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REPORTABLE
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No:495/99
In the matter between:
CAPE KILLARNEY PROPERTY INVESTMENTS
(PROPRIETARY) LIMITED
Appellant
AND
FUSILE MAHAMBA AND SECOND TO
FIVE-HUNDRED
AND
FORTY-THIRD Respondents
CORAM: Vivier ADCJ, Howie
JA and Brand
AJA
_____________________________________________________________
HEARD: 28
August 2001
DELIVERED: 10 September 2001
Procedural requirements of s 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
BRAND AJA
BRAND AJA
[1] Appellant company is the owner of an immovable property known as
Doornbach Farm ("the property") situated within the municipal area
of
Blaauwberg on the outskirts of Cape Town. Although the property is zoned
"industrial" it cannot at present be used for any
such purpose since it has
become the site of an informal settlement. The settlement consists of 542
dwellings. First to 542nd respondents ("respondents") together with
their families are the occupants of these dwellings. In the Court a quo
the Blaauwberg Municipality was cited as the 543rd respondent.
No relief was however sought or granted against it and it is therefore not a
party on appeal.
[2] Appellant's case is that respondents are
occupying the property without its consent and that they are therefore "unlawful
occupiers"
as contemplated by the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 ('the Act"). Consequently
appellant
proceeded to set in motion what it claimed to be the legal machinery provided
for in s 4 of the Act for the eviction of
respondents and their families from
the property.
[3] Its first step was to seek and obtain an order ("the
original order") from Foxcroft J in the Cape of Good Hope Provincial Division
on 22 June 1999 without notice and in the absence of respondents. To the
particular terms of the order I shall presently return.
In the main, however,
it consisted, firstly, of a rule nisi directing respondents to show cause
on 28 July 1999 why an order for their eviction from the property should not be
granted and,
secondly, of directions for service of the order upon
respondents.
[4] Respondents did not directly respond to the rule
nisi. Instead, on 27 July 1999, Ms Doris Tshofuti ("Tshofuti"), an
owner of one of the dwellings on the property, but not a named respondent,
launched a substantive application on behalf of all the respondents in terms of
rule 6 (12)(c) of the Uniform Rules of Court. This
rule provides that " a
person against whom an order was granted in his absence in an urgent application
may by notice set down the
matter for reconsideration of the order".
Accordingly, the relief sought by Tshofuti on behalf of respondents was that the
original
order be reconsidered and set aside.
[5] Tshofuti explained
that although she was authorised by some of the respondents to bring the rule 6
(12)(c) application on their behalf,
she was unable to obtain such authority
from every one of the respondents. She contended, however, that she was
entitled to approach
the court also on behalf of those respondents from whom she
could not obtain specific authority by virtue of the provisions of section
38 of
the Constitution Act 108 of 1996. Neither in the Court a quo nor in
this Court was Ms Tshofuti's locus standi raised by appellant as an issue
of contention. Consequently her locus standi to act on behalf of first
to 542nd respondents must at this stage be
accepted.
[6] The matter was postponed on various occasions.
Eventually it came before Hlophe DJP. He decided that respondents' rule 6
(12)(c)
application should succeed and ordered that the rule nisi issued
under the original order be discharged with costs, including the wasted costs
occasioned by the various postponements. Although
the order by Hlophe DJP in
its strict terms refers to the discharge of the rule the obvious intention was,
in my view, to grant the
relief sought in the rule 6 (12)(c) application, namely
to set the original order aside. Appellant appeals to this Court with the
leave of the Court a quo, against its judgment which has since been
reported under the reference Cape Killarney Property Investment (Propriety)
Ltd v Mahamba and others 2000 (2) SA 67 (C)
[7] In this Court
respondents raised the preliminary point that the decision of the Court a
quo, to set the original order aside, was not appealable in that it did not
constitute "a judgment or order" as contemplated by s 20 of
the Supreme Court
Act 59 of 1959. Without deciding the point in limine I prefer to
consider the matter on the assumption of appealability.
[8] In view of
the issues raised by the appeal, a citation of the full terms of the rather
lengthy original order as well as the relevant
provisions of section 4 of the
Act seems to be unavoidable. The original order reads as follows:
"1. A rule nisi is issued calling upon the first to 542nd respondents to show cause on 28 July 1999 at 10h00, ... why an order should not be made in the following terms:
1.1 An order for the eviction of the first to 542nd respondents from the applicant's farm being Doornbach Farm, Potsdam Road, Killarney, Western Cape.
1.2 An order determining the date
by which the said respondents must vacate the said farm.
1.3 An order
determining the date on which the eviction order in Paragraph 1.1 above may be
carried out.
1.4 An order for the demolition and removal of the buildings and
structures erected by the first to 542nd respondents on the said
farm.
1.5 ...
1.6 An order that the first to the 542nd respondents pay the applicant's costs of suit.
2. The first to the 542nd respondents are hereby informed that:
2.1 Applicant's application is being instituted in terms of section 4(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998;
2.2 The application is brought on
the alleged grounds that the first to the 542nd respondents unlawfully occupy
Doornbach Farm in
that neither permission nor consent for their occupation has
allegedly been given to any one or more of them;
2.3 The first to the
542nd respondents are entitled to appear before the above Honourable
Court on 28 July 1999 at 10h00 to defend these proceedings and that
they have
the right to apply for legal aid.
3. Service be effected by delivering a copy of this order to each of the respondents in person, or failing such personal service, by delivering and leaving a copy of the said order at the structures set out in the first column of Annexure "SYR2" of the applicant's founding affidavit on or before 30 June 1999.
4. Those respondents who intend to defend
applicant's application are directed to deliver a notice of their intention to
do so by
serving a copy thereof at the offices of applicant's attorneys ... and
filing the original thereof at the office of the Registrar
of the Honourable
Court ... on or before 14 July 1999.
5. Applicant is ordered to make copies
of the notice of motion, supporting affidavits and annexures available on or
before 21 July
1999 to those Respondents who by 14 July 1999 have given notice
of their intention to defend in terms of paragraph 4
above."
[9] Section 4 of the Act, where relevant for present purposes,
provides:
"4. Eviction of unlawful occupiers.- "(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) The notice of proceedings contemplated in subsection (2) must
(a) state that proceedings are being instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier;
(b) indicate on what date and at what time the court will hear the proceedings;
(c) set out the grounds for the proposed eviction; and
(d) 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."
[10] Appellant's justification of the original order is
largely based on its interpretation of section 4. Before I deal with the
interpretation
contended for by appellant, however, let me state my own
understanding of the section.
[11] Section 4(1) makes it clear that
the provisions of the sub-section that follow are peremptory. It also defines
the "proceedings"
to which the section applies, namely proceedings for the
eviction of an unlawful occupier. Section 4(2) requires notice of such
proceedings to be effected on the unlawful occupier and the municipality having
jurisdiction, at least 14 days before the hearing
of those proceedings.
Section 4(2) further provides that this notice must be effective notice; that it
must contain the information
stipulated in ss (5) and that it must be served by
the court. The term, "court" is defined in section 1 of the Act as the "High
Court or the magistrates' court". Although s 4(2) could have been more clearly
worded, it is obvious in my view that the legislature
did not intend physical
service of the notice by the court in the person of a judge or magistrate. On
the other hand, mere issue
of the notice by the registrar or clerk of the court
would not suffice. What is intended, I believe, is that the contents and the
manner of service of the notice contemplated in ss (2) must be authorised and
directed by an order of the court concerned.
[13] Section 4(3)
provides that notice of the proceedings must be served in accordance with the
rules of the court in question. 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. Any other construction
will render the
requirements of section 4(3) meaningless.
[14] The fact that the s
4(2) notice is intended as an additional notice of forthcoming eviction
proceedings under the Act is also borne
out by s 4(4). The latter subsection
provides for the possibility of substituted service where the court can be
satisfied that
for reasons of convenience or expedience, the notice of motion
cannot be serviced in the manner prescribed by rule 4. However,
even in this
event, s 4(2) must still be complied with since s 4(4) is expressly made subject
to the provisions of ss 4(2).
[15] Section 4(5)(b) requires the s 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 only be determined after all the papers on both sides have been
served. It follows, in my view, that it is only at that stage that the s 4(2)
notice can be authorised and directed by the court.
From the judgment of the
learned Judge a quo (76 I-J) it appears that according to his
understanding of s 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
.
[16] Section 4 does
not indicate how the court's directions regarding the s 4 (2) notice is 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.
[17] 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 s 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.
[18] It follows that in the light of the
peremptory procedural requirements of s 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.
[19] In the opinion of the Court
a quo (at 77 C-F) there was another reason why the original order could
not stand, namely that paragraphs 3, 4 and 5 thereof authorised
a further
deviation from the provision of s 4. I find myself in agreement with this
consideration as well.
[20] Applicant did not contend that its case
was one of urgency. It could hardly do so in view of the fact that some of the
respondents
had been living on the property for up to 18 years. It therefore
did not rely on the provisions of s 5 of the Act nor did it make
out a case of
urgency under court rule 6(12). Nevertheless it sought and obtained an order
to deviate, for example, from rule 6(5)
in that respondents were required first
to give notice of their intention to oppose before they were to be provided with
applicant's
notice of motion and the annexures thereto. Moreover, according to
the timetable set by the original order, respondents were obliged
to file their
answering papers within six calendar days of their receipt of appellant's
papers, as opposed to the aggregate of twenty
court days required by rule
6.
[21] In this Court appellant's argument in defence of paragraphs 3,
4 and 5 of the original order was that on a proper interpretation of
s 4 of the
Act, the notice contemplated by s 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 s 4(3) and s 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 s 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 s 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.
[22] It follows that in my view the
original order was rightly set aside. In these circumstances it is not
necessary to deal with the
further reasons for its decision advanced by the
Court a quo.
[23] This brings me to appellant's final
objection on appeal, namely, that the Court a quo erred in ordering
appellant to pay the wasted costs occasioned by all the postponements of the
matter, including three postponements
requested by respondents. I do not
believe, however, that the costs order made was unreasonable. Respondents did
not really seek
an indulgence when they requested postponements on those three
occasions. What they were in effect seeking was an adequate opportunity
to
consider their position regarding the eviction application, which opportunity
they had effectively been denied by the terms and
time constraints of the
original order.
[23] For these reasons the appeal is dismissed with
costs.
FDJ BRAND
ACTING JUDGE OF APPEAL
CONCURRED:
Vivier ADCJ
Howie JA
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