The ongoing battle for secure tenure for non-owners in light of Grobler v Phillips

4 1 Introduction

As mentioned already, the CC set aside the order that was granted by the SCA and held that it was just and equitable to evict Mrs Phillips. Very importantly, the court held that the SCA failed to balance the rights of both parties appropriately, not giving sufficient weight to the interests of the landowner, Mr Grobler.31 The CC brought the landowner - and his interests - into the spotlight (again).32 This is very interesting if one considers the “constitutional matrix” that Justice Sachs in PE Municipality v Various Occupiers33 initially emphasised.34 In this respect, it is important to briefly set out the vision for the approach to evictions in the new constitutional era, with the ultimate purpose of determining whether the CC’s approach in Grobler can be faulted. Thereafter, the article will focus on the CC’s discussion of the obligations that can (or cannot) be placed on private individuals when it comes to the provision of alternative accommodation.

4 2 The constitutional approach to evictions

Considerable ink has been spilled to describe the constitutional approach to evictions in South Africa. It is certainly not the purpose of this article to provide a comprehensive discussion in that regard. The purpose here is to present an overarching reflection of the main features of the approach to evictions in South African law in the constitutional democracy with the view to determining whether the approach adopted by the CC in Grobler is problematic.

It is trite law that the inhumane and undignified treatment of those evicted under the apartheid regime necessitated the enactment of section 26(3) of the Constitution and PIE (a concomitant piece of legislation seeking to prevent illegal evictions and unlawful occupation of land). PIE seeks to give effect to section 26(3) of the Constitution, which makes provision for the right not to have your home or shelter demolished without a court order, which order may only be granted after all relevant circumstances had been considered.35 PIE was also enacted to give effect to section 25(1) of the Constitution, protecting the right not to be arbitrarily deprived of property. Ensuring that a balance is struck between sections 25(1) and 26(3) of the Constitution has proven particularly difficult over the years. When considering the approach to evictions in terms of PIE, it is important to note that evictions in the new constitutional dispensation impact upon socio-economic issues and, as such, cannot be approached from a mere legalistic view, as evidently done in the apartheid era. Instead, the approach to evictions should be informed by concepts such as fairness, morality, social values, humanity and dignity.36 This is required because of the historical injustices associated with apartheid evictions and limited access to land to the black population. This understanding and appreciation should form the backdrop for the interpretation and implementation of PIE, as emphasised in PE Municipality. Key statements were made in this groundbreaking judgment that are worth reiterating when one tries to distil a constitutional vision or approach to evictions in South Africa. For instance, the court explained the role of PIE in the process of eviction:

PIE not only repealed PISA but in a sense inverted it: squatting was decriminalised and the eviction process was made subject to a number of requirements, some necessary to comply with certain demands of the Bill of Rights. The overlay between public and private law continued, but in reverse fashion, with the name, character, tone and context of the statute being turned around. Thus the first part of the title of the new law emphasised a shift in thrust from prevention of illegal squatting to prevention of illegal eviction. The former objective of reinforcing common-law remedies while reducing common-law protections, was reversed so as to temper common-law remedies with strong procedural and substantive protections; and the overall objective of facilitating the displacement and relocation of poor and landless black people for ideological purposes was replaced by acknowledgment of the necessitous quest for home of victims of past racist policies.37

The following oft-quoted statement in PE Municipality is also instructive when it comes to figuring out how a court should go about exercising its discretion to determine whether to grant an eviction order to not:

In sum, the Constitution imposes new obligations on the courts concerning rights relating to property not previously recognised by the common law. It counterposes to the normal ownership rights of possession, use and occupation, a new and equally relevant right not arbitrarily to be deprived of a home. The expectations that ordinarily go with title could clash head-on with the genuine despair of people in dire need of accommodation. The judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home, or vice versa. Rather it is to balance out and reconcile the opposed claims in as just a manner as possible taking account of all the interests involved and the specific factors relevant in each particular case.38

Sachs J provided a “broad constitutional matrix” for managing the appropriate constitutional relationship between section 25 and section 26 of the Constitution when dealing with evictions. In a critical account of the Constitutional Courts’ failures and successes in their first term of office, Theunis Roux explains that in so far as reconciling the right to property with the right to housing in terms of section 26 is concerned, PE Municipality does not attempt to formulate a comprehensive theory on the Constitution’s property rights morality, but rather attempts to indicate an ethic of compassion both with regard to courts and state agencies that are tasked with the job of mediating competing property interests. Therefore, in his view, “s 26(3) may be said to have created a new form of property right, one that does not provide an absolute barrier against eviction, but which rather requires the courts to treat common-law ownership rights and the right not to arbitrarily be evicted from one’s home in a non-hierarchical way”.39 It is therefore clear that courts have a wide discretion when it comes to managing (or re-imagining) eviction proceedings, and should do so cautiously by not simply prioritising ownership rights above the right not be arbitrarily evicted. Interestingly, in this regard, in Ndlovu v Ngcobo; Bekker v Jika40 Olivier JA pointed out that −

No longer does the owner have an absolute right to evict the unwanted and unlawful occupier. The court is now given a discretion to evict or to allow the occupier to remain in possession. The discretion is given in wide and open terms - is it, in the opinion of the court, “just and equitable” to grant an eviction order. ... It is clear that PIE created a new perspective on the age-old conflict of interests between the traditional rights of a landowner and the statutory protection of the unlawful occupier.41

In this way, as Van der Walt puts it, the “perspective of the outsider, the fringe dweller ... the weak and the marginalised”42 is taken into consideration before summary eviction is ordered. PIE pertinently makes it clear that evictions may only be granted if it is just and equitable to do so after considering all relevant factors, which may include factors not specifically listed in PIE.43 Additionally, the landowners’ circumstances should also be considered, and a balance should be struck between the landowners’ rights under section 25 and the occupiers’ rights in terms of section 26.44 Of course, the devil is in the detail in terms of how a particular eviction case will be decided, and how the balancing will eventually play out in individual cases.

De Vos indicates that jurisprudence in the context of whether it is just and equitable to evict, is very often tilted in favour of the vulnerable, whereas the CC decision in Grobler changes this and in this respect the case is somewhat of an anomaly.45 De Vos goes on to call upon those that are interested in the appropriate role (and ability) of courts to dismantle past injustices, to consider a few questions in light of the Grobler judgment. One, was “grace and compassion” as emphasised in PE Municipality infused into the formal structures of the law in this case? Secondly, what should be made of the fact that Mrs Phillips was not legally protected because she did not have the knowledge and access to resources to transform the promise of a life right to live on the property into a legally enforceable right? Finally, are the two competing rights even capable of being balanced, if they are so diametrically opposed? These are difficult questions, and it is hard to answer them abstractly. However, it remains critical to engage with questions such as these, especially if one is to make sense of the Grobler-judgment. What follows is some overarching comments on these three questions.

First, it has certainly remained difficult to determine what it would look like for grace and compassion to be infused into the formal structures of the law. Perhaps it is not so much (or at least not always) about infusing grace and compassion into the formal structures of the law more than it is about determining how the court in Grobler interpreted the law with or without the necessary grace and compassion. We may understand grace to mean treating others with fairness and honestly, while compassion may imply having a level of empathy towards others, especially in the context of their perceived misfortune. In Grobler, would it incorporate some sense of appreciation for the fact that this is someone that has been living in a house for almost her entire life? Should it be less likely to see an eviction in those instances? Or, would the fact that Mrs Phillips did not have any choice in the matter show that the court is actually quite rigid, and not in fact infused with elements of grace and compassion? The CC seems to be very clear that an unlawful occupier does not have a choice in the matter of alternative accommodation.46 The court reiterated that the “wishes and the personal preferences of the unlawful occupier are not relevant” in deciding whether an eviction order is just and equitable.47 Therefore, “[t]he Constitution does not give Mrs Phillips the right to choose exactly where in Somerset West she wants to live”.48 Pienaar makes the argument that “[a]pproached in this way, non-ownership rights remain subject to landowners’ rights”.49 These are just some aspects that may be linked to the question of whether the law (also in terms of how it is interpreted by courts) is in fact infused with elements of grace and compassion.

The second question raises important issues about how to deal with the fact that Mrs Phillips did not have the knowledge and/or access to resources to ensure that the right granted to her many years ago to live in the property could actually become a legally enforceable right. This requires some contextualisation in terms of property laws of the past and those applicable now. In other words, it requires some unpacking about whether the oral right could have been registered under apartheid, but also some discussion of what courts should presently make of that conclusion in its interpretation of the requirements for the habitatio. It is important to consider what impact the apartheid restrictions on property had for non-whites and one should also consider how a court should then redress these injustices through a transformative interpretation of property law. These two issues are addressed respectively.

At the time the promise was granted for the lifelong right to reside on the property, Mrs Phillips would have had to register this right against the property so that it could be enforced in perpetuity against subsequent landowners. The strict common law requirements for registration of a personal servitude would therefore have had to be complied with. The SCA and the CC accepted quite easily that the requirements were not complied with and that no formal limited real right therefore came into existence in favour of Mrs Phillips - consequently making her an unlawful occupier. However, there is a lot of history and nuance that are not altogether crystal clear from the facts of the case (or the supporting title deeds and affidavits) that are worth remembering, and that make such easy conclusions very difficult to sustain. It appears from the title deeds and the affidavits that the Ince’s, who allegedly granted the oral right to live on the property, purchased the property in 1983. The property was subsequently transferred to Heinrich Rack (1991-2001), Quickcon Development (2001-2008) and Grobler (2008-date). The details are not perfect if one peruses the necessary title deeds and affidavits, but it is clear that no servitude was registered, and Mrs Phillips did not think it was necessary to have such the right registered because she thought the permission granted by the owners was sufficient for the right to exist in perpetuity. It is also clear that there was some time before Mr Grobler purchased the property in which the previous owners did not question Mrs Phillips’ occupation of the property and accepted some form of permission for her to be there.

A further complexity weaved into South Africa’s historical DNA is of course the question of whether this right granted by the Ince’s somewhere between 1983 and 1991 could actually have been formalised. Mrs Phillips and her husband were a coloured family living on white-owned land. It is not altogether clear that the common law requirements for the registration of the habitatio when it was granted to Mrs Phillips and her husband could or would necessarily have been complied with - even if the intention was always there on the part of both parties that this right would result in a lifelong right to live in the property. It remains crucial to remember that the land control system as it existed in 1991 (in pre-constitutional South Africa) was - in Juanita Pienaar’s words - excruciatingly complex.50 Different tenure forms existed for different jurisdictional areas. Therefore, where property was situated (and in favour of whom the right was/could be granted) was regulated strictly. This had an impact on the types of rights (formal or otherwise) that could be created or registered in favour of certain racial groups. Even rights granted in so-called “white” South Africa were severely limited.51 This leaves the question of how to view the application of the common law in this case. Stated differently, if registration was a common law requirement for the enforcement of the habitatio, and Mrs Phillips did not have access to or knowledge of resources that would have enabled her to register the right, or she could not register the right because of the time period in which the purported right arose, it remains crucial to consider what to make of that? The common law-requirements could not have been complied with because of the law at the time. This should arguably serve as mitigating reasons to explain the failure to register a habitatio in favour of Mrs Phillips. There are sound reasons for developing the common law requirements of the habitatio in these particular instances.

Van der Walt explains that “[o]nce the common-law position has been established, the decision whether the common law can be applied as it stands or whether it might require development cannot be reached purely on the basis of common-law doctrine or policy considerations, it must be informed by constitutional provisions and considerations in every particular set of facts and disputes”.52 As a starting point, this requires proper historical analysis on the possibility of registering a habitatio in favour of Mrs Phillips during the period 1983-1991. In Van der Walt’s view, having established what the common law position is and what its effect would be in the case at hand, the first question is whether this outcome is directly or indirectly in conflict with any particular constitutional provision. This would ensure that constitutional analysis should feature throughout any dispute, even when it involves what looks like a purely private servitude question based on the common law.53 Could there be an exception to the common law rule? This may in some instances entail “a flexible development that would allow for exceptions to the common-law rule in some cases without abandoning it completely”.54 One wonders if that could have been recognised in Grobler if it were established that the common law requirement of registration could not have been complied with in this case. Either way, a somewhat deeper analysis of the applicability of the common law requirements - and its ability to have been met within a very particular context - would arguably have been necessary in this case rather than simply assuming its requirements had (out of own volition) not been complied with.

The third question that De Vos raises highlights the importance of the judicial discretion in eviction cases. De Vos mentions that the claims are so diametrically opposed in this case that it is difficult (if not impossible) to balance them. In this respect, De Vos is correct. The right that Mrs Phillips lost as a result of the potential relocation to another site, may not be able to be quantified, measurable or valued in the same way as Mr Grobler viewed one of his properties. Pienaar points out that “[w]hen the CC confirmed the eviction order, Mrs Phillips, as an elderly woman living with a disabled son in the only home she had known for most of her life, pursuant of a promise made to her by previous landowners, became an outsider again, living on the margins.”55 The outline of the constitutional vision for evictions law as shown above speaks to this illusive right on the other side of ownership. It speaks to the difficulty courts face when they exercise their discretion in deciding whether an eviction will be just and equitable. It speaks to whether those who are non-owners will remain outsiders,56 on the margins of society.57

Muller asserts that:

In PE Municipality, the Constitutional Court confirmed that the traditional enquiry into evictions had been recast into a new “constitutional matrix” of relationships that flow from the intersection of sections 25 and 26 of the Constitution. In this constitutional matrix the question of eviction will not be approached from the position where the property rights of the owner and the housing rights of the unlawful occupiers are characterised as diametrically opposed interests. Instead the question of eviction will be approached in a manner that tries to reconcile the interests of the landowner and the unlawful occupiers by engaging with the specific circumstances of the case so as to reach a just and equitable solution.58

Muller discusses three cases in which courts have had to grapple with the justice and equity requirement in the context of evictions from private land in terms of PIE.59 He concludes that courts have not tolerated invasions of private law because private individuals should not have to be burdened with the responsibility of providing housing to tens of thousands of people.60 Tellingly, he notes that “[t]he key point to be observed in the Modderklip, Dada NO and Blue Moonlight Properties cases is that section 4 requires courts to find case-specific solutions for complex cases by striking the appropriate balance between the conflicting property rights of the land owner and the housing rights of the unlawful occupiers by crafting innovative remedies that remain within its powers”.61

It should be remembered that as far as PE Municipality is concerned, a court is not supposed to “establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home, or vice versa”. What it is supposed to do is to “[r]ather ... balance out and reconcile the opposed claims in as just a manner as possible taking account of all the interests involved and the specific factors relevant in each particular case”. De Vos’s warning serves as a stark reminder that the discretion cannot be exercised in a mechanical, hierarchical manner - because the rights are just so different. I would argue that a deeper sense of the vulnerability of occupiers like Mrs Phillips needs to be fully appreciated. Fineman explains that embodied differences exist that form the basis for distinguishing between individuals along developmental lines, like the elderly and those in need of special treatment such as disabled persons.62 She develops the vulnerability theory to recognise a socially and materially dynamic vulnerable legal subject, based on a richer account of how actual peoples’ lives are shaped by an inherent and constant state of vulnerability across the life-course.63 Fineman argues that “[w]hat vulnerability theory offers is a way of thinking about political subjectivity that recognizes and incorporates differences and can attend to situations of inevitable inequality amount legal subjects”.64 Vulnerability theory certainly offers a lens to better probe the question of whether Mrs Phillips’ vulnerability is less of an individual failure caused as a consequence of individual irresponsibility, but more due to the failure of society and its institutions.65 I would argue that there are important contextual, sometimes subtle circumstances that need to be appreciated if one is to get a full(er) picture of the value attached to property/rights/interests in land, the circumstances around how the right was created or came into being and the inherent inequalities that exist on either side of the dispute simply must be sufficiently considered.

4 3 The provision of alternative accommodation: Whose responsibility is it anyway?

Very interestingly, the CC mentioned specifically that “[a] just and equitable order should not be translated to mean that only the rights of the unlawful occupier are given consideration and that those of the property owner should be ignored”.66 The fact that Mr Grobler has had to “endure Mrs Phillips’ unlawful occupation ... for 14 years” did not according to the court comply with the “some time principle” as set out in the Blue Moonlight judgment.67 Although an owner may be expected to be patient for some time according to the decision in Blue Moonlight, that does not mean that an owner has to provide free housing indefinitely. 68

What therefore emerges from the utterings and conclusion of the court as mentioned briefly is a (very clear) picture of what can be expected of landowners in the context of unlawful occupation of their land - more specifically, when it comes to the provision of alternative accommodation. It is important to scrutinise the court’s approach to this aspect in more detail.

First, the CC mentioned that section 26(2) of the Constitution guarantees the right to access to adequate housing but places a positive obligation on the state to realise the right.69 Furthermore, PIE (specifically section 4(7)) states that the obligation to provide alternative accommodation lies with a “municipality, or other organ of state or another land owner”.70 The CC mentioned very pertinently that just because Mr Grobler had offered to provide Mrs Phillips a dwelling of similar size to the one she was occupying, and that he undertook to pay the relocation costs, should not be “construed as setting a precedent on what other private landowners are obliged to do in similar circumstances”.71 The court therefore emphasised the fact that no obligation rests on private landowners to provide alternative accommodation to an unlawful occupier.72 In the end, the court ordered that Mrs Phillips was obliged to accept the offer of accommodation provided by the owner.

The question of what can be expected of private landowners in the new constitutional dispensation has certainly been a vexing issue. We have seen this question arise in many different contexts - even outside of land - and we have also seen different levels of engagement by courts on when certain obligations (especially positive ones) fall upon private individuals.73 Even in the context of land itself, we have seen different types of obligations being imposed on landowners (ranging from what landowners should tolerate (creating the so-called negative obligation) to what landowners are required to do and give (purportedly creating some positive obligations)).74

In Baron v Claytile, the CC stated that “it has long been recognised in our constitutional dispensation that ownership of land comes with certain duties or responsibilities, which may differ significantly from the duties and obligations that rested on private landowners in the pre-constitutional context”.75 The court went on to state that the true question in each particular case would be “whether, within the relevant constitutional and statutory context, a greater “give” is required from certain parties. Any “give” must [according the court] be in line with the Constitution.”76 The court relied on its earlier decision in Daniels v Scribante, in which it grappled with the question of whether a positive obligation can be placed on a landowner to ensure that occupiers live in conditions that afford them human dignity. The court in Daniels concluded that:

In sum, this Court has not held that under no circumstances may private persons bear positive obligations under the Bill of Rights. Ultimately, the question is whether - overall - private persons should be bound by the relevant provision in the Bill of Rights. In the context of that broad formulation, this question is easy to answer insofar as the right to security of tenure is concerned. By its very nature, the duty imposed by the right to security of tenure, in both the negative and positive form, does rest on private persons. People requiring protection under ESTA more often than not live on land owned by private persons. Unsurprisingly, that is the premise from which this matter is being litigated. And I dare say the obligation resting, in particular, on an owner is a positive one. A private person is enjoined by section 25(6) of the Constitution through ESTA to accommodate another on her or his land. It is so that the obligation is also negative in the sense that the occupier’s right should not be “improperly invaded”.77

Van der Sijde writes that the “[t]he potentially positive impact of the Constitutional Court’s progressive approach [in Daniels] to attaching affirmative, positive or more extensive duties to ownership of land seemingly did not come to fruition mere months later when the Court granted an eviction order for Mr Baron and his fellow applicants in Baron v Claytile”.78 The court in Baron noted that

[s]ection 10(2) has a narrow scope: it only applies in circumstances where an owner wishes to evict an occupier where there has been no breach or breakdown of the employment relationship. Eviction under those conditions should therefore be allowed only in exceptional circumstances. Within this narrow scope, it might therefore be appropriate to expect the private landowner to assist with the finding of, or, failing that, in truly exceptional circumstances, to provide suitable alternative accommodation. This must be a contextual enquiry, having due regard to all relevant circumstances.79

This actually leaves very little room for the expectation that an owner would be saddled with the responsibility to provide alternative accommodation in the case where occupiers are evicted. Therefore, although bold statements were made by the court in Baron in terms of whether a landowner could be saddled with the responsibility of providing alternative accommodation, when one looks at the application of the theory to the facts in the particular case, the court held that “[t]he first respondent has been accommodating the applicants for several years. This is a factor that weighs heavily against imposing a further obligation on the first respondent” and “it cannot be expected of the first respondent to accommodate the applicants indefinitely when an offer of alternative accommodation has been made by the City”80 in line with the Modderklip judgment. Van der Sijde points out that the Baron judgment, “can be read as a step forward in developing improved security of tenure, despite the outcome (which did not favour the position of the farm labourers)”.81 Van der Sijde makes the argument that Baron actually opened the door for greater tenure security for ESTA occupiers, especially in terms of what can be expected of landowners. 82

Of course, it is impossible to go into detail here in terms of where the obligation of the state stops and where such an obligation starts (if at all) for landowners.83 Suffice it to say that section 8(2) of the Constitution can be used a point of departure to determine when a provision of the Bill of Rights will bind a private party. Liebenberg asserts that the formulation of section 8(2) “suggests that there are no definitive categories of rights or duties which can be excluded from horizontal application in any a priori fashion”.84 A court should therefore “decide in the context of a particular dispute between private parties whether the nature of the right in issue in the case, and the nature of any duty imposed by that right render it capable of application in the dispute”.85 Therefore, context matters. It matters for instance whether it is a lawful occupier in terms ESTA or an unlawful occupier in terms of the PIE, as also pointed out by Van der Sijde,86 and there are various factors that need to be taken into account to determine whether private persons are in fact responsible for certain positive obligations.87 This was also shown by Ngwenyama where he focussed on establishing when landowners could potentially be saddled with ensuring the habitability of dwellings in different contexts.88 He shows that context matters, and it is not an accurate reflection of the law to say that owners will never have any responsibility when it comes to giving effect to rights in the Bill of Rights. 89

It is interesting to observe that the CC in Baron was in fact a lot more amenable to such an obligation resting on the owner, than the same court in Grobler, with Pretorious AJ in Baron indicating that “[t]his Court has long recognised that complex constitutional matters cannot be approached in a binary, all-or-nothing fashion, but the result is often found on a continuum that reflects the variations in the respective weight of the relevant considerations”.90 I would argue that a blanket disqualification of any positive obligation on private persons in the land context, is very problematic and negates some of the strides that have already been made in this context.91 I therefore agree with Liebenberg when she asserts that

Section 8(2) [of the Constitution] suggests a nuanced and contextual approach for determining whether in a particular case it is appropriate and reasonable to place either a negative or positive duty imposed by a particular right in the bill of rights on a private actor. This will inevitably be a value judgment which must be made in light of the transformative commitments and founding values of the Constitution. These commitments include the redress of socio-economic deprivations and systemic inequalities.92

I would therefore assert that Grobler is probably not - and should not be - the end of the matter in terms of the obligation on private landowners in the context of land more generally, even though the court was adamant that such an obligation to provide alternative accommodation cannot be placed on the landowner. It cannot be denied that the court, in its assessment of whether the eviction was just and equitable, did take into account the fact that Grobler was able to provide alternative accommodation. In many respects, the Grobler judgment is the start of further questions (or perhaps a continuation of the ongoing conversation) about the ambit of the obligation on landowners in the eviction context. Van der Sijde very aptly puts it: “If we accept (as we must, after Daniels) that more extensive positive and negative obligations can be imposed on private landowners in pursuit of the realisation of constitutional objectives, it creates the space to have a frank discussion about how and when to limit an owner’s right to evict”.93

One needs to acknowledge that Grobler was in a sense an easier case because the landowner was willing and able to provide alternative accommodation, which is not always going to be the case. In those (more difficult) cases, the CC’s vehement denial of any obligation on a private landowner to provide alternative accommodation will really be tested. It begs the question of what greater “give” would be expected of a landowner, whether by coercion or voluntarily. If the landowner is unable or unwilling to provide alternative accommodation, which the court clearly indicates they are not obliged to do, the eviction order may have had much more harsh or dire consequences than the outcome in this case. The conditions that the court set, in line with what the owner was willing to provide, which hinged on the provision of alternative accommodation, saved the far-reaching consequences that could have ensued. I think the conversations and contestations around what can realistically be expected of landowners are important as the problem of unlawful occupation of land escalates, with relatively few viable solutions to the problem.