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By Johan van der Merwe
Consent is the necessary condition to perform certain acts lawfully, and to gain or lose a particular legal status. Issues pertaining to consent are widespread in everyday social relations and in commercial operations. This article aims to explore the legal requirements necessary to terminate the consent of lawful occupiers. To place this issue in proper context, the article commences with a broad but brief review of the concept of consent.
Examples of consent, which in turn give rise to various legal provisions and sanctions, include to –
Once consent has been established, far-reaching consequences follow. Consent is, for example, a good defence in an action in delict for harm done, as captured by the maxim volenti non fit iniuria.
Question of law and fact
Whether consent is a legal requirement in any given case is a legal question, but ‘[w]hether there is consent is a factual question’ (see Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre of Housing Rights and Evictions and Another, Amici Curiae) 2010 (3) SA 454 (CC) at para 83).
The ‘giving’ of consent is often confused with, and likened to, a gift, but it is not a gift. While consent is often a product of the conscious mind that can be communicated, it can also be the state of the subconscious mind that can be deduced or deemed or implied by conduct: Consent can be ‘actual or presumptive’ (see Klaase and Another v Van der Merwe NO and Others 2016 (6) SA 131 (CC) at para 64). ‘Express consent and tacit or implied consent … are both species of actual consent’ (see the Joe Slovo case at para 83).
Free will and decision making
Broadly seen, consent emanates from the conscious or subconscious mind of a person, where it may be deemed or presumed, or from where it may be articulated by means of an ‘intelligent act’ (see J Burchell Principles of Criminal Law 5ed (Cape Town: Juta 2016) at p 226, and the authorities cited in footnote 120) and expressed orally or in writing. The concrete manifestation of a spiritual state of mind, originating from the realm of free will, and then expressed or articulated in language, is often fraught with difficulties, namely –
What constitutes real, actual or proper consent?
The advances of medical science will no doubt one day shed more light on the decision-making processes in the brain. The Biomedical Engineering Research Group (BERG) at Stellenbosch University recently purchased state-of-the art brain imaging equipment to determine, among others, brain activity associated with both arbitrary and deliberate decisions (Dr D van den Heever and L Koch ‘Do you have a free will, or not?’ www.sun.ac.za, accessed 13-5-2019).
In the meanwhile, challenges and claims relying on the granting or withdrawal of consent abound, and different legal tests and mechanisms have been developed to establish consent and to give it legal effect and purpose. Consent does not bear the same meaning in every field of law. The requirements, test and onus of proof for consent is different in criminal law, the law of contract, the law of delict, consumer law or medical malpractice.
Informed consent in the realm of personal freedom
The only reference to ‘consent’ in the Constitution occurs in s 12(2)(c), which refers to ‘informed consent’ in the context of freedom and security of the person. In Christian Lawyers’ Association v National Minister of Health and Others 2004 (10) BCLR 1086 (T), the court found that the ‘cornerstone of the regulation of the termination of pregnancy of a girl and indeed of any woman under the Act is the requirement of her “informed consent”.’ The court then proceeded to consider the judicial meaning of informed consent and found that it rests on three independent legs namely, knowledge, appreciation and consent (at p 1093).
Failure to obtain ‘informed consent’ in the realm of personal freedom is largely accepted as constituting assault. (See the important caveat in the discussion of Liezl Zwart ‘Sibisi NO v Maitin: A dual burden of proof?’ 2015 (June) DR 33.)
Informed consent in the realm of property law
Consent is a big player when it comes to property law, particularly in the context of socio-economic rights, but has received scant, if any, attention from academic writers to date.
The requirement of informed consent in the context of socio-economic rights was recently developed by the court in the Xolobeni Mine matter, see Baleni and Others v Minister of Mineral Resources and Others [2019] 1 All SA 358 (GP) (see law reports p 21). In this judgment the court refers to Daniels v Scribante and Another 2017 (4) SA 341 (CC) at para 80 and proceeds to declare that the full and informed consent of the community is required prior to the granting of mining rights. In reaching that decision, the court considered the relevant constitutional values, and also international law instruments such as the International Covenant on Economic, Social and Cultural Rights.
Lawful occupiers
If land is occupied without the initial consent of the owner or person in charge, then such occupiers are generally speaking unlawful occupiers, governed by the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). PIE, however, also applies to some occupiers who had initial consent, but whose consent was subsequently terminated.
The termination of consent of persons residing on rural land with initial consent is governed by the Extension of Security of Tenure Act 62 of 1997 (ESTA) and the legal requirements were summarised by the Constitutional Court in Snyders and Others v De Jager and Others 2017 (3) SA 545 (CC) as follows: There must be a lawful ground; the termination must be just and equitable at a substantive level and at a procedural level.
The position for ESTA occupiers is clear. But what about other lawful occupiers, that is occupiers whose occupation is lawful at the outset, but who are not covered by the provisions of ESTA? These are typically occupiers that reside in an urban environment, or rural occupiers who earn more than the threshold amount prescribed by ESTA. PIE is applicable to such occupiers.
Different Acts apply to different types of occupiers, but does that affect the nature of the consent granted? Is the nature of the consent granted by a landowner to a person to reside on land dependent on the character of the land? There appears to be no reason why the termination of consent for those PIE occupiers who had initial consent should be different from the termination of consent for the purposes of ESTA. In both instances the removal of consent has the same consequences and triggers the significant transition from a status of lawfulness to a status of unlawfulness, with far-reaching consequences. There also appears to be no reason why such a transition should be achieved more easily for some who had consent, but be more difficult for others who had no consent.
Contractual relationship
A large group is easily taken out of the equation, namely occupiers, where a contractual relationship governs the relation between the parties. In that event, the method and requirements to terminate consent are determined by the terms of the contract as governed by the law of contract, because ‘pacta servanda sunt’ – the parties are bound by the terms of the contract, they are servants of the pact that was made.
So, for instance the question whether consent to occupy was properly terminated in the situation where a property is sold with a valid lease, will be determined with reference to the terms of the lease. In Van Coller and Another v Machele and Others (GP) (unreported case no 96124/2016, 18-5-2017) (Mia AJ) the court held at para 18: ‘The principle “huur gaat voor koop” is recognised and there was no termination of his occupancy. Even if the view is held that the Macheles lost their right to occupancy when the property was sold this did not impact on the right of Peter Hudson who had a valid lease in place’. A further example appears from the conclusion: ‘The agreement of lease had expired by effluxion of time on 31 May 2018, and there was a valid termination of Mr Chetty’s right to possess the premises’ opening the portal of an eviction order in Violetshelf Investments (Pty) Ltd v Chetty (GJ) (unreported case no 24858/18, 28-1-2019) (Meyer AJ) at para 10.
Where no contractual relationship between the parties exists, and the state or a public body is involved, their relationship falls within the ambit of public administrative law. In AB and Another v Pridwin Preparatory School and Others 2019 (1) SA 327 (SCA), the constitutional impact of procedural fairness in the realm of administrative decision making was distinguished from the realm of the law of contract, and to make this distinction the court relied on the constitutional authority in Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC), where the Constitutional Court quotes C Hoexter Administrative law in South Africa (Cape Town: Juta) as follows: ‘Procedural fairness … is concerned with giving people an opportunity to participate in the decisions that will affect them, and – crucially – a chance of influencing the outcome of those decisions. Such participation is a safeguard that not only signals respect for the dignity and worth of the participants, but also likely to improve the quality and rationality of administrative decision making and to enhance its legitimacy’ (see para 99).
Conclusion
In respect of lawful occupiers where no contractual agreements are in place, I submit that, whereas:
It follows that the act of terminating consent (the expressing or exercising of the termination) must meet formal legal requirements. In the absence of formal legal requirements it may easily be rendered subjective, silent, hidden and quite possibly an irrational endeavour. If it meets formal legal requirements, it would also facilitate the correct calculation of the relevant notice period, and it would ensure that the act of termination is rational, fair and reasonable.
If the act of termination were allowed to be a silent, hidden or a subjective affair without formal legal requirements, it would lead to the untenable situation that it is possible to find the consent was revoked and was not revoked. Findings bordering on absurdity have already occurred: ‘Yacoob J holds that they did not have consent at all, while Moseneke DCJ, Ngcobo J, O’Regan J and Sachs J conclude that they did but that the consent was conditional and subsequently revoked’ (Joe Slovo at para 4).
Such finding is reminiscent of the realm of quantum physics, where it is possible that the cat is dead and alive at the same time. But we are not physicists, and as lawyers our project is concerned with advancing a rational constitutional jurisprudence.
Therefore, I submit that the same legal requirements should apply to the termination of consent of all lawful occupiers whose occupation is not governed by an agreement, namely there must be a lawful ground, and the termination must be just and equitable at a substantive level and at a procedural level.
Johan van der Merwe BCom BA (Hons) LLB (Stell) LLM (University of Kiel) (Germany) is an attorney at JD van der Merwe Attorneys in Stellenbosch.
This article was first published in De Rebus in 2019 (June) DR 8.
