Ndlovu v Ngcobo; Bekker and Another v Jika,[1] an important case in South African property law, was heard in the Supreme Court of Appeal[2] on May 23, 2002, with judgment handed down on August 30.
In neither Ndlovu nor Bekker had the applicants for eviction complied with the procedural requirements of the Act; the only issue for the Court to decide was whether or not they had been obliged to do so.
Ndlovu was a case of holding over in which the consent of the owner had lapsed: On the lawful termination of the tenant's lease, he had refused to vacate the property.
[10][11] Harms held further that the ordinary definition of the term meant, textually, that the Act applied to all "unlawful occupiers," irrespective of whether their possession had at an earlier stage been lawful.
There seemed to be no reason in the general social and historical context of South Africa why the Legislature should not have wished to afford the vulnerable class of the landless poor the protection of the Act.
The tenant would obviously, to the annoyance of the landlord, be entitled to the somewhat cumbersome procedural advantages of the Act, but what it did was to delay or suspend the exercise of the landowner's full proprietary rights until a determination had been made as to whether or not it was just and equitable to evict the unlawful occupier, and under what conditions.
[15] Provided that the procedural requirements had been met, Harms held that the owner was entitled to approach the court on the basis of ownership and the respondent's unlawful occupation.