Ubunye Co-operative Housing (Association incorporated under Section 21) v Mbele and 31 Others (1) (54/05/01) [2005] ZAKZHC 12 (22 September 2005)

IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE

NATAL PROVINCIAL DIVISION

Case No 3754/2005

In the matter between

UBUNYE CO-OPERATIVE HOUSING Applicant

(ASSOCIATION INCORPORATED UNDER

SECTION 21)

and

JOYCE N MBELE Respondents

AND 31 OTHERS

JUDGMENT

Hurt J

This matter has been referred to the Full Bench of this Division for the purpose of regulating the practice in regard to applications for eviction, in the light of certain recent judgments in the Division which reflect divergent views as to the meaning and effect of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, Act No 19 of 1998 (hereinafter referred to either as “PIE” or “the Act”).

I have read the judgment prepared by my brother Levinsohn J and concurred in by my brother Jappie J but, somewhat unfortunately, I have come to a different conclusion to them in regard to the meaning of the Act and the effect of the judgment in the Cape Killarney case to which I make extensive reference below. These are my reasons for the conclusions I have reached.

The Act took effect in June 1998. One of its main purposes, as stated in the preamble, was to “regulate the eviction of unlawful occupiers from land in a fair manner”. In the case of Port Elizabeth Municipality v Various Occupiers 2005(1) SA 217, Sachs J described the context in which PIE was deemed necessary by the legislator in the following terms (paragraph [8], page 222): -

“In the pre-democratic era, the response of the law to a situation like the present would have been simple and drastic. In terms of the Prevention of Illegal Squatting Act 52 of 1951 (PISA), the only question for decision would have been whether the occupation of the land was unlawful. Once it was determined that the occupiers had no permission to be on the land, they not only faced summary eviction, they were liable for criminal prosecution. Expulsion from land of people referred to as squatters was, accordingly, accomplished through the criminal and not the civil courts, and as a matter of public rather than of private law. The process was deliberately made as swift as possible: Conviction followed by eviction. Thus, even if they had been born on the land and spent their whole lives there, persons from whom permission to remain on land had been withdrawn by new owners were treated as criminals and subjected to summary eviction.

[12] PIE not only repealed PISA but, in a sense, inverted it: Squatting was decriminalized and the eviction process was made subject to a number of requirements, some necessary to comply with certain demands of the Bill of Rights. The overlay between public and private law continued, but in reverse fashion, with the name, character, tone and context of the statute being turned around. Thus, the first part of the title of the new law emphasized a shift in thrust from prevention of illegal squatting to prevention of illegal eviction. The former objective of reinforcing common-law remedies, while reducing common-law protections, was reversed so as to temper common-law remedies with strong procedural and substantive protections; and the overall objective of facilitating the displacement and relocation of poor and landless black people for ideological purposes was replaced by acknowledgment of the necessitous quest for homes of victims of past racist policies. While awaiting access to new housing development programmes, such homeless people had to be treated with dignity and respect.

[13] Thus, the former depersonalised processes that took no account of the life circumstances of those being expelled were replaced by humanised procedures that focused on fairness to all. People once regarded as anonymous squatters now became entitled to dignified and individualized treatment with special consideration for the most vulnerable. At the same time, the second part of the title established that unlawful occupation was also to be prevented. The courts now had a new role to play, namely to hold the balance between illegal eviction and unlawful occupation. Rescuing the courts from their invidious role as instruments directed by statute to effect callous removals, the new law guided them as to how they should fulfil their new complex, and constitutionally ordained, function: When evictions were being sought, the courts were to ensure that justice and equity prevailed in relation to all concerned.”

The sub-sections of section 4 which are of immediate relevance to this enquiry are the following:

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 subsection (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 subsection (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question. Subject to the provisions of subsection (2), 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. The notice of proceedings contemplated in subsection (2) must –

state that proceedings are being instituted in terms of subsection (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.”

In the matter before us, the applicant commenced motion proceedings in terms of section 4 of the Act, for the eviction of 32 respondents from the applicant’s property which is called the Ubunye Centre. The Respondents have filed a notice to oppose the application and no affidavits have been delivered on their behalf. They have opposed the application on the simple basis that the procedure which has been adopted by the applicant does not conform with section 4 of the Act.

A number of judgments dealing with section 4 of the Act have been handed down in the various Provincial and Local Divisions of the High Court. They indicate divergent approaches to the interpretation and application of section 4. This is by no means surprising inasmuch as the draftsperson of the statute appears to have been unacquainted with, or even unaware of, the practice and procedure in courts. A person familiar with the practice would hardly have been responsible for the compilation of section 4(2) which, in its literal terms, requires the court to effect service of a notice. Nor would such a person have made the type of provision, which sub-section (5)(b) purports to make, for the notification of a date for the hearing. It is apparent from the various judgments that these two aspects have generated substantial difficulties of interpretation and application. In September 2001, the Supreme Court of Appeal dealt with questions relating to the interpretation and application of section 4 in the case of Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001(4) SA 1222 (SCA). The matter had come on appeal to the Supreme Court from a refusal by a judge in the Cape Provincial Division to grant an eviction order. (see Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2000(2) SA 67(C)). The applicant in that matter had, for the purpose of commencing proceedings for eviction, made an ex parte application for a rule nisi calling upon the occupiers of property belonging to the applicant to show cause why they should not be evicted from it. No interim relief was sought, but paragraph 2 of the order prayed incorporated what purported to be the contents of the notice contemplated in section 4(2) of the Act, set out in the manner broadly prescribed in section 4(5). Paragraph 3 of the order prayed stipulated that service of the order (but not of the papers in the application) was to be effected by a specified procedure, before a specified date. Paragraph 4 of the order prayed invited those respondents who intended to oppose the relief, to notify the applicant of their intention to do so by a specified date. The return date of the rule was set at a date 14 days after the date by which notice of intention to oppose was to be given. This return date, accordingly, was somewhat more than 14 days after the date by which service of the order was to be effected.

On appeal from the judgment in which it was held that this procedure did not comply with the requirements of PIE, the Supreme Court (per Brand AJA, as he then was) expressed the following views: -

“[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.

[16] This immediately brings me to the contention on behalf of appellant that the original order was intended to be no more than a ruling on procedure and that its only object was to satisfy the provisions of section 4(2) of the Act. Consequently, so it was contended, there was no reason why the original order could not be sought and granted on an ex parte basis. I do not agree with these contentions. The order that was sought and granted included a rule nisi directing respondents to show cause why they should not be evicted from the property. I agree with the view of the Court a quo (at 74 G-H) that the rule nisi cannot be described as a ruling on procedure only. It constituted substantive relief. More particularly, what was sought and granted included an eviction order in the form of a rule nisi.

[17] It follows that, in the light of the peremptory procedural requirements of section 4(1) – (5), the original order could not have been obtained on an ex parte basis. The Court a quo was therefore correct in finding that for this reason alone the original order was incompetent and had to be set aside.”

And on the question of whether it was appropriate to initiate the proceedings by way of a rule nisi: -

“[20] In this Court appellant’s argument in defence of paras 3, 4 and 5 of the original order was that, on a proper interpretation of section 4 of the Act, the notice contemplated by section 4(2) is intended as a substitute for and not in addition to the notice required by Court Rule 6. I believe that there are at least two reasons why this interpretation cannot be sustained. First, the reason that I have already alluded to, namely that it will render the provisions of section 4(3) and section 4(4) meaningless. Secondly, the acceptance of this construction will afford respondents in eviction proceedings under the Act less notice and substantially less time to put their case before the court than is the case with respondents in ordinary motion proceedings. It can be accepted with confidence that this was not what the Legislature intended. The Act has its roots, inter alia, in section 26(3) of the Constitution, whereby ‘no one may be evicted from their home without an order of court made after consideration of all the relevant circumstances’. Accordingly the purpose of section 4(2) is clearly to afford the respondents in eviction proceedings a better opportunity than they would have under the Rules to put all the circumstances that they allege to be relevant before the court.”

What is clear is that any practice which is prescribed for this Division must be in conformity with the provisions of section 4 of PIE and must not transgress the ratio decidendi of the Cape Killarney case. The question which immediately arises is “what, in fact and in law, is the ratio decidendi of the Cape Killarney judgment?”

In the first place, the decision is clear authority for the proposition that, on a proper interpretation of the Act, the notice prescribed by section 4(2) must (in the case of application proceedings) be separate from the Notice of Motion prescribed by Rule 6(5) of the Uniform Rules of Court. (See paragraph [12] page 1227). Plainly this interpretation must extend to all the forms by which a party can commence proceedings for eviction, both in the Magistrates’ Court (by way of summons in terms of Magistrates’ Court Rule 6 and its related Rules) and in the High Court (by Notice of Motion in terms of Rule 6(5) or by Summons in terms of Rule 17) because the Act draws no distinctions as to the form of the “proceedings”. This requirement for a separate notice is an important factor in achieving the objects of the Act. The legislator is, in the first place, concerned to protect the type of person alluded to in the judgment of Sachs J in the Port Elizabeth Municipality case (supra) against an abuse of his or her rights by comparatively powerful property owners. To any layman, no matter what his background or level of education may be, being confronted with court process such as a summons or a stamped notice of motion is a daunting experience. The language in which the instructions to the respondent or defendant in a notice of motion or a summons are couched may be crystal clear to the practising lawyer but it is not easy to understand for one untrained in the disciplines of law and unacquainted with court procedure. To any artisan, the instruction to “file his affidavit” may be bewildering in the extreme. He knows very well what a “file” is – it is an implement for smoothing or forming an article. He is by no means so sure what his “affidavit” is and why it needs to be “filed”. In the standard form of summons he must wrestle with instructions such as those to “file with the Registrar and serve upon the plaintiff a plea, exception, notice to strike out, with or without a counter-claim”. Small wonder, then, that the common experience, at least in the High Court, is for people to make every endeavour to retain the services of a legal representative rather than to venture into what are for them completely uncharted waters of contested litigation. Nor, despite the instructions to Sheriffs requiring them to “explain the nature and exigency of the process they are serving”, can it be assumed that a busy Sheriff will have the time and the inclination to give a respondent or defendant a detailed explanation of precisely what the process which is being served means and how it will affect him. The object of the section 4(2) notice is plainly to provide the recipient with a document expressed in terms that he or she can read and understand, explaining what is alleged against him and how he must go about enforcing his rights including his right to go to court to explain his side of the matter to the presiding judge or the presiding magistrate. This cannot be achieved by merely amending the form of the document which, in terms of the Rules, commences the proceedings. He must also be given a longer period than that which is ordinarily available to respondents or defendants in terms of the Court Rules, to decide whether he is going to resist the owner’s claim, to obtain legal assistance and to appear at court, assisted or unassisted, to present his case.

In paragraph [14] at page 122, Brand AJA dealt as follows with the requirements of section 4(2) read with section 4(5)(b):-

“[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. From the judgment of the learned Judge a quo (at 76 I-J) it appears that according to his understanding of section 4(2) the notice contemplated by that section is to precede service of the notice of motion in terms of the Rules and that in fact the minimum period of 14 days stipulated in the section is to elapse before the eviction proceedings can be instituted. As appears from what I have already said, this interpretation cannot be supported.”

At first glance this passage would appear to be authority for the proposition that the notice in terms of Rule 4(2) can only be authorized and served when both sides have delivered all their affidavits and the parties are entitled to apply for a date for hearing. But a moment’s reflection as to the consequences of such a view will make it clear that that could not have been intended to be an authoritative directive as to when the section 4(2) notice is to be served. A consideration of the whole of paragraph [14] establishes that, in this context, Brand AJA was dealing with an interpretation of section 4 by Hlope DJP in the Court a quo (see 2000(2) SA 67 at page 76 I-J and page 74 paragraph [13]) in which the learned Deputy Judge President appeared to take the view that the service of the section 4(2) notice should occur 14 fourteen days before the service of the process commencing the litigation. It was this interpretation that the learned Judge held to be insupportable. It seems to me that his comments in the first three sentences of paragraph [14] were aimed at dealing with logistical problems which can arise in regard to the expression “14 days before the hearing of the proceedings” and he was emphasizing that the date for the hearing of the proceedings is certainly not ascertainable in opposed motions and in actions until the delivery of the affidavits or pleadings is complete. But the suggestion that a section 4(2) notice be authorized by the court at that late stage can surely be no more than a suggestion. If it were to have overall application, it would mean that an owner need not consider preparing and serving a section 4(2) notice until the occupier had complied with the requirements for opposition and for the delivery of affidavits or pleadings. This, clearly, cannot be the meaning of the section. In the first place, the owner cannot predict whether an occupier will decide to oppose the claim for eviction. He cannot be expected to dispense with the section 4(2) notice when he initiates the proceedings on the basis that, if they are opposed, the notice can be delivered at a later stage. In the second place, the need recognized by the legislation is a need to apprise the occupier that he has a right and a means to come before the court to state his case. The only “effective” way to do this is at the time when the occupier becomes aware that he is being sued. In the third place, it is clear from the wording of section 4(5)(a) that the legislator contemplated that the service of the section 4(2) notice would be approximately contemporaneous with the service of the documentation commencing the proceedings. The words at the commencement of sub-section 4(5)(a) are couched in the present continuous tense, viz “proceedings are being instituted”. (The Afrikaans equivalent is “word ingestel”). If the intention behind the section 4(2) notice was merely to give the occupier 14 days’ notice of a date of set-down, then it would hardly have been necessary to state all the requirements that are stated in section 4(5), because it may safely be assumed that, by the time he has gone to the trouble to enter appearance to defend and to state his case, whether in affidavit or by pleadings, an occupier will be acquainted with the fact that proceedings have been instituted against him and the grounds upon which those proceedings are brought. For these reasons I am satisfied that the statement in paragraph [14] of the Cape Killarney judgment regarding the service of a notice in terms of Rule 4(2) in relation to the date when an opposed matter is to come before court is not a binding prescript intended to apply comprehensively to all proceedings for eviction from residential property.

The dilemma is basically this. How does one reconcile the requirement that the section 4(2) notice must “indicate on what date and at what time the court will hear the proceedings” with the requirement, implicit in section 4(2), particularly because of the wording of section 4(5)(a), that the notice be served in initio litis? In the judgment of Kruger J in the Kanescho Realtors matter (supra) the learned Judge regarded himself as bound, by the dictum of Brand AJA in paragraph 14 of the Cape Killarney case, to the view that it would be contrary to the provisions of section 4 to serve a section 4(2) notice before all the papers are complete and the matter is ready to come before the court. It was suggested to him in argument that, if a notice in terms of section 4(2) did not state a specific date for hearing but advised the recipient that a notice of set down would be served upon him in due course, that would constitute “substantial compliance” with the Act. He rejected this contention partly on the basis that such a notice would not conform to the requirements of section 4(2) read with section 4(5)(b). I am not persuaded that the type of section 4(2) notice contemplated in the proposal would, indeed, offend against the wording of section 4. The intention behind the requirement is to ensure that the occupier knows when the court will be considering the claim for his eviction so that he can avail himself of the rights referred to in sub-section (5)(d). How then does one overcome the problem that the date when “the court will hear the proceedings” is subject to various contingencies and cannot be ascertained at the time when the proceedings commence? The answer can be found from a careful consideration of the wording of section 4(5). It will immediately be noted that there is a difference in the wording of sub-section (5)(b) compared to that in the prescripts contained in sub-sections (a) and (d). The latter two sub-sections require the notice to “state” various matters. Sub-section (b) requires the notice to “indicate” the relevant date. A similar change of language is to be found in the Afrikaans version. Sub-sections (a) and (d) use the word “meld” whereas sub-section (b) uses the word “aandui”. Two of the meanings of the word “indicate”, given in the Shorter Oxford English Dictionary, 3rd edition, page 1056, are “make known” or “show (more or less distinctly)”. The meaning of “aandui” is given in H A T (page 4) as “beskryf sodat ‘n mens dit kan ken”. In the context that it is used in this Act, and particularly having regard to the clear intention of the legislator, it does no injustice to the language of section (5)(b) to interpret it as meaning that the recipient of the notice must be informed as to how the actual date on which the matter is to be heard by the court will be ascertained. In other words a section 4(2) notice will comply with the requirements of sub-section (5)(b) if it informs the recipient that if he does not want to oppose the proceedings the matter will be dealt with on a particular date, but that if he notifies the owner that he intends to oppose the proceedings, he will be informed of the date and time on which the proceedings will come before court not less than 14 days before the relevant date. It must always be borne in mind that, by the very nature of the proceedings with which the Act deals, it will almost inevitably occur that one or more of the respondents or defendants arrive at court on the set down date without having followed the procedures prescribed in the Rules for opposing the proceedings and for the setting out of their grounds of opposition. In such event, the court will invariably give them the opportunity of bringing their cases before it in an acceptable fashion. It follows that a notice which states a specific date within the parameters prescribed by section 4(2) on which the court will hear the matter if the occupier takes no steps to oppose, and informs the occupier that he will be given at least 14 clear days’ notice of the date on which an opposed matter will be set down will comply with the provisions of section 4(2) read with 4(5)(b).

There remains one further matter relating to the application of section 4 and that is the manner in which the plaintiff or applicant obtains the order of court authorizing the service of the “written and effective notice of the proceedings” contemplated in section 4. In the Cape Killarney case (at paragraph [15] on page 1228) Brand AJA expressed the view that the applicant could approach the court for directions in this regard by way of an ex parte application. There is obviously no reason whatsoever why the occupier should be involved in the process of settling the notice in terms of section 4(2), and ex parte proceedings seem admirably suited to this purpose. The only problem associated with them is that they involve an appearance in court which will, almost inevitably, operate to the prejudice of the respondent/defendant insofar as the question of costs is concerned.

There seems to be no reason why a draft notice in terms of section 4(2) cannot be placed before a Judge in Chambers for his approval at the time when the papers for the eviction proceedings are lodged in court. Such a procedure would, indeed, seem to be more in conformity with the strange language of section 4(2) which makes no mention of any role to be played by the applicant/plaintiff in relation to the notice. (In this regard see the Cape Killarney case page 1227 H.) As to the application of sub-sections 4(3) and 4(4), the court will have to consider all the circumstances, and more particularly “the rights of the unlawful occupier to receive adequate notice and to defend the case”, in deciding what directions are to be given for the service of the notice and for the service of the process in the proceedings for ejectment. Thus, in the Cape Killarney case in the court of first instance, at page 75, Hlope DJP said the following:

“Surely an enquiry into whether the notice was effective in any given case should begin with the circumstances of the respondents, that is the people sought to be evicted from the premises. Mr Louw, who appeared for the applicant, did not contend otherwise. The undisputed allegations on the respondents’ papers were that the overwhelming majority of the respondents are Xhosa speaking and many of them are illiterate (paras 12.5 and 18.4 of Tshofuti’s affidavit of 27 July 1999.) I agree with Mr Hodes that the copy of the order served should have been accompanied by a Xhosa translation thereof, given that the home language of the majority of the respondents is Xhosa. Furthermore, the fact that a substantial proportion of the occupants are illiterate should have been catered for by requiring the contents of the order to be broadcast, in Xhosa, by a loudhailer throughout the community at certain times when many of the respondents would have been present.”

In the result, although I agree with the finding of the majority that the proceedings adopted by the Applicant do not confirm to the requirements of the Act, and agree with the order proposed by Levinsohn J, I am unable to agree with the practice proposed by my learned brothers. It appears to me that the Legislator should, as a matter of urgency, reconsider the wording of sections 4, 5 and 6 of the Act.