Transcript Du Toit v Minister of Transport CCT 22/04 A Case Discussion

Research question:
WHETHER THE LAW
PERTAINING TO EVICTION IS
CONSISTENT AND EFFICIENT?
Comparative analysis of the three methods of eviction used in SA
1. REI VINDICATIO
2. PIE
3. ESTA
Scope …
1. BACKGROUND
CONSITUTION:
•Section 25(5) demands a broadening of the access to land.
•Section 25(6) promotes security of tenure
•Section 26(3) states that “no one may be evicted from their home
without an order of court made after considering all the relevant
circumstances”.
Distinction of the three methods of eviction:
1. REI VINDICATIO:
Definition: Is a real remedy which can be instituted by the owner to
reclaim his property from anyone who is in unlawful physical
possession thereof.
Requirements:
1. The owner must prove that they are actually the owner.
2. The property must exist and be identifiable.
3. The property must be in the defendant’s physical control.
2. THE PREVENTION OF ILLEGAL EVICTION FROM
AND UNLAWFUL OCCUPATION OF LAND ACT
19 OF 1998
President of the Republic of South Africa v Mooderklip Boerdery 2005
(5) SA 3 (CC) para 55:
“[The Act] especially requires the court to infuse elements of grace and
compassion into the formal structures of the law. It is called upon to
balance competing interests in a principled way and promote the
constitutional vision of a caring society based on good neighbourliness
and shared concern.”
•Preamble: PIE applies to unlawful occupiers of homes
•Section 1: an unlawful occupier is a person who occupies land without
the express or tacit consent of the owner or person in charge
Three procedures for eviction:
1. Section 4: Sets out the normal procedures where the owner or person
in charge of the property wants to bring an application.
2. Section 5: Eviction brought under urgent circumstances.
3. Section 6: Eviction brought by an organ of state for land situating in
their jurisdictional area.
•Court will consider whether it is just and equitable to do so taking into
consideration all the relevant circumstances.
•If the unlawful occupiers have been on the land for more than six months
then the court must consider whether there is other land available.
•The court needs to pay special attention to the elderly, children,
disabled persons and households headed by women.
3. THE EXTENSION OF SECURITY OF TENURE ACT
62 OF 1997
Section 1: an occupier means a person residing on the land which
belongs to another person and who has consent, but excludes:
(a) a person using the land for industrial, mining, commercial or
commercial farming purposes, but includes a person who works the
land themselves or doesn’t employ any person who isn’t a family
member.
(b) A person who earns more than R5000/month.
Two -stage procedure:
1. Termination of the right of residence
2. Eviction granted by an order of court
The occupation of land may be terminated on any lawful ground
provided that it is just and equitable to do so.
Special considerations:
1. Occupier whose right arises solely from their employment
2. An occupier who is 60 years old or older and can’t supply labour due to
Ill health, injury or disability and has been residing on the land for more than
10 years.
Section 10:
•Occupied land before 4 February 1997
•Breached duties regarding rights and duties of the occupier which are
material
•Occupier breached a material and fair term of the agreement
•Occupiers breach is so fundamental that it being remedied is impossible
•Occupier voluntarily resigns
•Suitable alternative accommodation is available
•Owner will be seriously prejudiced
•Has to be just and equitable
Section 11:
•Occupied land after 4 February 1997
•Fixed term agreement
•Just and equitable to do so
•2 months warning
•Compliance with substantive requirements
•Failure to vacate premise
•Urgent proceedings
SUMMARY:
•Rei vindicatio only applies to commercial premises
•PIE to urban areas of unlawful occupiers
•ESTA to rural areas of occupiers
Conclusion…
Bibliography:
Primary Sources:
1.
2.
3.
Bekker v Jika [2001] 4 All SA 573 (SE).
Ndlovu v Ngcobo, Bekker v Jika 2003 (1) SA 113 (SCA).
President of the Republic of South Africa v Modderklip Boerdery 2005 (5) SA 3
(CC).
Secondary Sources:
1.
2.
3.
Francois du Bois Wille’s Principles of South African law 9th edition (2007) Juta
& Co, Cape Town.
Mostert and Pope The Principles of the Law of Property in South Africa (2009)
Silberberg and Schoeman The law of Property 5th edition (2006)