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

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

The Full Bench held that the existing practice in the Natal Provincial Division for PIE eviction applications is inconsistent with the Supreme Court of Appeal's binding interpretation in Cape Killarney. The correct procedure requires that eviction proceedings be commenced by notice of motion in terms of Rule 6, with the section 4(2) PIE notice served only after all affidavits have been exchanged and the date of hearing determined. The practice of seeking a rule nisi or ex parte directions before exchange of affidavits is irregular. Modifications to local practice are necessary to ensure compliance with PIE and appellate authority. Applicants must inform respondents that, if no notice to...

Citation
[2005] ZAKZHC 13
Parties
Applicant: Ubunye Co-operative Housing (Association incorporated under Section 21); Respondent: Joyce N. Mbele; Respondent: Ntombovuyo P. Jiya; Respondent: Busisiwe A. Nzama; Respondent: Princess Shabane; Respondent: Veronica Buthelezi; Respondent: Thembani Phakathi; Respondent: Sbonjoseni I. Ngubane; Respondent: Nelson Dawethi; Respondent: Nompumelelo Mfeka; Respondent: Tsepiso Lerara; Respondent: Margaret T. Sengwayo; Respondent: Cynthia T. Kunene; Respondent: Thankdzani K. Chamane; Respondent: Winnie Mkhize; Respondent: Thembinkosi Zondi; Respondent: Bongekile Makhanya; Respondent: Bonephi Nxumalo; Respondent: Isaac Dawethi; Respondent: Sibabini Tutshana; Respondent: Phindile Khanyile; Respondent: Derrick Hlela; Respondent: Thootshe Mojakisane; Respondent: Mlamuli Tshika; Respondent: Ntokozo Nsele; Respondent: Nasinothi Damane; Respondent: Rev Patrick Ngubane; Respondent: Phumele Ndlovu; Respondent: Phumza Mlisa; Respondent: Lucky Ndlovu; Respondent: Fikelephi E. Sithole; Respondent: Zanele Nzimande; Respondent: Skhumbuzo Khumalo
Court
High Courts - Kwazulu Natal
Jurisdiction
South Africa
Judgment Date
22 September 2005
Case Number
3754/2005
Procedural Posture
Eviction Application / Full Bench Review of Procedural Regularity Under PIE
Outcome
The application as instituted was declared irregular. No order as to costs was made by agreement. The applicant was granted leave to proceed on the same papers, suitably amended, and the application was remitted to the court a quo for final disposal.
Judges
Levinsohn, Hurt, Jappie
Legal Topics
Prevention of Illegal Eviction Act, Eviction Procedure, Notice of Motion Requirements, Urgent Application, Court Practice Modification
Land and Property Civil Procedure Prevention of Illegal Eviction Act Eviction Procedure Notice of Motion Requirements Urgent Application Court Practice Modification

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Parties

Ubunye Co-operative Housing (Association incorporated under Section 21)

Applicant

Joyce N. Mbele

Respondent

Ntombovuyo P. Jiya

Respondent

Busisiwe A. Nzama

Respondent

Princess Shabane

Respondent

Veronica Buthelezi

Respondent

Thembani Phakathi

Respondent

Sbonjoseni I. Ngubane

Respondent

Nelson Dawethi

Respondent

Nompumelelo Mfeka

Respondent

Tsepiso Lerara

Respondent

Margaret T. Sengwayo

Respondent

Cynthia T. Kunene

Respondent

Thankdzani K. Chamane

Respondent

Winnie Mkhize

Respondent

Thembinkosi Zondi

Respondent

Bongekile Makhanya

Respondent

Bonephi Nxumalo

Respondent

Isaac Dawethi

Respondent

Sibabini Tutshana

Respondent

Phindile Khanyile

Respondent

Derrick Hlela

Respondent

Thootshe Mojakisane

Respondent

Mlamuli Tshika

Respondent

Ntokozo Nsele

Respondent

Nasinothi Damane

Respondent

Rev Patrick Ngubane

Respondent

Phumele Ndlovu

Respondent

Phumza Mlisa

Respondent

Lucky Ndlovu

Respondent

Fikelephi E. Sithole

Respondent

Zanele Nzimande

Respondent

Skhumbuzo Khumalo

Respondent

Procedural Posture

Eviction Application / Full Bench Review of Procedural Regularity Under PIE

Legal Issues

  1. 1 Whether the eviction proceedings instituted by the applicant comply with the procedural requirements of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).
  2. 2 Whether the practice in the Natal Provincial Division regarding PIE applications is consistent with the Supreme Court of Appeal's interpretation in Cape Killarney Property Investments (Pty) Ltd v Mahamba.
  3. 3 Whether an ex parte application for section 4(2) directions is permissible before exchange of affidavits.

Ratio Decidendi

The Full Bench held that the existing practice in the Natal Provincial Division for PIE eviction applications is inconsistent with the Supreme Court of Appeal's binding interpretation in Cape Killarney. The correct procedure requires that eviction proceedings be commenced by notice of motion in terms of Rule 6, with the section 4(2) PIE notice served only after all affidavits have been exchanged and the date of hearing determined. The practice of seeking a rule nisi or ex parte directions before exchange of affidavits is irregular. Modifications to local practice are necessary to ensure compliance with PIE and appellate authority. Applicants must inform respondents that, if no notice to...

Court Disposition

The application as instituted was declared irregular. No order as to costs was made by agreement. The applicant was granted leave to proceed on the same papers, suitably amended, and the application was remitted to the court a quo for final disposal.

Orders

  • The proceedings as instituted are declared irregular.
  • No order as to costs is made.