The Impact of the Extension of Security of Tenure Act on an Owner's Right to Vindicate Immovable Property

Abstract

ABSTRACTThe impact of the Extension of Security of Tenure Act 62 of 1997 rural landowners’ common-law right to vindicate their immovable property is in urgent need of legislative clarification. At present, two approaches appear to be plausible, neither of which has been expressly adopted by the courts. The first approach holds that the common-law right to vindicate immovable property has survived the enactment of the Act; the second, that the underlying purpose of the Act can only be achieved if this right is understood to have been implicitly altered. Both approaches are problematic, the first because it fails to cater for the situation where eviction orders are granted by default (thereby undermining the achievement of the objects of the Act), and the second because it is not clearly supported by the text of the legislation. The resolution of these issues also needs to take into account the effect of other related legislation, most notably the Land Reform (Labour Tenants) Act 3 of 1996 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.