Applying Ndlovu v Ngcobo; Bekker and Another v Jika [2002] 4 All SA 384 (SCA)

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No 19 of 1998 (PIE Act) regulates the eviction of unlawful occupiers. The PIE Act thus protects an unlawful occupier's rights under s26(3) of the Constitution.

The requirements set out in the PIE Act have to be complied with before an unlawful occupier can be evicted from a property. Some respite is given to property owners by the fact that the PIE Act only relates to the eviction of unlawful residential occupants and not to evictions concerning unlawful commercial occupants. The distinction between the two was rehashed and clearly set out in the recent Constitutional Court decision of MC Denneboom Service Station CC and Another v Phayane 2015 (1) SA 54 (CC).

MC Denneboom Service Station CC (Denneboom) and Nola Elison Chiloane (Chiloane) operated a service station and a convenience store on a property owned by Molefe Ian Phayane (Phayane). Chiloane was, however, also residing on part of the property. The property had previously been owned by Chiloane and his wife. During 1992, Chiloane was sequestrated and the duly appointed trustee of Chiloane caused the property to be sold on public auction to Phayane who took transfer of the property during May 2010. Despite the sale and transfer of the property to Phayane, Chiloane refused to vacate the property which resulted in Phayane instituting eviction proceedings in the North Gauteng High Court against Denneboom and Chiloane.

Denneboom and Chiloane challenged the application, pointing out that there were a number of other occupants residing on the property and that Phayane had failed to comply with the provisions of the PIE Act. Phayane subsequently amended his pleadings to exclude the eviction of 'residential occupants'. The court consequently granted an order evicting both Denneboom and Chiloane and all those who were working through or under them, excluding any residential occupants from the property.

Denneboom and Chiloane applied for leave to appeal to a full court of the High Court and the SCA, arguing that the order was ambiguous as it provided for the eviction of Chiloane who was a resident of the property, despite Phayane not having complied with the provisions of the PIE Act. Both applications were dismissed. Denneboom and Chiloane then appealed to the Constitutional Court.

The Constitutional Court dismissed the appeal, except insofar as it related to the amendment of the High Court's order which the Constitutional Court held was ambiguous. Hence, the unqualified reference allowing for the eviction of Chiloane was an error on the part of the court a quo as it allowed for his unequivocal eviction. The Constitutional Court therefore amended the order to exclude the eviction of Chiloane as a resident of the property.

The Constitutional Court also held that the PIE Act was enacted as a means of regulating the eviction of unlawful occupiers even if they reside on commercial premises. Importantly, however, and in applying the dictum set out at paragraph 20 of Ndlovu v Ngcobo; Bekker and Another v Jika [2002] 4 All SA 384 (SCA), the Constitutional Court held that where one aims to evict a commercial occupant or a juristic person, then such eviction will not fall within the scope of the PIE Act as the PIE Act does not apply to evictions of juristic persons and to persons that do not make use of a building or structure as a means of shelter or a dwelling.