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IN THE HIGH COURT OF SOUTH AFRICADURBAN AND COAST LOCAL DIVISION
REPORTABLE
CASE NO:6725/2005
In the matter between:
KANESCHO REALTORS (PTY) LIMITED APPLICANT
and
MTHEMBENI SIMON MUZI MAPHUMULO FIRST RESPONDENTNKOSINGIPHILE RUTH MAPHUMULO SECOND RESPONDENT
ALL OTHER PERSONS OCCUPYING THEIMMOVABLE PEROPTY SITUATE ATERF 899, KWA MASHU M TOWNSHIP THIRD RESPONDENTS
CASE NO: 7455/05
In the matter between:
SELVAN CHETTY N.O. FIRST APPLICANT
DOROTHY CHETTY N.O. SECOND APPLICANT
and
THAVANESEN THAVER FIRST RESPONDENT
ETHEKWINI MUNICIPALITY SECOND RESPONDENT
CASE NO: 7540/2005
In the matter between:
FISHER STREET INVESTMENTS (PTY) LIMITED APPLICANT
and
JAMUPILI KABINAKANWA RESPONDENT
CASE NO: 7691/2005
In the matter between:
SHAMSHA INVESTMENTS (PTY) LIMITED APPLICANT
and
ZAFRULLA KHAN RESPONDENT
JUDGMENT
KRUGER J:
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[1] The Applicants seek an order for the eviction of the Respondents.
The Application has been brought in terms of the Prevention of Illegal
Evictions from and Unlawful Occupation of Land Act 19 of 1998
(“PIE”). On the 2nd June 2005 the application was adjourned to the
20th June 2005 and Mr Kissoon Singh SC was appointed as Amicus
Curiae to make submissions with regard to the procedural aspects of
such applications as well as to the form that the order should take in
an endeavour to establish a practice which I believe ought to be
followed in such applications.
[2] Mr Kissoon Singh’s submissions have been duly received and
noted and I am indeed grateful for his input in the matter.
[3] The provisions of PIE were formulated to provide for the
prohibition of unlawful eviction and to provide for procedures for the
eviction of unlawful occupiers who reside on land which is not
deemed to be agricultural land. It is also not applicable in respect of
commercial premises. (Ndlovu v Ngcobo; Bekker and another v
Jika 2003(1) SA 113 (SCA) @ pg 124 [20]).
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[4] The provisions of PIE which are of particular relevance to this
matter are the following:
“4. EVICTION OF UNLAWFUL OCCUPIERS –
1) Notwithstanding anything to the contrary contained in any
law or the common law, the provisions of this section apply
to proceedings by an owner or person in charge of land for
the eviction of an unlawful occupier.
2) At least 14 days before the hearing of the proceedings
contemplated in subsection (1), the court must serve written
and effective notice of the proceedings on the unlawful
occupier and the Municipality having jurisdiction.
3) Subject to the provisions of subsection (2), the procedure
for the serving of notices and filing of papers is as prescribed
by the rules of the court in question.
5) The notice of proceedings contemplated in subsection (2)
must –
(a) state that proceedings are being instituted in terms of
subsection (1) for an order for the eviction of the
unlawful occupier;
(b) indicate on what date and at what time the Court will hear
the proceedings;
(c) set out the grounds for the proposed eviction; and
(d) state that the unlawful occupier is entitled to appear
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before the court and defend the case and, where
necessary, has the right to apply for legal aid.”
[5] The provisions of Section 4 of PIE are peremptory. (See Cape
Killarney Property Investments (Pty) Ltd v Mahamba and others
2001(4) SA 1222 (SCA) at [11] and [17]; Sam Kadish Moela v
Tichaona Abel Shoniwe – Case No. 54/2004 (SCA) (unreported)
at [7]).
[6] It has also been held by the Supreme Court of Appeal that the 14
day notice period provided for in Section 4(2) of PIE must be given in
addition to the normal notice given to a Respondent in terms of Rule
6 of the Uniform Rules of Court. It accordingly follows that where
persons are to be evicted from their residences they are to be
afforded a greater opportunity in preparing their defences or
formulating their submissions. (Cape Killarney, (supra), at [12] and
[20]).
[7] There is a misconception that the provisions of PIE, as interpreted
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by the Courts, will result in undue delay. Accordingly, a practice
appears to be developing whereby the Applicants attempt to truncate
proceedings by obtaining orders of the Court which are inappropriate
and are contrary to the provisions of PIE as well as the decision of
the Supreme Court of Appeal. It is also often confusing to
Respondents. This practice is in the form of the Applicants seeking a
“First Order Prayed” and a “Second Order Prayed” in terms of which
they attempt to comply with the provisions of PIE.
[8] The orders requested in the present applications are a typical
example of the procedure and practice which appears to be
developing. Although lengthy, it is accordingly necessary to cite the
full terms of the orders requested by the Applicants. The original
order reads as follows:
“KINDLY TAKE NOTICE THAT application will be made, on behalf of the
abovenamed Applicant, to the above Honourable Court, on the day
of 2005 at 09h30 am (sic) or so soon thereafter as the
matter may be heard, for an Order in the following terms:
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FIRST ORDER PRAYED:
1. The Sheriff or his Deputy is directed forthwith to:
(a) serve a copy of these application papers together
with a copy of this Order upon such of the
Respondents who may be present upon the
property having the address …………………
(hereinafter referred to as “the property”) at the time
of such service;
(b) serve notices in the form of annexures “A” and “B” to
this order upon such of the Respondents as may be
present at the property at the time of such service;
(c) read annexures “A” and “B” to such of the
Respondents present upon the property at the time
of service, in ………………… languages
respectively, or cause the said notices to be read to
such Respondents in the said languages;
(d) serve a copy of these papers and the notices in the
form of annexures “A” and “B” hereto together with a
copy of this Order upon the eThekwini Council at its
Legal Services Division, Shell House, corner of
Smith and Aliwal Streets, Durban; and
(e) return the original papers, Order and notices to the
Registrar with your Return of what you have done
thereon.
2. Service in terms of paragraph 1 hereof shall be effected not less
than FOURTEEN (14) calendar days prior to the date of the hearing
of the application for the Second Order Prayed.
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SECOND ORDER PRAYED
TAKE NOTICE THAT application will be made on behalf of the
abovenamed Applicant to the above Honourable Court on the
day of 2005 or so soon thereafter as the matter may
be heard, for an Order in the following terms:
1. That the Respondents and all other persons occupying the property
through them be and are hereby directed to vacate the property
situated at ……………….. and to deliver possession thereof to the
Applicant within THIRTY (30) calendar days of the date of service
of this Order.
2. In the event of the Respondents failing to comply with the
provisions of paragraph 1 above, the Sheriff or his Deputy is
authorized and directed forthwith to evict the Respondents and all
or any other persons occupying the property through them from the
said property;
3. Such Respondents who oppose this application are directed to pay
the costs incurred as a result of such application.”
[9] The order that has been requested is clearly incorrect and does
not accord with the provisions of PIE, the interpretation of the
provisions of PIE by the Supreme Court of Appeal as well as the
Uniform Rules of Court. In its original form, the order did not make
provision for the Respondents to notify their intention to oppose the
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proceedings within a specified time period nor did it inform them of
the right to file affidavits thereafter as provided for in Rule 6(5)(b) of
the Uniform Rules of Court.
[10] Where an application for ejectment in terms of PIE is made,
following the First Schedule, Form 2(a) Notice of Motion (the long
form of Notice of Motion) three situations present themselves, viz ;
a) The application may be undefended;
b) The application may be defended up to a point, that is to
say, a Notice of Intention to Oppose may be delivered but
the Respondent may thereafter fail to deliver any answering
affidavits (or indeed take any other steps to pursue such
defence); and
c) The application may be defended to the full.
[11] In terms of Section 4(3) of PIE, the procedure for the serving of
notices and filing of papers is governed by Rule 6 of the Uniform
Rules of Court. Rule 6(5)(b) provides that the Notice of Motion shall
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stipulate a day being not less than five days after service of the said
Notice of Motion on the Respondent, on or before which the
Respondent is required to notify the Applicant, in writing, whether he
intends to oppose such application. The Rule provides further that if
no such notification of opposition is given, the application will be set
down for hearing on a day not being less than 10 days after service of
the Notice of Motion on the Respondent. SubRule 6(5)(c) provides
that if the Respondent does not on or before the day mentioned for
that purpose in the Notice of Motion, notify the Applicant of his
intention to oppose, the Applicant may place the matter on the roll for
hearing by giving the Registrar Notice of Set Down before noon on
the Court day but one preceding the day upon which the same is to
be heard.
[12] Accordingly, in my view, the procedure to be adopted, (excluding
urgent applications in terms of Section 5 of PIE) is as follows:
a) An Applicant is to utilize a Form 2(a) Notice of Motion and
claim therein the necessary relief for eviction.
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b) Provision is to be made for a date to be inserted by the
Applicant, being a day not less than five days after service of
the application, by which a Notice of Intention to Oppose
must be delivered.
c) Provision is to be made for a date to be inserted being a day
upon which the application will be heard, in the absence of a
Notice of Intention to Oppose.
d) The date envisaged in paragraph (c) above is to be
sufficiently calculated to enable an ex parte interlocutory
application for the authorization of a notice in terms of
Section 4(2) of PIE to be prepared, entertained by the Court
and the order granted to be served.
[13] Should the aforementioned procedure be adopted and followed,
the entire application ought to be disposed of in no later than five
weeks. The advantage of following this procedure is that the
Respondents will be informed, at the very outset, that the application
will be heard on a specific date, if undefended, and accordingly will
not be confused by receiving either a notice which does not stipulate
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a date of hearing or, in the alternative, has different dates upon which
the Respondent is to appear in Court. A further advantage is that the
Section 4(2) Notice will also contain the exact same date of the
hearing and will not only obviate any confusion but will also allow a
Respondent a further 14 days within which to oppose the application,
thus fulfilling the objectives of PIE.
[14] In the second scenario envisaged above, namely where a Notice
of Intention to Oppose has been delivered but no affidavits have been
subsequently delivered, the procedure envisaged above would be the
same, save that the date specified in the Form 2(a) Notice of Motion
upon which the application will be heard, in the absence of a Notice
of Intention to Oppose, would fall away, for obvious reasons. Should
a Respondent fail to deliver the answering affidavits within the 15 day
period as set out in the Notice of Motion (and in accordance with Rule
6(5)(b)) the Applicant can approach the Court ex parte for
authorization in terms of Section 4(2) of PIE and a date for the
hearing of the matter will be obtained and inserted into the Section
4(2) Notice, in compliance with the provisions of Section 4(5) of PIE.
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The Respondent in this case will also be given an additional 14 days
to defend the matter.
[15] There may be one or more of several reasons why a Respondent
has not delivered an answering affidavit. Firstly, a Respondent may
simply have wished to stall the matter and prevent his ejectment.
Secondly, a Respondent may wish to take a point of law, only, with
the result that there is no necessity for an answering affidavit to be
delivered. Thirdly, a Respondent may genuinely wish to defend the
proceedings but may be impecunious and consequently unable to
instruct legal representatives to prepare and answering affidavit. In
any of these instances, the service of the Section 4(2) Notice which
sets forth the date upon which the Applicant will have the matter
heard as no answering affidavits have been delivered, will afford the
Respondent an opportunity of presenting his case before the Court
and, if necessary, of obtaining legal aid assistance.
[16] The third scenario envisages a situation where the matter is fully
opposed. In the Cape Killarney decision, Brand AJA (as he then
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was) at paragraph [14] and [15] held:
“[14] Section 4(5)(b) requires the Section 4(2) Notice to indicate the date
upon which the court will hear the eviction proceedings. In High Court
proceedings by way of application this date of hearing will be determined
only after all the papers on both sides have been served. It follows, in my
view, that it is only at that stage that the Section (4)(2) Notice can be
authorized and directed by the Court.
[15] Section 4 does not indicate how the court’s directions regarding the
Section 4(2) notice are to be obtained. A commonsense approach to the
section appears to dictate, however, that the applicant can approach the
court for such directions by way of an ex parte application.”
[17] Accordingly, once a matter is ripe for hearing, and a date on the
Opposed Roll has been obtained, an Applicant may bring an ex parte
interlocutory application for authorization in terms of Section 4(2)
which notice would indicate a date of hearing which would
correspond with the date on which the matter is to be heard on the
Opposed Roll. (No doubt the days will have to be calculated in order
to comply with the 14 day notice period as provided in Section 4.)
[18] This procedure would, in my opinion, also comply with the
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practice directive 9.2 of the Rules of Practice for the Natal Provincial
Division as issued by the Judge President. This Rule provides as
follows:
“The Registrar will not allocate a date for hearing on the Opposed Roll
unless the Applicant or his/her attorney or in cases where the Applicant
fails to do so after a reasonable time, the Respondent or his/her attorney
certifies in writing that the application is ripe for hearing, that is to say, that
all the affidavits have been delivered. A matter shall be deemed to be ripe
for hearing where the Applicant has not delivered a replying affidavit on
the date agreed or directed by the Court.”
[19] If one adopts the procedure of obtaining a “First Order Prayed”
as requested by the Applicants in casu, and consequently a date
upon which the application is to be heard, it would be clearly in
contravention of the Practice Rules of this Division and also contrary
to the provisions of Section 4(3) of PIE.
[20] Mr Pillemer, who appears for the Applicant, has argued that the
process of seeking authorization for and service of a Section 4(2)
Notice after all the affidavits have been delivered would result in an
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absurdity as it would lead to the situation where an unlawful occupier
would only be advised that he may defend the action and apply for
legal aid at a stage in the proceedings when it is too late to be
effective. I do not agree with this submission for the following
reasons:
a) As stated earlier in this judgment, to serve the Section 4(2)
Notice before all the papers are complete would be contrary
to the dicta in the Cape Killarney case (supra); contrary to
the Rules of Practice of this Division and also contrary to
Section 4(3) and possibly Section 4(5) of PIE.
b) In most cases, where a Respondent has delivered
answering affidavits, he would be represented by a legal
practitioner and, in those circumstances, is unlikely to seek
the assistance of legal aid.
c) In instances where a Respondent is not represented but has
delivered answering affidavits, the notification in terms of
Section 4(2) would afford him the opportunity of seeking
legal assistance from the Legal Aid Board prior to the date of
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hearing. Should the legal aid representative be of the view
that further affidavits need to be filed on behalf of the
Respondent, an application may be made to Court in this
regard.
d) One may envisage a situation where by a Respondent, after
having engaged the services of an attorney to file affidavits
on his behalf, may not be in a financial position to secure
that attorney’s services for purposes of arguing the matter in
Court. The service of the Section 4(2) Notice will no doubt
assist him in overcoming that difficulty.
[21] It has further been argued that there would be substantial
compliance with PIE if a Section 4(2) Notice were authorized but the
date for hearing not inserted therein and the Respondent notified that
a Notice of Set Down would be served upon him in due course. In
this regard Mr Pillemer has relied on the judgments in the Cape
Killarney (supra) and Sam Kadish Moela v Tichaona Abel
Shoniwe (supra). In the said cases it was held that it is not every
deviation from the literal prescription of a statute that is fatal. The
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question to be asked and the test is whether in spite of the defect, the
object of the statutory provisions has been achieved. I also do not
agree with this submission for the following reasons:
a) It would be directly contrary to the provisions of Section 4(5)
of PIE which provides that the Section 4(2) Notice must
indicate on what date and at what time the Court will hear
the proceedings.
b) It would also be contrary to the judgment in the Cape
Killarney case (supra) and
c) It would mean that the Court is deciding, in advance, that it is
prepared to entertain substantial compliance with the statute,
rather than requiring compliance properly therewith.
[22] The issue of substantial compliance ought only to arise where a
certain procedure has been followed and a Respondent has raised an
issue of noncompliance and ought not, where the statute can be
meaningfully complied with, be allowed to be raised in advance. I am
furthermore of the opinion that the aforementioned cases relied upon
by Mr Pillemer did not intend to indicate that a Court could, in
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advance, authorize noncompliance with the statute where there
could be compliance.
[23] Further concerns have been raised regarding “Double Service” or
“Double Appearance” as well as the prospect of incurring
unnecessary costs. It is however noted that the provisions of PIE,
coupled with the interpretation thereof by the Supreme Court of
Appeal, clearly envisages two services – that of the application
papers and that of the Section 4(2) Notice – as well as two
appearances – the first being for the authorization of the Section 4(2)
Notice and the second being to obtain the relief for eviction.
Accordingly these concerns are ill founded.
[24] As regards the question of costs, I am of the view that should the
Applicants follow the procedure as outlined above, it would not
increase costs but would rather save costs. This would result as the
application papers would be streamlined to deal only with the actual
relief for eviction and not with issues relating to the provisions of PIE.
The interlocutory application envisaged above, for authorization of the
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Section 4(2) Notice, need only be brief and deal only with the facts
pertinent to such authorization and not facts which are pertinent to
the main application. In this way, the papers will not be burdened
with a Notice of Motion bearing a “First Order Prayed” and a “Second
Order Prayed”.
In conclusion, and for the reasons outlined above, the aforesaid
applications are in my view fatally defective and are dismissed.
11 July 2005
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