Moela v Shoniwe (054/2004) [2005] ZASCA 33; 2005 (4) SA 357 (SCA) (31 March 2005)

Moela v Shoniwe (054/2004) [2005] ZASCA 33; 2005 (4) SA 357 (SCA) (31 March 2005)

The Supreme Court of Appeal held that there was no compliance with section 4(2) of PIE regarding service of notice on the municipality. The evidence did not establish that the municipality was properly notified or had any knowledge of the proceedings. The object of section 4(2), which is to ensure that both the unlawful occupier and the municipality are fully aware of the eviction proceedings and the occupier's rights, was not achieved. As the requirements are peremptory and there was no proof of effective service on the municipality, the summary judgment for eviction was fatally defective and had to be set aside.

Citation
[2005] ZASCA 33
Parties
Appellant: Sam Kadish Moela; Respondent: Tichaona Abel Shoniwe
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2005
Case Number
054/2004
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment
Outcome
Appeal upheld; summary judgment set aside.
Judges
Streicher, Navsa, Conradie, Cloete, Maya
Legal Topics
Prevention of Illegal Eviction Act, Summary Judgment, Service of Process, Municipal Notice Requirements
Land and Property Civil Procedure Prevention of Illegal Eviction Act Summary Judgment Service of Process Municipal Notice Requirements

Case Brief

Summary, issues, holding and outcome

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Parties

Sam Kadish Moela

Appellant

Tichaona Abel Shoniwe

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment

Legal Issues

  1. 1 Whether the summary judgment for eviction complied with section 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).
  2. 2 Whether effective notice of the proceedings was served on the municipality as required by PIE.
  3. 3 Whether the object of section 4(2) was achieved despite procedural defects.

Ratio Decidendi

The Supreme Court of Appeal held that there was no compliance with section 4(2) of PIE regarding service of notice on the municipality. The evidence did not establish that the municipality was properly notified or had any knowledge of the proceedings. The object of section 4(2), which is to ensure that both the unlawful occupier and the municipality are fully aware of the eviction proceedings and the occupier's rights, was not achieved. As the requirements are peremptory and there was no proof of effective service on the municipality, the summary judgment for eviction was fatally defective and had to be set aside.

Court Disposition

Appeal upheld; summary judgment set aside.

Orders

  • The appeal is upheld with costs.
  • The order by the court a quo is set aside and replaced with: '1 The application for summary judgment is dismissed. 2 The costs of the application for summary judgment will be costs in the cause.'