Port Elizabeth vs Various Occupiers (Constitutional Court)
Facts:
- The applicant municipality was granted an order of eviction by the High Court for 68
unlawful occupiers of land within its jurisdiction, (In terms of s 6 of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998)
- Order set aside on appeal by SCA
- Was vacant land > occupiers been on land for between 2 and 8 years.
- Prior to granting of the order, occupiers indicated to municipality preparedness to vacate
land if municipality provided them with suitable alternative accommodation.
- Present application = municipality sought leave to appeal against the SCA decision, to have
the eviction order restored.
Legal issue:
- is the municipality constitutionally bound to provide alternative accommodation or land
when it seeks to evict unlawful occupiers?
Ratio:
- The Constitutional Court found that the eviction could not go ahead.
Applicable law:
- The Bill of Rights
- The Prevention pf Illegal Eviction from and Unlawful Occupation of Land Act
Reasoning:
- Sachs J ; referenced the judiciary’s “new task” which was to manage the inequality that
conventional rights of ownership causes against the new, equally relevant, right not to be
arbitrarily deprived of a home.
- The Pie Act (which was heavily relied on by the municipality) was found to require the courts
to “infuse elements of grace and compassion into the formal structures of the law.”
- Courts are called upon to” balance competing interests and promote the constitutional
vision of a caring society based on good neighbourliness and shared concern”.
Conclusion:
- This case displays the impact of the Constitution on the Law of Property
, Ex Parte Geldunhuys 1926 OPD
Facts:
- Concerned a dispute about the registrability of rights created in a will
- The will determined that the land in the estate would be divided in equal parts among the
children of the deceased once the eldest came of age.
- When this happened, the portion to be allocated to each was to be determined by the
children drawing lots.
- The child who drew the portion that included the homestead would be obliged to pay an
amount of money to the other children.
- The Registrar of Deeds refused to register these conditions, arguing that they did not
establish real rights in land because no diminution of ownership entitlements resulted.
Legal issue:
- Can a personal right be registered by virtue of its close relationship with a real right?
Reasoning:
- The question here is whether the conditions of this will can be considered real rights
- Real rights being (ones which burden the land (and its successors in title) and constitute a
deduction from the dominium.
- The key is that the obligation which arises from a real right must survive a transfer of
ownership and continue to burden the land.
- It must be an obligation binding not just on one person, but on ‘anyone’.
- The provisions of the will (drawing of lots when eldest came of age) restricted the
common-law right of co-owners to claim division of the land held jointly at any time they
chose and to divide it as they chose. (uncertain whether the eldest will reach majority
first).
- This restriction, it was found, adhered to, and affected so directly the entitlements of
ownership of undivided co-ownership shares that, necessarily, they had to be regarded as
a real burden upon that ownership.
- As for the 200 pounds that the owner of the homestead must pay to the others, this is
undeniably a personal right, because the ownership of money cannot easily be held to be
a real right, and the obligation is uncertain and conditional upon the outcome of the
drawing of lots.
- It is not a registrable right per se; however, it is so closely related to the registrable (real)
right that it must also be registered in the title deed.
- If not, it would give a misleading representation of testamentary direction, especially to
strangers who wanted to purchase one of the undivided shares.
Ratio:
- Yes. A personal right can be registrable if it is inextricably linked to one or more real rights.
Outcome:
- The applicant’s prayer for the registering of the entire clause in the will is granted.
Facts:
- The applicant municipality was granted an order of eviction by the High Court for 68
unlawful occupiers of land within its jurisdiction, (In terms of s 6 of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998)
- Order set aside on appeal by SCA
- Was vacant land > occupiers been on land for between 2 and 8 years.
- Prior to granting of the order, occupiers indicated to municipality preparedness to vacate
land if municipality provided them with suitable alternative accommodation.
- Present application = municipality sought leave to appeal against the SCA decision, to have
the eviction order restored.
Legal issue:
- is the municipality constitutionally bound to provide alternative accommodation or land
when it seeks to evict unlawful occupiers?
Ratio:
- The Constitutional Court found that the eviction could not go ahead.
Applicable law:
- The Bill of Rights
- The Prevention pf Illegal Eviction from and Unlawful Occupation of Land Act
Reasoning:
- Sachs J ; referenced the judiciary’s “new task” which was to manage the inequality that
conventional rights of ownership causes against the new, equally relevant, right not to be
arbitrarily deprived of a home.
- The Pie Act (which was heavily relied on by the municipality) was found to require the courts
to “infuse elements of grace and compassion into the formal structures of the law.”
- Courts are called upon to” balance competing interests and promote the constitutional
vision of a caring society based on good neighbourliness and shared concern”.
Conclusion:
- This case displays the impact of the Constitution on the Law of Property
, Ex Parte Geldunhuys 1926 OPD
Facts:
- Concerned a dispute about the registrability of rights created in a will
- The will determined that the land in the estate would be divided in equal parts among the
children of the deceased once the eldest came of age.
- When this happened, the portion to be allocated to each was to be determined by the
children drawing lots.
- The child who drew the portion that included the homestead would be obliged to pay an
amount of money to the other children.
- The Registrar of Deeds refused to register these conditions, arguing that they did not
establish real rights in land because no diminution of ownership entitlements resulted.
Legal issue:
- Can a personal right be registered by virtue of its close relationship with a real right?
Reasoning:
- The question here is whether the conditions of this will can be considered real rights
- Real rights being (ones which burden the land (and its successors in title) and constitute a
deduction from the dominium.
- The key is that the obligation which arises from a real right must survive a transfer of
ownership and continue to burden the land.
- It must be an obligation binding not just on one person, but on ‘anyone’.
- The provisions of the will (drawing of lots when eldest came of age) restricted the
common-law right of co-owners to claim division of the land held jointly at any time they
chose and to divide it as they chose. (uncertain whether the eldest will reach majority
first).
- This restriction, it was found, adhered to, and affected so directly the entitlements of
ownership of undivided co-ownership shares that, necessarily, they had to be regarded as
a real burden upon that ownership.
- As for the 200 pounds that the owner of the homestead must pay to the others, this is
undeniably a personal right, because the ownership of money cannot easily be held to be
a real right, and the obligation is uncertain and conditional upon the outcome of the
drawing of lots.
- It is not a registrable right per se; however, it is so closely related to the registrable (real)
right that it must also be registered in the title deed.
- If not, it would give a misleading representation of testamentary direction, especially to
strangers who wanted to purchase one of the undivided shares.
Ratio:
- Yes. A personal right can be registrable if it is inextricably linked to one or more real rights.
Outcome:
- The applicant’s prayer for the registering of the entire clause in the will is granted.
