1 Hendricks and Hendricks

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HENDRICKS v HENDRICKS AND OTHERS 2016 (1) SA 511 (SCA) C

2016 (1) SA p511

Citation 2016 (1) SA 511 (SCA)

20519/14
Case No
[2015] ZASCA 165

Court Supreme Court Of Appeal

Judge Mhlantla JA, Leach JA, Tshiqi JA, Majiedt JA and Saldulker JA

Heard November 16, 2015

Judgment November 25, 2015

Counsel RJ Steyn for the appellant.

Annotations Link to Case Annotations

Flynote : Sleutelwoorde

Land — Unlawful occupation — Eviction — Statutory eviction — Unlawful occupier — Who is —


Owner of bare dominium occupying property without E consent of holder of right of habitatio in
respect of that property — Such owner 'unlawful occupier' as contemplated in Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 1 and 4(7).

Headnote : Kopnota

Open Rubric
Section 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation F of Land Act 19 of
1998 (the PIE Act) provides for the eviction of an 'unlawful occupier', which s 1 defines 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 . . . .'

An owner of the bare dominium in property who occupied property without the consent of the
holder of a limited real right of habitatio in respect of that G property, was an 'unlawful occupier'
against whom it was competent for the habitatio holder — as the 'person in charge' of such
property, without whose consent the property was being occupied — to bring eviction proceedings
as contemplated in the PIE Act. (Paragraphs [6] – [7] and [10] – [11] at 514F – 515C and 516D – G.)

Cases Considered

Annotations H

Case law

Galant v Mahonga 1922 EDL 69: dictum at 79 applied

Kidson and Another v Jimspeed Enterprises CC and Others 2009 (5) SA 246 (GNP): dicta in paras [7] –
[8] and [11] applied

October NO and Another v Hendricks and Another I (WCC case No 23189/2011; 31 January 2013;
[2013] ZAWCHC 12): dictum in para [15] applied

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) (2004 (12) BCLR 1268; [2004]
ZACC 7): dictum in paras [35] – [36] applied

Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A): referred to. J

2016 (1) SA p512

Statutes Considered

A Statutes

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 1 and
4(7): see Juta's Statutes of South Africa 2014/15 vol 6 at 4-491 and 4-492.

Case Information

B RJ Steyn for the appellant.

An appeal from the Western Cape Division of the High Court, Cape Town (Zondi J and Samela J).

Order

C 1. The appeal is upheld, with the first respondent to pay the costs.

2. The order of the court a quo is set aside and substituted with the following:

'(a) The appeal is upheld, with the first respondent to pay the costs.
(b) The matter is remitted to the Somerset West Magistrates' Court D for the finalisation of the
eviction application brought by the appellant (the applicant in the magistrates' court), in particular
for a consideration of the factors set out in s 4(7) of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998.'

Judgment

E Majiedt JA (Mhlantla JA, Leach JA, Tshiqi JA and Saldulker JA concurring):

[1] A long-running family quarrel culminated in the appellant, Ms Annie Hendricks, seeking the
eviction of her erstwhile daughter-in-law, the first F respondent, Ms Margaret Hendricks, and her
son, the second respondent, Mr Graham Hendricks, in the Somerset West Magistrates' Court. The
third respondent, collectively the other persons occupying the property in question through the first
and second respondents, and the fourth respondent, the City of Cape Town, did not participate in
the matter. I will therefore refer to the first and second respondents simply as G 'the respondents'.

[2] The eviction was sought in terms of the provisions of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (the PIE Act), but was unsuccessful. The magistrates'
court held H that the respondents were not unlawful occupiers as contemplated in the PIE Act and
could therefore not be evicted. The Western Cape Division of the High Court, Cape Town (Zondi J
and Samela J, sitting as court of appeal), endorsed this view and dismissed the appellant's appeal.
This court granted the appellant special leave in terms of s 16(1)(b) of the Superior Courts Act 10 of
2013.

I [3] The eviction application was unopposed. The unanswered factual allegations made by the
appellant are these. The appellant was 72 years old when she launched the eviction application. On
5 November 1990 she had sold her residential property, Erf 2128, Macassar, situated at 9 Fish Street,
Macassar (the property), to her son, the second respondent. J A lifelong right of habitation was
registered in favour of the

2016 (1) SA p513

Majiedt JA (Mhlantla JA, Leach JA, Tshiqi JA and Saldulker JA concurring)

appellant on the property's title deed. A concomitant cession of right of A habitation, signed by the
second respondent in favour of the appellant in respect of the property, was recorded in notarial
deed No K871/90. The appellant lived in the property when her son took occupation thereof after
registration of the transfer. The second respondent married the first respondent in community of
property on 24 November 1990. Relations B soured between the appellant and the first respondent
and deteriorated steadily over the years. By 2009 the appellant experienced the living conditions in
the property as intolerable, which prompted her to leave the property temporarily. She was granted
refuge first by her daughter and later by her other son. The appellant obtained a family-violence
interdict against the first respondent and instructed her attorneys to C write to the respondents to
request them that the appellant be permitted to move back into the property without being verbally
abused by them. These letters, as well as ongoing negotiations, including a round-table discussion
convened by the appellant's attorneys, bore no fruit.
[4] The respondents were divorced on 2 February 2010 and, in terms of D the decree of divorce,
their joint estate in community of property had to be divided equally between them. It appears from
the papers that at some stage the second respondent (who, as stated, is the appellant's son) left the
property, possibly as a consequence of having been refused access to the property by the first
respondent. He has played no part in any of E the previous proceedings and in this court. Ultimately
the first respondent remained in occupation of the property, together with her daughter from a
previous relationship, her granddaughter and the three children born of the marriage between her
and the second respondent. On 6 February 2012 the appellant's attorneys wrote to the first
respondent, again asserting the appellant's right of habitation and calling upon the F first
respondent to vacate the property by 22 February 2012, failing which an eviction order would be
obtained. In the end, an eviction order was sought, without success.

[5] The central issue before the magistrates' court was whether the G respondents were unlawful
occupiers as envisaged in the PIE Act. Section 4 provides for the eviction of unlawful occupiers. Since
the respondents had been in occupation of the property for more than six months at the time of the
eviction application, s 4(7) applies. It reads:

'(7) If an unlawful occupier has occupied the land in question for H more than six months at the
time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion
that it is just and equitable to do so, after considering all the relevant circumstances, including,
except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been
made available or can reasonably be made available by a municipality or other organ of state or
another I land owner for the relocation of the unlawful occupier, and including the rights and needs
of the elderly, children, disabled persons and households headed by women.'

In s 1 'unlawful occupier' is defined 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 J

2016 (1) SA p514

Majiedt JA (Mhlantla JA, Leach JA, Tshiqi JA and Saldulker JA concurring)

A 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
would be protected by the provisions of the Interim Protection of the Informal Land Rights Act, 1996
(Act 31 of 1996)'.

B 'Person in charge' is defined in that section as —

'a person who has or at the relevant time had legal authority to give permission to a person to
enter or reside upon the land in question; . . .'.

The appellant's case is that she was at the time of the eviction application C the person in charge of
the property, and that her legal authority, as contemplated in the definition, emanated from her
right of habitation. In the magistrates' court the appellant's legal standing to bring the application,
and the fact that she had temporarily given up residing in the property without abandoning her right
of habitation, was not in issue. D It was also not in issue that she had not consented to the
respondents' occupation of the property and that any previous tacit or implied consent had been
unequivocally withdrawn. I must add that, although no opposing papers had been filed on behalf of
the respondents, they were represented by an attorney in the magistrates' court. But in the court a
quo and in this court, the first respondent appeared in person, apparently E due to impecuniosity.
Before us the first respondent merely denied that she had caused the appellant to leave the
property and indicated that the appellant was welcome to return at any time.

[6] The right to habitation as a servitude is a limited real right which F confers on the holder the
right to dwell in the house of another, without detriment to the substance of the property. 1 The
right can historically be traced back to Roman law when the original objective was to provide
accommodation to indigent foreigners. In that context it was regarded as a factual, rather than a
juridical, institution. But Justinian accepted it as a sui generis legal concept and he classified it as a
personal servitude. 2 G This was generally accepted by Roman-Dutch authorities. 3 Our courts have
long recognised habitatio as a personal servitude which is a limited real right. Thus it has been held
to be a jus in re which founds an action rei vindicatio. 4 The novel question before us is whether, as
far as the PIE Act is concerned, a holder of this limited real right is a 'person in charge' H of the
property in respect of which the habitatio operates, and whether that holder can obtain an eviction
order against an owner who occupies the property without the holder's consent. For the reasons
that follow, both these questions must in my view be answered in the affirmative.

2016 (1) SA p515

Majiedt JA (Mhlantla JA, Leach JA, Tshiqi JA and Saldulker JA concurring)

[7] It is well established that ownership is the most comprehensive real A right and that all other
real rights are derived from it. 5 But limited real rights are absolute in the sense that they are
enforceable against any and all. A limited real right detracts from the owner's dominium. Thus, in
the present instance the owner of the property, the first respondent, cannot exercise full dominium
over it inasmuch as she cannot occupy the B property unless the appellant, as the holder of the right
to habitation, has consented thereto. Absent such consent, her occupation of the property is
unlawful. She is therefore, on the facts of this case, an 'unlawful occupier' within the meaning
contemplated in s 1 of the PIE Act.

[8] The court a quo sought to distinguish Galant and Kidson (referred to C in n4 above) on the facts
and on the law. It rejected the contention advanced by the appellant's counsel that 'the right to
habitation trumps ownership'. Finally, it found that the owner of the right to habitation cannot evict
the owner of the servient tenement. While it did not set out any further reasons for this conclusion,
it seems to me, with respect, that D the court a quo had misconceived the nature of the right of
habitation vis-à-vis the owner of the property in respect of which the habitatio prevails. And the
court a quo failed to consider at all whether the holder of such a right can be a 'person in charge' for
purposes of the PIE Act, more particularly as far as s 4(7) is concerned. In Kidson the owner of a farm
had destroyed the farmstead and outbuilding to which the applicants E had a right of habitation,
granted to them by the previous owner. The court held that the applicants were entitled to exercise
their rights of habitation by either rebuilding the farmstead and outbuildings or by building
alternative structures. Van Rooyen AJ correctly held (para 11) that '(t)he ius in re aliena limits [an
owner's] ownership until the death of the person entitled to the habitatio'. In Galant the court
enforced a right of F habitation enjoyed by an heir against a co-heir who had inherited the farm.
Sampson J held that the plaintiff, as holder of the right of habitation, can sue for the recovery of that
right against any owner of the land subject to the right. These cases demonstrate that an owner's
rights in his or her property are limited in relation to the right of habitation and, G for that matter,
by the holder of the right of use (usus) and a usufruct. In this regard therefore the court a quo erred
in its findings.

[9] I have not been able to find a reported judgment where the holder of a right of habitation had
been held to be a 'person in charge' within H the meaning of the PIE Act. But appellant's counsel
referred us to the unreported judgment of Rogers AJ in October NO and Another v Hendricks and
Another.6 There the court had to decide whether the owners of property could be 'unlawful
occupiers' in the context of an eviction

2016 (1) SA p516

Majiedt JA (Mhlantla JA, Leach JA, Tshiqi JA and Saldulker JA concurring)

A application having been brought by the holder of a life usufruct in respect of the property. The
applicant's late husband had bequeathed the relevant property to their two daughters with the
proviso that they should vacate the property once they got married. The will also stipulated a life
usufruct in favour of the applicant. As is the case here, strained relations B between the applicant
and one of her daughters resulted in an eviction application in the High Court against the said
daughter and her husband. The court framed the question thus: whether the respondents in that
case were persons who occupied the property 'without the express or tacit consent of the owner or
person in charge, or without any other C right in law to occupy such [property]'. Rogers AJ held that

'(w)here someone other than the registered owner is the person in charge (ie the person with the
right to determine who stays on the property), it is the consent of such person rather than the
registered owner which is . . . relevant. It follows that the holder of bare dominium could be an
unlawful occupier if he or she occupied property without the D consent of the usufructuary.' [Own
emphasis.]

[10] The conclusion and reasoning of Rogers AJ are clearly correct. Applied to the present instance,
the first respondent's bare dominium as owner of the property must in law yield to the appellant's
right of habitation. For, like usus and usufruct, habitatio is a limited real right, E enforceable to the
extent of the right itself, against the entire world (hence its registrability against a title deed). Absent
any consent from the appellant, either express, tacit or implied, the first respondent is an unlawful
occupier of the property.

[11] When one has regard to the definition of an 'unlawful occupier' in F s 1, as set out above, the
appellant is indubitably a 'person in charge' of the property. This is so, not only on the basis
expounded by Rogers AJ in October quoted above, but also by virtue of the fact that the appellant
plainly derives her 'legal authority' as contemplated in the definition of 'person in charge' in s 1, and
as set out above, from her right of habitatio. She alone could legally grant permission to a person
(even the registered G owner) to reside in the property.
[12] In the premises, the court a quo has erred in its findings. But that is not the end of the matter.
Section 4(7) provides that a court may grant an eviction order only if it is satisfied that it is just and
equitable to do so. H In order to make that determination, it must consider the factors enumerated
in the subsection. In Port Elizabeth Municipality v Various Occupiers7 the court stressed that the
phrase 'just and equitable' entails a more elaborate enquiry than 'purely of the technical kind that
flow[s] ordinarily from the provisions of land law'. 8 And it emphasised that in conducting such an
enquiry —

I 'the court must have regard to the interests and circumstances of the occupier and pay due
regard to broader considerations of fairness and

2016 (1) SA p517

Majiedt JA (Mhlantla JA, Leach JA, Tshiqi JA and Saldulker JA concurring)

other constitutional values, so as to produce a just and equitable A result'. 9

[13] Some of the factors to be considered in terms of s 4(7) are the rights and needs of the elderly,
children, disabled persons and households headed by women. As a result of the outcome of the case
the magistrates' B court did not have to consider s 4(7) at all. Due to the lack of opposing papers,
there is a dearth of information on these and other potentially relevant aspects. It appears from the
papers that, at the time of the respondents' divorce (in 2010), there was one minor child (they had
three children). There is no indication on the papers of whether this C child, and possibly one or
both of the others, may still be dependent on their parents. There is also no indication whether
anyone of the occupiers of the property is disabled. In all probability that household is headed by a
woman, the first respondent, in view of her divorce from the second respondent. In the
circumstances, the matter must be remitted to the Somerset West Magistrates' Court for a full
enquiry as contemplated D in s 4(7) into whether it would be just and equitable to order the
eviction of the respondents (in effect only the first respondent) and all those occupying the property
through them or her (the first respondent).

[14] It is necessary to add one last observation. This unseemly family E feud is highly regrettable. It
is plain on the papers that hard, inflexible positions have been adopted on both sides. Ultimately, no
one wins in a matter such as this. The more desirable outcome, beneficial to all concerned, is to bury
the hatchet and to co-exist in harmony on the property. One can only hope that good common
sense will prevail.

[15] The following order is issued: F

1. The appeal is upheld, with the first respondent to pay the costs.

2. The order of the court a quo is set aside and substituted with the following:

'(a) The appeal is upheld, with the first respondent to pay the G costs.

(b) The matter is remitted to the Somerset West Magistrates' Court for the finalisation of the
eviction application brought by the appellant (the applicant in the magistrates' court), in particular
for a consideration of the factors set out in s 4(7) of the Prevention of Illegal Eviction from and H
Unlawful Occupation of Land Act 19 of 1998.'
Appellant's Attorneys: Morkel & De Villiers Attorneys, Somerset West; Matsepes Inc, Bloemfontein.

1 See PJ Badenhorst et al Silberberg & Schoeman's The Law of Property 5 ed at 341.

2 I 2.5.5; and see Van Leeuwen Censura Forensis 1.2.15.12.

3 Grotius Introduction 2.44.8; Van der Linden Institutes 1.11.6.

4Galant v Mahonga 1922 EDL 69 at 79. See also Kidson and Another v Jimspeed Enterprises CC and
Others 2009 (5) SA 246 (GNP) paras 7 and 8, where Van Rooyen AJ gives a useful exposition of the
history and ambit of the right.

5 Grotius Inleidinge 2.3.10: 'Ownership is complete if someone may do with the thing whatever he
pleases, provided that it is permitted in terms of law.' (Translation as set out in Silberberg &
Schoeman's The Law of Property 5 ed at 91 fn7, own emphasis). See also Regal v African Superslate
(Pty) Ltd 1963 (1) SA 102 (A) at 106 – 107.

6October NO and Another v Hendricks and Another (WCC case No 23189/2011; 31 January 2013;
[2013] ZAWCHC 12) para 15.

7Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) (2004 (12) BCLR 1268; [2004]
ZACC 7).

8 Id para 35.

9 Id para 36.

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