Ubunye Co-operative Housing (Association incorporated under Section 21) v Mbele and 31 Others (2) (54/05/01) [2005] ZAKZHC 13 (22 September 2005)

REPORTABLE CASE NO 3754/2005

IN THE HIGH COURT OF SOUTH

AFRICA

NATAL PROVINCIAL DIVISION

In the matter between

UBUNYE CO-OPERATIVE HOUSING Applicant

(ASSOCIATION

INCORPORATED UNDER

SECTION 21)

and

JOYCE N. MBELE First Respondent

NTOMBOVUYO P. JIYA Second Respondent

BUSISIWE A. NZAMA Third Respondent

PRINCESS SHABANE Fourth Respondent

VERONICA BUTHELEZI Fifth Respondent

THEMBANI PHAKATHI Sixth Respondent

SBONJOSENI I. NGUBANE Seventh Respondent

NELSON DAWETHI Eighth Respondent

NOMPUMELELO MFEKA Ninth Respondent

TSEPISO LERARA Tenth Respondent

MARGARET T. SENGWAYO Eleventh Respondent

CYNTHIA T. KUNENE Twelfth Respondent

THANKDZANI K. CHAMANE Thirteenth Respondent

WINNIE MKHIZE Fourteenth Respondent

THEMBINKOSI ZONDI Fifteenth Respondent

BONGEKILE MAKHANYA Sixteenth Respondent

BONEPHI NXUMALO Seventeenth Respondent

ISAAC DAWETHI Eighteenth Respondent

SIBABINI TUTSHANA Nineteenth Respondent

PHINDILE KHANYILE Twentieth Respondent

DERRICK HLELA Twenty-First Respondent

THOOTSHE MOJAKISANE Twenty-Second Respondent

MLAMULI TSHIKA Twenty-Third Respondent

NTOKOZO NSELE Twenty-Fourth Respondent

NASINOTHI DAMANE Twenty-Fifth Respondent

REV PATRICK NGUBANE Twenty-Sixth Respondent

PHUMELE NDLOVU Twenty-Seventh Respondent

PHUMZA MLISANA Twenty-Eighth Respondent

LUCKY NDLOVU Twenty-Ninth Respondent

FIKELEPHI E. SITHOLE Thirtieth Respondent

ZANELE NZIMANDE Thirty-First Respondent

SKHUMBUZO KHUMALO Thirty-Second Respondent

Delivered :

22 September 2005

J U D G M E N T

LEVINSOHN J :

The applicant has instituted motion proceedings in terms of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No 19 of 1998 (“PIE”) for the eviction of the thirty-two 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.

On 4th July 2005 Hugo J granted an order headed “First Order Prayed” which read as follows : -

That the Registrar of this Honourable Court be authorised to issue the notices attached hereto marked “A” to “GG” on a date fourteen days prior to the hearing of the eviction application.

That the said notices be respectively served on the Respondents and all other unknown persons occupying under or through them, the properties as described in schedule “X” annexed hereto, which properties are situated at the Ubunye Centre, 78 Pietermaritz Street, Pietermaritzburg, KwaZulu Natal, and the Municipal Manager of the Msunduzi Municipality personally, alternatively by any other means prescribed by the Uniform Rules of Court, on a date fourteen days prior to the hearing of the eviction proceedings.

That the costs incurred in respect of the first order prayed be reserved for decision in the eviction proceedings.

Further and/or alternative relief.”

Thereafter the matter served before Swain J on 10th August 2005. On that day the applicant envisaged that it would seek an order in terms of the “Second Order Prayed, reading as follows :-

“KINDLY TAKE NOTICE that application will be made on behalf of Applicant to the above Honourable Court on the 10th day of August 2005 at 09h30, or as soon thereafter as counsel for Applicant may be heard for an order in the following terms :

1. That a rule nisi do issue calling upon the Respondents and all other interested parties to show cause before this Honourable Court on the day of 2005, at 09h30 or as soon thereafter as the matter may be head, why the following order should not be made final :

(a) That the Respondents and all other unknown persons occupying under or through them be evicted from the properties described in schedule “X” annexed hereto, situated at Ubunye Centre, 78 Pietermaritz Street, Pietermaritzburg, KwaZulu Natal held by Applicant under deed of transfer no’s T33398/98 and T20794/95;

(b) That the Respondents and all other unknown persons occupying under or through them be and are hereby ordered to vacate the said properties by no later than the day of 2005;

(c) That the Sheriff of the High Court, Natal Provincial Division, carry out the eviction forthwith after expiry of the date contemplated in paragraph 1(b), in the event of the Respondents and those occupying under and through them, not having vacated the property on the said date;

(d) That the Respondents be ordered to pay the Applicant’s costs jointly and severally, such costs to include the costs in respect of the first order prayed.

2. Further and/or alternative relief.”

The attention of the learned judge however was drawn to the existence of a judgment delivered by Kruger J in the Durban and Coast Local Division in the matter of Kanescho Realtors (Pty) Ltd v Mthembeni Simon Muzi Maphumulo and Others, Case No 6725/2005 (unreported as yet).

Swain J correctly concluded that the Kanescho case substantially alters the practice in this Division which has been in existence up to now in regard to applications for evictions made under PIE. It also appeared that the said judgment apparently differed from other judgments that have been delivered in this Court and the Durban and Coast Local Division. In the result the learned judge deemed it appropriate, with the concurrence of the Judge President, to refer this application for hearing before a Full Bench.

What is manifestly clear is that whatever practice is to be laid down it must be consistent with the procedural provisions which are set forth in section 4(1) to 4(5) inclusive of PIE. The Supreme Court of Appeal in Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) SA 1222 at 1227 interpreted these provisions. Our proposed practice must be entirely consistent with that decision as well. (See also Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 at 208 where Cape Killarney was applied).

Section 4(1) speaks of “proceedings ….. for the eviction of an unlawful occupier.” It is at once clear from section 4(2) that what has to happen before the hearing of the proceedings is that “a notice of these proceedings” must be served on the unlawful occupier and the municipality. That must take place fourteen days before the hearing of those proceedings. ss (2) lays down that the notice of the proceedings must state the matters which are set forth in section 4(5)(a), (b), (c) and (d) respectively. These subsections provide that the respondent is told in the notice that proceedings for eviction are being sought, the date and time when the Court will hear the proceedings, the grounds for the proposed eviction, that the respondent is entitled to appear in Court to defend the case and if necessary he/she has the right to apply for legal aid. These requirements are peremptory.

Cape Killarney, supra.

The notice is not merely issued by the registrar and then served on the respondent. An order of Court is required directing that such service take place.

Cape Killarney, supra, at paragraph [11] H;

Unlawful Occupiers, School Site, supra, at 208.

Section 4(3) provides : -

“Subject to the provisions of ss (2), the procedure for the serving notices and filing of papers is as prescribed by the Rules of the court in question.”

It is noted that this is “subject to the provisions of ss (2)”. The phrase “subject to” means that ss (2) is the dominant subsection and ss (3) subordinate to it so that if on the face of it there is a clash between the two subsections, the provisions of ss (2) would prevail.

See Rennie v Gordon and Another NO (S) 1998 (1) SA 1 at 21 E.

In Cape Killarney, supra, Brand AJA (as he then was) at 1227 paragraph [12] held that the notice of the proceedings must be served in accordance with the Rules of the Court in question. He went on to say : -

“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.”

To sum up so far Cape Killarney held that there are two separate and distinct elements in the procedure. Firstly, there is the notice of motion which institutes the application in terms of the High Court Rules and secondly, there is the section 4(2) notice which inter alia sets forth the date when the proceedings for eviction are to take place.

It was held in Cape Killarney that the date of the hearing can only be determined after the papers on both sides have been served.

Cape Killarney at 1228 [14].

It is thus clearly envisaged that an applicant for eviction must commence these proceedings by way of application on notice of motion in terms of the Rules of Court. This notice of motion is assumed to be the one set forth in Rule 6(5)(a) read with form 2(a) of the first schedule. In accordance with Cape Killarney, supra, the applicant will seek an order for the eviction of the respondents as the main relief. The learned judge in Cape Killarney appeared to be dealing with an application where papers have been filed, in other words, where the application has been opposed. There will of course be many cases where the application is unopposed. In my opinion it is therefore necessary to make modifications to the said notice of motion by specifically drawing the respondent’s attention to the fact that if he/she does not deliver a notice of opposition within the stipulated time, the application will be set down for hearing to obtain directions in terms of section 4(2) supra. If the application is opposed and after all the affidavits have been filed, the learned judge envisaged that an ex parte application be made for the section 4(2) directions. With respect it appears that the learned judge of appeal had in mind an interlocutory application in terms of Rule 6(11). In accordance with our practice this type of application is brought on a shortened form of notice of motion. It would have to be served on the respondent (or his/her attorneys) as is the case with all interlocutory applications.

In the event that the respondent does not deliver a notice to oppose, the applicant would be entitled to set the matter down for hearing of the application for the said directions. This notice of set down need not be served on the respondent.

The procedure set forth by the learned judge of appeal in Cape Killarney is regrettably inconsistent with the existing practice in the Natal Provincial Division. As will be appear from the above-quoted documentation, an ex parte application is made for the section 4(2) direction as a first order and thereafter a second order in the form of a rule nisi is sought why the eviction order should not be made.

Clearly modifications to the practice must be made. In making these changes one must not lose sight of the fact that in terms of Rule 6(12) of the Rules of Court an applicant is entitled to bring an urgent application in the sense that the forms and service laid down in Rule 6 can in certain circumstances be dispensed with. An applicant can make out a case for the time periods laid down in the Rules for the delivery of affidavits and the like to be abbreviated. (See 8.1.3 of the Practice Rules of the Natal Provincial Division). In my opinion it is possible for an applicant in eviction proceedings as well to make out a case of urgency, for example, that the property in question is being damaged by the occupant and that there are therefore circumstances of urgency demanding his/her eviction. (This apart from the provisions of section 5 of PIE which envisages the obtaining of an urgent interim order for eviction). The bringing of an urgent application in these circumstances is in my opinion not inconsistent with section 4 of PIE and the Cape Killarney judgment, supra. At page 1229 Brand JA envisaged that a case for urgency can be made out in terms of Rule 6(12).

It is therefore possible for an applicant to launch application proceedings in terms of Rule 6(5)(a) in which case the time periods laid down in that rule will be applicable. It seems to me however that an important modification must be made to form (2)(a) of the first schedule. That is, that the respondent must be informed that in the event that he/she does not deliver a notice to oppose an application will be made on a given date for the directions in terms of section 4(2) of PIE. Those proposed directions must be annexed to the notice of motion. In my opinion this Court has the power to regulate its own procedure and that the changes proposed cater for the unusual nature of these proceedings.

In urgent applications where the applicant makes out a case for abbreviated time periods the respondent should be put on terms to deliver an opposing affidavit. He/she should be informed that in the event that such affidavits are not delivered the applicant will move on a stated date for the section 4(2) directions. Here again those proposed directions should be annexed to the notice of motion. It follows, I think, from all this that the commencing of application proceedings by way of a rule nisi is inappropriate. It must finally be emphasised, as has been done in the Practice Rules that an applicant who does not make out a proper case for urgency will have the application struck from the roll with costs.

It follows that in the instant case we must hold that the proceedings already instituted are irregular. By agreement between the parties no order for costs is made. The applicant is given leave to proceed on the same papers suitably amended in the light of this judgment and the application is remitted to the Court a quo to finally dispose of this application.

This judgment is unfortunately not a unanimous one. After considering the draft judgment prepared by me, my brother Hurt has written a judgment which I have had the privilege of reading in which he suggests a practice to be followed which differs significantly from the one I have set forth in this judgment.

It is desirable that I very briefly set forth why I differ from him. I must emphasise at the outset that this judgment is only concerned with the practice to be followed in applications under PIE in the High Court. It is not intended to deal with either actions in the High Court or in the magistrate’s court as these issues are clearly not before us.

We both recognise that the point of departure is the provisions of section 4 of PIE and the Cape Killarney judgment. It is accepted that this Court is bound by that judgment and is obliged to follow it. My brother has sought to determine what the true ratio decidendi in that case was and has concluded that the learned judge of appeal could not have intended to lay down authoritatively that the section 4(2) notice could only be served after the papers on both sides have been exchanged. Hurt J has gone on to hold that an ex parte application for the directions can be made ex parte when the “process is issued”.

The learned judge of appeal in Cape Killarney was at pains to point out and did so pertinently (at paragraphs 12 and 13) that the notice of motion precedes the issue of the section 4(2) notice. It was pointed out that in motion proceedings the date of hearing which is a vital ingredient of the section 4(2) notice can only be determined, in the case of an opposed application, after all the affidavits have been exchanged. In the instances where after service of the notice of motion the respondent does not oppose, in terms of my suggested practice, he/she is clearly apprised that applications will be made on a given date for the directions in terms of section 4(2). These proposed directions will be appended to the notice of motion. The actual date for the hearing of the eviction proceedings can only be determined at the stage when the Court gives the aforesaid directions.

With respect the proposed practice set forth by my brother is not consonant with the clearly enunciated dicta in Cape Killarney.

JAPPIE J : I agree.

DATE OF HEARING : 31 AUGUST 2005

DATE OF JUDGMENT 22 SEPTEMBER 2005

COUNSEL FOR APPLICANT MS E. BEZUIDENHOUT

INSTRUCTED BY : SMITH & WLKES INC,

PIETERMARITZBURG

COUNSEL FOR RESPONDENTS MR. L. COMBRINK

INSTRUCTED BY : CAJEE, SETSUBI, CHETTY