THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
CASE NO 227/2006

In the matter between

NOMTHANDAZO CHAGI & OTHERS

Appellants

and

SINGISI FOREST PRODUCTS (PTY) LTD

Respondent

Coram:
Harms ADP, Lewis, Van Heerden, Jafta JJA

and Musi AJA
Heard:
9 MAY 2007
Delivered: 29 MAY 2007

Summary: Act 62 of 1997 – land – meaning thereof – s 9 applies only to
evictions from the registered piece of land as a whole.

Neutral citation: This judgment may be referred to as Chagi v Singisi
Forest Products [2007] SCA 63 (RSA)

___________________________________________________________

JAFTA JA
[1] The central issue in this matter is whether the employer’s
relocation of its workers from one set of houses to another on the same
piece of land constitutes an eviction as contemplated in the Extension of
Security of Tenure Act 62 of 1997. Claiming to be occupiers of land as
defined in the Act, the appellants instituted an application in the
magistrate’s court of Harding for an interdict, restraining the respondent
from relocating them from Kynoch Village to Weza Sawmill Village on
the same registered land unit in Singisi Forest, Harding without
complying with the requirements of the Act. They also sought an order
interdicting the respondent from deducting R648 per month from their
wages as rent for the houses they presently occupy. The magistrate
dismissed the application with costs. Their appeal to the Land Claims
Court was also dismissed with costs. This appeal comes before us with
leave granted by the court below.

[2] The facts are largely not in dispute. The appellants are employees
of the respondent which conducts business in the forestry and sawmilling
industry, on a piece of land described as Lot St Mary’s B No 5043ES
Singisi Forest, in the district of Harding, KwaZulu-Natal. The appellants
were previously employed by the South African Forestry Company
Limited (SAFCOL) which sold its business, as a going concern, to the
respondent in August 2001. As required by s 197 of the Labour Relations
Act 66 of 1995, the appellants’ employment contracts were transferred
from SAFCOL to the respondent simultaneously with the business. The
section provides for an automatic transfer of rights and obligations
between the seller and each employee to the purchaser, on the same terms
and conditions. In essence the purchaser replaces the seller as the

employer without the need to conclude new employment contracts
(National Education Health and Allied Workers Union v University of
Cape Town 2003 (3) SA 1 (CC)). However, the workers may decide to
terminate their employment or enter into new agreements with the
purchaser.

[3] In this matter the appellants accepted transfer of their employment
agreements by concluding new agreements incorporating the terms and
conditions which applied to their employment with SAFCOL. SAFCOL’s
conditions of employment provided, inter alia, that ‘[h]ousing on a
tenancy basis as approved by the Chief Executive shall be arranged where
necessary at the discretion of the Company’.
Consistently with this term the parties included the following clause in
their agreement:

‘6.3
Depending on your position, the Company may provide you with housing or
accommodation for which a reasonable market-related rental will be charged
(presently 2.5% of pensionable remuneration for married quarters and 1% of
pensionable remuneration for single quarters). This rental may be reviewed from time
to time. You will pay a fixed subsidised amount per electricity unit for electricity
usage, and this amount will be adjusted when necessary.’

[4] Before the respondent became the employer, SAFCOL had
separate accommodation for the salary earning and the wage earning
employees. The rent fixed at 2.5 per cent and 1 per cent of pensionable
wages applied to the married and single wage-earning employees such as
the appellants. However, at some point there were vacant houses at
Kynoch
Village
where
the
salary-earning
employees
were
accommodated. Fearing that they would be vandalised, SAFCOL
permitted the appellants to occupy them at the rental rate applicable to

wage-earning employees. This was a temporary arrangement between the
employer and the employees. But the arrangement continued even after
the takeover of the business by the respondent. Upon becoming the
employer, the respondent excused all wage-earning employees from
paying rent.

[5] The salary-earning employees were required to pay a market-
related rent which amounted to R648 per month as at the time the present
dispute arose, whereas the appellants were paying nothing for the same
accommodation. This caused discontent among the salary-earning
employees. The other wage-earning employees were also dissatisfied
with the fact that the appellants continued to enjoy accommodation to
which they had no access. In order to resolve the conflict the respondent
asked the appellants to vacate the houses they are occupying and take
occupation of houses earmarked for wage-earning employees at Weza
Sawmill Village, situated on the same piece of land. The appellants
declined to vacate. As an alternative solution, the respondent proposed
that the appellants pay rent in the sum of R648 like the other employees
occupying the same type of houses. Once again the appellants refused.
Instead they proposed to pay rent fixed at R140 per month.

[6] When their counter-offer was rejected and the amounts of R648
were deducted from their wages, as already mentioned, they instituted an
application in the magistrate’s court for an interdict restraining the
respondent from deducting the sum of R648 from their wages, and
relocating them to the new houses. The respondent opposed this and
brought a counter-application for an order declaring that the proposed
relocation did not constitute an eviction as envisaged in the Act. It argued
that the Act does not apply to the case. As stated above, the magistrate

dismissed their application and granted a declarator in favour of the
respondent. Since the respondent had given an undertaking to the effect
that deductions would no longer be made from their wages, the magistrate
apparently saw it unnecessary to deal with that part of the case. The
approach by the magistrate was, in my view, correct because the need for
an interdict had fallen away.

[7] In refusing to vacate the appellants do not claim any legal
entitlement justifying their continued occupation of the houses in
question. Indeed their contracts of employment do not entitle them to
occupy those particular houses. Their occupation was based on the
consent given by SAFCOL which the parties on both sides understood to
be a temporary arrangement. The respondent, as SAFCOL’s successor,
was entitled to withdraw such consent and the appellants do not argue
otherwise. But they contend that since their occupation was based on the
owner’s consent, the source of their right to reside on the land is s 6 of the
Act and this right can only be terminated and their eviction authorised in
terms of the relevant sections of the Act. Accordingly, so they argue, the
respondent can only evict them upon compliance with the requirements of
s 9 of the Act. This argument is based on the assumption that the
respondent’s demand for them to vacate constitutes an eviction as
contemplated in the Act.

[8] The procedural safeguards provided for in s 9 are available only to
occupiers who are evicted from land occupied with consent of the owner
or a person in charge or with another right in law to reside on the land. In
other words the Act protects lawful occupiers of land belonging to
another person. But before s 9 can be invoked there must be a termination
of the right of residence as envisaged in s 8 of the Act. Although the

appellants have not shown that such termination has taken place in this
matter, I shall assume in their favour that the respondent’s withdrawal of
the consent constitutes the requisite termination.
[9] The question that arises for consideration is whether the proposed
relocation amounts to an eviction as contemplated in the Act. The answer
to this question lies in the true meaning of the word ‘land’ as used in the
definition of ‘evict’. In terms of s 1 of the Act, ‘“evict” means to deprive
a person against his or her will of residence on land or the use of land or
the use of water which is linked to a right of residence in terms of this
Act, and “eviction” has a corresponding meaning’. The definition makes
it clear that the object of the right of residence is land and not a dwelling
house.

[10] Section 6 in turn confers upon occupiers such as the present
appellants the right to reside on land that belongs to another person. It
provides:

‘(1)
Subject to the provisions of this Act, an occupier shall have the right to
reside on and use the land on which he or she resided and which he or she used on or
after 4 February 1997, and to have access to such services as had been agreed upon
with the owner or person in charge, whether expressly or tacitly.

(2)
Without prejudice to the generality of the provisions of section 5 and
subsection (1), and balanced with the rights of the owner or person in charge, an
occupier shall have the right–
(a)
to security of tenure;
(b)
to receive bona fide visitors at reasonable times and for reasonable periods:
Provided that–

(i)
the owner or person in charge may impose reasonable conditions that
are normally applicable to visitors entering such land in order to
safeguard life or property or to prevent the undue disruption of work
on the land; and

(ii)
the occupier shall be liable for any act, omission or conduct of any of

his or her visitors causing damage to others while such a visitor is on
the land if the occupier, by taking reasonable steps, could have
prevented such damage;
(c)
to receive postal or other communication;
(d)
to family life in accordance with the culture of that family: Provided that this
right shall not apply in respect of single sex accommodation provided in
hostels erected before 4 February 1997;
(dA)
to bury a deceased member of his or her family who, at the time of that
person’s death, was residing on the land on which the occupier is residing, in
accordance with their religion or cultural belief, if an established practice in
respect of the land exists;
(e)
not to be denied or deprived of access to water; and
(f)
not to be denied or deprived of access to educational or health services.
(3)
An occupier may not-
(a)
intentionally and unlawfully harm any other person occupying the land;
(b)
intentionally and unlawfully cause material damage to the property of the
owner or person in charge;
(c)
engage in conduct which threatens or intimidates others who lawfully occupy
the land or other land in the vicinity; or
(d)
enable or assist unauthorised persons to establish new dwellings on the land in
question.
(4)
Any person shall have the right to visit and maintain his or her family graves
on land which belongs to another person, subject to any reasonable condition imposed
by the owner or person in charge of such land in order to safeguard life or property or
to prevent the undue disruption of work on the land.
(5)
The family members of an occupier contemplated in section 8(4) of this Act
shall on his or her death have a right to bury that occupier on the land on which he or
she was residing at the time of his or her death, in accordance with their religion or
cultural belief, subject to any reasonable conditions which are not more onerous than
those prescribed and that may be imposed by the owner or person in charge.’

[11] Section 9 restricts the landowner’s authority to evict persons who
occupy its land in terms of s 6. It provides that such occupiers can only be

evicted in terms of an order issued under the Act by a court of law. But
what does ‘land’ mean in the present context? I now turn to this question.

[12] The appellants’ counsel argued that ‘land’, as contemplated in the
definition of eviction and also in s 6(1), refers to the particular piece of
land on which the house occupied by the occupier has been erected and
not the entire registered piece of land. The difficulty with this particular
construction is that it is incompatible with the exercise of other rights
conferred on the occupier by s 6. On this interpretation, for example, the
occupier would be required to bury a deceased member of his or her
family on the particular piece of land on which the dwelling house is
situated. Faced with this problem, the appellants’ counsel argued that in
subsection (1) the word ‘land’ was used in a context different to the other
subsections. He submitted that in the other subsections it refers to the
entire registered land unit whereas, in subsection (1), it refers to a
particular piece of land within the registered unit.

[13] It is trite that a word repeatedly used in a statute must generally
carry the same meaning throughout the statute unless it is clear from its
language that such word is used in different contexts, warranting that
different meanings be attached to it. In the latter event, a different
meaning which is consistent with the context would be given to the word.
But before such meaning can be attributed to it, it must be clear from the
language that the lawmaker had intended a different meaning, especially
where the same word is repeated in one section. In Minister of Interior v
Machadodorp Investments 1957 (2) SA 395 (A) Steyn JA said (at 404D-
E):

‘Where the Legislature uses the same word, in this case the word “race”, in the same

enactment, it may reasonably be supposed that out of a proper concern for the
intelligibility of its language, it would intend the word to be understood, where no
clear indication is given, in the same sense throughout the enactment. This applies
with greater force when the same word is repeated in the same sentence.’

[14] The appellants’ counsel argued that in this matter two factors
indicate that the lawmaker intended ‘land’ to have different meanings.
The first is the reference to ‘homes’ in the preamble to the Act, the
relevant part of which reads: ‘WHEREAS many South Africans do not
have secure tenure of their homes and the land which they use and are
therefore vulnerable to unfair eviction’. Secondly, he submitted that, if
land is taken to mean the registered unit, the right of occupiers who are
relocated from one building to another on the same unit, would not be
protected. This, he argued, could not have been intended by the
lawmaker.

[15] I do not agree that these factors manifestly show the intention
contended for by the appellants. If the lawmaker had intended to protect
occupiers from being forced to vacate their homes, it could have easily
said so as it in fact did in the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998. This latter Act forms part
of the cluster of statutes to which the present Act belongs. In that statute
the definition of ‘evict’ includes the forced deprivation of occupation of a
building or structure, or the land on which such building or structure is
situated.

[16] Returning to the language of s 6, it must be read in its entirety in
order to determine whether or not the word ‘land’ was used in different
contexts in different subsections thereof. A careful reading of the section

reveals that the word was used in one context only. So, for example,
while subsection (1) confers on the occupier the right to reside on land,
subsection (2) gives him or her, in subparagraph (b)(i), the right to
receive visitors onto the same land provided they comply with reasonable
conditions ‘normally applicable to visitors entering such land in order to
safeguard life or property or to prevent the undue disruption of work on
the land’. That the two subsections refer to the same piece of land as a
unit is, in my view, indisputable. The same applies to the other rights in
respect of ‘land’ conferred on the occupier by the remaining paragraphs
of subsection 6(2).

[17] Section 6 must be restrictively interpreted because it encroaches
upon the landowner’s right of ownership. Statutes such as the present
must be construed, if possible, in a manner that least interferes with
existing rights. The interference must be limited to the extent necessary
and no further. In Dadoo Ltd v Krugersdorp Municipality 1920 AD 530
Innes CJ said (at 552):

‘It is a wholesome rule of our law which requires a strict construction to be placed
upon statutory provisions which interfere with elementary rights. And it should be
applied not only in interpreting a doubtful phrase, but in ascertaining the intent of the
law as a whole.’

[18] Furthermore, s 6 places a limitation on the landowner’s right of
ownership. This right is guaranteed by s 25 of the Constitution and as a
result such limitation is permissible only to the extent that it is
‘reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom’. In construing the present Act, we
are of course obliged to promote the spirit, purport and the objects of the

Bill of Rights of which s 25 forms an integral part (s 39(2) of the
Constitution). In Investigating Directorate: Serious Offences v Hyundai
Motor Distributors (Pty) Ltd : In re Hyundai Motor Distributors (Pty) Ltd
v Smit NO 2001 (1) SA 545 (CC), the Constitutional Court described the
interpretive role of s 39(2) in the following terms (para 21):

‘This means that all statutes must be interpreted through the prism of the Bill of
Rights. All law-making authority must be exercised in accordance with the
Constitution. The Constitution is located in a history which involves a transition from
a society based on division, injustice and exclusion from the democratic process to
one which respects the dignity of all citizens, and includes all in the process of
governance. As such, the process of interpreting the Constitution must recognise the
context in which we find ourselves and the Constitution’s goal of a society based on
democratic values, social justice and fundamental human rights. This spirit of
transition and transformation characterises the constitutional enterprise as a whole.’
See also Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
2004 (4) SA 490 (CC) in paras 88-92.

[19] Consistently with the protection of the right of ownership, the word
‘land’ as used in s 6 and in the definition of eviction means the registered
unit as a whole. This interpretation does not subtract anything from the
occupier’s right of residence on land as envisaged in s 6. In preferring this
particular interpretation, I am fortified by the decision of this court in
Dlamini v Joosten 2006 (3) SA 342 (SCA). There Cachalia AJA said (at
para 14):

‘The contention that the meaning of words in a statute may vary, depending on the
facts of a particular case, has no legal foundation. The word “land” is not defined in
the Act. But it is apparent that in the context within which it is used it can refer only
to land that is registered in the name of the owner. This is because the Act regulates
the relationship between occupiers of land and owners of the same land.’

The learned judge continued (at para 16):

‘The burial right in s 6(2)(dA) of the Act is an incidence of the right of residence
contained in s 6(1), which creates a real right in land. Such a right is in principle
registrable in a Deeds Registry because it constitutes a “burden on the land” by
reducing the owner’s right of ownership of the land and binds successors in title. The
burial right is in the nature of a personal servitude which the occupier has over the
property on which he possesses a real right of residence at death of a family member
who at the time of death was residing on the land. These rights are claimable against
the owners of registered land only. And the only objective determination of the extent
of the land which has been registered by an owner is by reference to its cadastral
description.’

[20] It follows that the court below erred in making the finding that
‘land’ as used in s 6(1) means the actual piece of land used by the
occupier and not the entire registered land unit. The proposed relocation
of the appellants to Weza Sawmill Village does not constitute an eviction
as contemplated in the Act and the respondent is not obliged to comply
with its requirements before effecting the relocation.

[21] In the result the appeal is dismissed with costs.

____________________
C N JAFTA
JUDGE OF APPEAL

CONCUR )
HARMS ADP

)
LEWIS JA

)
VAN HEERDEN JA

)
MUSI AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
29 May 2007

Status:
Immediate

NOMTHANDAZO CHAGI & OTHERS v SINGISI FOREST
PRODUCTS

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

Today, the Supreme Court of Appeal (the SCA) has delivered judgment
confirming the order issued by the Land Claims Court which dismissed
an appeal brought by the appellants against a judgment of the magistrate
at Harding, KwaZulu-Natal. The appellants had approached the
magistrate’s court for an interdict restraining the respondent, their
employer, from relocating them from one set of houses to another within
the same registered land unit.

They had claimed that the employer was bound to comply with the
requirements of s 9 of the Extension of Security of Tenure Act 62 of
1997, before it could relocate them. The section requires, inter alia, that

occupiers of land be given a two months’ notice to the effect that the
landowner would apply to court for an eviction order and that a report by
a probation officer be compiled, showing whether there was suitable
alternative accommodation available for the evicted occupiers.

The magistrate had ruled that since the appellants were being moved
within one piece of land, the provisions of s 9 did not apply to their case.
The SCA agreed that indeed the section does not apply and dismissed the
appeal.