IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

REPORTABLE COVERSHEET

Case No.: A137/2008
In the matter between

and

(and all persons claiming the right of occupation through or under them)
Coram 					TRAVERSO, DJP et SAMELA, AJ 
Judgment by					SAMELA, AJ
For the Applicants				Adv M Holland			0214221512
Instructed by					Walkers I nc (MAH/W23894)       021464441

Instructed by					FJMO Attorneys Inc (N Oliphant) 0219451596

											REPORTABLE		

IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO.: A137/08

In the matter between

and

(and all persons claiming the right of Occupation through or under them)

JUDGMENT DELIVERED ON 11 JUNE 2010

SAMELA, AJ

[1] This is an appeal against the judgment of a Mitchell's Plain Magistrate, dismissing the Appellants' application for eviction of the Respondents. The Appellants had brought an application for eviction of the Respondents from the immovable property known as Erf 18884, Khayelitsha, commonly known as 16 Mapolo Street, Khayelitsha ("the property"). The Appellants had brought an application for eviction on the basis that occupation of the property by the Respondents was unlawful.

[2] The Respondents had opposed the eviction application on the ground that they are occupying the property lawfully.

[4] The basis for the relief sought by the Appellants is that the Respondents' occupation of the property is unlawful in that they do not have the Appellants' consent or permission to occupy the property.

[5]    The Respondents opposed the application on various grounds.

[6] Firstly, they contend that they were entitled to occupy the property by virtue of the marriage of the First Respondent to the deceased. The First Respondent alleges that she was married to the deceased by custom in 1986.

[7] Secondly, the Respondents aver that the marriage between the executrix and the deceased was invalid on the ground that at the time that the deceased married the executrix, he was still married to the First Respondent.

[8] Thirdly, the First Respondent alleges that the executrix had no authority to sell the property to the Appellants and that the Appellants were aware at the time of the sale, that the property did not belong to the executrix and that she had no authority to sell it.

[9] Fourthly, the First Respondent avers that the letter of authority, on the authority of which the executrix purported to sell the property had been fraudulently obtained. The First Respondent points out that upon investigation at the Master's Office as to how the letter of authority was granted, she discovered that the executrix did not disclose the following:

[11] The Appellants appeal against the Magistrate's decision on the ground that the Magistrate misdirected himself in finding that the marriage between the executrix and the deceased was invalid. Mr Holland, who appeared on behalf of the Appellants pointed out that the issue before the Magistrate was not whether the executrix's marriage to the deceased was valid or not. He submitted that the Magistrate was required to decide whether the eviction was to be granted or not.

[12] The question is whether the Magistrate was wrong in dismissing the Appellants' application.

[13] This application had been brought before the Magistrate in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 ("the PIE Act"). The PIE Act was enacted in order to give effect to the provision of section 26(3) of the Republic of South Africa Act 108 of 1996 ("the Constitution"), which provides that;
"No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions."

[14]   The PIE Act defines an owner in section 1 as:
"... the registered owner of the land, including an organ of state."

[15] Owner in the Deeds Registries Act 47 of 1937 is defined in section 102 as: in relation to -
"(a) immovable property, subject to paragraph (b), the person registered as the owner or holder thereof and includes the trustee in an insolvent estate, a liquidator or trustee elected or appointed under the Agricultural Credit Act, 1966 (Act 28 of 1966), the liquidator of a company or a close corporation which is an owner and the executor of any owner who has died or the representative recognised by law of any owner who is a minor or of unsound mind or is otherwise under disability, provided such trustee, liquidator, executor or legal representative is acting within the authority conferred on him or her by law. [Para (a) substituted by s.22(d) of Act 14 of 1993 and by s.9(b) of Act 11 of 1996];
(b) immovable property, real rights in immovable property and notarial bonds -

(ii)	which are registered in the name of only one spouse and which forms part of the joint estate of both spouses in a marriage in community of property, either one or both of the spouses;	"
(iii)	
[16]   An unlawful occupier is defined in section 1 of the PIE Act as:

[17]   Sections 4(7) and (8) of PIE Act deal with eviction of unlawful occupiers: 

7. If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.
8. If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine -

(a)	a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and
(b)	the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a)."

[18] Mr Holland submitted that the executrix was married to the deceased, and on the death of the deceased, she became the sole owner of the property, and that being so, was entitled to sell and transfer ownership of the property to the Appellants.

[19] In reply, Ms Mayosi, who appeared on behalf of the Respondents, submitted that the Respondents were occupying the property lawfully. She pointed out that the First Respondent was validly married to the deceased in accordance with the customary law in 1986. She argued that the executrix married the deceased in 1993 whilst the marriage between the First Respondent and the deceased was still in existence. She further submitted that the executrix's marriage was therefore null and void and that proprietary consequences could not flow therefrom.

[20] The customary marriage between the deceased and the First Respondent was regulated by section 1 of Act 3 of 1988 (amending section 22 of the Native Administration Act 38 of 1927) which provided that:
"(1) A man and a woman between whom a customary union subsists are competent to contract a marriage with each other if the man is not also a partner in a subsisting customary union with another woman. 

(2) Subject to subsection (1), no person who is a partner in a customary union shall be competent to contract a marriage during the subsistence of that union.

				…...........

[21] Since 15 November 2000, the deceased and the First Respondent's customary marriage was regulated by the Recognition of Customary Marriages Act 120 of 1998 ("the Act").

[22]   Section 3(2) of the Act provides:
"Save as provided in section 10(1), no spouse in a customary marriage shall be competent to enter into a marriage under the Marriage Act, 1961 (Act No 25 of 1961), during the subsistence of such customary marriage.

[23]   Section 7(1) of the Act provides:
"The proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law."

[24]   Section 8(1) provides:
"A customary marriage may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage."

[28] I am of the view that the Magistrate's approach in arriving at his decision was correct. The customary rule of primogeniture was partly applicable in this matter. In my view, there are two enquiries to be made, firstly, the validity of the executrix's marriage to the deceased, and secondly, whether or not the Appellants are the owners of the property. One cannot entertain the second enquiry without having decided on the first one.

[29] It is clear from the record that the issue before the Magistrate was not the validity of the marriage between the executrix and the deceased, and the Magistrate never pronounced on it. The Magistrate had to decide whether the Appellants were lawful owners of the property or not.

These averments made by the First Respondent were not disputed and replied to by the Respondents and stands as they were.

[32]   In the circumstances I find:
Firstly, that the executrix at the time of sale and transfer of property had no authority to deal with property and its disposal.

[33] Secondly, the Appellants were aware at the time they bought and took transfer of property from the executrix that she had no authority to sell and transfer property to them.

[34] It follows, therefore, that the sale and transfer of property to the Appellants did not confer ownership on the Appellants. It is for these reasons that Mr Holland's submission that the executrix was the sole owner of the property and entitled to sell and transfer ownership of the property to the Appellants is untenable and rejected.

[38] I am satisfied that the Respondents' occupation of the property was not unlawful and that the application for eviction was correctly refused.

"Thus, those seeking eviction should be encouraged not to rely on concepts of faceless and anonymous squatters automatically to be expelled as obnoxious social nuisances. Such a stereotypical approach has no place in the society envisaged by the Constitution; justice and equity require that everyone is to be treated as an individual bearer of rights entitled to respect for his or her dignity."

I associate myself with the views  expressed in these matter.

[40]   In the result, I would dismiss the appeal with costs.

I agree and it is so ordered