THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 20519/14

In the matter between

Reportable

ANNIE HENDRICKS

APPELLANT

and

MARGARET HENDRICKS

FIRST RESPONDENT

GRAHAM HENDRICKS

SECOND RESPONDENT

AND ALL OTHER FAMILY AND PERSONS
RESIDING UNDER THE FIRST AND
SECOND RESPONDENTS

THIRD RESPONDENT

CITY OF CAPE TOWN

FOURTH RESPONDENT

Neutral citation:  A Hendricks v M Hendricks & others (20519/14) [2015]
ZASCA 165 (25 November 2015)

Coram:
Mhlantla, Leach, Tshiqi, Majiedt and Saldulker JJA

Heard:
16 November 2015

Delivered:
25 November 2015

Summary:
Eviction – an owner who occupies property without the consent
of the holder of a right of habitation in respect of that property is an „unlawful
occupier‟ as contemplated in the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town
(Zondi and Samela JJ sitting as court of appeal):

1. The appeal is upheld, with the first respondent to pay the costs.
2. The order of the a quo is set aside and substituted with the following:
„(a) The appeal is upheld, with the first respondent to pay the costs.
(b) The matter is remitted to the Somerset West Magistrates‟ Court for
the finalisation of the eviction application brought by the appellant, (the
applicant in the magistrates‟ court), in particular for a consideration of
the factors set out in section 4(7) of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act, 19 of 1998‟.

______________________________________________________________

JUDGMENT
______________________________________________________________

Majiedt JA (Mhlantla, Leach, Tshiqi and Saldulker JJA concurring):

[1] A long-running family quarrel culminated in the appellant, Ms Annie
Hendricks, seeking the eviction of her erstwhile daughter-in-law, the first
respondent, Ms Margaret Hendricks, and her son, the second respondent, Mr
Graham Hendricks, in the Somerset West Magistrates‟ Court. The third
respondent, collectively the other persons occupying the property in question
through the first and second respondents, and the fourth respondent, the City
of Cape Town, did not participate in the matter. I will therefore refer to the first
and second respondents simply as „the respondents‟.

[2] The eviction was sought in terms of the provisions of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998, (the

PIE Act), but was unsuccessful. The magistrates‟ court held that the
respondents were not unlawful occupiers as contemplated in the PIE Act and
could therefore not be evicted. The Western Cape Division of the High Court,
Cape Town (Zondi and Samela JJ, sitting as court of appeal) endorsed this
view and dismissed the appellant‟s appeal. This court granted the appellant
special leave in terms of s 16(1)(b) of the Superior Courts Act, 10 of 2013.

[3] The eviction application was unopposed. The unanswered factual
allegations made by the appellant are these. The appellant was 72 years old
when she launched the eviction application. On 5 November 1990 she had
sold her residential property, Erf 2128, Macassar, situated at 9 Fish Street,
Macassar (the property), to her son, the second respondent. A lifelong right of
habitation was registered in favour of the appellant on the property‟s title
deed. A concomitant cession of right of habitation, signed by the second
respondent in favour of the appellant in respect of the property, was recorded
in a notarial deed, number K871/90. The appellant lived in the property when
her son took occupation thereof after registration of the transfer. The second
respondent married the first respondent in community of property on 24
November 1990. Relations soured between the appellant and the first
respondent and deteriorated steadily over the years. By 2009 the appellant
experienced the living conditions in the property as intolerable which
prompted her to leave the property temporarily. She was granted refuge first
by her daughter and later by her other son. The appellant obtained a family
violence interdict against the first respondent and instructed her attorneys to
write to the respondents to request them that the appellant be permitted to
move back into the property without being verbally abused by them. These
letters, as well as ongoing negotiations, including a round-table discussion
convened by the appellant‟s attorneys, bore no fruit.

[4] The respondents were divorced on 2 February 2010 and, in terms of
the decree of divorce, their joint estate in community of property had to be
divided equally between them. It appears from the papers that at some stage
the second respondent (who, as stated, is the appellant‟s son) left the
property, possibly as a consequence of having been refused access to the

property by the first respondent. He has played no part in any of the previous
proceedings and in this court. Ultimately, the first respondent remained in
occupation of the property, together with her daughter from a previous
relationship, her granddaughter and the three children born of the marriage
between her and the second respondent. On 6 February 2012 the appellant‟s
attorneys wrote to the first respondent, again asserting the appellant‟s right of
habitation and calling upon the first respondent to vacate the property by 22
February 2012, failing which an eviction order would be obtained. In the end,
an eviction order was sought, without success.

[5] The central issue before the magistrates‟ court was whether the
respondents were unlawful occupiers as envisaged in the PIE Act. Section 4
provides for the eviction of unlawful occupiers. Since the respondents had
been in occupation of the property for more than six months at the time of the
eviction application, s 4(7) applies. It reads:

„(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.‟

In s 1 „unlawful occupier‟ is defined as follows:
„“unlawful occupier” means a person who occupies land without the express or
tacit consent of the owner or person in charge, or without any other right in law to
occupy such land, excluding a person who is an occupier in terms of the Extension of
Security of Tenure Act, 1997, and excluding a person whose informal right to land,
but for the provisions of this Act would be protected by the provisions of the Interim
Protection of the Informal Land Rights Act, 1996 (Act 31 of 1996).‟
„Person in charge‟ is defined in that section as „a person who has or at the
relevant time had legal authority to give permission to a person to enter or

reside upon the land in question‟. The appellant‟s case is that she was at the
time of the eviction application the person in charge of the property, and that
her legal authority, as contemplated in the definition, emanated from her right
of habitation. In the magistrates‟ court the appellant‟s legal standing to bring
the application and the fact that she had temporarily given up residing in the
property without abandoning her right of habitation, was not in issue. It was
also not in issue that she had not consented to the respondents‟ occupation of
the property and that any previous tacit or implied consent had been
unequivocally withdrawn. I must add that, although no opposing papers had
been filed on behalf of the respondents, they were represented by an attorney
in the magistrates‟ court. But in the court a quo and in this court, the first
respondent appeared in person, apparently due to impecuniosity. Before us
the first respondent merely denied that she had caused the appellant to leave
the property and indicated that the appellant was welcome to return at any
time.

[6] The right to habitation as a servitude is a limited real right which
confers on the holder the right to dwell in the house of another, without
detriment to the substance of the property1. The right can historically be
traced back to Roman law when the original objective was to provide
accommodation to indigent foreigners. In that context it was regarded as a
factual, rather than a juridical, institution. But Justinian accepted it as a sui
generis legal concept and he classified it as a personal servitude2. This was
generally accepted by Roman-Dutch authorities3. Our courts have long
recognized habitatio as a personal servitude which is a limited real right. Thus
it has been held to be a jus in re which founds an action rei vindicatio4. The
novel question before us is whether, as far as the PIE Act is concerned, a
holder of this limited real right is a „person in charge‟ of the property in respect
of which the habitatio operates and whether that holder can obtain an eviction

1 See: P J Badenhorst et al, Silberberg and Schoeman‟s The Law of Property, 5 ed at 341.
2 I 2.5.5; and see Van Leeuwen Censura Forensis 1.2.15.12.
3 Grotius, Introduction 2.44.8; van der Linden, Institutes 1.11.6.
4 Galant v Mahonga 1922 EDL 69 at 79. See also Kidson & another v Jimspeed Enterprises
CC & others 2009 (5) SA 246 (GNP) paras 7 and 8, where Van Rooyen AJ gives a useful
exposition of the history and ambit of the right.

order against an owner who occupies the property without the holder‟s
consent. For the reasons that follow both these questions must in my view be
answered in the affirmative.

[7] It is well established that ownership is the most comprehensive real
right and that all other real rights are derived from it5. But limited real rights
are absolute in the sense that they are enforceable against any and all. A
limited real right detracts from the owner‟s dominium. Thus, in the present
instance, the owner of the property, the first respondent, cannot exercise full
dominium over it, inasmuch as she cannot occupy the property, unless the
appellant as the holder of the right to habitation has consented thereto.
Absent such consent, her occupation of the property is unlawful. She is
therefore, on the facts of this case, an „unlawful occupier‟ within the meaning
contemplated in s 1 of the PIE Act.

[8] The court a quo sought to distinguish Galant and Kidson (referred to in
footnote 4 above) on the facts and on the law. It rejected the contention
advanced by the appellant‟s counsel that „the right to habitation trumps
ownership‟. Finally, it found that the owner of the right to habitation cannot
evict the owner of the servient tenement. While it did not set out any further
reasons for this conclusion it seems to me, with respect, that the court a quo
has misconceived the nature of the right of habitation vis-à-vis the owner of
the property in respect of which the habitatio prevails. And the court a quo
failed to consider at all whether the holder of such a right can be a „person in
charge‟ for purposes of the PIE Act, more particularly as far as s 4(7) is
concerned. In Kidson the owner of a farm had destroyed the farmstead and
outbuilding to which the applicants had a right of habitation, granted to them
by the previous owner. The court held that the applicants were entitled to
exercise their rights of habitation by either rebuilding the farmstead and
outbuildings or by building alternative structures. Van Rooyen AJ correctly
held (at para 11) that „the ius in re aliena limits [an owner‟s] ownership until

5 Grotius: Inleidinge 2.3.10: „Ownership is complete if someone may do with the thing
whatever he pleases, provided that it is permitted in terms of law‟ (translation as set out in
Silberberg and Schoeman‟s The Law of Property 5 ed, at 91 fn 7, own emphasis). See also
Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) at 106-107.

the death of the person entitled to the habitatio.‟ In Galant the court enforced
a right of habitation enjoyed by an heir against a co-heir who had inherited the
farm. Sampson J held that the plaintiff, as holder of the right of habitation, can
sue for the recovery of that right against any owner of the land subject to the
right. These cases demonstrate that an owner‟s rights in his or her property
are limited in relation to the right of habitation and, for that matter, by the
holder of the right of use [usus] and a usufruct. In this regard therefore the
court a quo erred in its findings.

[9] I have not been able to find a reported judgment where the holder of a
right of habitation had been held to be a „person in charge‟ within the meaning
of the PIE Act. But appellant‟s counsel referred us to the unreported judgment
of Rogers AJ in October NO & another v Hendricks & another6. There the
court had to decide whether the owners of property could be „unlawful
occupiers‟ in the context of an eviction application having been brought by the
holder of a life usufruct in respect of the property. The applicant‟s late
husband had bequeathed the relevant property to their two daughters with the
proviso that they should vacate the property once they get married. The will
also stipulated a life usufruct in favour of the applicant. As is the case here,
strained relations between the applicant and one of her daughters resulted in
an eviction application in the high court against the said daughter and her
husband. The court framed the question thus: whether the respondents in that
case were persons who occupy the property „without the express or tacit
consent of the owner of person in charge, or without any other right in law to
occupy such [property]‟. Rogers AJ held that „(w)here someone other than the
registered owner is the “person in charge” (ie the person with the right to
determine who stays on the property), it is the consent of such person rather
than the registered owner which is . . . relevant. It follows that the holder of
bare dominium could be an unlawful occupier if he or she occupied property
without the consent of the usufructuary‟ (own emphasis).

6 October NO & another v Hendricks and another (23189/2011) [2013] ZAWCHC 12 (31
January 2013).

[10] The conclusion and reasoning of Rogers AJ is clearly correct. Applied
to the present instance, the first respondent‟s bare dominium as owner of the
property must in law yield to the appellant‟s right of habitation. For, like usus
and usufruct, habitatio is a limited real right, enforceable to the extent of the
right itself, against the entire world (hence its registrability against a title
deed). Absent any consent from the appellant, either express, tacit or implied,
the first respondent is an unlawful occupier of the property.

[11] When one has regard to the definition of an „unlawful occupier‟ in s 1,
as set out above, the appellant is indubitably a „person in charge‟ of the
property. This is so, not only on the basis expounded by Rogers AJ in
October, quoted above, but also by virtue of the fact that the appellant plainly
derives her „legal authority‟ as contemplated in the definition of „person in
charge‟ in s 1 and as set out above, from her right of habitatio. She alone
could legally grant permission to a person (even the registered owner) to
reside in the property.

[12] In the premises, the court a quo has erred in its findings. But that is not
the end of the matter. Section 4(7) provides that a court may grant an eviction
order only if it is satisfied that it is just and equitable to do so. In order to make
that determination, it must consider the factors enumerated in the subsection.
In Port Elizabeth Municipality v Various Occupiers7 the court stressed that the
phrase „just and equitable‟ entails a more elaborate enquiry than „purely of the
technical kind that flow[s] ordinarily from the provisions of land law‟8. And it
emphasized that in conducting such an enquiry, „. . . the court must have
regard to the interests and circumstances of the occupier and pay due regard
to broader considerations of fairness and other constitutional values, so as to
produce a just and equitable result‟9.

[13] Some of the factors to be considered in terms of s 4(7) are the rights
and needs of the elderly, children, disabled persons and households headed

7 Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA
217 (CC).
8 Id, para 35.
9 Id, para 36.

by women. As a result of the outcome of the case the magistrates‟ court did
not have to consider s 4(7) at all. Due to the lack of opposing papers, there is
a dearth of information on these and other potentially relevant aspects. It
appears from the papers that, at the time of the respondents‟ divorce (in
2010), there was one minor child (they had three children). There is no
indication on the papers of whether this child and possibly one or both of the
others, may still be dependent on their parents. There is also no indication
whether anyone of the occupiers of the property is disabled. In all probability
that household is headed by a woman, the first respondent, in view of her
divorce from the second respondent. In the circumstances, the matter must be
remitted to the Somerset West Magistrates‟ Court for a full enquiry as
contemplated in s 4(7) into whether it would be just and equitable to order the
eviction of the respondents (in effect only the first respondent) and all those
occupying the property through them or her (the first respondent).

[14] It is necessary to add one last observation. This unseemly family feud
is highly regrettable. It is plain on the papers that hard, inflexible positions
have been adopted on both sides. Ultimately, no one wins in a matter such as
this. The more desirable outcome, beneficial to all concerned, is to bury the
hatchet and to co-exist in harmony on the property. One can only hope that
good common sense will prevail.

[15] The following order is issued:

1. The appeal is upheld, with the first respondent to pay the costs.
2. The order of the court a quo is set aside and substituted with the
following:
„(a) The appeal is upheld, with the first respondent to pay the costs.

(b) The matter is remitted to the Somerset West Magistrates‟ Court for
the finalisation of the eviction application brought by the appellant, (the
applicant in the magistrates‟ court), in particular for a consideration of
the factors set out in section 4(7) of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act, 19 of 1998.‟

________________________

S A MAJIEDT

JUDGE OF APPEAL

APPEARANCES

For Appellant:
R J Steyn
Instructed by:
Morkel & De Villiers Attorneys, Somerset West

Matsepes Inc, Bloemfontein

For Respondents:
In Person

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
25 November 2015

STATUS: Immediate

A HENDRICKS V M HENDRICKS & OTHERS (20519/14)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (the SCA) today upheld an appeal against an order of
the Somerset West Magistrates’ Court, confirmed on appeal to the Western Cape
Division of the High Court, Cape Town, refusing an application for eviction. The
appellant had sold her house to her son, but a right of habitation was registered in
the property’s title deed in the appellant’s favour. The appellant occupied the house
with her son (the second respondent) and his wife (the first respondent) whom he
had married shortly after taking transfer of the house. Serious problems arose
between the appellant and the first respondent, causing the former to temporarily
leave the house whereafter she lived elsewhere.

The appellant brought an eviction application in the magistrates’ court, which was
dismissed on the basis that the first and second respondents were not unlawful
occupiers in terms of the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998 (the PIE Act). The high court endorsed this finding. On
appeal the SCA held that in law the appellant’s right of habitation is stronger than the
respondents’ right of ownership. The SCA held further that the appellant, as holder
of the right of habitation, is a ‘person in charge’ as defined in section 1 of the PIE Act
and, absent her consent, the respondents occupy the house unlawfully. The SCA,
while finding that the magistrates’ court and the high court had erred, remitted the
matter to the magistrates’ court for a full enquiry to determine whether it would be
just and equitable, as contemplated in Section 4(7) of the PIE Act, to evict the first
respondent and all those occupying the house through her.

-- ends --