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Last Updated: 8 June 2005
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO: 54/04
In the matter between :
SAM KADISH
MOELA Appellant
and
TICHAONA ABEL
SHONIWE Respondent
_____________________________________________________________________________
Before: STREICHER, NAVSA, CONRADIE, CLOETE JJA & MAYA AJA
Heard: 18 MARCH 2005
Delivered: 31 MARCH 2005
Summary: Act 19 of 1998 (PIE) – appeal against summary judgment evicting unlawful occupier – no compliance with the provisions of s 4(2) – object of s 4(2) not achieved – summary judgment set aside
_____________________________________________________________________________
J U D G M E N T
____________________________________________________________________________
STREICHER JA
STREICHER JA:
[1] The appellant appeals against an
order granted by the Johannesburg High Court (‘the court a
quo’) at the suit of the respondent, evicting him from a residential
property.
[2] The respondent as the plaintiff instituted action against the
appellant as the defendant. In his particulars of claim the respondent
alleges
that he is the owner of Erf 105 Elspark (‘the property’); that the
appellant is in occupation of the property;
that such occupation is without his
consent and thus unlawful; and that he is unable to sell the property
(presumably as a result
of the appellant’s unlawful occupation thereof).
When the appellant entered appearance to defend the respondent applied for
summary judgment. The notice of application for summary judgment reads inter
alia as follows:
‘FURTHER TAKE NOTICE THAT:-
1. This notice is being served upon both the Defendant and the municipality having jurisdiction 14 (fourteen) days prior to the hearing of the proceedings as contemplated by the provisions of Section 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
2. These proceedings are being instituted for an order for the eviction of the Defendant.
3. The Plaintiff will seek that the above Honourable Court hear this application on the date and time reflected above.
4. That the grounds for the proposed eviction of the Defendant are those set out in the summons.’
[3] In his affidavit resisting summary
judgment the appellant denies that the respondent is the owner of the property
but admits that
he and his family are in occupation thereof. He states that his
wife, his three minor children, his 75 year old mother, his 23 year
old daughter
and her six month old baby reside with him on the property. According to him he
and his family have no other ‘suitable’
alternative accommodation
and ‘the rights and needs of [his] elderly mother and the minor children
residing in [his] home would
be unduly affected by an order of eviction’.
No particularity is furnished. These protestations of the appellant sound
somewhat
hollow in the light of a statement by him that he is willing to pay
rental for his occupation of the property and also to purchase
the
property.
[4] The appellant raised the following additional
defence:
‘I state that the Plaintiff/Applicant’s failure to
comply with Section 4(2) of the Prevention of Illegal Eviction from
an Unlawful
Occupation of Land Act, in that the Plaintiff/Applicant has failed to ensure
that the court served written and effective
notice of the proceedings on the
Unlawful Occupier and the Municipality at least fourteen days before the sale,
precludes the Applicant
from securing the relief prayed for.’
[5] The
court a quo held that the latter submission was without foundation as
there was proof of service on both the appellant and the municipality.
It did,
however, find that the appellant had failed to disclose a bona fide
defence, and it accordingly granted summary judgment.
[6] It is common cause
between the parties that the provisions of The Prevention of Illegal Eviction
from and Unlawful Occupation
of Land Act 19 of 1998 (‘PIE’) are
applicable. Section 4 of PIE provides as follows:
‘4 (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.’
[7] This court held in Cape Killarney Property Investments
(Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA) that these provisions are
peremptory (paras 11 and 17). In respect of the notice required by s 4(2)
it
held that it must be effective notice; that it must contain the information
stipulated in ss (5); and that it must be served
‘by the
court’. The latter requirement it interpreted to mean that the contents
and the manner of service of the notice
must be authorized and directed by an
order of the court (para 11).
[8] In the as yet unreported judgment of this
court in The Unlawful Occupiers of the School Site v The City of
Johannesburg (case no 36/2006), referring to the fact that the requirements
of s 4(2) were peremptory, Brand JA said (para
22):
‘Nevertheless, it is clear from the authorities that even where
the formalities required by statute are peremptory it is not
every deviation
from the literal prescription that is fatal. Even in that event, the question
remains whether, in spite of the defects,
the object of the statutory provision
had been achieved (see eg Nkisimane and others v Santam Insurance Co Ltd
1978 (2) SA 430 (A) 433H-434B; Weenen Transitional Local Council v Van
Dyk 2002 (4) SA 653 (SCA) para 13).’
[9] Here the contents and
manner of service of the notice had not been authorized and directed by an order
of court. However, the
object of s 4(2) is clearly to ensure that the
unlawful occupier and municipality are fully aware of the proceedings and that
the unlawful occupier is aware of his rights referred to in s 4(5)(d). It
may well be that that object, in appropriate circumstances,
may be achieved
notwithstanding the fact that service of the notice required by s 4(2) had
not been authorized by the court.
That may for example be the case if at the
hearing it is clear that written and effective notice of the proceedings
containing the
information required in terms of s 4(5) had in fact been
served on the unlawful occupier and municipality, 14 days before the
hearing.
Whether it would, need not be decided by us as there is no basis upon which it
can be found that the municipality had been
notified of the proceedings at all
or that the municipality had any knowledge of the proceedings.
[10] The
respondent’s summons containing his particulars of claim had not been
served on the municipality. The notice of application
for summary judgment was
addressed to the registrar of the court a quo, to the appellant’s
attorneys and to ‘THE GERMISTON MUNICIPALITY HAVING JURISDICTION’
next to which someone indicated by a signature that he had received a copy
of the document. It is not known who the person is, what
his relationship with
the municipality is, where he received a copy of the document and whether he had
authority to receive documents
on behalf of the Germiston Municipality. The
court a quo therefore erred in finding that there was proof of service on
the municipality.
[10] There has been no compliance whatsoever with the
provisions of s 4(2) in so far as the municipality is concerned; it is
not
known whether the municipality had any knowledge of the proceedings; and there
can, therefore, be no question of the object of
the section, in so far as it
requires service of the notice on a municipality, having been achieved. It
follows that the court a quo should have dismissed the application for
summary judgment.
[11] In the circumstances it is not necessary to deal with
the other defences raised by the appellant. The following order is made:
1 The appeal is upheld with costs. 2 The order by the court a quo is set aside and replaced with the following order:
‘1 The application for summary judgment is dismissed.
2 The costs of the application for summary judgment will be costs in the
cause.’
____________________
P E STREICHER
JUDGE OF APPEAL
NAVSA JA)
CONRADIE JA)
CLOETE JA) CONCUR
MAYA AJA)
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.RTF of original document