Can estoppel be raised against an eviction in terms of PIE?

Abstract

Estoppel is a well-known defence against (or limitation on) the rei vindicatio. This would be the case for example where the owner by some representation creates the impression that a third party is the owner of a thing and that the third party has the capacity to alienate the property. The bona fide third party can, when the owner then institutes the rei vindicatio to recover his property, raise estoppel and preclude the real owner from claiming his property. Before 2002, if one wanted to evict an unlawful occupier from certain residential premises, one would institute the rei vindicatio. In Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA) the court, however, ruled that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) must be used in all instances of evicting people from urban residential premises. The question is: does estoppel serve as a defence/limit in the application of PIE? Surprisingly few cases deal with this issue. The court in Joe Slovo made a few remarks about the possibility of using estoppel as a defence against the rei vindicatio by looking at the interpretation of 'tacit consent' required by PIE. This article will interpret provisions of PIE and look at case law that deals with the use of estoppel in lease cases. It will conclude by remarking on the feasibility of using estoppel as a defence in PIE eviction cases.