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[2013] ZAECGHC 74
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Adriaan v Peters and Others (1962/2013) [2013] ZAECGHC 74 (31 July 2013)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – GRAHAMSTOWN)
CASE NO: 1962/2013
In the matter between:
LINDA MERELYN ADRIAAN .......................................................................APPLICANT
and
GREGORY PETERS ....................................................................FIRST RESPONDENT
CATHERINE PETERS .............................................................SECOND RESPONDENT
LAYLA PETERS ..........................................................................THIRD RESPONDENT
MAKANA MUNICIPALITY .......................................................FOURTH RESPONDENT
DIRECTION
PLASKET, J:
[1] The application in this matter that has been brought by way of the Chamber Book is one in terms of s 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) which provides that at least 14 days before the hearing of an application for eviction ‘the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction’. In the Chamber Book application, the applicant applies for an order directing that a notice in terms of s 4(2) of PIE (which is attached to the notice of motion) be served in terms of the rules by the sheriff.
[2] I directed a query to the applicant’s attorneys in which I asked:
‘On what basis is this matter brought as a Chamber Book application? Should it not be heard in open court?’
The applicant’s attorney made certain representations to me and I have now determined the issues set out in the query.
[3] In terms of rule 17 of the rules of practice of this court, the Chamber Book may be used in five different situations. Rule 17(d) is the only sub-rule that may be relevant. It states that the Chamber Book may be used for ‘matters in which an order, judgment or direction is sought from a judge which may be granted otherwise than in open court as provided for in the Uniform Rules of Court’.
[4] Section 16 of the Supreme Court Act 59 of 1959 states that save where is otherwise provided ‘all proceedings in any court of a division shall . . . be carried on in open court’. Rule 1 of the uniform rules defines the word judge to mean ‘a judge sitting otherwise than in open court’.
[5] According to Farlam, Fichardt and Van Loggerenberg Erasmus: Superior Court Practice (Vol 1) at B1-10 the following rules refer to a judge sitting otherwise than in open court: rules 3, 6(12)(a), 31(1), 34(7), 35(1) and (2), 36(3), (5) and (7), 39(22) and (23), 40(5), 46(14), 48(1), (2) and (3) and 64.
[6] I do not intend setting out what each rule deals with. Suffice it to say that none of them contemplate an application such as the present one being dealt with otherwise than in open court.
[7] Whether it is convenient or not to bring s 4(2) applications by way of the Chamber Book is neither here nor there: on the strength of what I have set out above, a judge sitting in chambers simply does not have jurisdiction to entertain it.
[8] The application must, accordingly, be set down to be dealt with in open court.
_____________
C. PLASKET
JUDGE OF THE HIGH COURT
31/7/13