Revisiting the relationship between property rights and land reform legislation in South Africa: Grobler v Phillips and Others

In South Africa, the right to evict held by a property-holder is not merely incidental to property rights. The exercise of the right to evict must be understood against the bloody history of land dispossession through forced removals and evictions. These removals and evictions were initially effected through the barrel of the gun and trickery; later followed by an oppressive assemblage of laws. Evictions, which are generally seen as the logical corollary of the right to exclude, cannot be carried out without considering the historical injustices of colonialism and apartheid that displaced many Africans. Sections 25 (the property clause) and 26(3) (the right not to be arbitrarily evicted from one’s home) of the Constitution of the Republic of South Africa, 1996 recognise this imperative and actively attempt to secure property rights for those who have historically been deprived of, and denied, these rights.

The Supreme Court of Appeal’s decision in Grobler v Phillips and Others represents a further attempt by the courts to contextualise evictions as a crucible of economic, social and political marginality, vulnerability and weakness. At the core of the case, the Court considered whether the vindication of what it labelled a superior property right (ownership) would be enough to evict an elderly woman and her disabled son. The facts of the case are, unfortunately, not uncommon and reflect a reality for many South Africans. Ms Phillips, an 84-year-old widow, was living in a house on the property which was the subject of the litigation. It was undisputed that she lived in that house uninterrupted since 1947, when she was aged 11. At that time, the house formed part of a larger farm. Even when she got married, Ms Phillips continued to live on the farm.

At the time of the litigation, Ms Phillips lived in the house with her disabled son. It is important to note that she was never the owner of the house. It was alleged that a previous owner of the farm (and the house) had given her a life-long right of occupation. Over the years, the farm divided into multiple erven (registered plots of land) and the farmland on which Ms Phillips lived was subject to urban development. While the history of the development is not entirely clear, the house was on urban land since 1991. The importance of the characterisation of the land as urban or rural will become evident later.

Mr Grobler, who bought the farm in 2008 at a public auction, was informed of this life-long right of occupation. Mr Grobler asked Ms Phillips to produce a copy of the written agreement evidencing the life-long right, and she could not. He was of the view that an orally granted right of occupation was not enforceable against successive owners of property because it was not reduced to writing and registered against the title deeds of the property (which is legally required).

Accordingly, he gave Ms Phillips a notice to vacate and approached the Magistrate’s Court, which granted the eviction order on the basis that the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (“PIE”) applied. PIE provides that a court may order evictions only if it is just and equitable, considering all the relevant circumstances. On appeal, the High Court overturned the decision of the Magistrate Court and held that the provisions of the Extension of Security of Tenure Act (“ESTA”) applied and not those of PIE. The High Court further held that it would be just and equitable for Ms Phillips to not be evicted and remain on the premises both under PIE and ESTA. It refused to grant the eviction order.

Aggrieved, Mr Grobler appealed to the Supreme Court of Appeal and two grounds of appeal are relevant here. First, he argued that the High Court was incorrect in holding that ESTA applied and not PIE. Secondly, he contended that it was not just and equitable to refuse an eviction order when he had clearly established a legal right over the property and in the absence of a validly registered life-long right to occupation. So, the Court had to consider the relationship between ESTA and PIE and determine whether the right of ownership should trump all other considerations when considering an eviction order.

ESTA and PIE are statutes that were enacted to fulfil the constitutional promise to recognise and address historical property injustices and provide a public and social paradigm to property. ESTA aims to provide security of tenure to those who lawfully occupy rural land with the consent of the landowner. While the Act provides that it applies to occupiers, case law provides that it applies to farmworkers. ESTA gives effect to section 25(6) of the Constitution, which provides that a person or community whose tenure in land is legally insecure as a result of past racially discriminatory laws or practices is entitled to either legally secure tenure or comparable redress, to the extent provided by an Act of Parliament. ESTA attempts to provide secure tenure to people who reside on land that they do not own. The Act contains provisions (in Chapter II) that delineate measures for facilitating long-term security of tenure of occupiers. ESTA does not purport to alter the nature of the rights held by these occupiers, but rather it seeks to statutorily reinforce them and secure them against unfair or arbitrary evictions. Insecure rights are secured by creating a statutory regime that contains anti-eviction and due process provisions.

Under ESTA, before commencing eviction proceedings, a notice of termination of the occupier’s rights to reside on the land must be given to the occupier. The occupier’s rights may be terminated on any lawful ground, provided that such termination is just and equitable, having regard to the prevailing circumstances of the case and the certain factors that speak to the fairness of the agreement between the occupier and landowner as well as the fairness of the procedure followed by the landowner. Once termination of the rights has occurred, ESTA sets out a thorough eviction process, which is to be overseen by courts.

PIE, which is umbilically linked to section 26(3) of the Constitution, regulates the evictions of unlawful occupiers from all land, except where occupiers fall under the scope of ESTA or the Interim Protection of Informal Land Rights Act (“IPILRA”). So, PIE applies where ESTA does not. As Sachs J in Port Elizabeth Municipality v Various Occupiers noted, section 26(3) of the Constitution illustrates a special constitutional right to a person’s home. It was meant to dismantle the hierarchical arrangement, which abstractly prioritised the right of ownership over the interests and rights of the dispossessed and people in precarious positions. A crucial jurisdictional requirement for the application of PIE is that one must be an unlawful occupier. In short, an unlawful occupier is a person or community who does not have a legally recognised right, permission or licence to reside on property owned by someone else. PIE delineates the procedure for lawful evictions and expressly countermands the common law right to evict. Unlike ESTA, which recognises insecure rights and attempts to protect them, PIE merely confers procedural safeguards to ensure that evictions are just and equitable.

In considering the relationship between PIE and ESTA, the Court noted that ESTA expressly does not apply to land within a township established before 1997. It held that since it was undisputed that the property in question was considered urban land and incorporated into a township since 1991, ESTA did not apply. Accordingly, the question was whether Ms Phillips was an unlawful occupier in terms of PIE. The Court noted that for Ms Phillips to rely on the life-long right to occupation enforceable against successors in title, it was a requirement that such an agreement be reduced to writing and registered against the title deed. In this case, that was not done and therefore Ms Phillips could not rely on it. Without more, she was an unlawful occupier in terms of PIE as she held no legally recognised right, permission or licence to reside on the property. She could thus be evicted by Mr Grobler. However, would it be just and equitable to evict her and her disabled son? The Court answered, “No”.

The Court opined that it would not be just and equitable because (i) Ms Phillips had an orally granted life-long right of occupation, which was not disputed, and she could not reasonably have been expected to know that she had to register it for it to be enforceable; (ii) of her advanced age; (iii) she had lived on the property since she was 11; (iv) she resided with her disabled son; (v) the urban development of the property, which caused her to lose protection under ESTA, was beyond her control. These considerations, the Court reasoned, outweighed the right to evict to vindicate the right of ownership. The letter of the law had to pay heed to the spirit, purport and object of the Constitution. Interestingly, the Court also rejected the argument that an eviction order could be granted because Mr Grobler had offered Ms Phillips alternative accommodation.

A delicate balance has to be struck between the property rights contained in section 25 and the prohibition on arbitrary, unlawful and unfair evictions provided in section 26(3) of the Constitution. The right to ownership is not wholly ignored or devalued, but it is no longer upheld by default or automatically. As consequence of land-reform legislation, ownership will not trump other property interests such as security of tenure or unlawful occupation, taking into account the nature and duration of the occupation as well as the socio-economic position of the occupier, their age and other vulnerability.

This position can be contrasted with the English position as seen in McDonald v. McDonald. The case concerned Ms Fiona McDonald, a 45-year-old woman who suffered from severe disabilities, both mentally and physically. She was unable to work, and her parents purchased, with a mortgage, a property for her to occupy. Ms McDonald contributed to the cost of the mortgage repayments using her disability welfare payments. The parents experienced financial difficulties and failed to meet their financial obligations to the bank. The bank appointed a receiver who terminated the tenancy, by serving a notice to quit, as permitted under the statutory scheme regulating assured shorthold tenancies. McDonald resisted her eviction on the basis that it would interfere with her right to a home under Article 8 of the European Convention of Human Rights. The UK Supreme Court accepted that the eviction would interfere with her right to a home, but also highlighted that the bank enjoyed certain rights, such as the right to respect for their possessions and property under Article 1 of the First Protocol to the Convention, and that the eviction was consistent with the terms of the statutory scheme. The Court further held that to permit the Convention to apply in these cases would effectively alter private rights and duties. The Court, therefore, permitted the eviction of Ms McDonald, thus effectively highlighting the supremacy of ownership rights in private property law relationships.

The decision in Grobler v Phillips and Others forms a powerful contrast to McDonald and its significance cannot be gainsaid. It evinces that the South African Constitution challenges the hegemony of property rights. While it does not radically transform property relations, it certainly demonstrates that the traditionally highly prized common law right to vindicate one’s ownership rights has, with the advent of the Constitution, become considerably qualified by considerations of economic, social and historical justice and fairness. The entitlements that come with ownership may collide with the interests and protection of those who have a precarious relationship with property, and those entitlements will not, in certain circumstances, override those interests. The Constitution has altered the DNA of property rights in South Africa, by considering the historical wrongs and persisting social ills that need to be redressed.

--

How to cite this blog post (Harvard style):

Sfiso Benard Nxumalo (2021). Revisiting the relationship between property rights and land reform legislation in South Africa: Grobler v Phillips and Others. Available at: https://www.law.ox.ac.uk/research-and-subject-groups/property-law/blog/2021/12/revisiting-relationship-between-property (Accessed: [date])