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Pretororius v Willet and Others (A3017/08) [2008] ZAGPHC 282 (20 August 2008)

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DATE: 2008-08-20

In the matter between









The respondents sought and obtained an eviction order against the appellant in the Alberton Magistrate's Court. That order is now on appeal.

The respondents have not filed heads of argument and are not represented this morning. There is appearance on behalf of the appellants.

In the Court file is facsimile proof that on 26 May 2008 the Registrar of this Court faxed to the respondents' then attorneys of record, Leon Swanepoel, a notice informing of the date for the appeal, namely 20 August 2008. The appellant’s attorney of record has furnished us with a Notice of Withdrawal as attorneys of record served upon the appellant’s attorneys on 18 June 2008, which notice is dated 13 June 2008, and in terms of that notice Attorney Leon Swanepoel purports to withdraw as the attorney of record of the respondents in the matter. He states that the plaintiffs; the respondents' in this appeal, last known address, is not known to him. From this it is clear to me that the respondents; prior to their attorney withdrawing, has received notice of the hearing of this appeal.

In view of the fact that the appellant is seeking an order in this matter it seems to me that in the circumstances it is appropriate for the Court to deal with the appeal on its merits.

The appeal record reflects that the proceedings commenced by way of summons, then followed a notice of intention to defend; an application for summary judgment with supporting founding affidavits and a supporting affidavit to the application for summary judgment, an opposing affidavit and a replying affidavit. To say the least, this procedure is extraordinary. Summary judgment and eviction under PIE have been combined into one and the same application.

The matter is clearly one that falls within the ambit of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998. This much has been conceded during the summary judgment hearing. See also in this regard the definition of "owner", "occupier", "building or structure" in section 1 and section 4(1) of the PIE Act.

Section 4(2) of the PIE Act reads:

"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."

It has been held that this section requires that a separate application be made to court for the authorisation of a notice in terms of section 4, and that such notice be served on the occupier and the relevant local authority once it has been authorised by the court. See in this regard Cape Killarney Property Investments v Mahamba [2001] 4 All SA 479A; and Kanescho Realtors (Pty) Ltd v Maphumulo [2005] 4 All SA 543 (D).

This was not done in this matter. The section 4 notice was not authorised by the court; it was not a separate and indistinct notice from the summary judgment notice; it did not contain what section 4(5) requires it to contain, - the grounds for the proposed eviction -; and it has not been served in terms of the rules and not served together with a court order authorising the notice.

The tale of woe in this matter continues. The summons does not make out cause of action and is contradicting the summary judgment application. The respondent pleaded a rei vindicatio, that he is the owner of the property and that the applicant is in unlawful occupation thereof. The respondent then alleges that it is not a matter that is affected by the provisions of the PIE Act. As it clearly is, and this allegation is wrong, the respondent has failed to make the necessary allegations in the summons. The respondent also failed to refer in the summons to the appellant's rights in terms of section 26 of the Constitution as it is required to do in terms of Standard Bank of South Africa Ltd v Snyders 2005 (5) SA 610 (C), read with Jaftha v Schoeman [2004] ZACC 25; 2005 (2) SA 140 (CC).

However in the summary judgment application, which is combined with a section 4 of the PIE Act notification, the respondents’ attempt to comply with the PIE Act in two founding affidavits. This attempted compliance is in direct conflict with the cause of action made out in the summons and confirmed in the affidavit in support of the summary judgment application.

In addition, the summons is issued against "the occupier". That is not an entity in law. In the summary judgment application, out of the blue, without a Rule 7 amendment in terms of the Magistrate's Court Rules, the defendant to the summary judgment is cited as ABF Pretorius. No citation is ever given in the papers. This reference to ABF Pretorius apparently comes from the notice of intention to defend in which the appellant included that name as the defendant. Hence there was no compliance with Rule 5(1) of the Magistrate's Court Rules. See also Kayamandi Town Committee v Mkwaso, 1991 (2) SA 630 (C).

The results of a Deeds Office search in respect of the relevant property reveals that both Andries Barend Frederik Pretorius and Janie Jeanette Pretorius were the former owners of this property. This is clearly where they derive their original occupation from. Hence it appears that JJ Pretorius is a direct and necessary party to the proceedings and the respondents’ action suffers due to a non-joinder.

The founding affidavits referred to are by both respondents. This is a procedure completely foreign to applications for summary judgment and quite contrary to rule 14 of the Magistrate's Court Rules. A further example of this breach of procedure which the Magistrate's Court has no power to condone was the filing of a replying affidavit by the respondents in the summary judgment application.

In the matter of Trust Bank of Africa Limited v Hansa 1988 (4) SA 102 (W), the following is said in the headnote of the matter:

"The verifying affidavit in an application for summary judgment in terms of Rule 32 of the Uniform Rules of Court must verify the cause of action and no more. Additional evidential material may not be verified. It is not within the province of (the parties') contractual arrangements to alter the intentions of and the limits laid down in Rule 32. If Rule 32 does not permit evidence to prove liability or to prove that someone has determined liability, the parties cannot by contract create different procedural rights. They have no contract with the Rule- maker or the Court.

The Court accordingly held that the plaintiff was not entitled to attach to his application for summary judgment in an action based on an acknowledgement of debt a certificate, provided for in the acknowledgement of debt, certifying the amount due in terms of the acknowledgement of debt."

Although this matter is authority in respect of Rule 32 of the High Court Rules there is no difference in its principle and application to the Rule 14 of the Magistrate's Court Rules. Hence the founding and replying affidavits by the respondents could not be relied upon or taken note of. Therefore all that was before the court was a defective summons with a defective cause of action and the respondents were not entitled to any judgment or order on the strength of that.

In these respects therefore, the magistrate erred. In my view the appeal should be upheld with costs and the order granting summary judgment should be set aside and replaced with an order that summary judgment is refused with costs.


SNYDERS J: It is so ordered.