Kanescho Realtors (Pty) Limited v Maphumuloand Others , Chetty and Another v Thaver and Another ; Fisher Street Investments (Pty) Limited v Kabinakanwa ; Shamsha Investments (Pty) Limited v Khan (6725/05 , 7455/05 , 7540/05 , 7691/05) [2005] ZAKZHC 7; 2006 (5) SA 92 (D); [2005] 4 All SA 543 (D) (11 July 2005)

IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

REPORTABLE

CASE NO:6725/2005

In the matter between:

KANESCHO REALTORS (PTY) LIMITED APPLICANT

and

MTHEMBENI SIMON MUZI MAPHUMULO FIRST RESPONDENT

NKOSINGIPHILE RUTH MAPHUMULO SECOND RESPONDENT

ALL OTHER PERSONS OCCUPYING THE

IMMOVABLE PEROPTY SITUATE AT

ERF 899, KWA MASHU M TOWNSHIP THIRD RESPONDENTS

CASE NO: 7455/05

SELVAN CHETTY N.O. FIRST APPLICANT

DOROTHY CHETTY N.O. SECOND APPLICANT

THAVANESEN THAVER FIRST RESPONDENT

ETHEKWINI MUNICIPALITY SECOND RESPONDENT

CASE NO: 7540/2005

FISHER STREET INVESTMENTS (PTY) LIMITED APPLICANT

JAMUPILI KABINAKANWA RESPONDENT

CASE NO: 7691/2005

SHAMSHA INVESTMENTS (PTY) LIMITED APPLICANT

ZAFRULLA KHAN RESPONDENT

JUDGMENT

KRUGER J:

[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]).

[4] The provisions of PIE which are of particular relevance to this matter are the following:

“4. EVICTION OF UNLAWFUL OCCUPIERS –

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.

At least 14 days before the hearing of the proceedings contemplated in sub-section (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the Municipality having jurisdiction.

Subject to the provisions of sub-section (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question.

The notice of proceedings contemplated in sub-section (2) must –

state that proceedings are being instituted in terms of sub-section (1) for an order for the eviction of the unlawful occupier;

indicate on what date and at what time the Court will hear the proceedings;

set out the grounds for the proposed eviction; and

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.”

[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 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:

FIRST ORDER PRAYED:

The Sheriff or his Deputy is directed forthwith to:

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;

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;

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;

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

return the original papers, Order and notices to the Registrar with your Return of what you have done thereon.

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.

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:

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.

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;

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 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 ;

The application may be undefended;

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

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 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. Sub-Rule 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:

An Applicant is to utilize a Form 2(a) Notice of Motion and claim therein the necessary relief for eviction.

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.

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.

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 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. 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 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 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.”

[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 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 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:

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.

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.

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 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.

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 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:

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.

It would also be contrary to the judgment in the Cape Killarney case (supra) and

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 non-compliance 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 advance, authorize non-compliance 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 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