Nduna v Absa Bank Ltd and Others (4596/03) [2003] ZAWCHC 71; [2004] 3 All SA 364 (C); 2004 (4) SA 453 (C) (12 December 2003)

Nduna v Absa Bank Ltd and Others (4596/03) [2003] ZAWCHC 71; [2004] 3 All SA 364 (C); 2004 (4) SA 453 (C) (12 December 2003)

The High Court held that the PIE Act, read in conjunction with its preamble and section 9, clearly intends to confer jurisdiction on magistrates' courts to entertain eviction proceedings brought by application (motion) as well as action. The term 'proceedings' in PIE is sufficiently broad to encompass applications, and section 5 of PIE, which deals with urgent evictions, necessitates application proceedings. The historical limitation of magistrates' courts to actions initiated by summons does not apply to PIE eviction proceedings. Denying magistrates' courts jurisdiction over application proceedings would frustrate the legislative purpose of PIE and run counter to constitutional values....

Citation
[2003] ZAWCHC 71
Parties
Applicant: Gloria Nduna; Respondent: Absa Bank Ltd; Respondent: The Chief Magistrate, Mitchell’s Plain; Respondent: Mrs M Xhallie, Magistrate, Mitchell’s Plain
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
12 December 2003
Case Number
4596/03
Procedural Posture
Review Application / High Court Review of Magistrate's Eviction Order
Outcome
Application for review dismissed with costs.
Judges
Hlophe JP, Yekiso J
Legal Topics
Prevention of Illegal Eviction Act, Magistrates Court Jurisdiction, Eviction Proceedings, Motion Vs Action, Constitutional Values in Eviction
Land and Property Civil Procedure Constitutional Law Prevention of Illegal Eviction Act Magistrates Court Jurisdiction Eviction Proceedings Motion Vs Action Constitutional Values in Eviction

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Parties

Gloria Nduna

Applicant

Absa Bank Ltd

Respondent

The Chief Magistrate, Mitchell’s Plain

Respondent

Mrs M Xhallie, Magistrate, Mitchell’s Plain

Respondent

Procedural Posture

Review Application / High Court Review of Magistrate's Eviction Order

Legal Issues

  1. 1 Does the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) permit magistrates' courts to hear eviction proceedings brought by application rather than action?
  2. 2 Is it competent for a magistrate to entertain eviction applications under PIE initiated by motion proceedings?

Ratio Decidendi

The High Court held that the PIE Act, read in conjunction with its preamble and section 9, clearly intends to confer jurisdiction on magistrates' courts to entertain eviction proceedings brought by application (motion) as well as action. The term 'proceedings' in PIE is sufficiently broad to encompass applications, and section 5 of PIE, which deals with urgent evictions, necessitates application proceedings. The historical limitation of magistrates' courts to actions initiated by summons does not apply to PIE eviction proceedings. Denying magistrates' courts jurisdiction over application proceedings would frustrate the legislative purpose of PIE and run counter to constitutional values....

Court Disposition

Application for review dismissed with costs.

Orders

  • The application for review is dismissed.
  • The applicant is ordered to pay the costs of the application.