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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 461/09

In the matter between:

MOGAMAT FARIED HENDRICKS …...................................First Appellant
MOGAMAT FARIED HENDRICKS

(in his capacity as guardian of minor children) Second Appellant
And

ISMAIL STOUTZ …..................................................................Respondent

JUDGMENT DELIVERED THIS 15^th DAY OF FEBRUARY 2011 Introduction:

[1] This is an appeal against the judgment of the Mitchell's Plain magistrate's court made on 9 April 2009.

The Facts:

[2] The Respondent is owner of the immovable property known as erf 5996, Mitchell's Plain, situated at 27 Eloff Street, Portlands Mitchell's Plain. According to the transfer document, transfer of the property to the Respondent was effected on 8 July 2007.

[3] The Respondent entered into a verbal lease agreement with the First Appellant and it was agreed that in order for the First Appellant to reside in the property, he would pay occupational rent in the amount of R1 200 (one thousand two hundred Rand), which was equal to the bond payment due to ABSA bank.

[4] When the First Appellant failed to make payments after being advised to do so, the Respondent cancelled the agreement.

[5] On 30 January 2009, the Respondent brought an ex parte application to effect service of a notice of application in terms of section 4(2) of the PIE Act (the Prevention of Illegal Eviction from and Occupation of Land Act, 19 of 1998) to evict the appellants, submitting that the lease agreement had been cancelled and that the Appellants were in unlawful occupation of the property in terms of PIE.

[6] It is important to note that although there were minor children involved, there was no reference to the minor children in the said notice and consequently no service on them, nor was the notice served on the municipality.

[7] The notice of Appellant stated inter alia:

"2.3 The Respondent's attention is drawn to the following to which they are entitled;

2.3.1. To appear before this honourable court on 25 February 2009 at 9h00 and to oppose and defend the application;

2.3.2. To bring to the honourable court's attention during the hearing of this application all the relevant circumstances which would indicate that the granting of the eviction order would be unjust and inequitable;

2.3.3. To apply for legal aid at the Legal Aid Board Athlone, Justice Centre, Second Floor. Melofin Centre, Old Klipfontein Road, Athlone.

3. That Respondents give notice at least 5 days prior to the hearing date indicted on the Notice of Motion of their intention to oppose the application and that a copy of such written notice be served on the Applicant's attorney at the address as indicated hereunder and file the original with the clerk of the court."

[8] It is common cause that the Appellants did not file any affidavit. When they appeared before the magistrate on 18 March 2009, the First Appellant indicated that he wanted Legal Aid and the matter was postponed until 9 April 2009. On 9 April 2009, they appeared. The Appellant indicated as follows:

“I have not been able to get Legal Aid."

[9] The magistrate noted that First Appellant disputed the manner of administration of the estate, found that no defence to the application had been made out and granted the application.

[10] On appeal, various issues were raised, including the lack of service to the municipality. It is common cause that no notice was not served on the municipality. The issue therefore is whether non service of the application on the municipality renders the application defective

[11] In Moela v Shoniwe 2005(4) SA 357 (SCA), Streicher J willing for a unanimous court relied on Cape KiHamey Property investments (Pty) Ltd v Mahamba 2001(4) 1222 (SCA) finding that the provisions of section 4 of the PIE Act are peremptory, and that:". . . in respect of the notice required by section 4(2). . . it must be effective notice ..."

[12] The court acknowledged that deviation from the peremptory formalities may not be fatal provided that the object of the statutory provisions had been achieved.

[13] In Moela's case however, the only evidence of service of the municipality as contemplated in section 4(2) of the PIE Act was a signature next to the words, "the Germiston Municipality having jurisdiction", on the respondents notice of application for summary judgment.

[14] The court found that the court a quo had erred in finding that there had been proof of service on the municipality, and stated the following in paragraph [11]:

"There has been no compliance whatsoever with the provision of section 4(2) insofar 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, insofar 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."

[15] The Respondent, on the other hand, relies on the case of Ndlovu v Ngcobo; Bekker and Another v Ma 2003 (1) SA 113 (SCA).

[16] The passages from Ndlovu's case referred to by the Respondent, emanate from the minority judgment of Olivier JA in support of his conclusion that the provisions of the PIE Act have application only in the case of so called "squatters", and not rented/leased premises.

[17] The applicability of the provisions of the PIE Act to tenanted premises is now well established following the decision of the majority in Ndlovu's case.

[18] The Supreme Court of Appeal held as follows in the case of Theart v Deon Minaar NO and Senekat v Winskor 174 (Pty) Ltd 2010 (3) SA 327 (SCA) [2010]2 All SA 275 (SCA):

"In the magistrates' court two notices contained in two separate documents are not required. One document will suffice as long as (my underlining):

(1) the content of the document and the manner of service is approved by the magistrate's court having jurisdiction, as envisaged by s 4(2) of PIE, pursuant to a preceding ex parte application.

(2) the contents of the document comply with the provisions ofs 4(5) of PIE, with rule 55 of the magistrates' court rules and the court order under (1).

(3) the document is served on the respondent and the municipality concerned in accordance with s 4(2) of PIE, the magistrates' courts rules pertaining to service and the court order under (1)."

[19] In accordance with binding authority from the SCA, service on the municipality concerned is peremptory, and an absolute failure to give notice to a municipality is fatal to the application.

[20] Furthermore, it is clear from the notice of motion in the ex parte application, that the directions for service issued by the Magistrates Court for the District of Mitchell's Plain included the direction that a copy of the order "be served on the relevant municipality".

[21] It is common cause that no such notice was given to the municipality. Accordingly the Respondent failed to comply with the peremptory requirements of section 4(2) of PIE Act, and furthermore failed to comply with the directions of the court obtained in terms of section 4(2) of PIE.

[22] The following two issues were also raised in the course of this appeal: a) whether the First Appellant had been appraised of his right to legal representation, and the procedures available to give effect to that right; and

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