A Hendricks v M Hendricks (20519/14) [2015] ZASCA 165 (25 November 2015) per Majiedt JA (Mhlantla, Leach, Tshiqi and Saldulker JJA concurring):
The Supreme Court of Appeal allowed the appeal and remitted the case to the Somerset West Magistrates’ Court to finalise the appellant’s eviction application and to consider all the factors in s 4(7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. Even an owner who occupies property without the consent of the holder of a right of habitation in respect of that property is an ‘unlawful occupier’ as contemplated in the above Act.
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[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 the meaning of the PIE Act. But appellant’s counsel referred us to the unreported judgment of Rogers AJ in October NO & another v Hendricks & another. There the court had to decide whether the owners of property could be ‘unlawful occupiers’ in the context of an eviction 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 get married. The will also stipulated a life usufruct in favour of the applicant. As is the case here, strained relations 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 occupy the property ‘without the express or tacit consent of the owner of person in charge, or without any other 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 consent of the usufructuary’ (own emphasis).
[10] The conclusion and reasoning of Rogers AJ is 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, 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 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 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. In order to make that determination, it must consider the factors enumerated in the subsection. In Port Elizabeth Municipality v Various Occupiers 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’. And it emphasized that in conducting such an enquiry, ‘. . . the court must have regard to the interests and circumstances of the occupier and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result’.