ADI Investment Proprietary Ltd v Ndlovu and Another (2346/2019) [2021] ZAMPMBHC 67 (5 January 2021)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)

CASE NUMBER: 2346/2019

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

DATE: 05/01/2021

SIGNATURE

ADI INVESTMENT PROPRIETARY LTD

APPLICANT

and

NOMSA NDLOVU

FIRST RESPONDENT

CITY OF MBOMBELA

SECOND RESPONDENT

JUDGMENT

GREYLING-COETZER AJ

[1] This is an application in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE Act”) where in the applicant seeks an order evicting the first respondent from the immoveable property known as “Stand 3[…], M[...] Street, Nelspruit, Mpumalanga” (“the property”). The first respondent is allegedly unlawfully occupying the said property.

[2] The applicant alleges to have purchased the property in 2014, and taking transfer thereof on 20 August 2014. As proof the applicant annexed a deed of transfer to its founding papers. Ex facie said deed of transfer its unclear of the transfer deed relates to the property as described in the notice of motion and founding affidavit. On taking transfer the applicant did not take occupation of During November 2018 one Ms Msibi attended to the property on behalf of the applicant and found an unknown person fixing the gate. Upon enquiry this unknown person indicated to Ms Msibi that the property is owned by the first respondent.

[3] Ms Msibi made further enquiries and was subsequently informed that the property was purchased by the first respondent from one Mathebula, whom Ms Msibi in turn contacted. She was advised that the property was sold to the first respondent on behalf of the Department of Public Works, Road and Transport (Mpumalanga).

[4] Months later correspondence instructing the first respondent to vacate the property was served on the first respondent on 6 March 2019. Notwithstanding, the first respondent failed to vacate the property.

[5] Its contended on behalf of the applicant, in a single paragraph, that it is just and equitable that the first respondent be evicted, as there are no elderly persons, children or disabled persons living on the property as far as it has been able to ascertain. Absence any other facts set out in the founding papers this is seemingly based on the sole visit by Ms Msibi to the property.

[6] The first respondent in opposition raised in limine that the provisions of the PIE Act were not complied with. No further specificity was provided as to in which respect compliance was wanting. She further alleged that since occupation of the property in November 2017 she has been salvaging the property to the extent that it is currently habitable and making payment to the municipality for services. Notwithstanding aforesaid and contrary to what one would expect, she confirmed the she does not dispute the applicant’s right of ownership and acknowledges that although she has an enrichment claim same will be dealt with in another forum.

[7] Notwithstanding the seemingly meagre defence set up by the first respondent, the application itself, adopted procedure and related circumstances are not without blemish. The application was initially issued on 2 July 2019 and served by affixing same at the property on 10 July 2019. A notice to oppose was delivered by the first respondent on 23 July 2019. This was followed by the application being withdrawn by the applicant on 24 July 2019, together with a fresh notice of motion and founding affidavit being served simultaneously. This fresh application was again opposed by the first respondent on 1 August 2019.

[8] The unopposed date of hearing was at first indicated to be 11 October 2019 and per the ‘second’ application 28 October 2019. As is practice in this Division, the matter was set down for case management after the notice of intention to defend on 21 August 2019 was received, which resulted in a case management order being issued and the matter being enrolled for hearing on 28 January 2020. The case management order provided that the second respondent must report on the matter before 16 January 2020. From the said case management order, which is customarily completed by the legal representatives, there appeared not to have been an appearance on behalf of the second respondent. It being understandable considering that the application was only served on the second respondent on 23 September 2019, almost a month after the first case management. The first respondent filed what was termed a ‘provisional answering affidavit’ on 25 September 2019. No opposition was filed by the second respondent.

[9] The application did not proceed on the opposed roll of 28 January 2020 due to a substitution of instructing attorneys on the part of the first respondent. On 28 January 2020 another case management was held seemingly by the opposed motion court and the matter was enrolled on the opposed motion roll of 6 October 2020. The second case management order made provision that the second respondent should file a report within 30 (thirty) days of the order, therefore on/or before 28 February 2020, and that the municipal manager must file an affidavit in respect of costs. The second case management order further made provision for the filing of various supplementary affidavits as well as additional heads of argument by the applicant and first respondent. Similarly an attendance on behalf of the second respondent cannot be gleaned from the order

[10] On allocation of the matter, and being apparent that the second case management order has not been complied with, the parties were directed to comply with same before close of business on 5 October 2020. Both the applicant and the first respondent filed their responses, indicating that the second case management order could not be complied with primarily due to COVID-19 restrictions. The applicant indicated that its supplementary affidavit would have been in response to the supplementary affidavit of the first respondent, and as such is yet to fall due. Regarding the report by the second respondent, it appears that a copy of the second case management order was served by hand on the second respondent on 25 March 2020, but no reply was forthcoming. Service of aforesaid took place more than a month after the case management order was granted.

[11] At the hearing, Mr Ngwenya and Mr Ndlovu appeared for the applicant and the first respondent respectively. Mr Ngwenya indicated that the applicant intended to proceed with the eviction, but that it would seek the court to make an order in respect of the eviction on the papers as filed, and to postpone the terms of the eviction order until such time as a report by the second respondent has been filed. The applicant further proposed that the terms of the eviction then be

dealt with in the unopposed court, alternatively through mediation.

[12] Mr Ndlovu in turn contended that the matter is not ripe for hearing due to the absence of the second respondent’s report, and as such ought not to proceed. It was further submitted that they don’t intend seeking a formal postponement on said basis and that the court cannot make an order as sought by the applicant until such time as the court has had regard to the second respondent’s report, in the absence of which the application ought to be dismissed.

[13] The first respondent also argued for costs in respect of the withdrawal of the initial application during July 2019. Notwithstanding being referred to Rule 41, the first respondent persisted to argue the need for the court to grant a cost order against the applicant for the aforesaid withdrawal.

[14] On enquiry from the court whether there were compliance with Section 4(2), as same is not evident from the papers filed, the applicant argued that same is not required as the matter was opposed. In support of this submission Mr Ngwenya relied on Unlawful Occupiers of the School Site v City of Johannesburg 2005 (2) All SA 108 (SCA), more particularly paragraph [23] thereof. The argument was developed on the basis set out in the above mentioned authority, and proceeded that as long as notice has been brought to the attention of the respondents, a pre-emptive Section 4(2) notice is not required as the purpose being ‘notice’ had been achieved.

[15] Paragraph [23] of the School Site matter supra, postulates that the purpose of Section 4(2) is to afford the respondent(s) in an application under the PIE Act an additional opportunity, apart from the opportunity they have already had under the rules of court, to put all the circumstances they allege to be relevant before court (see Cape Killarney Property Investment 2001 (4) SA 1222 (SCA) at 1229 E to F). Per Brand JA:

“(T)he two sub-sections of Section 4(5) that had not been complied with were (a) and (c). The object of these two subjections is in my view to inform the respondents of the basis upon which the eviction order is sought so as to enable them to meet that case. The question is therefore whether, despite its defects, the Section 4(2) notice had, in all the circumstances, achieved that purpose. With reference to the applicants who all oppose the application and who were at all times represented by counsel and an attorney, the 4(2) notice had obviously attained the legislature’s goal. However, there were also respondents who did not oppose and who might not have had the benefit of legal representation. It is with regard to these respondents that the question arises whether the Section 4(2) notice had, despite its deficiencies achieved its purpose. In considering this question it must be borne in mind that, as a result of the way in which the order of the court a quo was formulated, it will only affect those respondents who had been served by the Sheriff with both the application papers and the notice under section 4(2).”

[16] On the question of whether the matter of School Site supra was not distinguishable from the present matter, considering that therein a Section 4(2) notice was indeed authorised and served, but the content was lacking, whereas in the present matter no Section 4(2) notice was authorised, notwithstanding the undertaking in the founding papers that same would be done before the matter is to proceed to hearing. Mr Ngwenya indicated that same is not

distinguishable. The first respondent in this respect argued that Section 4(2) is pre-emptive, and taking into considering the explicit undertaking provided in the founding affidavit, it cannot now be argued that it is no longer necessary.

[17] In my view compliance with the PIE Act is of utmost importance and ought to be considered first and foremost, before scrabbling into the merits. As held in Machele and Others v Mailula and Others 2010 (2) SA 257 (CC):

“[15] Courts must consider PIE in eviction cases. PIE was enacted by Parliament to ensure fairness in and legitimacy of eviction proceedings and to set out factors to be taken into account by a court when considering the grant of an eviction order. Given that evictions naturally entail conflicting constitutional rights, these factors are of great assistance to courts in reaching

constitutionally appropriate decisions.

[16] That the High Court authorised the eviction without having regard to the provisions of PIE is inexcusable. PIE is of great importance, given that there are still millions of people in our country without shelter or adequate housing and who are vulnerable to arbitrary evictions.”

[18] No one may be evicted from their home, or have their home demolished without an order of court, after considering all the relevant circumstances. It is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances. Special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and that it should be recognised that the need of those groups shall be considered.[1]

[19] Above entails that the court ought to examine compliance, be proactive and probe the parties if needs be. If compliance with the PIE Act is lacking it might very well be the end of the matter as an order in the absence of compliance with the PIE Act would offended not only the very purpose the PIE act was enacted for but the greater interest of justice.

[20] Section 4 of the PIE Act deals with the eviction of unlawful occupiers and provides that:

“(a)t least 14 (fourteen) days before the hearing of eviction proceedings …, the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction”;[2]

“… the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question”[3] and

“… if a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of the court, service must be effected in the manner directed by the court: Provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case”.[4]

[21] In exercising the duty imposed upon a court, it is relevant to consider whether an eviction application can be granted in circumstances as argued for by the applicant. The provision of Section 4(2) is pre-emptory in nature and Section 4(5) explicitly states as follows:-

“(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 before the court and defend the case and, where necessary, has the right to apply for legal aid.”

[22] In the present matter no Section 4(2) notice was authorised or served unauthorised on the respondents. The only communication to the first respondent was the demand to vacate, which cannot hardly be regarded as sufficient so as to constitute the notice contemplated in Section 4(2). Consequentially, there has been no compliance what so ever with Section 4(2) as read with Section 4(5). There has been no notice stating that the proceedings are being instituted in terms of Section 4(1) for an order for the eviction of the unlawful occupier; indicating on what date and at what time the court will hear the proceedings; setting out the grounds for the proposed eviction and that the first respondent as alleged unlawful occupier is entitled to appear before court and to defend the case, and where necessary has the right to apply for legal aid.

[23] In the circumstances relevant to procedure, the process was deficient in the context of the authorities, unless substantial compliance could nevertheless be shown to have been achieved. In my view substantial compliance can only become relevant and a consideration once some form of a Section 4(2) notice has been served on the respondents. Which is not the case herein.

[24] In this regard and relevant to the above enquiry, in Moela v Shoniwe[5] the following was stated:-

“[7] This Court held in Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA) that these provisions are peremptory (paras [11] and [17]). In respect of the notice required by s 4(2) it held that it must be effective notice; that it must contain the information stipulated in ss (5); and that it must be served ‘by the court’. The latter requirement it interpreted to mean that the contents and the manner of service of the notice must be authorized and directed by an order of the court (para [11]).

[8] In the as yet unreported judgment of this court in The Unlawful Occupiers of the School Site v The City of Johannesburg (case No 36/2006), referring to the fact that the requirements of s 4(2) were peremptory, Brand JA said (para [22]): ‘Nevertheless, it is clear from the authorities that even where the formalities required by statute are peremptory it is not every deviation from the literal prescription that is fatal. Even in that event, the question remains whether, in spite of the defects, the object of the statutory provision had been achieved (see for example Nkisimane and Others v Santam Insurance Co Ltd 1978 (2) SA 430 (A) at 433H-434B; Weenen Transitional Local Council v Van Dyk 2002 (4) SA 653 (SCA) para [13]).’

[9] Here the contents and manner of service of the notice had not been authorised and directed by an order of court. However, the object of s 4(2) is clearly to ensure that the unlawful occupier and municipality are fully aware of the proceedings and that the unlawful occupier is aware of his rights referred to in s 4(5)(d). It may well be that that object, in appropriate circumstances, may be achieved notwithstanding the fact that service of the notice required by s 4(2) had not been authorized by the court. That may, for example, be the case if at the hearing it is clear that written and effective notice of the proceedings containing the information required in terms of s 4(5) had in fact been served on the unlawful occupier and municipality 14 days before the hearing. Whether it would, need not be decided by us as there is no basis upon which it can be found that the municipality had been notified of the proceedings at all or that the municipality had any knowledge of the proceedings.

[10] The respondent’s summons containing his particulars of claim had not been served on the municipality. The notice of application for summary judgment was addressed to the Registrar of the Court a quo, to the appellant’s attorneys and to ‘the Germiston Municipality having jurisdiction’ next to which someone indicated by a signature that he had received a copy of the document. It is not known who the person is, what his relationship with the municipality is, where he received a copy of the document and whether he had authority to receive documents on behalf of the Germiston Municipality. The Court a quo therefore erred in finding that there was proof of service on the municipality.

[11] There has been no compliance whatsoever with the provisions of s 4(2) insofar as the municipality is concerned; it is not known whether the municipality had any knowledge of the proceedings; and there can, therefore, be no question of the object of the section, insofar as it requires service of the notice on a municipality, having been achieved. It follows that the Court a quo should have dismissed the application for summary judgment.”

[25] Similarly relevant is that stated in Theart and Another v Minaar N.O.; Senekal v Winskor 174 (Pty) Ltd[6] the following was stated:-

“[6] I pause to observe that the appellants in both appeals did not dispute the merits of their respective cases. They confined themselves to an attack on the procedures which had been adopted by the respondents. In Theart the objection was that although two notices had been issued separately they were served simultaneously. In Senekal, on the other hand, the objection was that there was only one hybrid notice issued, which embodied the information required by s 4. Both appellants contended that the failure to have two notices served separately on them infringed their rights to procedural and substantive justice expressly provided for in s 4(2), read with s 4(5) of PIE. They contended that a proper interpretation of s 4(2) required that two separate notices be issued and served on them separately. Their principal submission was that this procedure was intended to give them an additional opportunity apart from that ordinarily accorded them by the rules of the magistrates' courts to consider their positions and put all relevant facts before the court for its consideration. Reliance was placed on Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA) for this contention.

[7] It is useful to quote the relevant part of the judgment in Cape Killarney paras 11 and 12 where Brand AJA stated the following:

'[11] Section 4(1) makes it clear that the provisions of the subsection that follow are peremptory. It also defines the "proceedings" to which the section applies, namely proceedings for the eviction of an unlawful occupier. Section 4(2) requires notice of such proceedings to be effected on the unlawful occupier and the municipality having jurisdiction at least 14 days before the hearing of those proceedings. Section 4(2) further provides that this notice must be effective notice; that it must contain the information stipulated in ss (5) and that it must be served by the court. The term "court" is defined in s 1 of the Act, as the "High Court or the magistrates' courts". Although s 4(2) could have been more clearly worded, it is obvious in my view that the Legislature did not intend physical service of the notice by the court in the person of a Judge or magistrate. On the other hand, mere issue of the notice by the Registrar or clerk of the court would not suffice. What is intended, I believe, is that the contents and the manner of service of the notice contemplated in ss (2) must be authorised and directed by an order of the court concerned.

[12] Section 4(3) provides that notice of the proceedings must be served in accordance with the rules of the court in question. Accordingly, for purposes of an application in the High Court, such as the one under consideration, s 4(3) requires that a notice of motion as prescribed by Rule 6 be served on the alleged unlawful occupier in the manner prescribed by Rule 4 of the Rules of Court. It is clear, in my view, that this notice in terms of the Rules of Court is required in addition to the s 4(2) notice. Any other construction will render the requirement of s 4(3) meaningless.

And in para 15 he said:

'Section 4 does not indicate how the court's directions regarding the s 4 notice are to be obtained. The common-sense 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.'

[8] It is clear to me that the appellants failed to appreciate the fine but crucial distinction between the procedures for applications in the high court in contrast to the magistrate's court. Rule 55(1) of the magistrates' courts rules reads as follows:

‘Except where otherwise provided, an application to the court for an order affecting any other person shall be on notice, in which shall be stated shortly the terms of the order applied for and the time when the application will be made to the court. Delivery of such notice shall be effected in the case where the State is the respondent, not less than 20 days and in other cases not less than 10 days before the date of hearing.'

[9] Unlike the procedure prescribed by rule 6 of the uniform rules, rule 55(1) of the magistrates' courts rules does not create a procedure whereby an application in opposed matters has to be set down by way of a notice after all the papers have been filed as in the high court. On the contrary, in terms of rule 55(1), upon the issue of the application, such application must state the terms of the order sought and the date and time when the application will be heard. The result is that on being served with the application, a respondent will be fully informed of the nature of the application, the order sought, the date, time and court when and where the application will be heard. Section 4(2) in itself does not require an additional notice. All it requires is that written and effective notice of the proceedings be served on the unlawful occupier and the municipality 14 days before an order for eviction could potentially be granted. It follows logically that Cape Killarney is no authority for the proposition that s 4(2) requires two separate notices to be served on a respondent in the magistrates' courts.

…

[12] In the present appeals both applications were properly served by the sheriff on the two appellants in a manner approved by the court concerned. Both appellants understood what the applications were all about and duly instructed legal representatives to represent them. In opposing the applications both appellants filed affidavits setting out their defences to the applications. Significantly both appellants were represented by legal representatives when their applications were heard. There is no doubt that the object of s 4(2) to give the occupiers sufficient and effective notice of the intended eviction was achieved. Notwithstanding this the appellants contend that both applications should have been dismissed on the simple basis that there was no additional notice served on them. However, counsel for the appellants (the same counsel appeared for the appellants in both cases) was unable to point to any section in PIE which requires an additional notice. For the reasons I have given, I find this argument untenable…

And in Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA) para 24 where Brand JA stated:

'The question whether in a particular case a deficient s 4(2) notice achieved its purpose, cannot be considered in the abstract. The answer must depend on what the respondents already knew. The appellant's contention to the contrary cannot be sustained. It would lead to results which are untenable. Take the example of a s 4(2) notice which failed to comply with s 4(5)(d) in that it did not inform the respondents that they were entitled to defend a case or of their right to legal aid. What would be the position if all this were clearly spelt out in the application papers? Or if on the day of the hearing the respondents appeared with their legal aid attorney? Could it be suggested that in these circumstances the s 4(2) [notice] should still be regarded as fatally defective? I think not. In this case, both the municipality's cause of action and the facts upon which it relied appeared from the founding papers. The appellants accepted that this is so. If not, it would constitute a separate defence. When the respondents received the s 4(2) notice they therefore already knew what case they had to meet. In these circumstances it must, in my view, be held that,

despite its stated defects, the s 4(2) notice served upon the respondents had substantially complied with the requirements of s

4(5).'

....

[14] Viewed against the main purpose of PIE, the real issue is not so much whether or not there are two separate notices. The real and proper enquiry should be whether there has been effective notice of the proceedings on the occupier in the sense that a court is satisfied that the occupier has been fully informed of the impending eviction, the grounds therefor, the date and place of hearing and the right to appear in court and be represented. This is exactly what happened in the two appeals. Accordingly I am satisfied that effective notice was given to the appellants. To hold otherwise would promote slavish adherence to form above substance”.

[26] Even assuming that notwithstanding the complete absence of a Section 4(2) notice, the fact that the matter was opposed by the first respondent with the help of legal representation speaks to notice of proceedings to the first respondent, it remains to be considered whether, despite its absence, in all the circumstances, the purpose of Section 4(2), read with Section 4(5) was achieved.

[27] The question of whether a Section 4(2) notice was effective, is not a question of law but a question of fact. Although the object of the subsection is give notice and inform the respondents of the basis upon which the eviction order is sought so as to enable them to meet that case, the argument that as long as the notice of motion has been brought to the attention of the respondents (where none or not all of the aspects set out in subsection 4(5) (a) to (d) have even been stated in said notice of motion) and the respondent(s) have opposed the application, a Section 4(2) notice is superfluous and thus not required, is meritless. It can in my view not be said to be effective if it did not exist at all.

[28] It follows from that set out herein above that the applicant failed to comply with the necessary procedural requirements of the PIE Act, in the result the application is fatally defective.

[29] Having concluded as above, it is not necessary to deal with the merits as the applicant has failed to overcome the very first prerequisite of compliance with the procedural requirements of the PIE Act.

[30] The only issue which remains is that of costs. I do not believe there to be any reason why costs should not follow the event.

[31] In respect of the costs sought by the first respondent resultant from the withdrawal and re-service, the applicable position is governed by Unform Rule 41. The notice of withdrawal did not contain a tender in respect of costs as such Unform Rule 41(1)(c) applies. Consequentially, the first respondent ought to apply for said costs. The first respondent need only deliver a notice of her intention to ask for an order as to costs. No affidavit is required since the relevant material is already before the court. The respondent is entitled to oppose the application for an order for costs and to place the grounds of his opposition before the court on affidavit, especially if the facts relied upon by the respondent in opposing the application do not appear from the pleadings filed in the main proceedings.

[32] The first respondent did not file the required notice, nor was this issue mentioned in the heads of argument or practice notes filed. It would thus be prejudicial to the applicant to determine the issue of costs in the absence of any form of notice to the applicant and following Rule 41(1)(c) which sets out the procedure and allow the applicant an opportunity to answer to same.

[33] As a result the following order is made:-

1 The application is dismissed with costs.

DATE OF HEARING: 6 OCTOBER 2020

DATE OF JUDGMENT: 5 JANUARY 2020

FOR THE APPLICANT:

ADV NGWENYA instructed by MADONSELA MTHUNZI ATTORNEYS

info@mma13.co.za

LTN/358/19/GNM

FOR THE 1ST RESPONDENT: ADV NDLOVU instructed by MAKHOBA ATTORNEYS

bongekile@makhobaattorneys.co.za

CIV/NOM/001/20

FOR THE 2nd RESPONDENT: NO APPEARANCE

[1] Preamble under the PIE Act

[2] Section 4(2) of the PIE Act

[3] Section 4(3) of the PIE Act

[4] Section 4(4) of the PIE Act

[5] 2005 (4) SA 357 (SCA) at 362C to 363A

[6] 2010 (3) SA 327 (SCA)