupation above ownership in the sense that even if unlawful occupation is proved, the court can be guided and must be guided by considerations (if any such conduct exists) which are extraneous to the real rights of the owner and the absence of any rights on the part of the occupier’ (ibid 785D). The possibility that the act nevertheless applied and that it meant that an eviction order cannot be granted unless the owner launched or supported the application was not considered.
  • Since its establishment, the settlement had apparently been invaded by residents who did not participate in the trust scheme.
  • Who were trustees in terms of a trust created and registered with the explicit purpose of providing housing for the occupiers, who previously occupied another piece of land unlawfully. The court held that the trustees were the actual owners of the land and that — bar the statutory provision that only one residence and one family was allowed to occupy the land lawfully — the trustees had the right, based on their ownership, to occupy the land. Joubert v Van Rensburg (note 22 above) 773A. The residents believed that they were owners of the land themselves, although in fact they had nothing more than a contractual agreement, in terms of the trust, with the trustees, who owned the land (ibid 773E-H). In terms of the trust arrangement, members of the community paid a one-off sum of money to the trustees in exchange for the right to occupy a plot on the land owned by the trust as assigned to them by the trustees. The plan was obviously that they should acquire ownership once the development had been formalised.
  • Ibid 785E-799F.
  • Which apparently did not amount to a finding (ibid 798E-99F). The court's point in this regard is unclear, but it is stated explicitly that a finding of unconstitutionality did not need certification in this case, apparently because the statement about unconstitutionality was obiter. In terms of s 172 of the Constitution any court which decides a constitutional matter in its jurisdiction must declare that any law or conduct inconsistent with the Constitution is invalid to the extent of its inconsistency, something apparently considered unnecessary by the high court in this case. As pointed out in the Constitutional Court, the constitutionality of the Act was not raised as an issue in the papers and was not argued before the court in this matter. Mkangeli v Joubert (CC) (note 22 above) para 8. The Constitutional Court held that the High Court's conclusion in this regard was not the basis of the orders granted in the case, that it had no force and effect, and that there was no need for the Constitutional Court to make a declaration to that effect or to hear the appeal in order to say so (ibid para 13).
  • Several arguments were forwarded by the court to support the conclusion that the Act allowed for arbitrary deprivation, the main thrust apparently being that the law allowed unlawful land invaders to choose whom to burden with their unlawful occupation of land, holding it on their own terms: Joubert v Van Rensburg (note 22 above) 795A–G. The Act is characterised as being in conflict with s 25(1) because it permits (in the sense of protecting) ‘arbitrary’ (in the sense of capricious) unlawful invasion and occupation (by private individuals or groups) of private land (ibid 795G). It is hardly necessary that this passage bears no relation and makes no reference to the constitutional discourse on what constitutes arbitrary state action; see M Chaskalson & C Lewis ‘Property’ in M Chaskalson et al (eds) Constitutional Law of South Africa (2 rev 1998) 31–13 ff; AJ Van der Walt Constitutional Property Clauses: A Comparative Analysis (1999) 333–35; First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Services 2002 (4) SA 768 (CC) paras 61–109. It is necessary to remind oneself, when reading the relevant passage in Joubert, that the community in question settled upon and occupied the land in question with the permission of the landowners, who were members of the community and who acquired the land for the purpose of settlement by the community, albeit in contravention of planning laws. This consideration is particularly relevant when evaluating passages where the court indirectly compares the occupiers in this case with ‘spoliators’ and ‘impostors’ (795H-J); or as the ‘grabbing’ party (793G) or as occupiers who ‘insist on taking — gratis’ (797G).
  • The conclusion that the Act allows deprivation of property seems to rest on two pillars that are not clearly connected in logic. One line of argument, which takes into account the fact that the occupiers in this case had the consent of the landowners, is that the Act purports to raise what is unlawful (occupation in contravention of planning laws) to the level of lawful, inter alia by preventing the court from intervening (and evicting). Joubert v Van Rensburg (note 22 above) 791J–92F. A second line of argument, which looks irrelevant under the circumstances given that the occupiers had the consent of the landowner, is that occupation, and specifically unlawful occupation, is preferred to and raised above ownership of land, subjecting the common law rights of landowners to the whims of land invaders (‘grabbers’ in the language of 793G) and to statutory ‘indefinite leases’ (ibid 792F-94H) and similar impositions, without a clear indication of when the deprivations should be allowed. The provision that eviction was allowed only when it was “just and equitable” is described as ‘an unguided missile’ (ibid 793D; 799F). The second argument, which adds considerable emotional weight to the conclusion, focuses exclusively on conflicts between a landowner and occupiers in terms of the Act, which is irrelevant to the circumstances of the case and which arguably also overstates the conflict in situations where there is such a conflict, given the fact that the Act applies to situations where the occupier has or once had the owner's consent to occupy and that such consent should impose limits and guidelines on the relationship between them in a particular case. In this case, a situation where ‘the owner of the land chosen by the occupier pays the price in the interests of society out of his personal pocket’ because no alternative land is available for settlement (ibid 794D) simply does not arise, because the community did not invade the land unlawfully and without consent. The question raised by the fact that the settlement contravened planning laws, and the nuisance created by it, arises on a completely different level.
  • Mostly because the Act was not considered a ‘law of general application’ as required by s 36(1) in that it was biased (in favour of occupiers and against landowners — ibid 797B-C), too broad (protecting everyone instead of only those in ‘situations which really called for protection’ — ibid 797B) and too narrow (protecting only occupiers of agricultural land, while the real need for protection was on urban land. Ibid 797D-E). The court argues that the (commonly accepted) approach in terms of which ‘every statute other than a private Act is in a certain sense of general application… will render the constitutional safeguards in ss 25(1) and 36(1) meaningless' (ibid 797A-B). No reference is made to applicable case law or other authorities, such as S v Makwanyane 1995 (3) SA 391 (CC) para 156; Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 47; President of the RSA v Hugo 1997 (4) SA 1 (CC) paras 76; 102–04. Compare S Woolman ‘Limitation’ in Chaskalson et al (eds) (note 33 above) 12–28 ff; J De Waal, I Currie & G Erasmus The Bill of Rights Handbook (4 ed 2001) 147–54 for a discussion and further references.
  • In places, the strong language of the decision creates the impression of the judge's irritation and frustration with what are perceived as the negative effects of the transformation process. See Joubert v Van Rensburg (note 22 above) 764B–C (‘I can and do observe that this country is on fire’); 764G-H (‘… if counsel's approach is sound it will sanction an instance of what seems to have become commonplace in South Africa of 2000: each person decides what laws are acceptable and ought to be obeyed — by others. What determines which law he himself does not flout is an own assessment of what is comfortable for his own position’); 766G-H (‘For that purpose the trustees can do almost anything. Normally one would understand that to mean anything-which-is legal. That is not to be assumed in this case’); 778G (‘Attempts to obtain assistance from the police met with no response. That has become more or less standard in the year 2000, diminishing its availability as an alternative which weighs against the granting of an interdict’); 780F (‘I mention policy considerations which bear mainly upon respect for law and its enforcement and the extent to which real and other rights exist only on the book’); 781B (‘The Court has no discretion but to apply the law of this land and to do so with consistency. Various reasons urged by counsel for not doing so are considerations which politicians must solve — in another fashion than passing the buck or associating with the idea of own choices by individuals who choose whose property they want to occupy’); 788A-B (‘Although the Supreme Court (sic) is not acceptable enough for the work to be done in terms of this statute [ESTA], an arbitrator is trusted, provided the arbitrator was placed on the panel by the powers that be in the political world’); 791H (‘The hallmark of democracies is that the Courts are left to complete their task and are respected for that, It is more appropriate to Pol Pot and Stalin and those who emulated them (also in negating ownership) that judicial officers are appointed for their political correctness and predictable reasoning and when that cannot be achieved, sensitive adjudicating tasks are taken to another “court” or body where the appointees can be relied upon [to interpret the land reform laws purposively]’); 799F (‘In the Tenure Act ‘just and equitable’ is an unguided missile, a morass in which an owner will almost necessarily sink in the name of “fairness” — of a one-eyed type’). Compare further the court's discussion of the context-related provisions in the Act relating to eviction of elderly persons (793B-94G).
  • The implication is that the land reform laws, at least if interpreted in a certain way, would condone and promote lawlessness.
  • Joubert v Van Rensburg (note 22 above) 764C.
  • Technically, the argument and the order granted in this case is not new in South African law. There are many similar examples from the apartheid years, where occupiers were also evicted from land (even when they occupied it with the landowner's consent) because they erected and occupied structures that did not comply with planning laws. See AJ Van der Walt ‘Towards the Development of Post-Apartheid Land Law: An Exploratory Survey’ (1990) 23 De Jure 1, 30 with reference to the apartheid-era eviction decisions in Vena v George Municipality 1987 (4) SA 29 (C) and Port Nolloth Municipality v Xhalisa 1991 (3) SA 98 (C).
  • Mkangeli v Joubert (SCA) (note 22 above) para 24. See further Magodi v Van Rensburg [2001] 4 All SA 485 (LCC).
  • Mkangeli v Joubert (SCA) (note 22 above) para 25.
  • 2002 (1) SA 125 (T). The occupiers in this case settled on a dangerous section of railway reserve.
  • The link between s 26(3) of the Constitution, the extra protection provided by the Act and the restrictions that are thereby placed on the common law right to obtain an eviction order was underlined by the Supreme Court of Appeal in Cape Killarney Property Investments (Ply) Ltd V Mahamba 2001 (4) SA 1222 (SCA) para 20.
  • Proceeding on the basis of common law can sometimes even benefit the occupiers: in Conradie v Hanekom 1999 (4) SA 491 (LCC) the Land Claims Court applied the ‘normal’ contractual rules of rent agreements in a way that arguably benefited the occupier of the house. When the husband-employee's right of residence was terminated lawfully together with his employment contract under the ESTA, the wife was held to hold a separate right of occupation in terms of her separate employment contract, so that eviction of either occupier was prevented.
  • Such as the Land Reform (Labour Tenants) Act 3 of 1996 (‘Labour Tenants Act’) or ESTA.
  • As A Gildenhuys Butterworths Property Law Digest (Sep 1999) 11 points out, this creates jurisdiction issues which makes it difficult for the plaintiff to decide in which court to initiate the proceedings.
  • In Mkwanazi v Bivane Bosbou (Pty) 1999 (1) SA 765 (LCC) the Land Claims Court held that ‘reside’ in the definition of a labour tenant in s 1 of the Act did not have a technical content, and that the plain meaning of the words did not exclude those who resided on the land subsequent to the contractual basis of their residence having been terminated or even where it was contrary to a court order (ie unlawful or illegal occupation): ‘If a person had his or her home at a particular place, he resided there, whether his residence was legal or not’ (para 9).
  • The Land Claims Court has exclusive jurisdiction with regard to the Labour Tenants Act, but if the plaintiff denies the existence of a labour tenancy agreement he or she is obviously not going to institute the action for eviction in the Land Claims Court. In Van der Wall v Lang 1999 (1) SA 189 (LCC) para 10 the Land Claims Court held that an applicant can take a matter directly to the Land Claims Court if he or she knew that an issue would arise in the case that would necessitate the interpretation of the Act (thereby giving the court jurisdiction), even though he or she did not admit that the respondents were labour tenants or had any rights under the Act.
  • [1999] 2 All SA 423 (W). The respondent occupied the house in question pursuant to an agreement with the owner, a company of which the respondent was a shareholder. It was common cause that the agreement in terms of which the respondent occupied the house has terminated (Amod 425g-h). The respondent alleged that there was an oral lease in terms of which he occupied the property free of charge until the house was sold, after which the applicant could terminate the lease with three months' notice. The applicant denied the existence of the oral agreement and the matter was referred to oral evidence, but when it came up for oral evidence the court was asked to make a settlement that was reached in the meantime an order of court. However, the court was confronted by a point raised earlier, namely that the Act, if applicable, prevented the court from granting an eviction order as the applicant had not complied with any of its requirements (ibid 425j-26e). Hence the question was whether or not the Act applied to a situation where the occupation became unlawful at a later stage, as opposed to the situation where the land was occupied by way of unlawful invasion. This decision was confirmed in Ellis v Viljoen 2001 (5) BCLR 487 (C). See further Nelson Mandela Metropolitan Municipality v Various Occupiers of Stands in Mnyanda Street, Qaqawuli Phase 2, New Brighton [2001] 4 All SA 490 (SEC). In South African National Parks v Ras 2002 (2) SA 537 (C) it was decided that illegal residents can be evicted on the basis of common law despite the existence of criminal sanctions created by legislation (in this case the National Parks Act 57 of 1976). The applicability of the 1998 Act was not considered. The defendant in this case originally occupied the land under a lease, which was subsequently cancelled.
  • Considering the law at the time of enactment and the reason for adopting the Act, the preamble to the Act and other indications of the object sought to be achieved by it, the fact that a statute must not be presumed to alter the common law unless that is clearly its object, and the fact that a statute must not be interpreted in such a fashion as to lead to an absurdity not intended by the legislature. Amod (note 49 above) 426e-29h. Great weight was attached to the fact that the Act refers throughout to unlawful occupation of land and nowhere to unlawful occupation of immovable property lawfully built on land (ibid 429d).
  • Ibid 429c-30h.
  • Ibid 429i-30b.
  • The Act could arguably impose very heavy obligations on landlords who wish to evict non-paying lessees, but the question is of course whether that was intended to be the case, and whether the obligations are in fact as heavy as is intimated in the decision (ibid 429f-h).
  • Under the circumstances the court, had it considered the effect of s 26(3), would probably have had to adopt the reasoning in Betta Eiendomme (Pty) Ltd v Ekple-Epoh 2000 (4) SA 468 (W) (s 26(3) of the Constitution does not apply to ‘normal’ rent situations) rather than in Ross v South Peninsula Municipality 2000 (1)
  • SA 589 (C) (s 26(3) — and, obiter, the PIE Act — applies to ‘normal’ rent situations and amends the common law). See also the discussion below.
  • JM Pienaar ‘Uitleg en Toepassing van die Wet op Voorkoming van Onwettige Uitsetting en Onregmatige Besitting van Grond 19 van 1998’ (2000) 63 THRHR 464.
  • See C Rickard ‘Tenants' Rights Hinge on Appeal’ Sunday Times (4 February 2001). The case raises the question whether a tenant whose occupation had become unlawful (because of nonpayment or unlawful subletting) is protected by the Act, rather than just occupiers whose occupation had been unlawful from the outset. In terms of the Rental Housing Act 50 of 1999, which was not in force when the case was lodged, the landlord can probably simply evict (under the Act or under common law) erstwhile tenants who refuse to vacate.
  • In MEC for Business Promotion, Tourism & Property Management, Western Cape Province v Matthyse [2000] 1 All SA 377 (C) an eviction application was instituted in terms of the act against occupiers of formalised housing, but during the trial the applicant abandoned its application on the basis of the Act and proceeded in terms of common law. The occupiers claimed to have an occupation right as part of their employment benefits. The court decided that it was forced by s 26(3) to consider all the relevant circumstances before granting an eviction order; that the objective of the constitutional principle was to empower the courts to mitigate the harshness of an eviction from someone's home, and that the court, by virtue of its inherent jurisdiction, could achieve this result by granting the eviction order subject to fair and reasonable conditions. In the current instance, the court considered it fair and reasonable under all the circumstances to grant the eviction order but to suspend its operation for a certain period.
  • Making a clear distinction between laws that apply to lawful occupation and laws that apply to unlawful application, and not allowing for cross-over effect in cases of occupation that changes from lawful to unlawful because of the expiry or termination of an agreement or because of a change in the law. Once a particular situation is covered by a specific law, that law is supposed to apply even if the occupation in question becomes unlawful through operation of law or passing of time or some other occurrence.
  • A similar argument applies to the restrictive approach in Joubert v Van Rensburg (note 22 above), where the reach of common law nuisance doctrine was extended and the protection of the land reform laws restricted to protect ownership against what was perceived as the threat of land reform initiatives. Keightley (note 2 above) 302–06, who wrote prior to the decision in Amod (note 49 above) (reference to the decision is made by Keightley at 304 n 97), argues in favour of the wider approach, but acknowledges that it is likely that the narrower interpretation will be followed by the courts, especially in view of traditional respect for ownership in common law.
  • See DL Carey Miller (with A Pope) Land Title in South Africa (2000) 517; J Pienaar Butterworths Property Law Digest (Sep 1999) 12, 13; Pienaar (note 55 above) 465–66. Resulting from a number of actual and threatened land invasions in Gauteng and the Western Cape during the first months of 2001, an amendment of the Act was proposed in September 2001 to facilitate the eviction of unlawful land invaders. No further detail was available at the time of writing.
  • [2001] 4 All SA 573 (SEC). For an interesting comparison in foreign law, see Royal Bank of Scotland pic v Etridge (No 2) (HL) [2001] 4 All ER 449 (HL).
  • Ndlovu v Ngcobu; Bekker v Jika (SCA 30 August 2002, unreported) para 23 per Harms JA, Mpati and Mthiyane JJA concurring. The Act does not affect commercial property as it is restricted to eviction from people's homes — para 20. Oliver and Nienaber JJA dissented on grounds similar to the decision in ABSA Bank as set out earlier.
  • The situations where this issue can come up include the following: (a) if the narrow interpretation of the PIE Act is accepted, in situations where the occupation was not unlawful ab initio but became unlawful by operation of law, eg when the agreement on which occupation was based was terminated, especially in urban situations, where ESTA does not apply; (b) in situations where any of the land reforms laws with regard to lawful occupation might be applicable (ie the Labour Tenants Act or ESTA), but the landowner refuses to acknowledge the right and institutes eviction action under the common law; (c) in cases where it is unclear whether any land reform law applies and the landowner institutes action and obtains an eviction order under the common law; (d) where the occupation relates to built-up land and the situation is not covered by ESTA. J Pienaar ‘Recent Developments Relating to Automatic Review Proceedings in the Land Claims Court’ (2001) 34 De Jure 162.
  • Note 2 above, 288–92. Section 2(5) of the Labour Tenants Act proves that the situation can be simplified. This deeming provision places the onus on a farm owner, once certain basic requirements have been met, to prove that the occupier is a farm-worker rather than a labour tenant. Under the circumstances this is not an unreasonable onus, as the proof concerns the agreement between the owner and the occupier and the remuneration he or she earned and the value of the occupation or use he or she enjoyed of land on the farm. See Mahlangu v De Jager 2000 (3) SA 145 (LCC) paras 9–10.
  • Once the defendant has proven that one of the tenure-reform laws applies and that he or she qualifies for the extra protection it offers, the plaintiff who sues for eviction will have to prove that the requirements for an eviction laid down in that law have nevertheless been met. This explanation is accepted as self-evident by Gildenhuys (note 46 above) 11; see further Keightley (note 2 above) 288–92. See further Skhosana v Roos t/a Roos se Oord 2000 (4) SA 561 (LCC) (per Gildenhuys J) 21–7.
  • Are ‘kick-started’ or ‘triggered’, as Keightley (note 2 above) 290 puts it.
  • In a journal article, Gildenhuys J (note 46 above) 11, who wrote the decision in Skhosana, also supported the first approach, proposing that the landowner should be allowed to sue for eviction under the common law, proving his or her ownership and occupation of the land by someone else, and leaving it for the defendant to raise a defence based on his or her qualification for special protections such as s 26(3) of the Constitution or other land reform laws. This approach was followed in several high court decisions as well as by the Supreme Court of Appeal. See the discussion below.
  • In Commissioner of Customs and Excise v Container Logistics (note 3 above) the Supreme Court of Appeal adopted the position that the new constitutional provision with regard to administrative justice and judicial review (s 24 of the interim Constitution Act 200 of 1993, now s 33 of the Constitution, complemented by the Promotion of Administrative Justice Act 3 of 2000) existed separately and in addition to the common law principles, with the result that a prospective litigant could choose whether to proceed on the basis of the common law or on the basis of the Constitution. However, in the Pharmaceutical Manufacturers decision (note 3 above) the Constitutional Court rejected this view, confirming the priority of the Constitution as the supreme law of the land, and deciding that there is just one and not two separate legal systems — in so far as it has not been explicitly revoked or abolished, the principles and institutions of the common law still exist, but only to the extent that they are not in conflict with the Constitution. The effect is that the Constitution is the starting point, the ‘normal’ situation, and not the common law, while the common law still remains in place in so far as it can exist under and not conflict with the Constitution. In the sphere of land reform, a similar position was apparently established by the Supreme Court of Appeal as far as procedural safeguards are concerned, see Cape Killarney Property Investments (Pty) Ltd v Mahamba (note 43 above) para 20.
  • Keightley (note 2 above) 292–95.
  • In terms of the Labour Tenants Act.
  • In terms of ESTA.
  • In a rural setting, it is conceivable that a particular occupier of land could have a choice of defences based on his or her status, which could range from labour tenancy (in which case the landowner has to institute the action in the Land Claims Court and comply with the requirements of the Labour Tenants Act) through lawful occupation with consent of the landowner (in which case the landowner has to institute the action in a magistrate's court or the Land Claims Court and comply with the requirements of ESTA) to unlawful occupation (in which case the landowner has to institute the action in the High Court and comply with the requirements of the PIE Act). In at least some cases, the landowner might simply not know what the occupier's position is or what position the occupier will adopt, and that could make it almost impossible to decide with any accuracy, under the second approach, where to institute the action and what the requirements are. Even when the landowner makes a choice and sues under common law or one of the land reform laws, the occupier can upset both the choice of jurisdiction and the evidence to support the application in terms of the specific statute by raising a defence based on a different land reform law.
  • Note 2 above, 293.
  • Ibid 292–95; 306. As Keightley correctly indicates (note 2 above 279; 307), the approach that favours the common law probably also finds support in the protection of property in s 25 of the Constitution. Although it is no doubt possible to support the second approach on the very authority of s 25, that is a difficult argument to make. The argument should be developed, but so far it has not been attempted seriously by academics or the courts, and it has little obvious or clear support in the statutory texts.
  • Note 2 above, 295–302; 306–07.
  • Note 65 above 18. See G Budlender, J Latsky & T Roux Juta's New Land Law (1998; 2 rev 2000) 7A–8; 7A–10.
  • Being a creature of statute, the Land Claims Court does not normally have jurisdiction to review matters decided under common law. See Keightley (note 2 above) 298–99 (approving of this aspect of the decision). See Skhosana v Roos t/a Roos se Oord (note 65 above) para 12; and see further Van Zyl v Maarman 2001 (1) SA 957 (LCC) paras 20–1.
  • Skhosana (note 65 above) para 27: ‘the first respondent was fully entitled to formulate the particulars of claim in his action for eviction the way he did. There was no need for him to make any allegations relating to ESTA’.
  • Ibid paras 21–6; see further Khuzwayo v Dludla 2001 (1) SA 714 (LCC) para 9; Keightley (note 2 above) 300–01 (critical of this aspect of the decision).
  • Note 2 above, 301.
  • Note 79 above.
  • Ibid para 9.
  • Ibid para 10.
  • Ibid para 11–13.
  • Note 65 above.
  • Ibid para 12. This was confirmed in Van Zyl v Maarman (note 77 above) para 20. See further Bergboerdery v Makgoro 2000 (4) SA 575 (LCC); Mahlangu v Van Eeden [2000] 3 All SA 321 (LCC). However, if on review the court record does not indicate a defence based on the Act, there is no possibility of automatic review: Pienaar (note 63 above) 162.
  • Section 26(3).
  • See Pienaar (note 63 above) for a discussion and references.
  • Section 26(3); see the discussion in Van der Walt (note 2 above). The impact of s 25 of the Constitution should also be considered; see Nkuzi Development Association v Government of the RSA [2001] 4 All SA 460 (LCC), where it was held that a person who has a right to security of tenure under s 25(6) of the Constitution and in terms of ESTA or the Labour Tenants Act has a right to legal representation or legal aid at state expense if they cannot afford the cost from own resources and if substantial injustice would otherwise result.
  • The only land reform law that could possibly apply to urban landlord-tenant situations, the PIE Act, was said not to apply in ‘normal’ landlord-tenant situations in Amod (note 49 above, although this decision was overturned by the SCA in Ndlovu/Jika (note 62 above)). The more recent Rental Housing Act 50 of 1999 does not override the common law. See the discussion of the Amod case above. In Woerman and Schutte v Masondo 2002 (1) SA 811 (SCA) the court found it unnecessary to decide whether the decisions in Ross, Betta Eiendomme and Ellis (all discussed further below) were correct as far as the effect of s 26(3) of the Constitution is concerned. In this case the question was whether s 26(3) changed the burden of proof in a situation where the respondent in an application for an eviction order averred that he or she was a labour tenant.
  • Note 54 above. For a discussion see R Keightley ‘When a Home Becomes a Castle: A Constitutional Defence Against Common Law Eviction Proceedings: Ross v South Peninsula Municipality’ (2000) 117 SALJ 26–31 (the decision creates or records uncertainty without solving any of the major issues finally). In Cape Killarney Property Investments (Pty) Ltd v Mahamba (note 43 above) the Cape High Court reiterated the finding in Ross that s 26(3) required a court (and not an official) to make the eviction order, and that the court can only do so once it had had the opportunity to consider all the relevant circumstances. However, the court made no finding on how and when the necessary information should be placed before the court, leaving that for the court hearing the matter on the merits to decide upon. See further MEC for Business Promotion, Tourism & Property Management, Western Cape Province v Matthyse (note 57 above), where Ross was also followed and applied. The court decided that an eviction order cannot simply be given in terms of common law without taking s 26(3) into consideration, which meant taking note of all relevant circumstances. In this case the applicant placed additional information before the court which illustrated the respondent's position, and consequently respondent did not object to the information being submitted.
  • Ross (note 54 above). Although the Cape court agreed with the controversial decision of the Witwatersrand High Court in Amod (note 49 above) that the PIE Act does not apply to ‘normal’ landlord and tenant situations (once the lease had expired or been terminated — see the discussion of the Act in Van der Walt (note 2 above)), it was nevertheless convinced that the eviction was covered by the constitutional principle and that this principle amended the applicable common law.
  • Ross (note 54 above) 596H.
  • The main points underlying this finding were: (a) the question of where the onus lies is determined by substantive law (ibid 593G); (b) the incidence of the onus can be affected by a constitutional requirement (ibid 595C); (c) s 26(3) of the Constitution requires that the court that grants an eviction order may only do so after considering all the relevant circumstances (ibid 595H-I); (d) in the adversarial system, the onus is on the plaintiff to place before the court sufficient information to consider all the relevant circumstances as required by s 26(3) (ibid 596D-E), even if the defendant does not enter an appearance to defend (ibid 596E), and even the information is peculiarly within the domain of the defendant, in which case less evidence will be required from the plaintiff (ibid 596G).
  • Ibid 596H.
  • Although the court decided, obviously obiter, that the PIE Act does not apply to ‘normal’ landlord and tenant situations (see note 91 above).
  • It is unclear whether the occupier in this case was in fact an unlawful occupier from the outset or whether she had become an unlawful occupier as a result of the expiry or termination of a lease agreement. The only information provided in the case report states that the landowner alleged ‘that there was no agreement which entitled Mrs Ross to occupy the premises and that she and all the people living with her were doing so illegally’ (ibid 591E). As appears from the decision in Amod (note 49 above), this is an important consideration.
  • Ross (note 54 above) 599B.
  • In the preamble to the Act and s 4(6)-(7), see the discussion of the Act in Van der Walt (note 2 above).
  • In disparate provisions such as ss 9 and 28, nowhere in the phraseology employed by the court at 599B (and derived from s 4 of the PIE Act).
  • Section 26(3).
  • The Ross court accepted that the Act was inapplicable. Ross (note 54 above) 597J-99A. Compare Amod (note 49 above); Betta Eiendomme (note 54 above) para 8.2 and contra Ndlovu/Jika (note 62 above).
  • It is unclear how far the courts should go with this kind of cross-interpretation between the land reform laws — would it be acceptable to consider the duration of the occupation or other specific circumstances included for special consideration in some land reform laws but not others? See s 4(7) of the PIE Act, which also imposes the duty to consider the question whether suitable alternative land can be made available if the occupation lasted for longer than 6 months; or ss 10–11 of ESTA, which differentiate between occupiers who were in occupation before 4 February 1997 and those who only obtained occupation later; see the discussion of the two Acts in Van der Walt (note 2 above).
  • Ross (note 54 above) 593G; 595C — referring to relevant constitutional case (595C-96D).
  • Ibid 596G, quoting authorities from the SCA.
  • It bears mentioning that the Ross case was not unopposed. In the magistrate's court, Mrs Ross took an exception against the plaintiffs claim for eviction with the allegation that the plaintiff should have placed information before the court to indicate circumstances, in terms of s 26(3) of the Constitution, which would have justified the granting of the eviction order. The exception was turned down and Mrs Ross appealed (ibid 592E-F).
  • Since the bulk of the decision concerning the actual burden of proof is obiter.
  • In Transnet t/a Spoornet v Informal Settlers of Good Hope, Informal Settlers of Dukatole [2001] 4 AU SA 516 (W) the fact that the applicant is a powerful organ of state with countrywide property interests was considered an important factor in deciding that it was the applicant's duty to place the relevant information about availability of alternative land and the situation of elderly people before the court. However, the court eventually postponed the application for lack of information regarding the availability of alternative land and the position of vulnerable members of the community as required in the Act, and ordered a social audit that would bring such information to the attention of the court.
  • Note 54 above.
  • The case came before the Witwatersrand High Court because it appeared that magistrates in the area refused, on the authority of Ross (note 54 above), to grant unopposed eviction orders unless the applicants or plaintiffs placed the necessary information before the court to indicate circumstances that would justify the eviction, it being made clear that proof of ownership and illegal occupation was insufficient for this purpose. Betta Eiendomme (note 54 above) paras 1–2.
  • Betta Eiendomme (note 54 above) paras 6.2; 9.
  • Ibid para 10.1.
  • Ibid paras 7.2; 7.3; especially 7.4.
  • Ibid para 10.1.
  • Ibid para 10.2.
  • Ibid para 11.1.
  • Ibid paras 11.1; 12.1-12.3.
  • Ibid para 13.1.
  • Ibid para 15.3.
  • Ibid para 10.2.
  • Ibid para 7.2.
  • Ibid para 7.3: ‘It does not require the present applicant to provide housing to the general public, to all comers or to the respondent. Nor did s 26 oblige the plaintiff in that [Ross] case to be the party who is burdened to carry the can of Mrs Ross' claim to “housing”.’
  • Ibid para 7.4.1: ‘If wide interpretation [to the phrase ‘their home’] is applied the section [26(3)] leads to inroads upon ownership and unacceptable inequities. Why would Parliament have required that you be stuck with the family which you found squatting on your erf which they now claim to be “their home” upon your return from a ten-day holiday? Why would any further considerations properly enter into the inequity of protecting the taking of what is not yours but that of someone else?’
  • Ibid para 8.2: ‘Secondly, the whole world, including fairly-minded Zimbabweans, have watched land grabbing in Zimbabwe with horror. If the 1998 Act, assuming its validity, means what some people seem to suggest and is to apply without some fair restrictive interpretation, South Africa is different from Zimbabwe in only one respect; South Africa has legitimised such grabbings (sic) by restraining courts in such a way that “I can take what you have” is protected at least when pursued by someone from a class which Parliament likes above others. The result is that property is (legally or in the outcome) burdened by a servitude of trespass’.
  • Ibid para 1.
  • Ibid para 7.4.1.
  • The tenure-reform aspect, as opposed to the merely protection of existing rights.
  • On the word ‘reside’ in the definition of a labour tenant in s 1 of the Labour Tenants Act, see note 47 above.
  • Betta Eiendomme (note 54 above) paras 6.2; 10.1; 10.2. The clearest statement to this effect appears at para 6.2: ‘I am not ignoring the need to develop the law. There are situations, often novel factual situations, where the law can incline in one direction rather than the other. Policy has really always been part of adjudicating. Any such opportunity or need is clearly distinguishable from the present situation. There is absolute clarity that as from the time when the facts arose which caused “ownership” to vest in applicant, it is applicant only who is entitled to possession except insofar as applicant's own acts burden that right. There is no novelty or uncertain fringe areas. The enquiry must be about what, if anything, in the Constitution conveys with adequate clarity (a) that a destruction of such rights or a burden on such rights was created (or authorised); (b) how far that detraction goes; and (c) if there is no clarity on both these issues, what justification is found in the Constitution not to honour the logical and settled leaning against interference with the existing law when clarity is not given’.
  • Note 49 above, 497E–H.
  • See note 68 above and surrounding text.
  • Compare s 5 of the PIE Act and s 15 of ESTA.
  • Section 4(1).
  • 2002 (4) SA 1 (SCA) paras 35–46 per Harms, Streicher and Brand JJA for the majority.
  • Ibid paras 39–40.
  • Ibid paras 42–6; Olivier JA dissenting on this point (para 87).
  • Note 62 above. The majority decision was delivered by Harms JA, Mpati and Mthiyane JJA concurring, Olivier and Nienaber JJA dissenting. Interestingly, Harms JA concurred in the majority decision in Brisley v Drotsky, while Olivier JA dissented.
  • See Van der Walt (note 2 above). The land claims court decided in Pitout v Mbolane [2000] 2 All SA 377 (LCC) para 20; Westminster Produce (Pty) Ltd t/a Elgin Orchards v Simons [2000] 3 All SA 279 (LCC) para 13 that the availability of alternative accommodation and the hardship caused by an eviction are not applicable factors under s 10(1) of ESTA (instances where employees have terminated their right of occupation by resigning their employment voluntarily), and that they should not be part of the ‘relevant circumstances’ under s 26(3) either.
  • Note 65 above, para 18; confirmed in Khuzwayo v Dludla (note 79 above). See Budlender et al (note 76 above) 7A-8; 7A-10; Keightley (note 2 above) 298–302.
  • Note 54 above. See further Nelson Mandela Metropolitan Municipality v Various Occupiers of Stands in Mnyanda Street, Qaqawuli Phase 2, New Brighton (note 49 above).
  • Note 11 above. The court granted an eviction order because the unlawful land invasion frustrated the orderly and planned efforts of the local authority to develop land and provide housing (1084G; 1087E), but made the order subject to availability of alternative land for the occupiers to be settled.
  • Ibid 1086B-87E.
  • In Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter (note 11 above).
  • At least as far as s 4 is concerned. Section 4 is the applicable section in this regard, requiring consideration of the relevant circumstances in s 4(6)-(8).
  • Pedro v Transitional Council of the Greater George [2001] 1 All SA 334 (C) para 13.
  • Note 134 above paras 35–46.
  • Note 108 above.
  • As enunciated by the Constitutional Court in Government of the RSA v Grootboom 2001 (1) SA 46 (CC). In a nutshell, the most relevant aspect of the Constitutional Court decision is that a government agency, such as the local authority in this case, would not reasonably be fulfilling its constitutional duty to provide housing, even if it has drafted and is implementing a comprehensive and structured housing development plan as best it could under existing Financial restraints, unless the housing policy also makes provision for short-term housing for those in extreme need.
  • The order was partially inspired by an offer from the Legal Resources Centre to assist in launching such an audit.
  • 1999 (4) SA 43 (LCC). See note 138 above.
  • Section 11.
  • De Kock (note 150 above) para 13.
  • Considering whether the termination of the right of occupation was just and equitable, taking into account all relevant circumstances, and particularly the balance of interests of the parties.
  • Termination of the right of occupation in terms of the Act.
  • As required by s9(2)(d), read with s 8(2)-(3) of ESTA; see Van der Walt (note 2 above) n 129 and surrounding text. See further Pienaar (note 63 above).
  • 2002 (3) SA 401 (LCC) paras 8; 10.
  • Unfortunately the court (ibid para 18) elected to explain this point by saying that s 26 of the Constitution is not enforceable against individual landowners, which is incorrect and in conflict with the decision of the Supreme Court of Appeal in Brisley v Drotsky (note 134 above). Although the section obviously does not create a right to housing on demand (against the state or horizontally), the anti-eviction provision in s 26(3) clearly has horizontal effect.
  • Theewaterskloof (note 156 above) para 16.
  • Note 2 above, 286–302.
  • K Schoeman Verliesfontein (1998) 14 (my translation from the Afrikaans).
  • Or, more accurately, a right that entails or includes the entitlement of exclusive possession.
  • The requirements and the burden of proof in a common law eviction are discussed in Van der Walt (note 2 above).
  • The relationship between the protection of individual rights and the entrenchment of the institution of private ownership is discussed by AJ Van der Walt ‘Property Rights and Hieracrhies of Power: An Evaluation of Land Reform Policy in South Africa’ (1999) 64 Koers 259–94; AJ Van der Walt ‘Towards a Theory of Rights in Property: Exploratory Observations on the Paradigm of Post-Apartheid Property Law’ (1995) 10 SAPL 298–345. The same relationship is analysed by J Nedelsky Private Properly and the Limits of American Constitutionalism: The Madisonian Framework (1990); GS Alexander Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776–1970 (1997); JW Singer Entitlement: The Paradoxes of Property (2000). Although I cannot discuss the views of these authors here, their views have influenced my own considerably.
  • With apologies to A Cockrell, who coined the phrase in a different context but with a similar intent: ‘The Hegemony of Contract’ (1998) 115 SALJ 286 (arguing that the contractual paradigm, itself premised on a deep-level commitment to the primacy of market relations, exercises a powerful influence over the thinking and imagination of lawyers, making outcomes seem acceptable and natural). Both Nedelsky and Alexander (note 163 above) effectively argue on the basis that property is protected in terms of such a hegemonic perception of its social function and value. Singer (note 163 above) argues that actual property practice and property rules protect alternative visions of property to a greater extent than is recognised in terms of the hegemonic view.
  • It is seen as part of the basically sound and uninfected tissue that remains once the malignant tumour of apartheid law has been removed, and the assumption is that the relationship between what remains of the common law and the new land reform law is unproblematic — being unconnected to and unaffected by apartheid law, the common law can co-exist quite happily with the new reform-driven law. For a critique of this view see AJ Van der Walt ‘Tradition on Trial: A Critical Analysis of the Civil-Law Tradition in South African Property Law’ (1995) 11 SAJHR 169 (arguing that common law itself has been deeply affected by apartheid law, and that even after the abolition of apartheid statutes the interaction between the ostensible normality of the common law and the instability brought about by new law will characterise adjudication as a political battle between stability and progress). See further in the same vein AJ Van der Walt ‘Modernity, Normality and Meaning: The Struggle between Progress and Stability and the Politics of Interpretation’ (2000) 11 Stell LR 21 and 226.
  • In the overview of case law in section II above, the decisions in Amod (note 49 above) and Skhosana (note 65 above) are the best examples of uncomplicated, uncritical acceptance of and reliance upon the hegemonic common law based vision of property. By contrast, decisions like Betta Eiendomme (note 54 above); Ellis v Viljoen (note 49 above); Joubert v Van Rensburg (note 22 above) display not only uncritical acceptance of this hegemonic vision of property, but strong defensive attitudes towards existing rights and against reform, while the decisions in Port Elizabeth Municipality (SEC) (note 11 above); Ross (note 54 above); Bekker v Jika (note 61 above) are examples of genuine (albeit more or less successful) efforts to come to terms with reform. Recent decisions of the Supreme Court of Appeal in Mkangeli v Joubert (SCA) (note 22 above); Woerman and Schutte v Masondo (note 90 above); Brisley v Drotsky (note 134 above) also seem to fall back on a fairly conservative and restrictive approach to the effect of the Constitution and land reform laws on common law.
  • The post-amble was entitled ‘National Unity and Reconciliation’, and opened with the well-known phrase ‘[t]his Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex’.
  • See ss 1, 7 and 39 of the Constitution. Section 25, the property clause, is itself a good illustration of the effort to balance protection of existing property rights with improvement and promotion of greater access to property and a more justifiable distribution pattern; s25(1)-(3) concerning itself with the protection of existing rights and s25(4)-(8) providing for reform and redistribution.
  • See section II above, particularly the discussion of the decision in Port Elizabeth Municipality (SEC) (note 11 above).
  • Such as context-sensitivity or fair balancing.
  • See in this regard AJ van der Walt ‘De Onrechtmatige Bezetting van Leegstaande Woningen en het Eigendomsbegrip’ (1991) 17 Recht & Kritiek 329–59; compare the later addition in AJ Van der Walt ‘Squatting and the Right to Shelter’ (1992) TSAR 40–55.
  • Arr Rb Middelburg 1 Oct 1980, 24 December 1980, 1981 JVy 374. See Van der Walt Recht & Kritiek (note 171 above) 336–39 for a discussion and further references.
  • The most important example is GE van Maanen ‘Kraken als Onrechtmatige Daad, of: De Grensoverschrijdende Speculant’ (1981) 7 Recht & Kritiek 5–17. See Van der Walt Recht & Kritiek (note 171 above) 334–37 for further references.
  • Not completely, as there still are occupied properties in Berlin and other European cities where the housing shortage is acute and where landowners succeed in evading the now much stricter laws about unused urban properties.
  • Some of the legislation is mentioned in Van der Walt Recht & Kritiek (note 171 above) 336 (Dutch Leegstandwet); 344 (German Mietrechtsverbesserungsgesetz).
  • Recht & Kritiek closed down in 1997.
  • Where the distinction between ownership, limited real rights and other property rights and interests is not so strong, not least because of the work of legal realists such as W Hohfeld; see ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale LJ 16; (1917) 26 Yale LJ 710.
  • Note 163 above, particularly chap 2 (56–94 ‘From Title to Entitlement’) and chap 3 (95–139 ‘Property and Social Relations’).
  • The owner, other owners, non-owners.
  • Note 163 above 7; 28; 62; 84. A similar point was made years earlier by F Michelman ‘In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice’ (1973) 121 Univ of Pennsylvania LR 962, 963 where he describes the traditional property paradigm as ‘essentially corrective and regulative, stabilizing and preservative — if not of any extant distributional configuration, then of an extant framework of procedures and practices within which distributions are secreted’.
  • That property is about relations between people and not between a person and a thing; ie that property is about the distribution of power and not just the distribution of things.
  • Singer (note 163 above) 11; 14; 42; 84; 131–34; 138.
  • Singer refers to public accommodations, i e the right of public businesses, restaurants, hotels etc to exclude customers (ibid 39–44; 91). For detail see JW Singer ‘No Right to Exclude: Public Accommodations and Private Property’ (1996) 90 Northwestern Univ LR 1283–497.
  • On the use and meaning of this term see Van der Walt Recht & Kritiek (note 171 above) 329ff.
  • Singer (note 163 above) 42; 44; 71; 78; 91.
  • Ibid 43; 64. It is of some importance to note that Singer's example of public accommodations involves a distinction between kinds of property — property opened up to the public is affected, while purely private property is not.
  • Ie the conflict is internal to property. Ibid 63; 87; 103.
  • Ibid 138.
  • See for such an interpretation Van der Walt Recht & Kritiek (note 171 above) 345–58; as well as the additional information in Van der Walt TSAR (note 171 above).
  • Such an institutional transformation would have been involved if all agricultural land or all land was nationalised.
  • Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151 (CC) para 40: ‘I can see no reason why the government as owner of property should not under our laws have the same rights as any other owner. If it asserts those rights within the framework of the Constitution and the restrictions of any relevant legislation, it acts lawfully’. See further the decision at para 51, and compare note 25 above.
  • Grootboom (note 148 above). The Constitutional Court held in this case that s 26 imposed a duty on the state to take legislative and other steps, within its available resources, to progressively realise the right to housing in such a way that people in the most desperate emergency-type situation are not excluded by expecting of them to wait their turn in a normal process of delivery of houses. In Kyalami (note 191 above), the people involved were in exactly such a situation, as their houses had been washed away by flooding.
  • D Kennedy A Critique of Adjudication (Fin de Siècle) (1997) 13. See D Davis ‘Duncan Kennedy's A Critique of Adjudication: A Challenge to the “Business as Usual” Approach of South African Lawyers’ (2000) 117 SALJ 697 for a positive evaluation of Kennedy's book in the South African context (arguing that its analysis of ideology in adjudication poses a serious challenge for still generally positivist South African lawyers). See further Johan van der Walt's reaction to Davis' review: ‘The Quest for the Impossible, The Beginning of Politics: A Reply to Dennis Davis’ (2001) 118 SALJ 463–72. From what follows below it should appear that I share Johan van der Walt's view of frivolous, business-as-usual ‘postmodernism’ and of serious, responsible critical thinking.
  • Kennedy (note 193 above) 14. See further 152: ‘Over time, the work of arguing ideologized interests permanently transforms legal discourse, building into it texts (with answers and further development in response to answers) that are cannibalized for reuse in new cases’. Singer (note 163 above) 138 makes the same point: the choices we make about the protection of civil rights against the exclusivity of ownership are based on our views of and change the social world we live in.
  • Note 193 above, 218.
  • Or, in another sense, whether we are just busy with ‘elegant legal strategies’ that ‘achieve large ideological stakes via a small amount of work that changes the law only a little bit’. Ibid 167.
  • Ibid 236: ‘According to the legitimation hypothesis, the particular set of hierarchies that constitute our social arrangements look more natural, more necessary, and more just than they “really” are. One reason for this discrepancy is that alternative ways of understanding are rendered invisible or marginal or seemingly irrational by the practice of withdrawing a large part of the law-making function into a domain governed by the convention of legal correctness and the denial of ideological choice’.
  • See in this regard AJ van der Walt ‘Dancing with Codes: Protecting, Developing, Limiting and Deconstructing Property Rights in the Constitutional State’ (2001) 118 SALJ 258.
  • Which may, controversially but arguably, be said to be ‘politically neutral’ towards the abolition and reform of apartheid law in the sense that they developed before the apartheid era. This paints a picture of an old, common law system that can be adapted to suit the new, reform-driven policies in the absence of the now abolished apartheid laws.
  • Sanctioned by the authority of current government policy.
  • As appears from the discussion above, this question illustrates the essential features of many socio-political legal issues in South Africa today, emphasising the complex interlocking of rights, rules, practices and policies from various eras: pre-apartheid common law, apartheid law, post-apartheid reform law. Oversimplified choices of one over the others can easily distort a complex and sensitive interaction between stability and change.
  • The void reminding one of the injustices that used to fill that hole and that, although the statutory causes of those injustices have been abolished, their pockmarks still exist, haunting us like an old regret. Here, the shadows of apartheid hanging over the common law represent that which was allowed to develop under the common law, the inability of the common law to prevent or remedy apartheid injustice, the inability of the common law to generate and accommodate the development of greater social conscience and justice.
  • The void reminding one of the injustices left behind in society when apartheid was removed, the justice still to be done, the redress still to be exacted. Here, the shadow of apartheid hanging over the land reform laws represents that which is still to be eradicated, remedied, reformed by the reform laws.

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